Sample layout of a supplementary s533 report—Matters other than director banning
(Appendix 9 of RG 109)
Following is a sample layout of a supplementary report under s533: see Section D of RG 109 for further details. The sample report is in a format that you should use when preparing funded supplementary reports for matters other than a director banning under s206F.
The sample report sets out the information required by ASIC to determine whether to take action against any relevant persons in relation to the misconduct reported by you.
It is provided as a guide only and is indicative of the minimum information required. You should adapt it to suit the particular circumstances.
ASIC staff are available to discuss with you any issues involving the preparation of a supplementary report. Contact officer details will be included in the funding agreement.

Funded supplementary report to ASIC
Section 533(2) of the Corporations Act 2001

________________[Pty] Limited
(In Liquidation)
ACN_____________________

Report synopsis
•	Provide the following summary details.
Details of relevant person(s):
•	Name
•	Date of birth
•	Detail of other directorships or other related entities (current or under present/past external administration)		
Company details:
•	Company name
•	Company ACN
•	Date of incorporation
•	Date of liquidation		
Business information:
•	Principal place of business
•	Nature of business
•	Annual turnover
•	No. of employees		
Financial position of company:
•	Accumulated trading losses
•	Net asset deficiency
•	Creditor details (number and $)
•	secured creditors
•	employee entitlements
•	superannuation
•	PAYG
•	GST
•	trade creditors
•	other statutory liabilities
•	related party creditors
•	ordinary unsecured creditors		
Summary of alleged offences:
•	Brief description of alleged offences
•	relevant person
•	section contravened
•	brief description of conduct
•	period of conduct	
	
Company books and records
•	Detail the adequacy of the company books and records maintained	
	
Contents
Sample layout of a supplementary s533 report—Matters other than director banning
(Appendix 9 of RG 109)
Funded supplementary report to ASIC
Section 1: Background
1.1	Appointment of liquidator
1.2	Purpose of report
1.3	Ability of corporation to pay its debts
1.4	Director’s previous failures
1.5	Misconduct/offences summary
Section 2: Company details
2.1	Statutory information
2.2	Nature of the company’s business
2.3	History of the company
Section 3: Reasons for failure of the company
3.1	Director’s explanation for the company’s failure
3.2	Liquidator’s opinion as to the company’s failure
Section 4: Company assets and liabilities
4.1	Assets and liabilities/report as to affairs/estimated deficiency
4.2	Comments on estimated deficiency
4.3	Liquidator’s comments on solvency
Section 5: Details of liabilities
5.1	Secured creditors
5.2	Employee entitlements
5.3	Statutory liabilities
5.4	Trade creditors
5.5	Related party creditors
5.6	Ordinary unsecured creditors
5.7	Largest creditors
5.8	Comments on liabilities
Section 6: Possible misconduct
6.1	Layout of misconduct information
6.2	Guidance in relation to common types of misconduct
6.3	Other matters for ASIC consideration/public interest considerations
Section 7: Action taken by the liquidator
7.1	Details of any public examinations
7.2	Details of any recovery action taken
Annexure 1: Supporting documents (section 6)

Section 1: Background
1.1	Appointment of liquidator
•	Provide details of your appointment
Example
I was appointed [official] liquidator of X [Pty] Ltd (the company) pursuant to [instrument or order of appointment] dated [date].
1.2	Purpose of report
•	State the purpose of the report.
•	List persons against whom the misconduct is alleged.
Example
This report is submitted as a supplementary report pursuant to s533(2) of the Corporations Act 2001 (Corporations Act), and is based on my enquiries in relation to the company, its directors and/or other associated persons to date. It is relevant to the Australian Securities and Investments Commission (ASIC) determining whether to take action in relation to conduct (outlined below) by the following persons/directors:

