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Contact Details:
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1412010
3222 961 5 / [email protected]
Bentleys
THINKING AHEAD
Bentleys Corporate
Recovery Pty Ltd
7 January 2015
Level 9, 123 Albert Street
Brisbane City QLD 4000
Australia
TO THE CREDITOR AS ADDRESSED
GPO Box 740
Brisbane QLD 4001
Australia
ABN 44 129 017 r89
T +61 7 32229777
F +61 7 3221 9250
Dear Sir/Madam
[email protected]
SKYTRANS
Pry
LTD
(ADM TNTSTRATORS APPOI NTED)
bentleys,com.au
A.C.N 100 751 139 ("the Company")
Tracy Lee Knight and l, William John Fletcher, were appointed joint and several Administrators of the
Company pursuant to Section 4364 of ihe Corporations Act 2001 ("Ihe Act") on 5 January 2015.
One of the effects of our appointment is to place a moratorium on the payment of unsecured
creditors' accounts in relation to trading and other debts incurred up to the date of our
appointment, until creditors make a decision about the Company's future. That decision will
be made at a second meeting of creditors, to be held within 30 business days following our
appointment. Creditors will receive notice of that meeting in due course.
ln the meantime, we are required to hold a first meeting of creditors within B business days following
our appointment. ln this regard, we enclose the following:
.1,
Notice of Meeting of Creditors to be held at the University of Queensland Business School
.19
Central Plaza One,345 Queen Street, Brisbane QLD 4000 at
Executive Venue, Level
10.00 am on Thursday, 15 January 2015 (the first meeting);
2
Proof of Debt for Voting Purposes;
3
lnstrument of Proxy;
4
A Declaration of lndependence, Relevant Relationships and lndemnities for the purposes of
Section 436D4 of the Act; and
5
lnformation for creditors regarding the Voluntary Administration process published by the
Australian Securities and lnvestments Commission.
Please note that the informal proof and proxy forms should be lodged with this office by no later than
4:00 pm on Wednesday, 14 January 2O15.
{nortroN
A member of Bentleys, an assoctation ol independent accountilrg firms in Austral¡a The member
fìrms of the Bentleys associatim are aflilialed mly ild not in partnersh'p, Ljabilify lim¡led by a scheme
approved under Profssional Stildards Legislalion
)
)
)
Accountants
nuditors
Aovisors
ln accordance with the Australian Restructuring lnsolvency and Turnaround Association of Australia
guidelines a list of creditors' names and amounts is available on request.
or
Should you require any further information in relation to this matter, please contact (07) 3222 9615
s(ytrans ;@bris. lrcntleys. com.au.
Yours faithfully
Sla.ftrans Pty Ltd (Administrators Appointed)
iam J Fletcher
Joint and Several Administrator
Encl,
#1412010
FORM 5294
Paragraph 5,6,12(6)
CORPORATIONS ACT
2OO1
NOTICE OF FIRST MEETING OF
CREDITORS OF COMPANY UNDER ADMINISTRATION
Pry
LTD
(ADM N TSTRATORS APPOI NTED)
ACN 100 751 139 ("the Company")
SKYTRANS
r
'1. On 5 January 2015, the Company under section 4364 appointed William John
Fletcher and Tracy Lee Knight of Bentleys Corporate Recovery Pty Ltd, Level 9,
'123 Albert Street, Brisbane, Queensland, as the joint and several Administrators of the
Company,
2.
Notice is now given that a meeting of the creditors of the Company will be held at the
.19
Central Plaza One,
University of Queensland Business School Executive Venue, Level
345 Queen Street, Brisbane QLD 4000 at 10:00 am on Thursday, 15 January 2015,
3.
The purpose of the meeting is to determine:
a.
b,
4.
whether to appoint a committee of creditors; and
if so, who are to be the committee's members.
At the meeting, creditors may also, by resolution:
a.
b,
remove the Administrators from office; and
appoint someone else as Administrator/s of the above named company,
at the
as follows:
Teleconference facilities
Australia Toll Free
1
800 558 698
+61 2 9007 3187
All Others
.166 '131
Conference lD
Please note that under Corporations Regulations 5,6.134:
(a)
A person, or the proxy or attorney of a person, who wishes to participate in the
meeting by telephone must give to the administrator, not later than the secondlast working day before the day on which the meeting is to be held, written
statement setting out:
(i)
the name of the person and of the proxy or attorney (if any); and
(ii) an address to which notices to the person, pro{y or attorney may be sent;
and
(iii)
a telephone number at which the person, proxy or attorney may
be
contacted; and
(iv) any facsimile transmission number to which notices to the person, proxy or
attorney may be sent.
#1412010
(b)
A person, or the proxy or attorney of a person, who participates in the meeting
by telephone must pay any costs incurred by the person, pro)ry or attorney in
participating and is not entitled to be reimbursed for those costs from the
assets of the company.
DATED this 7th day of January 2015.
John Fletcher
Joint and Several Administrator
#1 41 201
0
FORM 535
CORPORATIONS ACT
2OO1
Subregulation 5.6.49(2)
FORMAL PROOF OF DEBT OR CLA|M (GENERAL FORM)
SK/TRANS PTY LTD (ADMINISTRATORS APPOINTED)
ACN 100751 139
To the Administrators of Sk¡¡trans Pty Ltd (Administrators Appointed)
1.
