P.A. Lucas & Co

P.A. Lucas & Co
P.A. Lucas & Co
Business Consultants-BRISBANE, QLD
Business Consultants-Brisbane, QLD
By 2007, the business had expanded and changed its trading name to ‘P.A. Lucas & Co'. During this time the business developed specialised expertise and a strong reputation in insolvency, rec..
Level 4, 232 Adelaide St, Brisbane, Qld, 4000.
Level 4, 232 Adelaide St, Brisbane, Qld, 4000.
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By 2007, the business had expanded and changed its trading name to ‘P.A. Lucas & Co'. During this time the business developed specialised expertise and a strong reputation in insolvency, reconstruction and the turnaround management of hotel and club operations, child care facilities, property construction and retail businesses.
Corporate Insolvency

Corporate insolvency in Australia is regulated by the Corporations Act 2001 (Cth).  The different types of insolvency administrations available to corporate debtors under the Corporations Act are:
Court Winding-up (or liquidation);
Provisional Liquidation;
Voluntary Winding-up (or liquidation);
Voluntary Administration;
Deed of Company Arrangement;
Controllership, which includes where a receiver or receiver and manager is appointed; and
Scheme of Arrangement.
A Court Liquidation occurs when and if the Court exercises it discretion to order the winding up of the company, following consideration of an application filed with it.  The applicant is usually a creditor, although others including the company can apply.  A Court Liquidation provides for the winding up of a company's affairs under the control of an independent official liquidator and the orderly distribution of available monies amongst creditors.  The liquidator will also carry out investigations of the company's demise.
A Provisional Liquidator can be appointed any time after the application for the winding up of a company is lodged.  The purpose of appointing a provisional liquidator is to exercise interim control over the assets and affairs of the company until the Court hears the winding up application and decides whether to appoint a liquidator or not.  The appointment of a provisional liquidator may be requested if it is felt that the assets of the company are at risk and it is in the interest of creditors that the assets are protected, or for commercial reasons (such as directors' potential exposure to insolvent trading).
Voluntary Liquidation is a process formally initiated by the debtor company to wind-up its affairs and cease business, so that assets may be controlled and realised and the proceeds distributed in accordance with the Corporations Act.  The company is placed into Voluntary Liquidation by a resolution of its members.  There are Members' Voluntary Liquidations and Creditors' Voluntary Liquidations.
For a company to enter into a Members' Voluntary Liquidation, the company must actually be solvent.  If the company is insolvent, it will be placed into Creditors' Voluntary Liquidation upon the passing of the resolution by members.  A company can also be placed into Creditors' Voluntary Liquidation by creditors so resolving at a meeting of creditors held during a Voluntary Administration or Deed of Company Arrangement.
Voluntary Administration is a formal moratorium type administration.  A proposal for the company's future will be put to creditors, who may decide to accept a Deed of Company Arrangement or to liquidate the company.  In the meantime, a unique stay on creditor action extends, with limited exceptions, to even secured creditors, landlords and other owners of property used by the company.
A Deed of Company Arrangement is a procedure permitting a company to make a compromise or arrangement binding on all its creditors.  It will usually compromise creditor' rights, but with the aim of producing a situation ultimately beneficial to creditors when compared with liquidation.  The Corporations Act provides the procedures for effecting such a compromise, and enables the arrangement to be made binding on all creditors if assented to by a simple majority at a meeting of creditors.  If the company's undertakings under the Deed are not carried out, the Deed will fail and the company will usually be wound up by means of a creditors' voluntary winding up.
A controller of property of a corporation is a Receiver or Receiver and Manager or anyone else in possession or control of corporate property for the purpose of enforcing a charge.  The appointment is usually made by a secured creditor, or in some cases by the Court.  The controller has the power to realise company assets for the benefit of the appointor.  While ordinary creditors are not prevented from pursuing normal remedies (e.g., forcing the company into liquidation), unless the controller has been improperly appointed, the assets which he or she is entitled to realise will not be generally available to ordinary creditors until the appointor is repaid.
A Scheme of Arrangement has similar objectives to a Deed of Company Arrangement, but it is more complex and may be used by both solvent and insolvent companies.  It is rarely used by insolvent companies now, having been largely replaced by Deeds of Company Arrangement.
Corporate administrations are not necessarily exclusive, e.g., a receivership and a liquidation may co-exist; or a receivership and a voluntary administration.

