In company law, fraudulent trading is doing business with intent to defraud

creditor A creditor or lender is a party (e.g., person, organization, company, or government) that has a claim on the services of a second party. It is a person or institution to whom money is owed. The first party, in general, has provided some property ...

Law

Where during the course of a

winding-up Liquidation is the process in accounting by which a company is brought to an end in Canada, United Kingdom, United States, Ireland, Australia, New Zealand, Italy, and many other countries. The assets and property of the company are redist ...

, it appears to the liquidator that fraudulent trading has occurred, the liquidator may apply to the court for an order any persons who were knowingly parties to the carrying on of such business are to be made liable to make such contributions (if any) to the company's assets as the court thinks proper. Conceptually, fraudulent trading is similar to a fraudulent conveyance,In the United Kingdom, see section 423 of the Insolvency Act 1986 but the key distinction is that an application to have a transaction set aside as a fraudulent conveyance usually requires to the third party beneficiary to disgorge the benefit of the conveyance to undo the loss to the company's assets, whereas a court order in relation to fraudulent trading it is the responsible parties (usually the

directors Director may refer to: Literature * ''Director'' (magazine), a British magazine * ''The Director'' (novel), a 1971 novel by Henry Denker * ''The Director'' (play), a 2000 play by Nancy Hasty Music * Director (band), an Irish rock band * ''D ...

) who must make up the loss and the third party beneficiaries will usually retain the benefit. However, it is legally possible for a single transaction to be simultaneously fraudulent trading and a fraudulent conveyance, and to be the subject on concurrent applications. Some legal systems permit a director who makes a contribution to the company's assets pursuant to an order for fraudulent trading to subrogated to any claim that the company might have with respect to a fraudulent conveyance. In practice, applications for orders in respect of fraudulent trading are rare because of the high burden of proof associated with

fraud In law, fraud is intentional deception to secure unfair or unlawful gain, or to deprive a victim of a legal right. Fraud can violate civil law (e.g., a fraud victim may sue the fraud perpetrator to avoid the fraud or recover monetary compen ...

. Usually, even where fraudulent trading is suspected, an application is made with respect to an allegation of " wrongful trading" (or "insolvent trading") where the burden of proof is lower. Where applications are brought for fraudulent trading, it is usually because when the trading occurred, the company was not insolvent at that time (insolvency at the time of the trading is normally a requirement to establish wrongful trading, but not fraudulent trading). The effect of a successful application for fraudulent trading varies between different legal systems. In some countries, the assets contributed by the directors are treated as general assets which may be taken by any

secured creditor A secured creditor is a creditor with the benefit of a security interest over some or all of the assets of the debtor. In the event of the bankruptcy of the debtor, the secured creditor can enforce security against the assets of the debtor and av ...

s who may have a

security interest In finance, a security interest is a legal right granted by a debtor to a creditor over the debtor's property (usually referred to as the ''collateral'') which enables the creditor to have recourse to the property if the debtor defaults in makin ...

which attaches to all the company's assets (characteristically, a

floating charge A floating charge is a security interest over a fund of changing assets of a company or other legal person. Unlike a fixed charge, which is created over ascertained and definite property, a floating charge is created over property of an ambulato ...

). However, some countries have "ring-fenced" payments made for fraudulent trading so that they are made available to the pool of assets for unsecured creditors. Fraudulent trading is entirely separate and distinct from "

insider trading Insider trading is the trading of a public company's stock or other securities (such as bonds or stock options) based on material, nonpublic information about the company. In various countries, some kinds of trading based on insider informati ...

", which focuses purely upon the abuse of inside information in relation to financial markets for personal financial gain, and is wholly unrelated to creditor's rights or insolvency law.

Cases

* ''

R v Grantham ''R v Grantham'' 984QB 675 is a UK insolvency law case which decides that an intent to defraud, now under the Insolvency Act 1986 section 213, needs to be established for a conviction for fraudulent trading, and knowing that there was no prospec ...

984 Year 984 ( CMLXXXIV) was a leap year starting on Tuesday (link will display the full calendar) of the Julian calendar. Events By place Europe * Spring – German boy-king Otto III (4-years old) is seized by the deposed Henry II ...

QB 675 * ''

Re Augustus Barnett & Son Ltd ''Re Augustus Barnett & Son Ltd'' 986BCLC 170 is a UK insolvency law case on the standard of fault required to show that directors have been guilty of fraudulent trading. Facts Augustus Barnett & Sons Ltd (Barnett) was a subsidiary of Rumasa SA ...

986 Year 986 ( CMLXXXVI) was a common year starting on Friday (link will display the full calendar) of the Julian calendar. Events By place Byzantine Empire * August 17 – Battle of the Gates of Trajan: Emperor Basil II leads a Byz ...

BCLC 170 * ''

Re Sarflax Ltd ''Re Sarflax Ltd'' 979Ch 592; 9791 All E.R. 529 is a UK insolvency law case concerning voidable preferences and fraudulent trading, now in the Insolvency Act 1986. It concerns the definition of "intention to defraud", which is found in a number of ...

979 Year 979 ( CMLXXIX) was a common year starting on Wednesday (link will display the full calendar) of the Julian calendar. Events By place Byzantine Empire * March 24 – Second Battle of Pankaleia: An Ibero-Byzantine expeditionary ...

Ch 592

Notes

{{reflist Business law Insolvency Bankruptcy United Kingdom company law

Law

Cases

See also

Notes