The role of the administrator in the corporate rescue process in Australia and Germany

T a b l e o f C o n t e n t s

I Introduction
A Corporate rescue
B Comparative approach

II Australia
A Voluntary administration
B Appointment
1 Appointer
(a) Appointment by company
(b) Appointment by liquidator or provisional liquidator
(c) Appointment by “substantial” chargee
2 Qualifications
C Independence
1 Disqualification of persons
(a) General rule
(b) Appointment by liquidator
(c) Appointment by chargeholder
2 Declarations by administrator
3 Prohibition of financial inducements
D Power
1 Control over company’s business, property and affairs
2 Power to gather information
3 Casting vote
E Duties
1 Notice of appointment
2 Investigations according to Corporations Act 2001 (Cth) s 438A
3 Report by administrator according to Corporations Act 2001 (Cth) s 438D
4 Convening the first meeting of company’s creditors
5 Administrator’s report to the creditors according to Corporations Act 2001 (Cth) s 439A (4) (a)
6 Duties according to the second meeting of company’s creditors
7 General duties
(a) Duties as an “officer” of the company
(b) Duties as a “fiduciary” of the company
F Liability
G Indemnity
1 Right of indemnity
2 Protection of the right of indemnity
H Supervision of the administrator
I Removal from office
1 Removal by the first meeting of company’s creditors
2 Removal by court
J Role of the Australian administrator

III Germany
A Corporate rescue in the German insolvency regime
B Appointment
1 Appointment by court
2 Qualifications
C Independence
D Power
1 Right to manage and transfer debtor’s assets
2 Power to enforce dereliction of assets
3 Power to gather information
4 Participation at the meetings of creditors
E Duties
1 Duty to take possession of the assets
2 Duty to provisional management of the insolvent company
3 Notification of lacking assets according to Insolvency Statute 1994 s 208 (1)
4 Reports according to Insolvency Statute 1994 ss 151, 152, 153
5 Report according to Insolvency Statute 1994 s 156 (1)
6 Preparation of the insolvency plan
F Liability
G Supervision of the administrator
H Removal from office
1 Removal by the first meeting of company’s creditors
2 Removal by the insolvency court
I Role of the German insolvency administrator

IV Critical Review of the Role of the Administrator
A Appointment
1 Appointer
2 Qualifications
B Independence
C Power
1 Executing power
2 Investigation power
3 Casting vote
D Duties
E Liability and indemnity
F Supervision
G Removal from office

V Conclusion

I Introduction

The essay will critically analyse the role of the administrator in the corporate rescue process in Australia and Germany from a comparative point of view.^[1]

A Corporate rescue

Generally speaking, the corporate rescue process and the liquidation procedure form the two basic columns of a modern insolvency regime.^[2] Whereas the Australian legislator expressly implemented these two procedures the German legislator codified a uniform insolvency process.

An effective corporate rescue procedure is a cornerstone of a prospering economy. Economical value is closely connected to the risk of economic loss. Therefore, economic growth will only be sustainable if investments are supported by safeguards donated by effective insolvency regimes not only focussing on a fast liquidation but also on the reorganisation or rescue of a company. Only the careful balance of creditors’ rights and the entrepreneurial spirit of the debtors ensure attractiveness for investments.^[3]

B Comparative approach

This essay is focussed on the administrator as point of comparison because his role in the process significantly reflects the principles of the underlying corporate rescue regime. In both countries Australia and Germany the administrator is a relatively influential organ. The essay will show that the role of the German administrator is much more influenced by the court than in Australia.

The essay’s goal is to examine selected issues concerning the Australian and German administrator. After presenting the different roles in the Australian and German corporate rescue process the essay will critically review the role of the administrator in both regimes in order to examine the effectiveness of the process from a comparative point of view.

II Australia

The insolvency regime in Australia is divided into two proceedings – a corporate rescue process represented inter alia by the voluntary administration^[4] and the litigation or the winding up of the company. This essay will examine the role of the administrator in Part 5.3A Corporations Act 2001 (Cth) as a part of the Australian corporate rescue procedure.