This is to state that the company was, on 5 January 2015
indebted to(2)
Particulars of
Date
(1)
and still is, justly and truly
debt are:
Considerationpr
Amount
$
GST
included
$
Remarks(a)
2,
To my knowledge or belief the creditor has not, nor has any person by the creditor's order,
had or received any manper of satisfaction or security for the sum or any part of it except for
the following:t5)
3.(6)*
to make this
stated
and that the debt,
the
consideration
for
was
incurred
the
debt
statement. I know that
unsatisfied.
and
remains
unpaid
still
and
belief,
to the best of my knowledge
I am employed by the creditor and authorised in writing by the creditor
9,(61* I am the creditor's agent authorised in writing to make this statement in writing' I know that
the debt was incurre,J and for the consideration stated and that the debt, to the best of my
knowledge and belief, still remains unpaid and unsatisfied.
DATED this
day of
2015
Signature of Signatory
NIIME lN BLOCK LETTERS,...!¡.,r.....!r...
Occupation...
Address,.,..,..
See Directions overleaf for the completion of this form
#1412010
USE ONLY
POD No:
ADMIT - Ordinary
$
Date Received:
ADMIT - Preferential
$
Entered into |PS/Computer:
Reject
$
H/Over for Consideration
$
TOTAL PROOF
$
Amount per RATA
$
PREP B\TAUTHORISED
DATEAUTHORISED
#1412010
Directions
Strike out whichever is inapplicable.
(1)
lnsert date of Courl Order in winding up by the Cout't, or date of resolution to wind up, if a voluntary
winding up.
(2)
lnsert full name and address (including ABN) of the creditor and, iÎ applicable, the creditor's partners. lf
prepared by an employee or agent of the creditor, also insert a description of the occupation of the
':rerJitor.
(3)
Under "Consideration" state how the debt arose, for example "goods sold and delivered to the company
..........,....u, "moneys advanced in respect of the Bill of
between the dates of
.,...............
Exchange".
(4)
Under "Remarks" include details of vouchers substantiating payment'
(5)
lnsert particulars of all securities held. Where the securities are on the property of the company, assess
the value of those securities, lf any bills or other negotiable securities are held, speciñ7 them in a schedule
in the following form;
Date
(6)
Drawer
Acceptor
$
0
Amount
Date Due
lf proof is made by the creditor personally, strike the two (2) paragraphs numbered 3.
Annexures
A.
lf space provided for a parlicular purpose in a form ís insufficient to contain all the required information in relation
to a particular item, the information must be set out in an annexure.
B.
An annexure to a form must:
(a)
(b)
i)
have an identiñ/ing mark;
and be endorsed with the words:
"This is the annexure of fnsert number of pages) pages marked (insert an
identifying mark) referred to in the (rnsert description of form) signed by me/us and
dated fnserf date of signing); and
(c)
be signed by each person signing the form to which the document is annexed,
C.
The pages in an annexure must be numbered consecutively.
D.
lf a form has a document annexed the following particulars of the annexure must be written on the form:
E
(a)
the identifying mark; and
(b)
the number of Pages.
¡\ reference to an annexure includes a document that is with a form'
#1412010
FORM 532
Regulation 5.6.29
CORPORATIONS ACT
2OO1
APPOINTMENT OF PROXY
GREDITORS MEETING
SKYTRANS PTY LTD
ISTRATORS APPOI NTED)
ACN 100 751 '139 ("the Company")
(ADM
I
N
a creditor of Sþ¡trans Pty Ltd, appoint (3) ............
or in his or her absence
to vote at the meeting of creditors to be held at the University of
Queensland Business School
ExecutiveVenue, Level 19 Central PlazaOne,345 Queen Street, Brisbane QLD 4000 at 10:00am
on Thursday, 15 January 2015, or at any adjournment of that meeting (4).
As either:
My/our general proxy to vote at the meeting of creditors
OR
My/our special pro)ry to vote at the meeting of creditors
and to vote in accordance with mylour instructions below (please
tick as applicable):
Where a special proxy is provided, he/she is directed to vote as follows (5):
Against
Abstain
tr
tr
tr
tr
tr
tr
For
a. That in the event that an alternative Administrator is proposed, that the
existing Administrators be removed and an alternative appointee be
appointed in their stead.
b. That a committee of creditors be appointed.
Attendance: Teleconference
#1412010
Person tr
day of January 2015.
Dated this
Signature
tl
(6)
CERTIFICATE OF WITNESS
This cer¡¡cate is to be completed only if the person giving the proxy is blind or incapable of writing. The signature of
the creditor, contributory, debenture holder or member must not be witnessed by the person nominated as proxy'
certify that the above instrument appoinling a proxy was completed by me in the presence of and at the request of the
persón appointing the proxy and read to him or her before he or she signed or marked the instrument.
Dated:
Signature of Witness:
Description;
Place of Residence:
'
Strike out if inapplicable
(1
)
lf a firm, strike out "1" and set out the full name of the firm.
(2) lnsert your full address.
(3) lnsert the name, address and description of the person appointed.
(4) lf a special proxy add the words ''to vote for'' or the words "to vote âgainst" and speciflt the particular
resolution.
(S) Please indicate how you would like your proxy holder to vote by ticking the appropriate box' lf left bank the
pro>rry holder can vote at his/her discretion.
