Question
Alpha-Bravo Pty Ltd ('AB) is a company incorporated in 2002. It has a replaceable rules constitution. The company has five directors: Ben (the chair of
Alpha-Bravo Pty Ltd ('AB") is a company incorporated in 2002. It has a replaceable rules constitution. The company has five directors: Ben (the chair of the board), Charlie (the managing director), Delta (who is also the chief financial officer), Ephram (a qualified lawyer) and Francesca. Only Ben and Charlie are shareholders, holding 4 and 6 shares respectively. The other shareholders are Georgia (who has 7 shares) and Hannah (who recently joined the company, purchasing 15 shares). Hannah is Francesca's sister, and had insisted on Francesca being appointed to help represent her interests. Georgia, an active investor with a number of shareholdings around Australia, has never been formally appointed to the board. However, she regularly attends board meetings and gives her advice on different activities. Charlie and Delta look to her for guidance and regularly vote in accordance with her wishes. AB is a manufacturer of medical and sanitary equipment, such as ventilators, aprons, gloves, masks and hand sanitiser. It mostly purchases its products from overseas, from independent suppliers in China and Italy. However, it has a small manufacturing plant of its own in Sydney, in Ryde. AB sells these goods into the Australian and New Zealand markets, as well as offshore into Peru in South America. It sells its products into Peru on "FOB" terms, which means it covers all costs (including customs duties) until the product is actually delivered into Peru. AB has a close relationship with the Indigo Trade Bank, that funds its manufacturing operations, as well as its sales operations into Peru. Delta deals with bank and negotiates all terms. The bank has provided a line of credit of $20 million. AB has been suffering cashflow issues for at least 18 months, mainly because of a downturn of sales in Australia and one of its purchasers in Peru has gone bankrupt and been unable to pay for the three latest shipments. AB has actually exceeded its line of credit 3 times in the last 6 months (going as high as $22 million on one occasion). The bank funded the excesses, but has warned that the bank will not go any higher than $22 million. Juliet is the accountant for AB. It is January 2020, and Juliet has been engaged to prepare mid-year financial statements for the six months ended 31 December 2021. Juliet is worried about the line of credit. AB has purchased a huge amount of supplies, which are being shipped to Australia, New Zealand and Peru. The product is estimated to arrive in March (it is coming from Italy), but will need to be paid for before the end of January. If it does make the payment, AB's line of credit will increase to $23 million. Juliet approaches (at different times) Ben, Charlie and Delta about this issue. Ben is unaware of any issues and, even though he is chair of the board, he has not been involved in any of the day-to-day operations of the company. Charlie is unaware of the issues with finance. However, she assures Juliet that she expects there to be a huge spike in demand for AB's products in the near future, which will ensure its continuing profitability. Delta says that the bank is just "beating its chest", and will allow an increase in the line of credit. She instructs Juliet to record the line of credit as a "non-current liability" and to record that she has no going concern issues about AB. Against her misgivings, Juliet complies with Delta's instructions. The Indigo Trade Bank refuses to fund the increase in the line of credit, meaning that AB does not have the funds to pay the supplier. The supplier is worried about AB's credit standing, and therefore issues a statutory demand. Ben calls an emergency board meeting, giving only three days' notice and being held at the company offices in Ryde. All board members attend. Juliet and Georgia attend by invitation. There is a heated discussion as to the nature of the mid-year accounts and the classification of the debt as "non-current". .Ephram, Francesca and Georgia are very worried, as they had no idea about the cashflow problems and the issue with bank funding. Ephram has not been involved with the board for at least 12 months, and has not attended the last 3 board meetings. Francesca has attended, but nothing has been said of the finance and Francesca has assumed that everything is fine. Georgia has been asking Charlie and Delta for contact updates, but has been told that there has been nothing wrong. Ephram and Georgia want to appoint a voluntary administrator, as they are worried that the company is insolvent and they want to limit their liability. Charlie argues against this, reiterating that there will be a huge increase in demand, which will alleviate any concerns. He says that Delta can arrange for alternative funding. Delta says she will try, but is unsure as to whether this can be obtained in time. Charlie then assures the board that he will be able to get the supplier to wait for an extra couple of months.
Juliet comes to you for advice as to her liability for preparing the accounts in accordance with the instructions of Delta, despite her misgivings. Please advise Juliet as to whether she is, and to what extent, she is liable to everyone.
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