Module 4 - Phoenix Companies And Antecedent Transactions Flashcards
Three exceptions for when a Director can use a similar name for a Phoenix Company
Where the IP has arranged for the transfer of some or all of the Company’s assets;
The Court can give leave to use the name;
Where the successor company was known by the same or similar name for 12 months prior to the date the insolvent company went into Liquidation
What is the principal duty of a Liquidator / Trustee in Bankruptcy?
Maximise realisations to creditors
What is SIP 13?
The sale of assets to a Director or a connected party
What is Section 238?
Transactions at an Undervalue
What are the 3 things to prove for Transactions at un Undervalue?
Transaction was either a gift (nil consideration), or significantly less consideration given;
Anterior Period / Relevant Time (2 Years from the commencement of Winding Up);
Company was insolvent at the time of the transaction, or rendered insolvent as a result of the Transaction (if Connected, insolvency is presumed)
Define Connected Party
Connected by blood or law
What are the 3 parts of the defense against Transactions at an Undervalue?
Good faith (the Company was insolvent good faith when selling asset);
Purpose of the Business (the transaction was for the purpose of doing the business);
Reasonably believed in the best interest of the Company
What is the Remedy of TUV?
Restoration - place the parties into the position they would have been in had that transaction never taken place (against Beneficiary);
Misfeasance - breach of fiduciary duty by Directors
What is Section 239?
Preferences
What 3 things do you need to prove for a Preference claim?
Desire (Influenced by Desire to place creditor in Better Position had preference not been given) / (if connected party, desire is presumed);
Anterior Periods / Relevant Timeframe (Unconnected 6 months, Connected 2 Years);
Prove insolvency (never presumed in Preferences)
What is the defense against Preferences?
THERE IS NONE HAHA GOTCHA
What is Remedy for Preferences?
Restoration against Beneficiary;
Misfeasance v Director
What is 423?
Transactions Defrauding Creditors
Who can take on 423 Claims?
Victim (Creditor / Director/ Employee / Member / Officeholder);
What 2 things do you need to prove for Transactions Defrauding Creditor?
Gift or Significantly Less Consideration given;
Intent - prejudice interests of the victim (Criminal proof - beyond reasonable doubt)
What is the insolvency test for Transactions Defrauding Creditors?
THERE IS NONE - HAHA GOTCHA