A Voluntary administration

The objectives of the voluntary administration are to create better chances for the company and its business to survive^[5] or subsidiarily to reach a better outcome in value for the company’s creditors as it would be achieved if the company would go strait into liquidation.^[6]

According to Corporations Act 2001 (Cth) s 435C (1) the voluntary administration process starts with the appointment of the administrator and ends with the decision of the creditors in the second meeting of creditors to end the administration^[7], to execute a deed of company arrangement (DCA)^[8] or to have a winding up of the company^[9].

In exceptional cases the court can order the end of an administration. An important case is for example the opportunity of the court to end the administration because the court has the opinion that the company is not insolvent.^[10]

B Appointment

One of the most important steps not only for the administrator himself, but also for the whole corporate rescue procedure is the appointment of the administrator.

1 Appointer

An administrator can be appointed by the company itself, by a liquidator or a provisional liquidator of the company or by a “substantial” chargee having a charge over the whole or substantially the whole of the assets of the company. An already existing administration excludes the appointment of an administrator.^[11] The appointment of two or more administrators is possible.^[12]

(a) Appointment by company

Generally, the administrator is appointed by the company itself, which means that he is appointed by the company’s directors.^[13] This is when to the minds of the directors the company is insolvent or in the future is likely to become insolvent and the appointment of an administrator is necessary.^[14] The appointment has to be in writing^[15] and is not allowed while a liquidator or provisional liquidator is appointed.^[16] An appointment by the directors is also possible in the timeframe after filing an application for winding up to the court until the winding up of the company itself.^[17]

(b) Appointment by liquidator or provisional liquidator

A liquidator or provisional liquidator of the company can also appoint an administrator.^[18] The appointment has to be in writing and in the liquidator’s or provisional liquidator’s opinion the company is insolvent or is likely to become insolvent in the future.^[19]

(c) Appointment by “substantial” chargee

Not every chargee has the opportunity to appoint an administrator. Only a “substantial” chargeholder, being entitled to hold a “charge on the whole, or substantially the whole, of a company’s property” is able to appoint an administrator.^[20] Only if the charge of the designated appointer is still enforceable, a “substantial” chargeholder can appointment an administrator, but only in written form.^[21]

2 Qualifications

The administrator to become appointed has to give his written consent concerning the appointment.^[22] But only registered liquidators are allowed to give their consent to the notified appointment.^[23] Insolvent persons being under administration are excluded from being appointed as an administrator.^[24] Normally accountants in public practice dominate the group of qualified liquidators.^[25] But it is not necessary to be a registered “official” liquidator^[26] in order to become an administrator in the corporate rescue process.

C Independence

There are several provisions in the Australian voluntary administration process focussing on the independence of the administrator. Those are provisions concerning the disqualification of specific persons on the appointment level,^[27] followed by the duty of the appointed administrator to declare particular relationships to the company and finally the prohibition of financial inducements.^[28] Additionally Australian accounting bodies issue statements giving guidance for the professionals concerning independence.^[29]

1 Disqualification of persons

The Australian legislator excludes particular persons fulfilling the general precondition of being a registered liquidator from the administration process because of their close connections to the company, its stakeholders or its business.

(a) General rule

A person is disqualified to become an administrator, when he is in close contact to the company or its stakeholders as far as he has no express permission by a court.^[30] That may be for example a person is indebted in an amount exceeding $ 5.000 to the company^[31] or the person is a director of the company.^[32]

(b) Appointment by liquidator

If the person appointing an administrator is a liquidator the liquidator is basically not allowed to declare himself as administrator.^[33] An exception is made where the meeting of company’s creditors approves the appointment by resolution^[34] or the former liquidator can rely on a leave of a court.^[35]

(c) Appointment by chargeholder

The chargeholder being a registered liquidator is excluded to become an administrator by the general rule when he is associated with the company according to Corporations Act 2001 (Cth) s 448C (1). But not only the chargeholder himself is exclude but also persons who are closely connected with him like his solicitor.^[36]

2 Declarations by administrator

At the earliest possible date, the administrator once being appointed has to give “a declaration of relevant relationships” and in addition “a declaration of indemnities”.^[37] The creditors have to be informed simultaneously with the notice of the first meeting of creditors.^[38] Additionally, the declarations have to be tabled at the first meeting of creditors.^[39]

3 Prohibition of financial inducements

Financial inducements presented for the appointment or nomination of a specific person as administrator are prohibited. This prohibition is directed against single creditors but also any other third party who has an interest in a special person to become an administrator.^[40] It includes financial stimuli but also any further inducement of value.