(6) The person named at (1) should sign the form, or an appointed representative, if a firm, should sign on
behalf of the
#1412010
lrm stating their position within the
firm.
CORPORATIONS ACT 2OO1
Section 43604
Declaration of lndependence, Relevant Relationships and
lndemnities
SKTTRANS PTY LTD
(ADMI
N
ISTRATO RS APPO¡ NTED)
("the ComPanY')
ACN 100 751 139
entity to make declarations as to:
This document requíres the practitioner/s appointed to an insolvent
A.
B.
theír indePendence generallY;
relationshiPs, including
C.
Practitioner'
any indemnities gMen, or up-front payments rnade' to the
i the circumstances of the appointment;
ii any relationships with the lnsolvent and others within the previous 24 months;
iii any prior professional services for the lnsolvent within the previous 24 months;
iv that there are no other relationships to declare; and
Fletcher, our parlners and
This deelaratiorl is-.rnade in respect of Tracy Lee Knight, william John
Ltd'
Bentleys Chartered Corporate Recovery Pty
A.
Declaration of lndePendence
aPPrrintment.
B
Declaration of RelationshiPs
i
Circumstances of þPointment
This appointment was referred to us by BDO Australia.
ir.,ãv ,"t r us work from time to
with BDO Austraria
"no
to the Company'
services
provided advisory
we have a professional relationship
time. BDO Australla had previously
Simon Wild' and his advisers
Tracy Lee Knight attended one teleconference with the Director,
this teleconference was to
purpose
of
prbi to óur ãppointment as Administrators. The
of action available to the
possible
courses
consider the current c¡rcumstances of and
advice'
providing
this
Company. No remuneration was received for
GXC/ A1
/
1409860v1
-&
Skytrans Pty Ltd
(.Admlnisüatoß aPPolnted)
A.C,N 100 751 139
.l
s¡î
sAp.
5/01/201/
Dated:5/01
Dated:
TRACY LEE
JOHN FLETCHER
ADMINISTRATOR
NOTE:
1. If circumstances
chanse,
or
new information
;,li,f\'I3i¿:f"î;J"i'{i{Hiilil:,
next communicaÛbn as well as table a copy
and C of the DIRR| is to disclose rcla
Practitioner having
a conflict of interest
those retationshþs and understand
índePendent'
GXC/A1
/
1409860v1
AS IC
Austreli¡n Secutities & I¡rvestmenta Commirsion
INFORMATION SHEET 74
Voluntary administration: a gu¡de for creditors
If a company is in fÏnancial diffrculty, it can be put into voluntary administration.
in voluntary
This information sheet provides general information for unsecured creditors of companies
administration.
Who is a creditor?
is owed money
You are a creditor of a company if the company owes you money. Usually, a creditor
company.
to
the
loans
made
or
services,
or
provideógoods
because they have
An employee owed money for unpaid wages and other entitlements is a creditor'
by
ais
g' if they succeed in a
be owed money
the companyi is
generallY two categ
o
as a'contingent'
charge', such as a mortgage, over some or all of the
y the company. Lenders usually require a charge over
sec
comp
A
comp
¡
assets'
An unsecu¡ed creditor is a creditor who does not have a charge over the company's
Their outstanding entitlements-q9 usually paid
Employees are
If you are an employee, see ASIC's information
in priority to ttr
sheet tNÉO
ZS
emPloYees'
The purpose of voluntary administrat¡on
Voluntary administration is designed to resolv
and
o
Ð
s'
summarises the process)' An indãpendent
takes full controi of the company to try to work
If it isn't
possible to save the company or its business, the aim is to administer the affairs of the
have received if the
a \ilay that results in a better returi to creditors than they would
for
achieving these aims is a
A
mechanism
had insíead been placed straight into liquidation.
;;;p""yì"
ññi
deed of company anangement.
company's directors, after they decide that the
LesJ commonly, a voluntary administrator may be
r a secured creditor'
administrator
company is insolvent or li
uppointéA by a liquidator,
A voluntary
lmpo rtant note: lnts information sheet contai
topi
It ts not
exceptions or
á substitute for legal advi ce Some provrsrons
exceptions
law
the
or
the
about
information
the
of
qualifications. This document may not contain all
professional
qualified
a
will
need
You
your
circumstances
nt
to
releva
and qualifications that arc
to
how the law
r ctfcu mstances and to tell
adviser to take into account
@
(-;omm'ss'on, ltecember 2Ûi'î
Australian Securities & lnvestmenl:s
Page 1 ol 12
VOLUNTARY ADMINISTRATION: A GUIDE FOR CREDITORS
Figure
l:
The voluntary adm¡n¡strat¡on process
Secured cred¡tor
Directors
of
the Board and
Charge over all or
substantially all of the
in writing
company's property
By resolution
Liquidator
Declslon to appoint
Or provisional liquidator
adminlstrator
Ap¡rointment of
voluntary
administrator
.
.
Wlthin I þuglness
days of appointment
rs can vote
replace the
administrator
create a committee
of
of voluntary
Firct meeting of
cred¡tots
adm¡n¡strator*
(at least 5 business days
notice is reduired)
crcditors
Adminlstrator must
invesligaÞ cornpan¡/s
affa¡rs and rcpoÉ to
creditos on
alternatlves
Witliin 25 or 30
business days
of appointment of
Meeting to decide
company's future
voluntary
administrator*
(at least 5 business days
notice is required)
Creditorc decide to
return company to
the control of the
directorc
Creditors decide to
accept a deed of
company
arrangement
Within 15 business days*
Creditons decide to
put the company
Outcome of meetlng
into liquidation
Immediately
Company signs a
* Unless
deed and deed
Administrator
administration
begins
becomes liquidator
the court allows an extension of time.
