It can be a stressful and complex period being a creditor of a company in liquidation. However, there are some key steps you should take to enforce your rights, and to make a claim on outstanding payments. There may be some differences regarding your rights and responsibilities depending on whether you are a secured creditor or an unsecured creditor, and our article ‘Secured Creditors vs Unsecured Creditors: The Difference’ outlines these.
This article will outline what steps you can take as a creditor to enforce your claims against the company.
|1. Have Your Debt Admitted as Formal Debt
One of the most valuable things you can do as a creditor is to keep on top of relevant paperwork and deadlines. This will strengthen your claim and maximise your chances of recovering payments. One of the documents to be completed is a formal proof of debt form, which can be lodged with the administrator or liquidator. This is a formal legal document that has specific legal requirements that are outlined in the Corporations Act. This document will be provided/should have been provided by the liquidator along with:
The administrator or liquidator must provide you at least 14 days to submit the proof of debt form.
Information to Include in a Proof of Debt Form
- Your company and/or business name and other relevant details; and
- Information regarding the debt, including the circumstances in which the debts were incurred, and amount that was incurred; and
- Information as to whether the debt was not yet discharged because the company was insolvent; and
- A signature from an approved witness. Follow this link for a list of approved witnesses: https://www.ag.gov.au/legal-system/statutory-declarations/who-can-witness-your-statutory-declaration#list)
You can and should also include any other information or documents that you believe may support your claim, such as a commercial contract or an invoice.
2. If You Haven’t Received the Relevant Documents
If you are yet to invoice the company for outstanding payments for the provision of goods or services, there is a chance that you have not been listed as a creditor yet. This may be a possible reason why you have not been served with the information and documents by the liquidator/administrator outlined above. In this case:
- Visit https://insolvencynotices.asic.gov.au/ and search for the company using the company name or ACN.
- If an administrator or liquidator has been appointed, there should be the relevant contact details listed.
- If not, there will be the company name and/or contact number or email listed.
- Contact the company and request a copy of a proof of debt form, or send in the documentations that you have prepared.
It is standard practice for administrators and liquidators to adapt the proof of debt form for the company, and this is completely fine, as long as the form meets the requirements of the Corporations Act (as given above).
3. Steps to Take After Submitting the Proof of Debt Form
To ensure that the liquidator or administrator has received your claim, send them an email or make a phone call to confirm this.
The liquidator or administrator must notify you within seven days if your claim of debt has been rejected. If this is the case, you may be asked to provide more information to support your claim. If you cannot resolve the dispute with the liquidator, you may seek legal advice. Keep in mind that you have a limited time period to do this, and the liquidator will notify you of the time you have. This period cannot be less than 14 days from the date of the notice of rejection.
If you do not appeal the decision to reject your debt claim within this period, the liquidator’s decision is final. You will not be able to gain payments for any debts that may have been incurred by the company.
4. Other Rights
Whilst it is important to complete and submit proof debt forms and other relevant documents to strengthen your claim, this also affords additional rights. For example, lodging a proof of debt claim that is approved will enable you to vote at creditors’ meetings. These meetings determine the future and operation of the company.
- Be aware of, and follow the statutory requirements for important documents, especially proof of debt forms.
- The statutory document/form requirements can be said to be a minimum standard, anything more you include will strengthen your claim.
- There are strict time conditions for lodgement of applications and documents, which have binding consequences. Take these into account in completing your claims as a creditor.
If you or someone you know wants more information or require advice or help, please don’t hesitate to contact one of our insolvency lawyers on (03) 9600 0162 or email firstname.lastname@example.org.