D Power

The power of an organ is a very important characteristic in describing its role in a process.

1 Control over company’s business, property and affairs

During the administration process the administrator has comprehensive control over the company’s business, property and affairs.^[41] He is authorised to carry on its business and manage its property and affairs^[42] and finally is entitled to dispose all parts of its business and property.^[43] Being part of the general power, the administrator once appointed acts in the function of an officer of the company. The power has the same range the company or its organs would have without administration.^[44] This legal effect is emphasized by Corporations Act 2001 (Cth) s 437B stating that the administrator acts as the “company’s agent” when exercising his power.

Consequently, the powers of the other officers of the company are suspended during the administration process as far as the administrator delegates parts of his power by a written approval.^[45] This is affirmed by the legal consequence of Corporations Act (Cth) s 437D, stating that a transaction by directors of a company under administration is void without the previous written consent of the administrator or a court order.^[46] Additionally, directors can be removed by the administrator and substituted by new officers.^[47] The directors of the company are obliged to cooperate with the administrator and to deliver him the information he requires in order to fulfil his corporate rescue tasks.^[48]

2 Power to gather information

The directors have the express duty to write a report in order to give the administrator a current overview about the business, property, affairs and financial circumstances of the company.^[49] Besides, they have to customize to the administrator all books concerning the company, which are in their own possession^[50] and must actively tell the administrator about other relevant books and their location.^[51] A third party has no right of retention according to books of the company.^[52]

3 Casting vote

One of the hidden powers of the administrator is his right to exercise a casting vote in the meetings of creditors.^[53] Basically, it is the role of the creditors to decide in their meetings about the future of the company and particular issues in the corporate rescue process, for example the removal of an administrator.^[54] The administrator has predominantly the role of an organizer or adviser concerning the meetings of creditors. Consequently, the creditors are generally obliged to vote in their meetings.^[55]

Normally, a resolution passes if a poll at the meeting of creditors results in both a majority in numbers^[56] and in value vote in favour of a resolution.^[57] For the denial of a resolution also requires both the majority in numbers and in value.^[58] If that majorities are not achieved and a deadlock occurs, the administrator as the presiding person at the meeting has the opportunity to vote in favour^[59] or against the concrete resolution.^[60]

The court can modify or replace a resolution involving the casting vote of an administrator.^[61] But this is only possible in case of an application by a person having voted against the particular resolution.^[62] If because of the casting vote a resolution was refused or has not been passed the court can on the application of a person voting in favour of the resolution, order the passing of the resolution.^[63]

E Duties

During the whole corporate rescue process the administrator has to face different challenges and so the Australian legislator implemented a lot of duties guiding the administrator in executing his office. This essay examines a variety of important duties imposed on the administrator.

1 Notice of appointment

In the beginning of the administration the administrator has to inform the public by a written notice before the end of the next business followed by the appointment.^[64] Within three business days after the appointment the notice has to be published either in a national newspaper or in a state or territory newspaper with enough influence and where the company has a registered office or carries on business.^[65]

2 Investigations according to Corporations Act 2001 (Cth) s 438A

Once being appointed the administrator has the power to take control over the assets, business and affairs of the company.^[66] His primary duty is to investigate the company’s business, property, affairs and financial circumstances.^[67] Additionally, he has to form an opinion about the future of the company by recognizing the particular interests of the creditors.^[68] According to Corporations Act 2001 (Cth) s 438 A (b) the investigation procedure is limited to three outcomes: Firstly, the execution of a deed of company arrangement, secondly, the ending of the administration, and thirdly, the winding up of the company, which means liquidation.^[69]

3 Report by administrator according to Corporations Act 2001 (Cth) s 438D

While investigating the company and its business the administrator has the duty to report offences against the company by present or former officers, employees or other members of the company.^[70] Additionally to the reporting duty, the administrator has to inform the ASIC and to support the ASIC during its investigations.^[71]

4 Convening the first meeting of company’s creditors

Another important duty of the administrator is the convening of the first meeting of creditors.^[72] The meeting has to be convened by written notice to as many creditors as reasonably possible at least five days before the meeting.^[73] The first meeting of company’s creditors has to be held within eight business days after the beginning of the administration, meaning the appointment of the administrator.^[74]

[...]