@
Australian Securities & lnvestments Commission, December 2008
Visit our website: www,asic. gov.au
Page 2 oÍ 12
VOLUNTARY ADIttINISTRATION: A GUIDE FOR CREDITORS
A company in voluntary administration may also
54 Receivership: a guidefor creditors.
be in receivership: see ASIC information sheet INFO
The voluntary administrator's role
reports to creditors
After taking control of the company, the voluntary administrator investigates and
three options
the
on
and
circumstances,
financial
and
prop"¡y,
affairs
on it. .otniu"V,s business,
are:
These
cre:ditors.
available tc
o
.
control
end the voluntary administration and retum the company to the directors'
will pay all or part of its
approve a deed of company arrangement through which the company
d: Ís and then be ftee ofthose debts, or
.
wind up the company and appoint a liquidator'
which option is in
The voluntary administrator must give an opinion on each option and recommend
the best interests ofcreditorson to the company's problems,
In
and compares the possible
doing
assesses
outcome
goes into voluntary
.
A creditors' meeting is usually held about five weeks after the company
administrations, this
In
complex
futwe.
company's
the
for
option
th"
b.rt
on
to
decide
administration
meeting may be held later if the court consents'
of the company and its directors. This includes the
iness or sell individual assets in the lead up to the
on possible offences by
Another responsibilþ of the voluntary administrator is to report to ASIC
people involved with the company'
must act fairþ and
the voluntary administrator may be appointed by the'directors, tlley
Although
impartially.
Effect of appointment
provide the company wi.th brgathing
The effect of the appointment of a voluntary administrator is to
is in voluntary administration:
the
company
While
resoþéd.
is
space while the company's future
.
.
the company without the
unsecured creditors can't begin, continue or enforce their claims against
permission
administrator's consent or the court's
by the company, or people
owners ofproperty (other than perishable property) used or occupied
property
their
who lease sucir property to the company, can't recover
¡
charge over company
excgpt in limited circumstances, secured creditors can't enforce their
prop )rly
¡
.
and
a court application to put the company in liquidation can't be commenced,
director or other person can't act
a creditor holding a personal guarantee from the company's
under the personal guarantee without the court's consent'
Voluntary admi nistrator's liability
Any debts that arise from the
using or occupYing ProPertY'
administration. If there are in
voluntary administrator is personally liable for the
advised by the voluntary
should ensure you receive u purcnase order authorised in the manner
administrator.
@ Austra ia n secu riti es & n vestme nts
I
I
ff#l;:i:i
ri^tr:.Tli í:3:
PageS oÍ 12
VOLUNTARY ADMINISTRATION: A GUIDE FOR CREDITORS
The voluntary administrator must also decide whether to continue to use or occupy property owned by
another party thatis held or occupied by the company at the time of their appointment.
Within five business days after their appointmen! the voluntary administrator must notify the owner
ofproperty whether they intend to continue to occupy or use the property. Ifthe voluntary
administrator decides to continue to do so, they will be personally liable for any rent or amounts
payable arising after the end ofthe five business days.
Amounts that become due to employees after the date of the appointment of the voluntary
administrator have a priority claim against the company's assets as a cost of the administration.
However, the voluntary administrator does not become personally liable for such amounts unless the
voluntary administrator adopts employees' contracts of employment or enters into new employment
contractr; with them.
Greditors' meetings
Two meetings of creditors must be held during the voluntary administration.
First creditors' meeting
The voluntary administrator must call the first creditors' meeting within eight business days after the
voluntary administration begins.
At least five business days before the meeting, the voluntary administrator must notiry as many
creditors as practical in writing and advertise the meeting. The advertisement must appear in a
newspaper cìrculating in the states or territories in which the company has its registered office or
canies on its business.
The voluntary administrator must send to creditors, with the notice of meeting, declarations about any
relationships they may have, or indemnities they have been given, to allow creditors to consider the
voluntary àdministrato.'s independence and make an informed decision about whether they want to
replace them with another voluntary administrator ofthe creditors' choice.
The purpose of the first meeting is for creditors to decide two questions:
o
.
whether they want to form a committee of creditors, and, if so, who will be on the committee, and
whether they want the existing voluntary administrator to be removed and replaced by a voluntary
administrattr of their choice.
The role of a committee of creditors is to consult with the voluntary administrator about matters
relevant to the voluntary administration and receive and consider rePorts from the voluntary
administrator. The committee can also require the voluntary administrator to report to them about the
voluntary administration. [t may also approve the vohurtary administrator's fees.
A creditor who wishes to nominate
an altemative voluntary administrator must approach a registered
liquidator before the meeting and get a written consent from that Person that they would be prepared to
aci as voluntary administrator. The proposed alternative administrator should give to the meeting
decla¡ations about any relationships they may have, or indemnities they have been given. The
voluntary administrator will only be replaced if the resolution to replace them is passed by the
creditors at the meeting.
To be eligible to vote at this meeting, you must lodge details of your debt or claim with the voluntary
administrator (discussed further below).