Name	DOB	Capacity or relationship to company	
John David Smith	01/04/1970	Director (1/7/2003 to present)	
Arthur Charles Smith	14/2/1940	Previous director (1/7/1999 to 30/6/2003), father of John David Smith	
1.3	Ability of corporation to pay its debts
•	Comment on whether the company to which you have been appointed may be unable to pay its unsecured creditors a dividend of more than 50 cents in the dollar.
Example
Based on my enquiries to date, it appears that the company is unable to pay its unsecured creditors a dividend of more than 50 cents in the dollar and that a [director/previous officer/employee/other] of the company may be guilty of offences or other misconduct in relation to the company.
1.4	Director’s previous failures
•	Provide details of any previous corporate failures involving the director(s).
1.5	Misconduct/offences summary
•	Provide an overview of the alleged misconduct, including relevant dates.
Example 1
Based on my enquiries to date, it appears that [director/previous officer/employee/​other] of the company may have engaged in the following alleged misconduct:

Date	Misconduct	
20/07/2006 – 20/07/2009	Section 183—use of information	
		
Example 2
My investigations disclose that:
	(i)	John David Smith (JD Smith), while director of the company, may have breached his director’s duties by not preventing the company from trading while insolvent. I consider that this conduct occurred over at least the period 31 December 2004 to 31 December 2005. I estimate that the unpaid liabilities incurred during this period are at least $3.5 million.
	(ii)	Arthur Charles Smith (AC Smith), while an undischarged bankrupt, contravened s206B and 206A by taking a substantial role in the management of the company particularly during the period 1 July 2004 to 30 June 2005 when JD Smith was overseas.
	(iii)	JD Smith may have contravened s182 (and possibly s183) by assigning a valuable company contract to his de facto wife on 31 October 2005. I estimate the resulting gross revenue loss to the company from 1 November 2005 to the date of ceasing of business on 5 January 2006 to be in the order of $580,000–$700,000.
In addition, I consider that JD Smith has contravened s475 and 530A(2) by failing to provide a report as to affairs and failing to assist or attend upon me as liquidator when requested and required to do so. 
I have referred these offences to ASIC’s Liquidators’ Assistance Program.
Section 2: Company details
2.1	Statutory information
2.1.1	Incorporation date
•	Show date of incorporation.
Example
According to the company search obtained from the ASIC corporate database, the company was incorporated in [state] on [date].
2.1.2	Registered office
•	Show address of registered office.
Example
The registered office of the company at the date of liquidation was [address].
2.1.3	Officers of the company
•	Provide details of the officers of the company according to the search of the corporate register maintained by ASIC:
Example
The following table details the officers of the company according to the search of the corporate database maintained by ASIC:
Name and address	Role	Appointment date	Cessation date	

				

2.1.4	De facto directors/officers
•	Provide details of persons you believe acted in the role of a director or officer although not appointed as such.
•	Provide details of the reasons for that belief.
•	Identify and attach copies of the documents or other evidence relied on (refer Appendix 10, ‘Allegations of possible misconduct—Substantiation guide’, for further details in this regard).
Example
I believe Smith was a de facto or shadow [director/officer] of the company from [date] to [date/current] and I have formed this opinion based on the following:
•	Smith, although not appointed as director or officer, acted in the position of a director or officer;
•	the directors of the company are accustomed to acting in accordance with the wishes or instructions of Smith (although not appointed as a director);
•	Smith has the capacity to affect significantly the company’s financial standing;
AND/OR
•	Smith made or participated in making decisions that affected the whole, or a substantial part of the business of the company.
2.1.5	Shareholders of the company
•	Provide details of the members of the company according to the search of the corporate database maintained by ASIC:
•	Provide a diagram or explanation of the corporate structure if the company is part of a corporate group.
Example
According to the search of the corporate database maintained by ASIC, the following persons/entities are shareholders of the company:
Name and address	No of shares	% shareholding	

