Can a Wind-Up Notice be Revoked?

A wind up notice is a notice served by creditors, usually the Australian Taxation Office (ATO), to a company that has not been able to pay its debts. When a business receives a wind-up notice, under section 459E of the Corporations Act, they must appear in court with creditors to begin the proceedings to wind up the company and repay the outstanding debt owed.

Challenging a Wind-Up Notice

A business may successfully challenge a wind-up notice by:

● Filing evidence of solvency

You can challenge the notice under section 465C of the Corporations Act by filing evidence of solvency. Wind up notices are served after a statutory demand and you have not paid the required debt within 21 days. As a result, the court and your creditors will assume your company is insolvent. If you are able to demonstrate otherwise, you may be able to oppose the notice. You may also need to provide evidence of why you did not comply with the statutory demand. The type of evidence you need will vary and includes information on your business’s financial position and liquidity.

● Showing that creditors are more likely to be paid if the company is not wound up

You may potentially be able to convince the court that your business can repay its debts if the winding-up notice was challenged. Evidence will need to be provided that your business can trade successfully so that your debts can be repaid.

● Showing that creditors oppose your business being wound up

On the day of the hearing, the court will take your creditors’ opinions into consideration, as well as other stakeholders. For example, the court may not make a winding-up order if it would negatively impact the business’s unsecured creditors.

● Notify if there is a voluntary liquidation in progress

The court generally sees no difference between a court-ordered winding up or members’ voluntary liquidation. Hence, if a voluntary liquidation is in progress, the court will not order the company to be wound up.

If you successfully oppose your wind-up notice, the court will rule to not wind-up your business when the court date arrives.

If you would like more information on company liquidations or how to restructure your business to reduce financial stress then please contact CRS Insolvency Services. Our consultants are all highly trained in corporate insolvency assignments. We will provide professional advice to help you make the best decision for your company while avoiding personal liabilities. Contact CRS Insolvency Services on 1800 210 073 for 24/7 free expert advice now.

THE global hunt for stockbroker Rene Rivkin’s millions is over, with his $39 million bankrupt estate being wound up after a six-year search that has included investigations in Australia, Jersey, London and Switzerland.

But the mystery of Rivkin’s Swiss bank accounts may never be resolved, with The Australian able to reveal that close to $11m left Rivkin’s Swiss bank accounts and was unable to be traced.

Swiss authorities recently refused a bid to force a bank to divulge what happened to the money and the Australian Taxation Office has decided not to fund further court battles in Switzerland.

Rivkin committed suicide in May 2005 and his estate was placed into bankruptcy with debts of $39m in November 2006, with the tax office the largest creditor, claiming $29m. This was later reduced to $18m.

More than $6m has been recovered by trustee Anthony Warner, with the final dividend reduced to about $3m because of the costs generated by the saga.

When Mr Warner, a partner at CRS Insolvency Services, was appointed trustee of the estate, he set about uncovering and deciphering Rivkin’s complicated dealings, and freezing bank accounts when he found money.

The fleet of luxury cars had long gone and there were no details about Swiss bank accounts in the bankruptcy documents lodged with Insolvency Trustee Services Australia.

“We pretty quickly started making investigations overseas,” he told The Australian.

“The first positive lead we had ultimately led us to Jersey, which is where we found the $3m in Thameslink.”

Thameslink was a company that owned Rivkin’s boat, DaJoShaDiTa, named by combining the first letters of his five children’s names. Rivkin maintained the boat was a rental, owned by an unrelated offshore company – Thameslink.

Warner had to get the bankruptcy registered in Jersey and then go to court to recoup its assets.

“The court gave us a freezing order over assets of Thameslink and the controller in Jersey fully co-operated with us and confirmed Rivkin was the beneficial owner,” he said.

“Thameslink was in effect Rivkin’s entity that he had tried to conceal”.

The boat had been sold, but the $3m in proceeds were transferred back to Australia.

A financial settlement with Rivkin’s widow Gayle came early when she agreed to pay $3m to help pay his tax bill.

Rivkin’s Swiss bank accounts were uncovered when The Australian Financial Review reported that Rivkin, Trevor Kennedy and Graham Richardson were the owners of a $26m shareholding in Offset Alpine. The printing company enjoyed an insurance windfall when a fire swept through its Sydney plant. Mr Richardson and Mr Kennedy denied owning the accounts and both later settled claims with the tax office.

Rivkin’s Swiss bank accounts at Bank Leumi Le-Israel were held through “Scottish partnerships”. Two of the accounts were known as World and Laira. Mr Warner found one account held $20,000, the other nothing. Mr Warner discovered transactions where millions of dollars had left the accounts – but it was unclear who had authorised them. Swiss authorities had previously uncovered close to $2.8m of unauthorised transactions from Rivkin’s accounts. Bank Leumi would not help uncover what happened to that money or a further $7.9m Mr Warner wanted to trace, and he was forced to take court action in Switzerland.

The preliminary proceedings were settled recently on a confidential basis, and despite Mr Warner holding a power of attorney over the accounts the Swiss were reluctant to help.

“We can say that we ran into problems and to continue the legal proceedings was going to cost another $1m,” he said.

“They tried to argue that Rene Rivkin must have been aware of these unauthorised transactions and did nothing about it.

“We tried to overcome this by saying Rivkin had commissioned forensic accounting reports into these transactions, and I guess his inquiries were continuing when he took his life.

“We were able to take up and finish off those forensic accounting reports with the same auditor, but the reason we couldn’t take this through the final procedure was due to lack of funding.”

The tax office and the Rivkin family had funded the preliminary hearing. But, faced with an uncertain outcome, high legal costs and years more before the courts, they were reluctant to fund it further, he said.

A sale of Rivkin’s watches, including a Hewlett Packard, yielded more than $200,000.

Gayle and son Damien Rivkin declined to comment.