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^[1] I owe special thanks to Keith Bennetts, senior lecturer of the University of Adelaide (SA), for the helpful support in writing this article.

^[2] See United Nations Commission on International Trade Law, Legislative Guide on Insolvency Law (2005) 14, recommendation 2.

^[3] United Nations Commission on International Trade Law, see above n 1, 11.

^[4] Concerning the development of the insolvency law in Australia see Roman Tomasic, James Jackson and Robin Woellner, Corporations Law – Principles, Policy and Process (4th ed, 2002) 1060; Ron Harmer, ‘An Overview of Recent Developments and Future Prospects in Australia (With Some Reference to New Zealand and Asia)’, in Jacob S. Ziegel (ed) Current Developments in International and Comparative Corporate Insolvency law (1994) 39, 40-41; Brown, David, Corporate Rescue – Insolvency Law in Practice (1996) 794-795. The voluntary administration is widely accepted in Australia, Roman Tomasic and Keturah Whitford, Australian Insolvency and Bankruptcy Law (2nd ed, 1997) 163.

^[5] Corporations Act 2001 (Cth) s 435A (a).

^[6] Corporations Act 2001 (Cth) s 435A (b).

^[7] Corporations Act 2001 (Cth) ss 435C (1) (b), (2), 439C (b).

^[8] Corporations Act 2001 (Cth) s 435C (1) (b), (2) (a). This essay will not examine the supervision of a rescue plan by a deed of company administrator.

^[9] Corporations Act 2001 (Cth) ss 435C (1) (b), (2) (c), 439C (c).

^[10] Corporations Act 2001 (Cth) ss 435C (3) (a), 447A.

^[11] Corporations Act 2001 (Cth) s 436D.

^[12] Corporations Act 2001 (Cth) s 451A (1).

^[13] Corporations Act 2001 (Cth) s 436A (1). See also R. P. Austin and I. M. Ramsay, Ford’s Principles of Corporations Law (13th ed, 2007) 1371; Vicki Donnenberg and Jaclyn Grant, ‘Removing administrators and liquidators tained by conflict, bias or bad practice’ (2005) 13 (3) Insolvency Law Journal 135,137.

^[14] Corporations Act 2001 (Cth) s 436A (1) (a) and (b). See also R. P. Austin and I. M. Ramsay, above n 12, 1353; Nuncio D’Angelo, ‘What directors need to consider before calling in an administrator: And it’s not just solvency...’ (2006) 24 (1) Company and Securities Law 7, 12-13; Colin Anderson, ‘Commencement of Part 5.3A procedure: Some considerations from an economics and law perspective’ (2001) 9 (1) Insolvency Law Journal 4, 6; Ken Robson, Ken Robson’s Annotated Corporations Act 2002 (7th ed, 2002) 601.

^[15] Corporations Act 2001 (Cth) s 436A (1).

^[16] Corporations Act 2001 (Cth) s 436A (2).

^[17] See Colin Anderson, ‘The Australian Corporate Rescue Regime: Bold Experiment or Sensible Policy?’ (2001) 10 International Insolvency Review 81, 85. See also Re Depsun Pty Ltd (1994) 12 ACLC 482, 484.

^[18] Corporations Act 2001 (Cth) s 436B (1).

^[19] Corporations Act 2001 (Cth) s 436B (1).

^[20] Corporations Act 2001 (Cth) s 436C (1). See also R. P. Austin and I. M. Ramsay, above n 12, 1372; Colin Anderson and David Morrison and Philip Crutchfield, Crutchfield’s Corporate voluntary administration (3rd ed, 2003) 66. To the term “substantial” chargee see Susan Woodward and Helen Bird and Sally Sievers, Corporations Law – in principle (7th ed, 2005) 455; James O’Donovan, Company Receivers and Administrators, Vol 2 (2nd ed, 2001) 41-1061.

^[21] Corporations Act 2001 (Cth) s 436C (1); as in Corporations Act 2001 (Cth) s 436A (2) the appointment is not possible if a liquidator or provisional liquidator is still appointed, Corporations Act 2001 (Cth) s 436C (2).

