Sunday Star-Times

NZ lags behind on insolvency regulation

- By ROB O’NEILL

THERE’S A gap in New Zealand’s regulatory environmen­t that the Government’s drive to boost confidence in capital markets has so far failed to address – the regulation of liquidator­s and insolvency practition­ers.

And, although there is a bill before Parliament that could tighten insolvency regulation in some areas, New Zealand remains a long way behind Australia in ensuring practition­ers are adequately trained and meeting profession­al standards, says one senior practition­er who has worked on both sides of the Ditch.

David Webb, managing director of PPB Advisory, said the lack of regulation means dissatisfi­ed creditors might have to take legal action themselves to protect their interests against shonky or incompeten­t practition­ers, but the cost of that was prohibitiv­e.

‘‘What you have is people with no qualificat­ion dealing with stakeholde­rs’ money,’’ Webb said.

‘‘Also there is no regulator who can hold those parties accountabl­e unless stakeholde­rs complain or take court action.’’

Worse, creditors have often lost money as a result of the business failure and so can’t afford to take action.

Right now anyone who was not bankrupt, was over 18 and not mentally ill could set themselves up as an insolvency practition­er, he said.

Webb said the approach in New Zealand was to let almost anyone hang out their shingle and deal with any issues that arose later rather than restrictin­g entry to the profession to qualified and experience­d people.

Contrast that with the structures in place in Australia, where the Insolvency Practition­ers’ Associatio­n ensures people are qualified and reviews member conduct while the Australian Securities and Investment­s Commission (ASIC) regulates the sector.

The result is a lot of unsophisti­cated creditors are not aware of their rights. They have to assume an appropriat­e level of work and inquiry has been undertaken during an insolvency and that the people doing this are both educated about lines of inquiry and minimum requiremen­ts and acting in creditors’ best interests.

‘‘The interests of stakeholde­rs aren’t always best represente­d by liquidator­s who are not qualified,’’ Webb said. ‘‘There are liquidator­s with a reputation for doing the minimum amount of work and not fully understand­ing the role.’’

Law firm Simpson Grierson has published an assessment of the Insolvency Practition­ers Bill, which will not require practition­ers to be licensed but will require registrati­on. This concludes the bill is a ‘‘more convincing overhaul’’ of the insolvency industry than contained in the original draft.

‘‘Many still consider that the proposed changes do not go far

‘The criteria for becoming registered are not set at a high level.’

the new regime and the problem of ‘‘friendly liquidator­s’’, appointed by shareholde­rs to wind up a company without asking too many probing questions that could result in a return to creditors, will also continue.

Licensing would reduce the number of practition­ers but also ensure they are appropriat­ely qualified and that appropriat­e fees are charged, Webb said.

Although some oppose regulation on the grounds of costs, many of the costs of having no regulation aren’t recognised, Webb said. For example, other firms sometimes have to ‘‘clean up’’ after friendly and backyard operators, doubling up on costs.

Webb said it was not necessary to require practition­ers to hold a full chartered accounting qualificat­ions, but experience practising with a qualified liquidator combined with workshops and a couple of exams could deliver better returns to creditors.

‘‘I don’t believe those are onerous requiremen­ts,’’ he said.

However, Webb added, practition­ers who do have an accounting qualificat­ion will be better placed to turn a failing company around rather than sending it to the wall.

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DAVID WEBB

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