By Jerome Mohen, Principal, Restructuring & Recovery (RSM Australia Pty Ltd)

The past couple of months have certainly been a rollercoaster as we adjust to a new way of working, and evaluate the effect that our national response to the health crisis will have on our livelihoods.

But as fear and panic pervade, it’s never been more important to STOP. Take a breath. Re-assess.

Now is not the time for hasty, reactive responses that can have potentially damaging long term impacts. It’s time for practical plans and considered strategies that minimise risk and maximise opportunity.

If you had a viable career or business before the crisis, it’s reasonable to expect that it will be viable in the future when normality returns.

Even if your business was struggling pre-crisis, you may be able to utilise some of the new measures as a lifeline to give you some space and develop a plan to turn it around.

Avoid rash decisions

Opportunists who capitalise on fear and uncertainty run rampant during a crisis.

This is certainly the case right now, so be wary of pay day lending-style tactics and unregulated pre-insolvency advisors offering short term panic solutions.

Going into unnecessary debt or jumping into administration, liquidation or bankruptcy, without a thorough consideration of other options, should not be your immediate decision.

Instead seek calm, experienced, supportive and collaborative advice to help you develop realistic plans that will see you through the foreseeable future.

Limit risk

As a first step, determine informal and practical solutions that will help you limit your risk and exposure.

Our federal government has been commendably proactive, with unprecedented stimulus measures on offer including:

• extra income relief for individuals and sole traders who are out of work
• cash payments for small to medium enterprises up to 100k
• wage subsidies to keep employees on the books
• early access to superannuation
• easier access to unsecured loans
• a ban on evictions for renters

State governments have their own initiatives such as deferred payment of payroll tax, rebates on electricity bills, a pause on licensing fees, and so on. Major banks have also introduced measures to help those struggling with loan repayments or cash flow.

Additional measures are undoubtedly on the horizon, and it is important to keep updated as these unfold (you can keep track of these via COVID-19 advisory).

Alternative options to Bankruptcy or liquidation

If the stimulus measures are insufficient and your exposure is high, there are other avenues available.

In the current situation, the following regulatory changes can provide some relief:

• Threshold for creditors to issue statutory demands increased from $2k to $20k
• Directors now have 6 months (instead of 21 days) to respond
• Reprieve for directors from personal liability if trading while insolvent
• Relief for directors from certain obligations under the Corporations Act 2001

Other steps we may suggest and can help you with include:

Debt negotiation: Negotiate revised and delayed payment terms with landlords, suppliers, banks, employees, the ATO, financiers and so on. Resolve any lingering commercial disputes.

Restructuring and asset protection: Restructure non-performing assets and review any gaps in your asset protection strategies.

Safe Harbour Protection: Develop a turnaround plan with a qualified restructuring advisor.

Holding Deed of Company Arrangement – Extend the period of moratorium provided by the voluntary administration process to give you time to investigate potential restructuring opportunities for the future of your company.

Personal Insolvency Agreement – Create a formal arrangement with creditors to settle all debts without becoming bankrupt.

Position yourself for recovery

Once you have a plan to manage your exposure during the crisis, it’s important to plan for how you will return to business as usual after the situation eases.

Although it may be difficult to see beyond the next few months, it will pass. And the same enthusiasm and vigour you harnessed to launch your career or business may be needed to re-establish yourself successfully.

Stay in contact with specialists that you trust, and don’t be afraid to seek counselling or other avenues of support if you want to talk to someone.

We will continue to provide restructuring and recovery solutions during these uncertain times, and are available over the phone and via Skype.

We’re also offering free initial consultations with a qualified restructuring advisor, and can help you:

• understand the measures and how they apply to you and your business
• complete hardship applications
• assess your cash flow
• take control of your debt
• devise practical strategies
• develop a turnaround plan

Jerome Mohen is a restructuring and recovery expert. As a registered liquidator Jerome welcomes the opportunity to assist you and your clients with any distressed financial situation you may face. You can contact Jerome at jerome.mohen@rsm.com.au or (08) 9261 9449 for a no cost no obligation discussion to review possible avenues forward.

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Disclaimer: The content of this Bulletin is general information only. It is not legal advice. The statements and opinions are the expression of the author, not Law Central, and have not been checked for their accuracy, completeness or changes in the law. Law Central recommends you seek professional advice before taking any action based on the content of this Bulletin.

Related documents:

• Loan Agreement (No Security)
• Forgiveness of Debt
• Director's Indemnity Agreement - Compulsory Insurance
• Director's Indemnity Agreement - No Insurance

Related webinars:

• Webinar Recording - Small Business Tax and Financial Risks