The Assetless Administration Fund (AA Fund) was established by the Australian Government and is administered by ASIC. It finances preliminary investigations and reports by liquidators into the failure of companies with few or no assets, where it appears to us that enforcement action may result from the investigation and report. A particular focus of the AA Fund is to curb fraudulent phoenix activity.
The AA Fund enables a liquidator to carry out a proper investigation and report, which then helps us decide whether to commence enforcement action.
We have issued a guide for registered liquidators appointed in a creditors’ voluntary winding up or a court-ordered winding up, who are seeking funding from the AA Fund to carry out an investigation and prepare a supplementary s533 report.
Liquidators can seek funding from the AA Fund to carry out an investigation and report :
in circumstances where they believe director bannings may be appropriate; or
for other matters; such as where the liquidator believes there is or may be evidence of possible offences or other misconduct in relation to the Corporations Act 2001.
The guide outlines:
the criteria for assistance from the AA Fund;
how to apply for funding from the AA Fund;
our approach to funding liquidator investigations and reports; and
what to include in a funded supplementary s533 report.
We have undertaken a review of the guide with the objectives being:
to include further guidance to liquidators in relation to the AA Fund application process;
to provide additional information to liquidators which would assist in the completion of the AA Fund application forms, being Form EX02 (director banning) and Form EX03 (matters other than director banning); and
to ensure consistency with Regulatory Guide 16 External Administrators: Reporting and Lodging (RG 16), which was reissued in July 2008.
The most significant changes made to the guide have been in relation to the EX03 application process with the introduction of three new appendices to RG 109. The three new appendices (Appendix 5, Appendix 6 and Appendix 7) represent examples of additional information that should be provided as an attachment to the EX03 application form.
In summary, the three appendices include:
Appendix 5 - an example summary of alleged offences
Appendix 6 - a books and records listing and questionnaire
Appendix 7 - an example schedule of estimated liquidator's fees and disbursements.
The original Appendix 4 Submitting Form EX03 has been amended to incorporate these three new appendices and provide further guidance in relation to the EX03 application process. This includes the addition of a sample printout of a completed EX03 form.
We believe the changes to the guide will allow more liquidators to undertake additional investigations and improve the quality of reports lodged with ASIC.
Previous changes to the guide from 1 January 2008
The previous changes to the AA Fund guide which were effective from 1 January 2008 included an increase in the capped amount for a report prepared for the purpose of a director banning, expanding the concept of an 'assetless administration' and refining Annexure 1 of the guidelines.
In accordance with the Finance Minister's instructions dated 14 December 2007, ASIC has allocated grants to liquidators from the Assetless Administration Fund.