Voidable Transactions: Strategy and defences
If you are like most New Zealand business owners, you probably learnt about voidable transactions (or claw backs by liquidators) the hard way.
A liquidator wrote you a demand letter explaining that a company you provided goods or services to has failed and they want you to repay funds you received.
It is a shock. It doesn’t feel fair. You are probably wondering whether the liquidator will just take the money in his or her fees. How much will you get back?
Liquidators live and breathe this, every day. You don’t. They know how to extract information that may be helpful to their case. Seemingly standard information, which will be used against you. This information will be used to damage the possible defences that could be available to you.
When I first started in this industry I had no idea what a voidable transaction was. I thought, is this legal? Is this fair? Since then I have acted for liquidators on their side of the debate for over 5 years. I dealt with hundreds of companies. I have argued cases at the High Court and the Court of Appeal on the issue.
In my experience, there are three mistakes that business owners make. They offer too much information to the liquidator without obtaining any advice from an expert in the space. They settle the claim without obtaining advice from an expert in the space. They do not appreciate the importance of the time period to object to a voidable transaction notice. Failing to respond on time will result in the transactions automatically being set aside.
Liquidators take advantage of those without good representation.
The consequences are the liquidator’s case can be bolstered and often business owners pay liquidators to settle in circumstances whereby they had great defences to the claim.
Through acting on many of these cases, I have learnt that it is critical to:
- Reply to the liquidators ASAP setting out the possible defences; and
- Reply via an insolvency expert.
By doing this you demonstrate that:
- You are well advised as to the defences that are available; and
- You are willing to defend your position, and have in fact obtained expert representation to do so.
The liquidators often see this process as a shake-down. It is important to demonstrate that you will not be shaken-down.
At Norling Law we have established a five step process to resolve voidable transaction disputes with a minimum amount of pain and stress.
We can help you resolve this with the liquidator so you can reduce your stress and uncertainty and focus on the things that matter.
The next step is to book FREE 30-minute Legal Consultation. At this Consultation we will:
- Review the nature of demand by liquidators;
- Develop strategies to respond;
- Discuss options for negotiation and resolving the demand.