This meeting can be chaired by either the voluntary administrator or one of their senior staff.
@
Australian Securities & lnvestments Commission, December 2008
Visit our website: www.asic.gov. au
Page 4 of 12
VOLUNTARY ADMINISTRATION: A GUIDE FOR CRED¡TORS
second cred¡tors' meet¡ng (to decide the company's future)
After investigating the affairs of the company
options
available to ãredit-ors (outlined above), incluâi
the administrator must call a second cr
ãf
st interests
tors are
"..¿itott,
given
the opportunity to decide the company's future'
voluntary administration
This meeting is usually held about five weeks after the company goes into
Easter).
(six weeks at Christmas and
for the voluntary
However, in complex voluntary administrations, often more time is needed
the court can approve an
circumstances,
these
In
to
creditors.
position
to
report
administrator to bi in a
extension of time to hold the meeting.
The voluntary administrator must chair this meeting'
creditors the following
In preparation for the second meeting, the voluntary administrator must send
doôuments at least
¡
¡
.
business days before the meeting:
a notice of meeting
the voluntary administrator's report, and
a statement about any proposals for a deed of company arrangement.
These
.
.
lle
will
be accomPanietl b1:
a claim form (usually a 'proof of debt' form), and
a proxy voting form.
The meeting must also be advertised-
or
Either or both the first and second creditors' meeting may be held using telephone
videoconferencing facilities.
Votuntary administratof s rePort
you shourd read the voluntarv administrator's report
iîtiîäåi"Tf"lffiË:fü:T;i-"i'*i:iu"
and the reasons for
úusiness, property and affairs,
an informed decision about the company's
future.
future of the comPany' including
The report should also provide an analysis of-"ny proposals for the
be available for creditors in a
would
what
of
a comparable
the possible outcomes,'À *"tt
liquidation.
"rii.àt"
^
each of the options
Finally, the report should include the voluntary administ¡at9r's opinion on
of creditors' As noted
interests
best
is
in
the
which
on
available to creditors, as well as an opinion
above, the options are:
o
.
o
control
end the voluntary administration and return the company to the directors'
approve a deed ofcompany arrangement (ifone is proposed)' or
put the company into liquidation.
@
Australian securities & lnvestments commission, December 2008
isit our website: www.asic.gov.au
Page 5 of 12
VOLUNTARY AOMINISTRATION: A GUIDE FOR CREDITORS
Vol untary adm
in
istrator's statem e nt about deed
If there are proposals for a deed of company arrangement, the voluntary administrator must provide
creditors with a statement giving enough details of each proposal to enable creditors to make an
informed decision. The types of proposals allowed in a deed of company anangement are very
flexible.
Typically, a proposal will provide for the company to pay all or part of its debts, possibly over time,
anå thenbe free of those debts. It will often provide for the company to continue trading. How these
things wilt happen varies from case to case, as the terms allowed in a deed of company arrangement
are ãko very flexible. The contents of a deed of company arrangement are discussed below.
You should insist on being provided with as much information about the terms of the proposed deed
possible, before the creditors' meeting. The minimum contents of a deed of company arrangement,
discussed below, provide a guide on the information you might request if it hasn't already been
as
provided.
You should also contact the voluntary administrator before the meeting if you believe the report to
creditors does not contain sufficient information to enable you to make a decision about the
company's future.
Voting at a creditors' meet¡ng
Tc vote at any creditors' meeting you must lodge details of your debt or claim with the voluntary
-w'11 -'-,¡v'.'jr¡ yc'; w"l :. fo:-:. CalleC a. ':-¡Cf cf
aC.mÍnil ,lrif¡n. Ïr,'-nlli', ^hrr l'tl ;-.';tJ ;¡.rÌ:r, -. ;r1;.lOdebt' to be completed and returned before the meeting.
The chairperson of the meeting decides whether or not to accept the debt or claim for voting purposes'
The chairperson may decide that a creditor does not have a valid claim or the amount of the debt
cannot bJdetermined with any certainty at the date of the meeting. In this case, they may not allow the
creditor to vote at all; or only to vote for a debt of $ l. This decision is only for voting purposes. It is
not relevant to whether a crdditor will receive a dividend.
An appeal against a decision by the chairperson to accept or reject
a
proofofdebt or claim for voting
purposes may be made to the court within 14 days after the decision.
A secured creditor is entitled to vote for the full amount of their debt without having to deduct the
value of their security.
Voting by proxy
You may appoint a proxy to attend and vote at a meeting on your behalf. A proxy can be any person
who is at least 18 years old. Creditors who are companies will have to nominate a person as proxy so
that they can partiôipate in the meeting. This is done using a form sent out with the notice of meeting'
The completed proxy form must be provided to the voluntary administrator before the meeting. You
can fax tñe pto*y form to the voluntary administrator, but must lodge the original within 72 hours of
sending the faxed copy.
An electronic form of proxy may be used if the liquidator allows electronic lodgement, provided there
is a way to authenticate the appointment of the proxy (e.g. by scanning and e-mailing a signature or
using a digital signature).
You can specify on the proxy form how the proxy is to vote on a particular resolution and the proxy
must vote in accordance with that instruction. This is called a 'special proxy'. Altematively, you can
leave it to the proxy to decide how to vote on each of the resolutions put before the meeting' This is
called a'general proxy'.
