11 November 2020

Insolvent trading – Know your obligations



Madgwicks Lawyers has been serving clients since 1975 with reliable legal advice, clear explanations of outcomes, and practical options. Their deep expertise helps clients navigate complex matters by providing informed decision-making. The firm prioritizes developing long-term relationships with clients locally and globally, adding value beyond legal services. With over 100 staff and expertise in key practice areas, Madgwicks is an award-winning commercial firm. As part of Meritas, they are connected to a global alliance, offering business law services in 92 countries.
Temporary relief on insolvent trading for directors ends on 31 December 2020, so businesses must know their obligations.
Australia Insolvency/Bankruptcy/Re-Structuring
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Due to the economic repercussions of COVID-19, insolvent trading has become an area of law that all those involved in business should understand. With the temporary relief on insolvent trading for directors scheduled to end on 31 December 2020, it is vital that businesses understand their obligations

What is insolvent trading?

A director has a duty to prevent insolvent trading. Insolvent trading occurs where:

(a) a  person is a  director of a  company at the time when the  company incurs a debt; and

(b) the  company is  insolvent at that time, or becomes  insolvent by incurring that debt (or multiple debts); and

(c) at that time, there are reasonable grounds for suspecting that the  company is  insolvent, or would become  insolvent by incurring the debt(s).

Who can bring an insolvent trading claim?

  • ASIC (civil, criminal and director banning orders);
  • The liquidator; or
  • A third party to whom the liquidator has assigned their claim.

Who can insolvent trading proceedings be brought against?

  • Directors;
  • Defacto or shadow directors: these are people or companies who control the company or whose directions the directors of the company are accustom to acting, but are not officially appointed as a director; and
  • A parent company of the insolvent company - This applies if there were reasonable grounds to suspect that the subsidiary was insolvent at the time the debts were incurred.


Defences to an insolvent trading claim include:

  • At the time the debt was incurred, the director had reasonable grounds to suspect that the company was solvent.
  • Due to illness the director did not take part in the management of the company.
  • The director took all reasonable steps to prevent the company from incurring the debt.
  • The debt was incurred in connection with a "safe harbour" plan (a plan that is put in place to keep a company trading when its solvency is in question). This has various requirements and will be the subject of a further article.


Insolvent trading claims are very serious and can have consequences in both criminal and civil law. You should always seek legal advice to ensure that you are acting in accordance with the law.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances. Madgwicks is a member of Meritas, one of the world's largest law firm alliances.

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