No express exclusion of set-off in the newly announced phoenixing offences: a missed opportunity!?

Really disappointed to see that the Commonwealth Treasury didn’t run with my idea of excluding the set-off defence (per s553C) from the newly announced illegal phoenixing offences under the Corporations Act.

It would solve so many issues if s553C(3) was introduced into the Corporations Act, which could say something along the lines of:

“For the avoidance of doubt, Part 5.7B of the Corporations Act is excluded from the provisions of this section.”

I wrote more about this here: https://svvoidables.blog/2018/09/12/a-glaring-hole-in-the-proposed-new-illegal-phoenix-recovery-law/

Here are the 3 key new insolvency laws the Government intends to legislate on this year:

  1. new phoenixing offences to prohibit ‘creditor-defeating dispositions’ of company property;
  2. prevent directors from resigning if there are no other directors, and prevent back-dating resignations; and
  3. make directors personally liable for unpaid GST in certain circumstances (ie like a DPN).

It will be interesting to see how these new laws will work in practice, given so many liquidations are still without any assets.

Here is a link to the Bill – https://parlinfo.aph.gov.au/parlInfo/download/legislation/bills/r6267_first-reps/toc_pdf/19010b01.pdf;fileType=application%2Fpdf

 SVVoidables

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