			
2.2	Nature of the company’s business
•	State whether the company had an Australian financial services (AFS) licence or any role in relation to the provision of financial products or services.
•	Describe the nature of the business operated by the company and its principal place of business.
•	Provide details of whether the company operated as a trustee.
•	Detail the type of goods manufactured/sold or the services provided by the company.
•	Detail the director’s/relevant person’s role and extent of activities and authority in the operations of the company.
Example
Based on my enquiries, the company operated the business of [description of business] during the period [dates]. The principal place of business was [address].
The company [manufactured the following types of goods/provided the following services]: 
…
JD Smith had the following role in the company’s operations:
…
2.3	History of the company
•	Provide a brief history of the company’s trading.
•	Detail whether the company acquired another business or company during its operating life.
•	Provide details if the company was a subsidiary or holding company of another entity (refer to Part 1.2, Division 6 of the Corporations Act 2001 (Cth) (Corporations Act)).
•	Detail whether there were any intercompany loans.
Section 3: Reasons for failure of the company
3.1	Director’s explanation for the company’s failure
•	Detail the reasons provided by the director for the failure of the company.
3.2	Liquidator’s opinion as to the company’s failure
•	Detail the liquidator’s opinion as to reasons for the company’s failure, including whether:
•	there was sufficient working capital;
•	the director was involved in any dishonest conduct;
•	there were any uncommercial transactions generally or transfers of assets to related companies; and
•	the director’s negligence or mismanagement of the company or its finances led, or contributed, to the company’s failure.
Section 4: Company assets and liabilities
4.1	Assets and liabilities/report as to affairs/estimated deficiency
•	Provide a statement of the company’s known assets and liabilities, their estimated realisable value, and the estimated deficiency.
•	If possible, use the report as to affairs (RATA) provided by the relevant director.
•	If no RATA lodged for the company, advise accordingly and complete only last 2 columns.
Example
A report as to affairs (RATA) for the company has been provided to me by Smith, which identifies the following:

Item	RATA
(book value)	RATA
(director’s estimate)	Liquidator’s estimate	Actual realisation to date	
Assets					
List by category					
					
Total assets					
					
Secured liabilities					
					
Unsecured liabilities					
Employee entitlements (excluding super)					
Superannuation					
PAYG					
GST					
Other statutory liabilities					
Workers compensation premiums					
Trade creditors					
Related party creditors					
Ordinary unsecured creditors					
Total liabilities					
					
