Answer by Kelly Angus, Adelaide 5000 SA

• The liquidator will be interested in all property that the company owned at the commencement of the winding up. All such property is available for sale and distribution by the liquidator as well as:

• property or income accruing to the company after the date of liquidation for example from successful litigation;
• certain property disposed of with the purpose of defrauding creditors if disposed of within ten years of the liquidation for example assets sold at an undervalue to related parties;
• certain preferential payments to creditors within 6 months of the liquidation;
• certain profits by directors and related persons from sales or purchases at an over or under value within four years of the liquidation;
• property subject to a circulating security interest if created within 6 months of the liquidation where no new consideration was received for the charge;
• certain property which the company previously disposed of and voidable transactions that are ‘clawed back’ by the liquidator. ‘Clawed back’ property is property recovered under the avoidance provisions of the legislation that are designed to ‘catch’ certain ‘voidable’ transactions that took place prior to the liquidation for example:

• unfair preferences;
• uncommercial transactions;
• unfair loans to the company;
• unreasonable director-related transactions;
• transactions to defeat creditors and related entity transactions;
• if the company has share capital or any unpaid calls on shares;
• rights of action for damages; and
• compensation recoverable by the liquidator for example compensation recoverable from the directors for insolvent trading.

Importantly only property belonging to the company is available. Property in the possession of but not owned by the company is not available.