1 November 2015
JHK Legal is quite often approached to provide advice on unfair preference claims in liquidation.
An unfair preference is precisely as the name describes – payments or transfers of assets that give a creditor an advantage over other creditors. Liquidators appointed to companies can recover such unfair preferences to distribute equally among the creditors.
While usually money, unfair preferences can include a variety of transactions. This article will focus on money.
This article is a guide to the basic elements of an unfair preference and defences that can be relied upon. It is not a substitute for legal advice. If you have any questions or concerns we suggest that you contact JHK Legal for further information.
Elements of an unfair preference payment claim
The elements of an unfair preference claim are as follows:
(a) 6 months for non-related parties; or
(b) 4 years for related parties; or
(c) 10 years for any evidence of “attempt to defeat, delay or interfere” with the rights of creditors.
The legislative basis for unfair preference payments in the liquidation of a company is the Corporations Act 2001 (Cth) (“the Act”). There is no independent common law basis and no state legislation directly on point.
The relevant sections of the Act are as follows:
|588FF||Allows the Court to make orders in relation to “voidable transactions” as defined in by section 588FE. One such order is the repayment of money.|
|588FE||Makes an “insolvent transaction” a “voidable transaction” if it was entered into, or an act was done for the purpose of giving effect to it:“(i) during the 6 months ending on the relation-back day; or (ii) after that day but on or before the day when the winding up began.”|
|588FC||Defines an “insolvent transaction” as an “unfair preference” and“(a) any of the following happens at a time when the company is insolvent: (i) the transaction is entered into; or (ii) an act is done, or an omission is made, for the purpose of giving effect to the transaction; or (b) the company becomes insolvent because of, or because of matters including:
(i) entering into the transaction; or
(ii) a person doing an act, or making an omission, for the purpose of giving effect to the transaction.”
|588FA||Defines what an unfair preference is:“(1) A transaction is an unfair preference given by a company to a creditor of the company if, and only if: (a) the company and the creditor are parties to the transaction (even if someone else is also a party); and (b) the transaction results in the creditor receiving from the company, in respect of an unsecured debt that the company owes to the creditor, more than the creditor would receive from the company in respect of the debt if the transaction were set aside and the creditor were to prove for the debt in a winding up of the company;…”|
Also describing in more detail a number of elements referred to above:
|Relation Back Day||To be claimable, the Transaction must have occurred within 6 months of the Relation Back Date.The Relation-Back Day is the date that the liquidation is deemed to have started. The relevant day of when the liquidation started is outlined in Part 5.6, Division 1A of the Act:1. for a liquidation that follows a voluntary administration or Deed of Company Arrangement it is the day that the voluntary administrators were first appointed;2. for other voluntary liquidations, it is the date of the members’ meeting that the liquidators were appointed;
3. for an court appointed “official” liquidation it is the day that the application was filed in the court.
|Transaction||Section 9 outlines that this can include a “payment” amongst other items.|
|Insolvent||Section 95A of the Act provides:“ (1) A person is solvent if, and only if, the person is able to pay all the person’s debts, as and when they become due and payable. (2) A person who is not solvent is insolvent. “|
|Unsecured Debt||Not defined in Act, ordinary meaning is not a Secured Debt.|
|Secured Debt||For s588FA, a secured debt is taken to be an unsecured debt to the extent of so much of it (if any) as is not reflected in the value of the security e.g. where the value of the debt exceeds the value of the security.|
Section 588FG of the Act provides defences that may be relied upon by creditors when faced with an unfair preference claim from a liquidator. On the assumption that the creditor was a party to the transactions (see section 588FG(1) of the Act if it was not), the three elements that must be satisfied are:
(a) the creditor had no reasonable grounds for suspecting that he company was insolvent at that time or would become insolvent; and
(b) a reasonable creditor in the creditor’s circumstances would have had no such grounds for so suspecting; and
The so called “running account” defence should also be remembered as found in section 588FA(3) of the Act. Note that this does not provide a complete defence to a claim. In essence, where parties have an ongoing business relationship rather than considering each transaction to determine whether a creditor has received a preference the Court looks at the net position of all of the transactions which formed part of the relationship as if they were one transaction. The Court will consider the difference between the “peak” (maximum) amount of the debt during the relevant statutory period, and the amount owed on the Relation-Back Date.
Case law – third party payments
It is important to note that even if a payment is made by a third party on behalf of the company that is in liquidation, this does not necessarily mean that there has been no preference payment made.
As was found in Re Emanuel (No 14) Pty Ltd: Macks v Blacklaw & Shadfroth Pty Ltd (1997) 147 ALR 281 (“Emanuel”), a liquidator has a right to recover payments made to creditors on behalf of the company by a third party where the net effect of the transaction is either crease or extinguish debt between the third party and the company.
This was expanded in Kassem and Secatore v Commissioner of Taxation  FCAFC 124 where there was no evidence that the third party payer owed a debt to company that was satisfied or reduced by the third party’s payer’s payment to the company’s creditor (akin to that in Emanuel). Instead, the third payer’s payment simply resulted in the creation of a new debt, from the third party payer to the company.
The Full Court of the Federal Court of Australia determined that company’s direction to the third party payer to pay the company’s debt was no different than if company had directed its bank to pay the creditor using funds available from the company’s overdraft account. The Court stated:
“this was a clear example of a lender paying moneys advanced to a creditor of the borrower in accordance with the borrower’s directions…
…Moreover, even if it is not correct to describe the transaction between Mortlake and Antqip as a loan, what is important is the finding that the payment by Antqip to the Commissioner was a payment that was made by or on behalf of Mortlake. So much is plain from the evidence to which we were taken..”
In effect, the challenged payments were made directly from the company to the creditor (using funds borrowed from the third party payer).
It can be drawn from the above two cases that unsecured creditors will not gain any protection from future unfair preference claims by demanding payment from third parties unless the third party pays by way of a gift or other “white knight” arrangement under which any rights created in favour of the third party are subordinated to the company’s other unsecured creditors.
What to watch out for
Unfair preference claims can seem quite technical. With that in mind, creditors should consider the following indicators that liquidators look out for when determining whether unfair preference payments have been made by a company:
amongst other items.
If a company you deal with has gone into liquidation, you have received a demand from a liquidator for the repayment of money, and any of the above items ring true, JHK Legal are happy to assist you through the process.
Author: Alicia Auden, Senior Associate
Published: November 2015