Phoenix activity and the liability of the advisor
Helén Anderson, Linda Ruth Haller
Abstract
Helén Anderson, Linda Ruth Haller
Abstract
This article explores the liability of professional advisors such as lawyers, accountants and insolvency practitioners in giving advice to company directors in relation to fraudulent phoenix activity. It looks at the losses caused by such activity, and the nature and deficiencies of the current regulatory response. The Supreme Court of New South Wales decision in ASIC v Somerville is examined in detail, with questions asked about the utility of this decision in terms of both general deterrence and in providing clear guidance to the legal profession as to what constitutes acceptable advice in the business rescue context. Recommendations are made about ways to improve this situation.
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This article explores the liability of professional advisors such as lawyers, accountants and insolvency practitioners in giving advice to company directors in relation to fraudulent phoenix activity. It looks at the losses caused by such activity, and the nature and deficiencies of the current regulatory response. The Supreme Court of New South Wales decision in ASIC v Somerville is examined in detail, with questions asked about the utility of this decision in terms of both general deterrence and in providing clear guidance to the legal profession as to what constitutes acceptable advice in the business rescue context. Recommendations are made about ways to improve this situation.
Key concepts: Liability, Insolvency, Phoenix, Context (archaeology), Law, Legal advice, Supreme court, Project commissioning