NET DEFICIENCY					
					
4.2	Comments on estimated deficiency
•	Provide details of any material omissions from the RATA.
•	Provide comments regarding the books and records provided in relation to capacity to determine estimated deficiency.
•	Provide any other comments seen as appropriate in relation to the deficiency.
4.3	Liquidator’s comments on solvency
If you believe that the company was insolvent either before or on the date of your appointment, please provide further information in relation to the insolvency.
Date of insolvency
•	Provide details of your opinion as to when the company became insolvent. If you are unable to specify a date, please state the month or financial quarter.
•	Provide details of the reasons you consider that the company became insolvent at that time. For example:
•	by application of the cash flow test of insolvency (see Powell v Fryer (2000) 18 ACLC 480 at 482); or
•	reliance upon the statutory presumption of insolvency based on insufficient accounting records (see s588E(4)) (the Liquidator should be aware that reliance on the presumption of insolvency is insufficient for an allegation that the director breached s588G); or 
•	because of the presence of key indicators of insolvency. List any applicable indicators from the following list (and provide relevant dates):
o	ongoing losses
o	poor cash flow
o	problems selling stock or collecting debts
o	unrecoverable loans to associated parties
o	creditors unpaid outside usual terms
o	solicitors’ letters, demands, summonses, judgements or warrants issued against the company
o	suppliers placed the company on cash-on-delivery (COD) terms
o	issued post-dated cheques or dishonoured cheques
o	special arrangements with selected creditors
o	payments to creditors of rounded sums that are not reconcilable to specific invoices
o	overdraft limit reached or defaults on loan or interest payments
o	problems obtaining finance
o	change of bank, lender or increased monitoring/involvement by financier
o	inability to raise funds from shareholders
o	overdue taxes and superannuation liabilities
o	board disputes and director resignations, or loss of management personnel
o	increased level of complaints or queries raised with suppliers
o	an expectation that the next big job/sale/contract would save the company.
•	Identify and attach copies of the documents or other evidence relied on (refer Appendix 10, ‘Allegations of possible misconduct—Substantiation guide’). 
Section 5: Details of liabilities
In this section, liquidators are requested to provide further information about the creditors identified in the table in Section 4
5.1	Secured creditors
•	Provide details of the nature of all securities given over the assets of the company.
•	Detail amounts owing and any failure(s) to remit payments.
•	Detail whether any of the secured creditors are related to, or associated with, the director.
•	Provide details of any new secured debt or increase in existing secured debt on or after the estimated date of insolvency (if applicable).
5.2	Employee entitlements
•	Detail amounts outstanding for wages, annual leave, long service leave, superannuation, etc.
•	For outstanding superannuation, provide details of the period over which employee superannuation contributions have not been remitted.
5.3	Statutory liabilities
•	Detail amounts owing for outstanding statutory liabilities (e.g. PAYG, GST, workers compensation premiums).
•	For each category of statutory liability provide details on:
•	how long the debt has been outstanding;
•	the date the last statutory return was lodged; and
•	any repayment arrangement that had been negotiated with the statutory authority and any breach of that agreement.
5.4	Trade creditors
•	Provide an ageing of creditors, if available.
•	Provide details of any known judgements.
5.5	Related party creditors
•	Provide details of any related party creditors.
5.6	Ordinary unsecured creditors
•	Provide details of other ordinary unsecured creditors.
5.7	Largest creditors
•	List largest unsecured creditors (from all categories in 5.2 to 5.6).
•	Detail amounts outstanding.
•	Provide an ageing of these creditors, if available.
•	Provide details of any repayment arrangement that had been negotiated with these creditors and any breach of that agreement. 
•	Detail whether these creditors are related to, or associated with, the director.
5.8	Comments on liabilities
•	Provide any further comments which may assist with ASIC’s determination.
Section 6: Possible misconduct
6.1	Layout of misconduct information
Set out comprehensive particulars of the possible misconduct with reference to the guidance below and Appendix 10, ‘Allegations of possible misconduct—Substantiation guide’.
Use the following layout for information about possible offences or misconduct. Complete one section per allegation of misconduct, ensuring that you have identified the person(s) against whom any misconduct is alleged. Each allegation can be set out using the following headings as a guide: 
A	Relevant section of the Corporations Act
B	Nature of offence/misconduct
C	Key dates and events 
D	Supporting evidence and analysis with particular reference to witnesses who will provide evidence
E	Possible defences
Use Annexure 1 to list documents or other evidence relied on and attach copies. If copies are not appropriate or too bulky please detail the available evidence including whether original documents are available.