^[22] Corporations Act 2001 (Cth) s 448A (a).

^[23] Corporations Act 2001 (Cth) s 448B (1) and (2). See also Phillip Lipton and Abe Herzberg, understanding company law (14th ed, 2008) 596. In order to become a registered the insolvency practitioner has to show the Australian Securities and Investment Commission (ASIC) that he is qualified and experienced enough to fulfil his tasks during the insolvency proceedings, Corporations Act 2001 (Cth) s 1282 (2). See also Vicki Donnenberg and Jaclyn Grant, above n 12, 136; R. P. Austin and I. M. Ramsay, above n 12, 1362.

^[24] Corporations Act 2001 (Cth) s 448D.

^[25] R. P. Austin and I. M. Ramsay, above n 12, 1362.

^[26] An official liquidator has must sufficient experience and adequate staff and resources, R. P. Austin and I. M. Ramsay, above n 12, 1362. See also Corporations Act 2001 (Cth) s 1283.

^[27] See also Domino Hire Pty Ltd & Anor v Pioneer Park Pty Ltd (in Liq) & ORS (2000) 18 ACLC 13, 19.

^[28] An appointment can only be refused in the codified circumstances, see Beatty (in his capacity as Deed Administrator) v Brashs Pty Ltd (Administrators Appointed) (subject to deed of company arrangement) and Others (1998) 152 ALR 689, 693

^[29] See for example Australian Society of Certified Practising Accountants and the Institute of Chartered Accountants in Australia, Statement of Insolvency Standards, APS 7 (1998).

^[30] Corporations Act 2001 (Cth) s 448C (1).

^[31] Corporations Act 2001 (Cth) s 448C (1) (a).

^[32] Corporations Act 2001 (Cth) s 448C (1) (c). Directors are also persons having worked for the company within two years before the appointment, Corporations Act 2001 (Cth) s 448C (3) (a); see also R. P. Austin and I. M. Ramsay, above n 12, 1372.

^[33] Corporations Act 2001 (Cth) s 436B (2).

^[34] Corporations Act 2001 (Cth) s 436B (2) (f).

^[35] Corporations Act 2001 (Cth) s 436B (2) (g); Colin Anderson and David Morrison and Philip Crutchfield, above n 19, 63; Colin Anderson, ‘The Australian Corporate Rescue Regime: Bold Experiment or Sensible Policy?’, above n 16, 87. See also Deputy Commissioner of Taxation v Foodcorp Pty Ltd (1994) 13 ACSR 796, 799.

^[36] Re Smarter Way (Aust) Pty Ltd (2000) 35 ACSR 595, 601.

^[37] Corporations Act 2001 (Cth) s 436DA (2) (a) and (b). See also Legal Committee of the Companies and Securities Advisory Committee, Corporate Voluntary Administration – Final Report (1998) 26-27 and 107-109.

^[38] Corporations Act 2001 (Cth) s 436DA (3) (a) and (b).

^[39] Corporations Act 2001 (Cth) s 436 DA (4).

^[40] Corporations Act 2001 (Cth) s 595 (1) (b).

^[41] Corporations Act 2001 (Cth) s 437A (1) (a). See also Australian Liquor, Hospitality and Miscellaneous Workers’ Union v Terranora Lakes Country Club Ltd (1996) 14 ACLC 1,200, 1,201.

^[42] Corporations Act 2001 (Cth) s 437A (1) (b).

^[43] Corporations Act 2001 (Cth) s 437A (1) (c). See also Phillip Lipton and Abe Herzberg, above n 22, 595; Colin Anderson, ‘The Australian Corporate Rescue Regime: Bold Experiment or Sensible Policy?’, above n 16, 99.

^[44] Corporations Act 2001 (Cth) s 437A (1) (d). See also Mitchell Mathas, ‘Ausralia’, in Winfried F. Schmitz and Joren de Wachter, Joren de and Pekka Jaatinen (ed), Rescue of companies: The role of shareholders, creditors and the administrator (1998) 27, 35-36.