You can appoint the chairperson to represent you either through a special or general proxy' The
voluntary ààministrator or one of their partners or employees must not use a general proxy to vote in
favour of a resolution approving payment of the voluntary administrator's fees.
@
Australian Securities & lnvestments Commission, December 2008
Visit our website: www, asic, gov.au
Page 6 of 12
VOLUNTARY ADMINISTRATION: A GUIDE FOR CREDITORS
Manner of voting
A vote on any resolution put to a creditors' meeting may !e taken by creditors stating aloud their
voting procedure called
agreement oi di.ugr."*.nt, o, by a show of hands. Sometimes a more formal
a'poll' is taken.
passed if
If voting is by show of hands or by verbally signalling agreemen!_the resolution is
majority
of those-presánt indicate ug.."-.nt. It is up to the chairperson to decide if this
a majority
has been
reached.
passed or lost'
After the vote, the chairperson must tell those present whether the resolution has been
they may
hands,
of
a
show
on
the chairperson is unablè to determine the outcbme of a resolution
If
decide to conduct a Poll.
to vote' or
Alternatively, a poll can be demanded by at least two people plesent who are entitled
meeting. The
someone wtro tlót¿s more than l0% of the votes of those entitled to vote at the
poll
is taken.
chairperson will determine how this
has
If you intend to demand that a poll be taken, you must do so before, or as soon as, the chairperson
deãhred the result ofa vote taken by show ofhands or voices'
When a poll is conducted, a resolution is passed if:
of
.
proxy) vote in favour
more than half the number of creditors who are voting (in person or by
. r: resolution, and
r
at the meeting vote
those creditors who are owed more than half of the total debt owed to creditors
in favour of the resolution.
value is not
This is referred to as a 'majority in number and value'. tf a majorþ in both number and
vote'
ç¿5[ing
has
¿
chairperson
the
deadlock),
a
to
as
(often
refened
r.*tr"¿ under a poll
Ghairperson's cast¡ng vote
vote either in
When a poll is taken and there is a deadlock, the chairperson may use their casting
casting vote'
their
to
use
not
decide
also
may
favour oior against the resolution. The chairperson
meeting that are
The chairperson must inform the meeting, and include in the written minutes of
or
why they chose not to
way
particular
in
a
vote
f"åg.J *ittr ASIC, of the rea¡ions why thiy cast their
use their casting vote.
dis
casting vote,
vary or set as
Ifyou
son
are
a
exercised
th
review of
use their
court may
the resolution
Votes of related cred¡tors
Ifdirectors and shareholders, their
spouses and relatives and other entities controlled by them are
to attend and vote at creditors' meetings, including the
crèditors of the company, théy *"
"ãtitl"d
future.
meeting to decide the company's
resolution is passed, or defeated, based
dissatisfied with the outcome, you may
fresh resolution to be vote¿ onîitnout øät"¿
met before the court will make such an order (e.g'
interests of all or a class of creditors).
Ifa
aPP
".t
@
for a
st be
Australian securities & lnvestments commission, December 2008
Visit our website: www,asic.gov.au
PageT ol 12
VOLUNTARY ADMINISTRATION: A GUIDE FOR CREDITORS
Deciding how to vote at the second meeting
How you vote at the meeting on the three possible options, including any competing proposals for a
deed óf company arangement, is a commercial decision based on your assessment of the company
and its future prôspects, and your personal circumstances. The information provided by the voluntary
administrator,-inciuding opinions expressed, will assist you. However, you are not obliged to accept
the administrator's rec<,mr nendation
Ifyou do not consider that you have been given enough information to decide how to vote, and
particularly whether to vote for any deed proposal, you can ask for a resolution to be put to creditors
ihut th" méeting be adjoumed (up to a maximum of 45 business days in total) and for the administrator
to provide morõ information. You must make this request before a vote on the company's future' This
resolution must be passed for the adjoumment to take place.
Creditors also have the right when a deed of compariy arrangement is proposed and considered at the
meeting to negotiate specific requirements into the terms of the deed, including, for example, how the
deed administrator is to report to them on the progress of the deed.
Any request to vary the deed proposal to include such requirements should be made before the deed
proposal is voted on.
lllirrutes of meeting
The chairperson must prepare minutes of each meeting and a record ofthose who were present at each
meeting.
The minutes must be lodged with ASIC within 14 days of the meeting. A copy may be obtained from
any ASIC Business Centre on payment ofthe relevant fee'
Gompany returned to directors
If the company is returned to the directors, they will be responsible for ensuring that the company pays
its outstanding AeUtr as they fall duè. It is only in very rare circumstances that creditors will resolve to
retum the company to the control of its directors.
Liquidation
If creditors resolve that the company go into liquidation, the voluntary administrator becomes the
liquidator unless creditors vote at the second meeting to appoint a different liquidator of their choice.
f"he liquidation proceeds as a creditors' voluntary liquidation with any payments of dividends to
creditoìs made in the order set out lnthe Corporations Act 2001 (Corporations Act). To find out more,
see ASIC information sheet INFO 45 Liquidation: a guidefor creditors.
Deed of company arrangement
If creditors vote for
must sign the deed
a proposal that the company enter a deed of company alrangement, the company
15 business days of the creditors' meeting, unless the court allows a longer
*ithin
time. If this doesn't happen, the company will automatically go into liquidation, with the voluntary
administrator becoming the liquidator.
