A common challenge for insolvency practitioners immediately post appointment is the lack of funds available to conduct a broad range of investigations.
The Assetless Administration Fund (AAF) was established by the Australian Government to help close the regulatory gap where there are insufficient assets to fund an insolvency practitioners investigations.
Many within the industry have expressed disappointment when applying and being denied funding from the AAF.
This article discusses the salient criteria considered by ASIC that insolvency practitioners should address when making an application to the AAF.
Which actions are generally funded by ASIC?
There are three funding categories for funding:
- Director banning;
- Matters other than Director Banning; and
- Asset Recovery.
Matters other than Director Banning
This article discusses the ‘Matters other than Director Banning’ Grant (Other Matters Grant). Other Matters Grants are concerned with director misconduct. ASIC will consider funding liquidators to conduct investigations into alleged misconduct and prepare a supplementary report.
Value with relevant money
The Other Matters Grant guidelines (Guidelines) stipulate a number of criteria which need to be addressed in an application for funding. However, the primary consideration for ASIC is whether the grant of funding represents ‘value with relevant money’.
The Guidelines defines ‘value with relevant money’ as a judgement as to whether the grant proposal represents an efficient, effective, economical and ethical use of public resources.
The definition also provides that ASIC considers the relevant financial and non-financial costs and benefits of each proposal which include:
- the quality of the project proposal and activities;
- fitness for purpose of the proposal in contributing to government objectives;
- whether the absence of a grant is likely to prevent relevant outcomes being achieved; and
- the applicant’s experience and history of performance.
To receive funding, one must meet both the eligibility criteria and the assessment criteria. The eligibility criteria are mandatory criteria which must be met to qualify for a grant. The assessment criteria are the specified principles or standards, against which applications will be assessed.
The eligibility criteria are relatively straightforward and are not discussed within this article.
There are several assessment criteria which are considered in determining whether an application has merit for funding. An application that meets the eligibility and assessment criteria may still be refused. Some of the key criteria are discussed further below.
The AAF allocation for financial year ending June 2024 is $4.7M. The headline strategic priorities from the ASIC Annual Report 2021-22, and the ASIC Corporate Plan 2022-26 may give the impression that ASIC’s interests are very limited. However, a deeper consideration reveals that the AAF will be used to:
- pursue relevant matters to identify and report on potential serious misconduct (including illegal phoenixing); and
- take action to recover assets of the company dissipated through misconduct.
Weighing up whether an application achieves ‘value with relevant money’ can be difficult. That said, an application that satisfactorily addresses the following key criteria will assist in meeting the ‘value with relevant money’ proposition:
- the detriment to creditors;
- the evidence available or likely to be available;
- relatively recent misconduct is identified; and
- clearly articulated misconduct.
ASIC considers the amount of the detriment, including the number and value of creditors impacted. In cases where there are few creditors, in number and value; the detriment is low. The ‘value with relevant money’ criteria will be difficult to satisfy in such a case.
Having an application for funding declined due to insufficient evidence may be confusing if one of the reasons of the application is to obtain more evidence. Applications should:
- demonstrate that evidence is likely to be obtained to a sufficient standard; and/or
- clearly articulate why it is believed that such evidence exists and can be obtained.
Standard of proof
Insolvency practitioners and their lawyers are accustomed to working to the civil, rather than criminal, standard of proof. Given ASIC’s regulatory powers and the potential criminal consequences of misconduct, applicants should seek to demonstrate that evidence may be available to the higher standard of proof.
Likelihood of evidence being available
Where a liquidator does not have the necessary evidence to a support an allegation, they should demonstrate whether such evidence is known to be available and is likely to be obtained. Simply saying evidence will be obtained through Public Examinations will not be sufficient. Be sure to include as much specifics as possible.
As misconduct starts to age evidentiary difficulties become more pronounced. The reliability of non-documentary evidence diminishes. Therefore, submitting applications for funding as soon as practicable after misconduct is identified is likely to improve chances of funding and be in the interest of creditors.
Articulation of the misconduct
A clear and concise statement of the relevant misconduct and the greater proposed course of action will significantly improve prospects of obtaining funding.
Matters out of a liquidator’s control
Understanding and properly addressing the assessment criteria is crucial. However, ASIC is unlikely to fund matters where other enforcement or regulatory outcomes would be more appropriate. For example, funding is unlikely to be granted if:
- ASIC or another agency is already taking enforcement action;
- another agency is better placed to fund an action (for example, FEG); or
- the misconduct falls within another agency’s remit.
There are many factors which are considered in determining whether an application has merit for funding. However, being able to:
- identify the likelihood of evidence (to a criminal standard) becoming available;
- not letting too much time lapse after identifying the misconduct; and
- giving a clear concise picture of the conduct.
will significantly improve the prospect of those applications.
Taylor David has been recognised as a leading insolvency and restructuring firm every year since 2019 by Doyles Guide. Adam Carr, an Associate with Taylor David, was previously a lawyer at ASIC, where he played a pivotal role in contributing to the management of the assetless administration fund. We are well placed to assist in the AAF space, whether it be assisting on applications, conducting public examinations, providing prospects advice, recovering assets or the preparation of supplementary reports.
Please contact us should you require any assistance applying to the AAF. We are open to assisting on a speculative basis in certain circumstances.