Example
Based on my enquiries to date in relation to the company and Smith, the misconduct evidenced by the annexed documents has been [committed/carried out] by Smith in relation to the company during the associated period, as detailed below.
Annexure 1 contains the list of documents relied upon in making each of the following [statements/observations/conclusions], copies of which are attached. Annexure 1 is cross-referenced to the statements below.
Details of possible offence/misconduct 1
1.A	[relevant section of the Corporations Act]
1.B	[nature of offence/misconduct]
1.C	[key dates and events]
1.D	[supporting evidence and analysis]
1.E	[possible defences]
Details of possible offence/misconduct 2
2.A	[relevant section of the Corporations Act]
2.B	[nature of offence/misconduct]
2.C	[key dates and events]
2.D	[supporting evidence and analysis]
2.E	[possible defences]
6.2	Guidance in relation to common types of misconduct 
The guidance below sets out examples of the type of information required to substantiate the most common allegations of misconduct.
Refer to Appendix 10 for more detailed information on the type and nature of the information required to substantiate these types of misconduct.
Section 588G—Insolvent trading
•	Detail the liquidator’s opinion as to when the company became insolvent (as detailed in section 4.3).
•	Detail the insolvency indicators of which the director was, or should reasonably have been, aware.
•	Is there any evidence specifically indicating the involvement of a particular director with the incurring of particular debts after the estimated date of insolvency?
•	For how long did the director continue directly to allow the company to incur specific debts while it was insolvent? 
•	If possible, detail the total amount of unpaid debts incurred after the company became insolvent and what insolvency indicators the director was, or should have been, aware of.
•	Do creditors appear to be concerned about insolvent trading having taken place? Which creditors, if any, have complained to you about insolvent trading?
•	Indicate (if known) whether you believe that the director may be able to rely on a defence (not applicable in criminal proceedings) listed in s588H (e.g. defence of reasonable expectation of solvency (s588H(2)), defence of illness (s588H(4)), defence of reasonable steps to prevent debt being incurred (s588H(5)).
•	Indicate whether it appears to you that the insolvent trading may have been dishonest and, if so, why you consider that it may have been dishonest.
•	Identify and attach copies of the documents or other evidence relied on.
Sections 180–184—Possible breaches of directors’ and officers’ duties
With respect to each possible breach of duty:
•	Identify which section (s180/181/182/183/184/other) may have been contravened. 
•	Provide details of the nature of the possible breach (e.g. possible phoenix activity, did the director, officer or relevant person draw excessive remuneration, enter into transactions to avoid payment of employee liabilities, make loans to themselves or related entities to the detriment of creditors, sell assets to related parties at undervalue?).
•	Explain why, in the liquidator’s opinion, the conduct may have been a breach of duty (refer to each element of the relevant section with reference to Appendix 10).
•	In the case of possible phoenix activity, provide details of circumstances surrounding the relevant transactions/events and details of the involvement of the relevant company officer(s) and of any other persons involved in assisting or advising the officer(s) as regards any possible phoenix activity, even if you are unable to identify which section of the Corporations Act may have been contravened.
•	In the case of s180, indicate (if known) whether you believe that the director may be able to rely on the business judgment rule (s180(2)) in defence to this allegation.
•	In the case of s184, provide details of the recklessness, or the intentional or reckless dishonesty.
•	State whether the director, or one of the director’s family or associates, derived any personal benefit from the relevant transactions.
•	Identify and attach copies of the documents or other evidence relied on.
Section 590—Concealing or removing company property
With respect to a possible contravention of this section:
•	Identify which sub-section may have been contravened. 
•	Provide details of the activities of the director/relevant person which allegedly constitute the possible contravention.
•	Explain how, in the liquidator’s opinion, the activities constitute a contravention of the section (refer to each element of the relevant section with reference to Appendix 10).
•	Identify and attach copies of the documents or other evidence relied on.
Section 206A—Managed company while disqualified
With respect to a possible contravention of this section:
•	Identify which paragraph of s206A(1) you consider may have been contravened (e.g. s206A(1)(a)). 
•	Provide details of the activities of the relevant person that allegedly constitute the possible contravention.
•	Explain how, in the liquidator’s opinion, the activities constitute a possible contravention of the section (refer to each element of the relevant section with reference to Appendix 10).
•	Identify and attach copies of the documents or other evidence relied on.
Section 286/344—Failure to keep proper books and records
