Bankruptcy - Nicholls Co

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Bankruptcy

Running a Business While Bankrupt

  1. Can I run my own business while bankrupt?

Company Liquidation and Bankruptcy

  1. Does company liquidation cause the director to have to become bankrupt?
  2. What happens if I am a company director?

Bankruptcy and Tertiary Education

  1. Can I start tertiary studies and get HECS if I become bankrupt?

How Does Bankruptcy Finish

  1. How long does bankruptcy last in Australia?

Can I run my own business while bankrupt?

You can operate a business while bankrupt but there are some rules you will need to follow:

  1. You cannot have stock while bankrupt as the stock will vest in your bankrupt estate as after acquired property. You can however hold stock on consignment from a third party.
  2. You must have your name in the title of the business, for example: Crystal Clear Window Cleaning by Billy Bloggs. If you do not use your name as part of your business name, you are required by law to disclose to all your customers that you are bankrupt.
  3. If you have a trade credit account or otherwise obtain credit or undertake to supply goods and services, and the amount exceeds $5,881 you will need to inform the credit provider or the person you are dealing with that you are bankrupt.
  4. You can only operate the business as a Sole Trader.

Other things to note:

  1. You may find it difficult to obtain Public Liability Insurance, talk to an insurance broker they may be able to help you if your current insurer is unwilling to provide you the cover.
  2. Bankruptcy may affect your ability to work in some professions or industries. If you are a member of a professional or licensing body check to see if bankruptcy is a limiting/disqualifying factor.
  3. The ATO will be notified of your bankruptcy. If you have an ABN, the ATO will usually deactivate your ABN, this is standard practice. All you will need to do is contact the ATO and ask them to reactive your ABN, which they will do without issue.
  4. You cannot be director or manage a company while bankrupt. Section 206B of the Corporations Act 2001.

For further information on bankruptcy, we recommend our articles ‘Pathways to Bankruptcy – Essential Facts’, ‘Life During Bankruptcy’ and ‘The Bankruptcy Option Explained’.

Nicholls & Co have a complementary ‘help desk’ to answer your questions on bankruptcy. Call 1300 060 122 or email your questions to helpdesk@nichollsco.com.au


Does company liquidation cause the director to have to become bankrupt?

When a company is in liquidation the company’s assets will be sold and the proceeds used to pay the company’s debts. If the asset sales do not raise enough funds to clear all of the company’s debts it is possible that the company director/s may have liabilities flow through to them from the company. The director’s liabilities are limited to any insolvent trading claim by the liquidator, the extent of any personal guarantees that they have given and some ATO debts incurred by the company. If the directors are unable to pay those debts, then they may need to seek the protection of bankruptcy.

For further information on bankruptcy, we recommend our articles ‘Pathways to Bankruptcy – Essential Facts’, ‘Life During Bankruptcy’ and ‘The Bankruptcy Option Explained’.

Nicholls & Co have a complementary ‘help desk’ to answer your questions on bankruptcy. Call 1300 060 122 or email your questions to helpdesk@nichollsco.com.au


What happens if I am a company director?

A person who is bankrupt is not permitted to be a company director (Section 206B of the Corporations Act 2001). When you become bankrupt you will need to resign as director. You do this by lodging form 296 with ASIC. If there are other directors and the company is going to continue to operate, no other action is required. If you are the sole director, after you have lodged your form 296 the company will become director less and ultimately be deregistered by ASIC. If the company has any assets, they will vest in the commonwealth upon deregistration of the company.

If the company is not going to continue to operate because it is insolvent, and the directors are seeking the protection of bankruptcy the company will need to be wound-up. If your company has more than $10,000 in saleable assets, you may need to appoint a liquidator before you become bankrupt. The liquidator will wind-up the company for you. If the company does not have any assets of value you should not borrow money to fund the cost of liquidating if you are insolvent and intend to file for bankruptcy. In this situation you should close the company, file for bankruptcy, lodge form 296 with ASIC to resign as director and let ASIC deregister the company as a director less company. You should also contact the company’s creditors to let them know that the company is without funds and you are filing for bankruptcy. If you would like to discuss the circumstances pertaining to your company, give us a call on 1300 060 122 for a chat.

For further information on bankruptcy, we recommend our articles ‘Pathways to Bankruptcy – Essential Facts’, ‘Life During Bankruptcy’ and ‘The Bankruptcy Option Explained’.

Nicholls & Co have a complementary ‘help desk’ to answer your questions on bankruptcy. Call 1300 060 122 or email your questions to helpdesk@nichollsco.com.au


Can I start tertiary studies and get HECS if I become bankrupt?

Bankruptcy does not stop you from continuing tertiary studies you have previously commenced.

Bankruptcy does not stop you from commencing tertiary studies while you are bankrupt.

Bankruptcy does not stop you from continuing to get HECS support for your studies or from commencing studies with HECS support.

If you have a HECS or HELP debt when you become bankrupt that debt will not be caught by your bankruptcy and will continue to be collected by the government if your income exceeds the threshold amount.

For further information on bankruptcy, we recommend our articles ‘Pathways to Bankruptcy – Essential Facts’, ‘Life During Bankruptcy’ and ‘The Bankruptcy Option Explained’.

Nicholls & Co have a complementary ‘help desk’ to answer your questions on bankruptcy. Call 1300 060 122 or email your questions to helpdesk@nichollsco.com.au


How long does bankruptcy last in Australia?

Bankruptcy in Australia normally lasts for 3 years and 1 day.

A bankruptcy can be extended for it to last up to 8 years. This only happens when the bankrupt person does not follow the rules and fail’s to abide by the Bankruptcy Act 1966. If the person has a change of heart and works with the trustee to correct the problem, it is normal for the trustee to then have the objection to discharge removed.

If you would like Nicholls & Co to administer your bankruptcy, we ask you to work with us for the orderly resolution of your bankruptcy. It is not pleasant for us to be placed in the position of having to object to a person’s discharge from bankruptcy.

It is possible to end your bankruptcy early if you are able reach agreement with the creditors and trustee, this is known as a Part IV Agreement. A Part IV Agreement can be relevant if you have a SMSF with assets that are not readily realisable. If a creditors meeting approves your Part IV proposal, your bankruptcy is then annulled.

Sometimes, a person will inherit or win sufficient money to clear their debts early and in these cases the creditors and costs of the bankruptcy will be paid, the bankruptcy then automatically annulled and any surplus funds returned to you.

For further information on bankruptcy, we recommend our articles ‘Pathways to Bankruptcy – Essential Facts’, ‘Life During Bankruptcy’ and ‘The Bankruptcy Option Explained’.

Nicholls & Co have a complementary ‘help desk’ to answer your questions on bankruptcy. Call 1300 060 122 or email your questions to helpdesk@nichollsco.com.au