The deed ofcompany arrangement binds all unsecured creditors, even ifthey voted against the
proposal. It also binãs owneis of property, those who lease property to the company and secured
ðt.àito.r, ifthey voted in favour ofthe deed. In certain circumstances, the court can also order that
these people are bound by the deed even if they didn't vote for it. The deed of company anangement
does not irevent a creditor who holds a personal guarantee from the company's director or another
person taking action under the personal guarantee to be repaid their debt.
@
Australian Securities & lnvestments Commission, December 2008
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Page 8 of 12
VOLUNTARY ADMINISTRATION: A GU¡DE FOR CREDITORS
Contents of the deed
information,
ìVhatever the nature of the deed of company arïangement, it must contain certain
including:
¡
o
o
¡
¡
o
¡
o
the name of the deed administrator
the propefy that
will be used to pay creditors
released
the debts covered by the deed and the extent to which those debts are
company arrangement
the order in which the available funds will be paid to creditors (the deed of
entitlements
employee
must ensure that employees have a priority inþayment of outstanding
vary
this priority)
value
to
and
number
unless the eligible .åpíoy... ugr".iy a majority in both
the nature and duration of any suspension of rights against the company
the conditions
(if any) for the deed to come into operation
the conditions (ifany) forthe deedto continue inoperation, and
the circumstances in which the deed terminates'
åHtriîål['iî:lïeff #'ff'ff i;in'üi'llå'":"å:ïJ::í
f the deed and the appointment of a committee of creditors
(called a'committee of inspection').
provisions are proposed to be
The voluntary administrator's report should tell you which prescribed
excluded or varied and, if varied, how.
Monitoring the deed
ensure th I company (or others Úho have made commitments
The extent of the deed administrator's ongoing
commitmerit;.
these
unáer the deed) carries through
deed'
the
in
role will be set out
that the obligations of the
up promptlY with the deed
payments or other actions
It is the iole of the deed administiator to
promised under the deed being missed.
proposed and considered at the
Creditors also have the right when a deed of company aÛangement is
of faillre io meeisuch deadlines into the terms of the deed'
second meeting to n goiiãt"
"onsequences
before the deed
eny request tJ*.y tñ. deed propoial to include such consequences should be made
proposal is voted on.
payments with ASIC every six
The deed administrator must lodge a detailed list of receipts and
months.
Varying the deed
a proposed variation to the
The deed administrator can call a creditors' meeting at any time to consider
set out in the notice of
be
must
iesolutions
deed or a resolution to terminate the deed. The proposed
meeting sent to creditorsrequest, also require the
creditors owed at least 10% in value of all creditor claims can, by written
happen, as those who
this
to
for
unusual
deed administrator to call such a meeting. However, it is
the
meeting.
holding
and
make the request must pay the costs of calling
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Australian Securities & lnvestments Gommission, December 2008
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Page 9 of l2
VOLUNTARY ADMINISTRATION: A GUIDE FOR CREDITORS
Payment of dividends under a deed
The order in which creditor claims are paid depends on the terms of the deed. Sometimes the deed
proposal is for creditor claims to be paid in the same priority as in a liquidation' Other times, a
different priority is proPosed.
The deed must ensure employee entitlements are paid in priority to other unsecured creditors unless
eligible employees have agreed to vary their priority'
Before you decide how to vote at the creditors' meeting, make sure you understand how the deed will
affect the priority of payment of your debt or claim'
you may wish to seek independent legal advice if the deed proposes a different priority to that in a
liquidation, or ifcreditors approve such a deed.
Establishing your claim under a deed
How debts or claims are dealt with under a deed of company arrangement depends on the deed's
terms. Sometimes the deed incorporates the Corporations Act provisions for dealing with debts or
claims in a liquidation.
Before any dividend is paid to you for your debt or claim, you will need to give the deed administrator
sufficient information tò prove-your debt. you may be required to complete a claim form(this is called
,proof of debt' in a liquidation). You should attach copies of any relevant invoices or other
a
suiporting documents tô ttre claim form, as yow debt or claim may be rejected if there is insufficient
evidence to support it.
If a creditor is a company, the claim form should be sìgned by a person authorised by the company to
do so.
When submitting a claim, you may ask the deed administrator to acknowledge receipt of your claim
and advise if any further information is needed.
steps, first contactthe deed
be done promptly.
should
This
advice.
your
legal
own
administrator. You may also wish to seek
to
take legal action to
which
time
in
a
limited
you
have
may
Depending on the terms of the deed,
If the deed administrator rejects your claim after you have t'àiien the above
challenge the decision.
If you have
a query about the timing of the payment, discuss this with the deed administrator.
How a deed comes to an end
deed may come to an end because the obligations under the deed have all been fulfilled and the
creditors háve been paid. Alternatively, the deed may set out certain conditions where the deed will
A
automatically terminate.
The deed may also provide that the company wilt go into liquidation if the deed terminates due to
these conditions being met.
Another way for the deed to end is if the deed administrator calls a meeting of creditors, and creditors
vote to end ihe deed. This may occur because it appears unlikely that the terms of the deed can be
fulfilled.
At the
same time, creditors may be asked to vote to put the company into liquidation.
