Advise the liquidator about the circumstances and nature

Reference no: EM132806545

Hannah and Guy are the only directors and members of The Big Fish Excursions Pty Ltd (Big Fish). Big Fish owned two fishing boats and other associated equipment. The fishing boats were acquired as a result of a loan made to the company by Hannah's father. Hannah's father intended the money to be Hannah's wedding gift once it was clear that Hannah would marry Guy. However, their excursion business has not prospered because Hannah and Guy disagree over management issues all the time. Hannah was worried about her father's money, so she arranged for the company seal to be affixed to a loan agreement granting a security interest to her father over one of the fishing boats. Her father then perfected his security interest over the boat in full compliance with the Personal Property Securities Act 2009 (Cth). On the 25th of November 2019, one month after the secured loan document was executed and registered, the company was ordered to be wound up by the court on the grounds of insolvency arising from an unsatisfied statutory demand by a major creditor of fishing equipment.

The liquidator held discussions with both Guy and Hannah to determine the quickest way to realise the company's assets and pay existing creditors who are angry as they seem to be able to get just 50 cents on the dollar for their loans. The subsequent investigation brings several transactions to his attention. On the 15th October 2018, Hannah sold a jet ski property of Big Fish worth $15,000 to her cousin for $5,000 as he graduated from Uni as an accountant and had just started helping them with the company books. On the 20th August 2019, another major supplier of fishing rods demanded payment under threats of terminating their exclusivity agreement. Hence, Hannah decided to advance $7,000 as part payment of the total debt amounting to $10,000. Guy and Hannah had paid themselves a bonus of $30,000 to be able to go on honeymoon to Las Vegas. Guy complains to the liquidator and argues that he cannot let down creditors and that Hannah's father's security should be avoided. Hannah retaliates by saying that the company would never have been wound up if Guy had not continued to purchase fishing equipment when they knew they could not afford it. Then, she complains that were it not for her cousin's help with the books they would never have kept proper company financial records.

Problem 1: Advise the liquidator about the circumstances, nature, timeframe and defences, if any, regarding --

a. the transactions with --
i. Hannah's father,
ii. Hannah's cousin, and
iii. the fishing rods supplier;
b. Guy and Hannah's bonus,
c. the presumptions of insolvency that may have caused the court to order Big Fish winding up; and
d. the possible Hannah's and Guy's liability for insolvent trading.

Reference no: EM132806545

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