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Companies regard receivership as a negative because the receiver forcibly sells company assets and often restricts the directors’ powers. If you’re unsure about whether your company is in danger of receivership, acting quickly is absolutely essential.
Despite the hard work of business leaders, there are always examples of companies running into financial distress and experiencing poor cash flow. Appointing a Receiver does not necessarily mean the business is over. A receiver can be appointed to manage a business and then return the control to the Directors.
WHAT IS RECEIVERSHIP?
Going into receivership happens if a secured creditor appoints someone – known as a receiver – to take control of a company’s assets. After gathering together all of those assets, the receiver’s primary role is to sell everything they can to repay any outstanding debts to the secured creditor.
The appointment of a receiver is made either by the secured creditor (often a bank or other financial institution) or by the court. Conditions can also sometimes be placed on the receivership, such as a creditor only being permitted to sell certain assets to claim back the money they are owed.
Generally, the receivership process ends only when the receiver has sold off all of the business assets, or enough of them to fully repay the secured creditor. Upon the resignation of the receiver, full control of the company, along with any remaining assets, will be placed back in the hands of the directors.
What does a receiver do?
The role of a receiver revolves around three key areas
- Protect, collect, and sell: This process may involve selling some or all the company’s assets to repay debts.
- Distribute: Payout any proceeds in the correct order as set out by legislation.
- Report: The receiver must provide ASIC with a detailed list of receipts
Is your bank planning to appoint a receiver?
Because the receiver is primarily representing to secured creditors, they have no obligation upon them to report to unsecured creditors. Furthermore, unsecured creditors do not have a right to see the receiver’s reports to secured creditors. However, an unsecured creditor can still apply to the court to liquidate, or wind up, a company during a receivership.
What is a secured creditor?
What is the outcome of a receivership?
What are the methods or sale?
It may be prudent for a receiver to obtain consent from the secured party and the company as to the method of sale, should this not be forthcoming it may be appropriate to opt for public auction or public tender so as to be in a position to defend the price achieved if required.
The major methods of sale are detailed below:
- Sale by private agreement/treaty – the receiver will advertise through the directors of the company, its employees and by approaching other likely interested parties. A contract will be prepared upon tenders being received and the successful one chosen. The conditions of the contract will be determined by the receiver and potentially also the successful tenderer;
- Sale by public auction – A public auction may be arranged at the company’s premises, the property, an auction house or other premises. A receiver will engage a qualified auctioneer to conduct the auction. The auctioneer would also suggest the appropriate marketing campaign to be undertaken to achieved the desired result;
- Sale by tender, whether public or private – A tender is considered public if anyone is invited to submit a tender and private if certain parties (those likely to be interested) are invited to submit a tender. The objects of the tender process are as follows:
- Encourage competition among tenderers while ensuring fairness in the receiver’s dealing with the tenderers; and
- Bind the successful tenderer to purchase the property tendered for on acceptance of the tender.
- Clearance sale at location – these are general suitable for retail companies and the sale is conducted at the company’s premises or a warehouse. This method of sale may be conducted as part of the carrying on of the business of the company.
What are the pros and cons of receivership?
The advantages of Receivership are as follows:
- Avoid the expenses of an Administration;
- Receiver does not need to report to all the other creditors of the company, only their appointer;
- Receiver has advantage of seven day rent free period in respect of property owned by other.
The disadvantages of Receivership are as follows:
- The moratorium provided for a Voluntary Administration is not available to a Receive and thus unsecured creditors are free to continue with recovery/enforcement action;
- During the receivership the director is no longer in control of the company’s business, property and affairs;
- Unsecured creditors do not get to control the process;
- After discharge of secured creditor debt the company is returned to the director and the company may be vulnerable to some other form of insolvency administration.
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