The deed may also be terminated if a creditor, the company, ASIC or any other interested person
applies to the court and the court is satisfied that:
.
creditors were provided false and misleading information on which the decision to accept the deed
proposal was made
o
the voluntary administrator's report lefr out information that was material to the decision to accept
the deed proposal
@ Au
strarian secu
rití
es & I nvestme
nti
:;ruf:i:l ffi :#å:Ji:::
Page
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VOLUNTARY ADMINISTRATION: A GUIDE FOR CREDITORS
¡
¡
the deed cannot proceed without undue delay or injustice, or
interests
the deed is unfair or discriminatory to the interests of one or more creditors or against the
whole.
a
as
of creditors
lf the court termínates the deed as a result of such an application, the company automatically goes into
liquidation.
Approval of administrator's fees
voluntary administrator and deed administrator are entitled to be paid for the work they
from available assets, before any paymenE are made to
;.tf; G"rr.rány, their fees will be paid
a third party to pay arly shortfall in their fees if there aren't
for
ãreditors. they máy have also ur.urg"d
Both
a
enough assets,
creditors or the
The fees cannot be paid until the amomt has been approved by a creditors' committee,
to review
the
court
can
ask
ASIC
or
tdministrator
administrator/deed
court. Creditors, the voluntary
aPProved.
the amount offees
in a general meeting
are asked to approve fees, either at a meeting of a creditors' committee or
you,
the
same time as the
give
at
must
administrator
deed
or
administrator
of creditors, the voluntary
the fees
whether
u åport that contains sufhcient information for you to assess
If you
notice of the meeting,
claimed are rea.ottable. This report should be in simple language and set out:
.
¡
.
a description of the major tasks performed
the costs of completing these tasks, and
such other information that
will assist in
assessing the reasonableness of the fees claimed.
guidefor creditors'
For further information, see ASIC's information sheet INFO 85 Approvingfees: a
information'
more
for
ask
calculated,
were
fees
the
how
about
doubt
If you are in any
for
Apart from fees, thê ù-òluntary administrator and deed administator a¡e entitled to reimbursement
does
reimbursement
This
thei¡
administration.
out
carrying
in
have
arisen
that
out-of-pocket expenses
not usually require aPProval.
Creditr¡rs' committee
A creditor's committee may be formed, following a vote of creditors, to consult with the voluntary
A
administrator or deed administrator and receive reports on the conduct of their administration.
fees'
administrator's
the
approve
creditors' committee can also
be formed
In a voluntary adminishation, this committee is called a 'committee of creditors' and may
it is called
arrangement,
company
deed
of
under
a
is
company
the
while
meeting.
at the first creditors'
a 'committee of insPection''
All creditors, including
a representative of the company's employees, are entitled to stand
for
efficiently, the
committee membershii to räpresent the interests of ail creditors. However, to operate
committee should not be too large.
If a creditor is a company, the creditor can nominate a director or employee to represent it on the
committee.
Directors and voluntary administration
They must help
Directors cannot use their powers while the company is in voluntary administration.
a report about
and
records,
and
books
com.pany's
providing
the
the voluntary administrator, including
any
further
as
well
as
circumstances,
financial
and
property,
afia-irs
the company's business,
informaiionabout these tirat the voluntary administrator reasonably requires'
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Visit our website: rrvww.asic.gov.au
Page11 of12
VOLUNTARY ADMINISTRATION: A GU¡DE FOR CREDITORS
If the company goes from voluntary administration into a deed of company arrangement' the directors'
poì¡/ers depend ón the deed's terms. When the deed is completed, the directors regain full control,
unless the deed provides for the company to go into liquidation on completion.
If the company goes from voluntary administration or a deed of company arrangement into - liquidation, the directors cannot use their powers. If creditors resolve that the voluntary administration
should end, control ofthe company goes back to the directors.
Queries and complaints
You should first raise any queries or complaints with the voluntary administrator or deed
administrator. If this fails to resolve your concerns, including any concems about their conduct you
can lodge a complaint with ASIC at www.asic.gov.ar./complain, or write to:
l
SIC Corrplaints
PO Box 9149
TRARALGON VIC 3844
ASIC will usually not become involved in matters of commercial judgement by a voluntary
administrator or deed administrator. Complaints against companies and their officers can also be made
to ASIC. For other enquiries, email ASIC through [email protected], or call ASIC's Infoline on
1 300 300 630 for the c ost of a local call.
To find out more
For an explanation of terms used in this information sheet, see ASIC information sheet INFO 4l
Insolvency: a glossary of terms. For more on extemal administration, see ASIC's related information
sheets at www.asic.gov.au/insolvencyinfosheets:
o
¡
¡
.
.
o
¡
¡
¡
INFO 75 Toluntary adminis*ation: a guidefor employees
INFO 45 Líquidation:
ø
guideþr creditors
INFO 46 Liquídation: a guidefor employees
INFO 54 Receivership: a guidefor creditors
INFO 55 Receivership: a guideþr employees
INFO 43 Insolvency: a guidefor shareholders
INFO 42 Insolvency: a guidefor directors
INFO 84 Independence of external qdminìstrators: a guidefor creditors
INFO 85 Approvingfees: a guidefor creditors
These are also available from the lnsolvency Practitioners Association (IPA) website at
www.ipaa.com.au. The IPA website also contains the IPA's Code of Professional Practice for
Insolvency Professionals, which applies to IPA members-
@
Australian Securities & lnvestments Commission, December 2008
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Page 12 ol 12