Personal Insolvency

Bankruptcy is a process whereby the financial affairs of a person who is insolvent are managed by a trustee in bankruptcy. The bankrupt is released from their liabilities and at the same time their property, if any, is handed over to the trustee who has responsibility to sell it and pay out the creditors.
A person is generally bankrupt for 3 years although the period may be extended if the bankrupt does not co-operate.
The Bankruptcy Act 1966 deals with all personal insolvency and only individuals can go bankrupt and not companies. The Bankruptcy Act provides for three main solutions to financial difficulties:
Personal Insolvency Agreement
Part IX Debt Agreements
If you are unable to pay your debts and cannot come to a suitable repayment arrangement with your creditors you may voluntarily petition to become a bankrupt.
At the time of petitioning, you must be present in Australia or otherwise have an Australian connection.( eg: ordinarily live in Australia)
There is a permanent record of your bankruptcy on the National Personal Insolvency Index and the bankruptcy generally lasts for a period of 3 years, although it can be extended in certain circumstances.
Your creditors are notified of your bankruptcy and unsecured creditors should stop pursuing you for the payment of debts.
Note that creditors can also apply to the Court to make you bankrupt if they can satisfy the court that you owe them money above a minimum amount.
The trustee will:
sell your assets ( Note: some assets are exempt from sale)
request contributions from your income once you earn a certain amount
investigate your financial affairs and may recover property or money that has been transferred to someone else at lesser of market value.
Personal Insolvency Agreement
Part X Personal Insolvency Agreements (“PIA”) provide a debtor in financial difficulty with a formal mechanism where they can come to a binding arrangement with their creditors and avoid bankruptcy. They are an important feature of the personal insolvency system because creditors have the opportunity to make commercial decisions about how they will best receive money.  There are no income, asset or debt limits.  A debtor must be insolvent to enter into such a proposal and must be present in Australia or otherwise have an Australian connection.
A PIA may involve:
a lump sum payment to creditors, via the trustee, either from the debtors own money or money from third parties (family and friends)
an assignment of assets to the trustee, to be sold and the net proceeds distributed to creditors or the payment of the sale proceeds of assets to the trustee for distribution to the creditors
periodic payments to the trustee to be distributed to creditors
A creditors meeting is held where creditors consider the proposal. Acceptance of the proposal requires a ‘yes' vote from a majority of creditors who represent at least 75% of the dollar value of the voting creditors debts( referred as a special resolution)
Part IX Debt Agreements
Part IX (Debt Agreements) was introduced into the Bankruptcy Act in 1996 with the aim of providing low income debtors and their creditors with an informal and inexpensive alternative to bankruptcy and the more formal and expensive Part X Arrangements.
A Debt Agreement can be proposed by a debtor who has:
not been bankrupt, utilised a debt agreement or given an authority under Section 188 of the Bankruptcy Act in the last 10 years
after tax income of less than $63,363.30
unsecured debt of less than $84,464.40
property that would be divisible among creditors if the debtor were bankrupt, valued at less $84,484.40
An insolvent debtor offers his creditors a proposal that is achievable and sustainable. The debt agreement proposal is sent to creditors to vote upon.  It may be accepted or rejected by the creditors.
A proposal is accepted if a majority of creditors in value vote in favour of the debtors' proposal.  All creditors with provable debts are bound by the agreement, even those that have voted against it.
Some examples of kind of proposals offered are:
periodic payments of amounts out of the debtors income
a moratorium of debts
payment from the proceeds of sale of property owned by the debtor.
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