^[45] Corporations Act 2001 (Cth) s 437C (1) and (1A). See also Andrew Keay, ‘Corporate governance during administration and reconstruction under part 5.3A of the Corporations Law’ (1997) 15 (3) Company and Securities Law Journal 145, 150.

^[46] Corporations Act 2001 (Cth) s 437D (2) (b) and (c).

^[47] Corporations Act 2001 (Cth) s 442A (a) and (b).

^[48] Corporations Act 2001 (Cth) s 438B (3) (b). See also Philip Hopley, ‘Directors’ Duties in a Formal Administration’, in Allens Arthur Robinson (ed), Directors’ duties during insolvency (2nd ed, 2007) 89, 92; Paul B. Lewis, ‘Trouble Down Under: Some Thoughts on the Australian-American Corporate Bankruptcy Divide’ (2001) Utah Law Review 189, 195.

^[49] Corporations Act 2001 (Cth) s 438B (2). See also Anderson, Colin, ‘Decision-making in a voluntary administration’ (2004) 22 (3) Company and Securities Law Journal 163, 176.

^[50] Corporations Act 2001 (Cth) s 438B (1) (a).

^[51] Corporations Act 2001 (Cth) s 438B (1) (b).

^[52] Corporations Act 2001 (Cth) s 438C (1) (a). A claim or enforcement resulting from a lien concerning such books is not possible either, Corporations Act 2001 (Cth) s 438C (1) (b). Special conditions apply for secured creditors, Corporations Act 2001 (Cth) s 438C (2).

^[53] Corporations Regulations 2001 (Cth) reg 5.6.21 (4), Corporations Act 2001 (Cth) ss 439B (1), 439A. See also Paul Redmond, Companies and Securities Law – Commentary and Materials (4th ed, 2005) 132; Tony Ciro and Vivien Goldwasser, Law and Business (2nd ed, 2006) 485; Colin Anderson, Decision-making in a voluntary administration, above n 48, 173.

^[54] See also Patrick Stevedores Operations No 2 Pty Ltd and Others v Maritime Union of Australia and Others (1998) 27 ACSR 535, 554.

^[55] see e.g. Corporations Act 2001 (Cth) s 439C.

^[56] Corporations Regulations 2001 (Cth) reg 5.6.21 (2) (b).

^[57] Corporations Regulations 2001 (Cth) reg 5.6.21 (2) (b).

^[58] Corporations Regulations 2001 (Cth) reg 5.6.21 (3).

^[59] Corporations Regulations 2001 (Cth) reg 5.6.21 (4) (a).

^[60] Corporations Regulations 2001 (Cth) reg 5.6.21 (4) (b). In the event a casting vote is not exercised the resolution is also not accepted, Corporations Regulations 2001 (Cth) reg 5.6.21 (4) (c).

^[61] Corporations Act 2001 (Cth) s 600B (1) (a), (3) (a).

^[62] Corporations Act 2001 (Cth) s 600B (2) (a).

^[63] Corporations Act 2001 (Cth) s 600C (1) (a), (2), (3) (a). The court’s order depends on the application of a person voting in favour of the resolution, Corporations Act 2001 (Cth) s 600C (2).

^[64] Corporations Act 2001 (Cth) s 450A (1) (a).

^[65] Corporations Act 2001 (Cth) s 450A (1) (b). Special provisions guarantee that the company and chargees are early informed as well, Corporations Act 2001 (Cth) s 450A (2) and Corporations Act 2001 (Cth) s 450A (3).

^[66] Corporations Act 2001 (Cth) ss 437A and 437D.

^[67] Corporations Act 2001 (Cth) s 438A (a). See also Ken Robson, above n 13, 609.

^[68] Corporations Act 2001 (Cth) s 438A (b).

^[69] Corporations Act 2001 (Cth) s 438A (b) (i), (ii) and (iii).

^[70] Corporations Act 2001 (Cth) s 438D (1) (a), (c).

^[71] Corporations Act 2001 (Cth) s 438D (1) (d).

^[72] See R. P. Austin and I. M. Ramsay, above n 12, 1356-1358.

^[73] Corporations Act 2001 (Cth) s 436E. Additionally, the appointment has to be published according to Corporations Act 2001 (Cth) s 436E (3) (b).

^[74] Corporations Act 2001 (Cth) s 436E (2).