•	Provide details of the records that should be maintained.
•	Identify and attach a list of the company’s books and records received.
•	Identify what records have not been maintained.
•	Identify areas where records do not accurately record or explain transactions or the company’s financial position and performance.
•	Identify whether subsidiary ledgers reconcile with the general ledger.
•	In the case of s344(2), provide details of the element of dishonesty.
Example 1
I am of the opinion that the director(s) may have contravened s344(1) of the Corporations Act by failing to take all reasonable steps to comply, or secure compliance, with s286 of the Corporations Act.
I consider that a company operating this type of business should, as a minimum, maintain the following books and records in order to comply with s286:
…
I have received the books and records of the company as provided by Smith [and/or other person]. A list of the books and records of the company received from Smith [and/or other person] is attached to Annexure 1.
I have reviewed these records and have come to the conclusion that they do not comply with s286 of the Corporations Act for the following reasons:
…
Example 2
Records which have not been provided to me are as follows:
	(i)	All the bank statements of the company.
	(ii)	All debtors information.
	(iii)	All creditors information. 
	(iv)	Contractual documents in relation to the business conducted by the company. 
	(v)	I have received some general ledgers of the company, however the records do not support the transactions. 
Given all of the above, I consider that the records provided to me do not correctly record and explain the company’s transactions and financial position and performance and would not enable true and fair financial statements to be prepared and audited.
Section 471A—Exercising power after winding up order
With respect to a possible contravention of this section:
•	Provide details of the activities of the director/relevant person that allegedly constitute the possible contravention.
•	Explain how, in the liquidator’s opinion, the activities constitute a possible contravention of the section (refer to each element of the relevant section with reference to Appendix 10).
•	Identify and attach copies of the documents or other evidence relied on.
Section 596AB—Entering agreements or transactions to avoid employee entitlements
With respect to a possible contravention of this section:
•	Provide details of the activities of the director/relevant person that allegedly constitute the possible contravention.
•	Explain how, in the liquidator’s opinion, the activities constitute a possible contravention of the section (refer to each element of the relevant section with reference to Appendix 10).
•	Identify and attach copies of the documents or other evidence relied on.
Poor financial control and/or poor management
•	Detail any mismanagement and/or incompetence by the director/officer.
•	Identify and attach copies of the documents or other evidence relied on.
6.3	Other matters for ASIC consideration/public interest considerations
Detail any other matters concerning the director’s (or other relevant person’s) conduct in relation to the management, business or property of the company or public interest factors which, in the liquidator’s opinion, ASIC should consider when deciding whether to proceed with enforcement action. These may include, but are not limited to, the following: 
•	Details of the personal insolvency of the company officers/relevant persons. 
•	Company officers’ involvement in other liquidations or insolvency proceedings, including suspected phoenix activity.
•	Whether you consider that ASIC should undertake any investigation or action pursuant to Pt 2D.6 of the Corporations Act (disqualification from managing corporations). 
•	Details of any assumed names or identities of the officers.
•	Details of any concerns you, as liquidator, have regarding the current trading of the directors/relevant persons.
•	Your opinion on whether the directors/relevant persons currently represent any risk to the public.
Identify and attach copies of the documents or other evidence relied on.
Section 7: Action taken by the liquidator
7.1	Details of any public examinations
•	Provide details of any public examinations held, including:
•	date of examination(s);
•	names of examinee(s);
•	precis of outcome of examination(s); and
•	intended future action. 
•	Provide details of any proposed public examinations, including: 
•	names of examinee(s); and
•	date of examination(s), if known.
Note: Section 533(1)(d) of the Corporations Act requires a liquidator to state in a report whether they propose to make (or have made) an application for an examination or order under s597.
7.2	Details of any recovery action taken
•	Provide details of any litigation commenced, including: 
•	type of litigation; 
•	names of all defendants;
•	when commenced;
•	where funding obtained, whether it is:
o	litigation funding;
o	creditor funding;
o	company funding; or
o	external administrator funding; and
•	current status. 
•	Provide details of any litigation contemplated, including:
•	type of litigation; and
•	proposed defendants. 

Dated this ___________day of ________________________ 

Signature

Name
Position
Annexure 1: Supporting documents (section 6)
•	Attach copies of listed documents.
Example
Item	Document description	Date of document	
1			
2			
3			
4			
5			
6			
7