Playing the bankruptcy game

Swimmer Simon Cowley

There’s been lots of media coverage of the washup of swimmer Nick D’Arcy’s bashing of fellow swimmer Simon Cowley in a bar some 4 years ago.  Understandably the victim is not willing to allow the perpetrator to escape scot-free by declaring himself bankrupt to avoid paying more than $370,000 in damages and costs awarded in the NSW District Court last year.

Moreover, D’Arcy is off to the London Olympics despite Cowley’s equally understandable view that he should never have been selected and that a secret deal was done, probably due to D’Arcy’s threats of legal action against Swimming Australia and AOC if his earlier banning was renewed on the basis that his cunning bankruptcy move rendered him in breach of SA’s code of conduct.  Cowley is in no doubt that D’Arcy is in breach and unfit to represent Australia:

Under Swimming Australia’s behavioural guidelines, competitors are required to be ”ethical, considerate, fair and honest”; refrain from any form of abuse, harassment or victimisation of others; and ”be a positive role model”.

Cowley said the organisation appeared to have overlooked those requirements when it recommended to the Australian Olympic Committee that D’Arcy be included in the Australian team for London.

However it appears that the AOC’s legal advice was rather different:

D’Arcy declared himself bankrupt, and AOC boss John Coates revealed legal action was sought then to see if he deserved his place on the team.

“(Chef de Mission) Nic Green told me he wanted to get legal advice to see if bankruptcy constituted misconduct, and meant bringing the team into public disrepute,” Coates said.

“It was not. …

It needs to be kept in mind that D’Arcy has already served a significant period of disqualification from the sport for his assault on Cowley.  Despite the fact that he has evinced little or no contrition for his thuggery, D’Arcy has served his time for the substantive assault.  It’s reasonable to suggest that the double jeopardy principle should be regarded as just as applicable in the sporting sphere as in criminal law.  Accordingly, D’Arcy could only be properly re-suspended if entering voluntary bankruptcy could be treated in itself as a further instance of misconduct.  It appears that the AOC’s legal advice was that it couldn’t be so regarded, and so D’Arcy had to be selected if his trial performances warranted it.  They did and so he was selected.

However, I wonder whether the legal conclusion is necessarily so clear-cut.  Certainly voluntary bankruptcy in itself could not be viewed as misconduct, but mightn’t it be relevant to examine all the surrounding circumstances? If a person enters voluntary bankruptcy as a result of a truly dire financial situation from which there is no hope of recovery then that is one thing, but if they make a calculated strategic decision to enter bankruptcy merely to avoid paying a judgment debt might it not be reasonable to take a different view?

Should he be permitted cynically to take advantage of his current short-term “poverty” to avoid paying Cowley?

I confess I haven’t examined the case law (if any) on the point but it’s a reasonable question on first principles.  D’Arcy is a 24 year old medical student whose father is a wealthy surgeon.  No doubt his current income and asset position is meagre, but equally without doubt he’ll be very well off in the fairly near future and well able to pay Cowley his justly awarded damages.  Should he be permitted cynically to take advantage of his current short-term “poverty” to avoid paying Cowley?  It appears that his Trustee in Bankruptcy thinks this is pefectly OK:

SWIMMER Nick D’Arcy made numerous attempts to reach an arrangement over debts totalling $800,000 before declaring himself bankrupt, his trustee said yesterday.

The trustee, Robert Whitton, said D’Arcy petitioned his own bankruptcy when it became apparent Simon Cowley intended to force it.

D’Arcy was dumped from the 2008 Beijing Olympic team after an altercation with Cowley in a Sydney nightclub.

He was given a 14-month, 12-day jail sentence fully suspended after conviction for inflicting grievous bodily harm.

Cowley, who was left with a shattered cheekbone, was awarded civil damages of $180,000 this year.

With costs and interest he is now owed about $380,0000.

D’Arcy, a 24-year-old medical student, filed for bankruptcy on November 30, listing his father and Cowley as creditors.

Mr Whitton said yesterday that there was no doubt about the veracity of the debt owed D’Arcy’s father Justin, a Sunshine Coast surgeon.

“His parents funded his defence,” Mr Whitton said.

“It (the loan) was properly documented over time.”

Mr Whitton said it was very unlikely that he would withhold D’Arcy’s passport, preventing him from contesting the 2012 London Olympics.

He said a successful Games could bring D’Arcy financial reward which could then allow payment to creditors.

D’Arcy would be required to make payments to creditors after he reached an after-tax income of $47,000.

“That wasn’t an offer, that was an insult.”

But was D’Arcy’s “offer” a serious one or just another cynical manoeuvre in a game to avoid payment orchestrated by the lawyers paid for by his surgeon dad?  Cowley’s lawyer is in no doubt about the answer:

Mr Cowley’s lawyer Sam Macedone told Channel Nine on Tuesday night that bankruptcy was “just a way of walking away from this whole mess and this debt and this judgment that he owes”.

“I would have thought that he would have had the courage at least to try to speak to Simon and try and negotiate something with him, whatever it was,” he said.

Mr Macedone, who did not respond to questions from the Daily, told AAP yesterday that an offer of $25,000 had been made.

“Out of $380,000, he offered $25,000,” Mr Macedone said.

“That wasn’t an offer, that was an insult.”

Perhaps it’s time to revisit and reform the rules for voluntary bankruptcy.  As academics Ian Ramsay and Cameron Sim observed in a recent paper, voluntary bankruptcy is becoming an increasing middle class phenomenon:

Between 1990 and 2008 there was a 261% increase in the number of personal insolvencies in Australia. We suggest one important aspect of this increase is that
Australian personal insolvency has become an increasingly middle class phenomenon.

If even a significant proportion of these are cynical strategies like D’Arcy’s gambit, maybe the rules need to be changed. Certainly another very recent case involving a son of a WA politician suggests this sort of thing is not an isolated aberration.

[T]he liberal approach prioritises the concept of a ‘fresh start’ for debtors.

Ramsay and Sim observe that Australia’s bankruptcy laws are at the liberal end of the international spectrum:

The function of personal insolvency laws depends upon what their ultimate goal should be. Australia has been placed in the liberal category of bankruptcy jurisdictions. These jurisdictions are seen as offering levels of debt forgiveness with both a high degree of certainty and relative haste. This is in contrast to many other jurisdictions, which have been categorised as taking either a conservative or moderate approach to debt forgiveness, under which there is an absence of debt forgiveness provisions, or the offer of debt forgiveness exists but is tempered by great uncertainty as to whether it will be granted. …

[T]he liberal approach prioritises the concept of a ‘fresh start’ for debtors. Accordant with this observation, Australian courts have viewed the intention of Australia’s bankruptcy laws as serving a fair distribution of bankrupt’s assets among creditors, as well as allowing bankrupt debtors to start afresh. Consequently, personal insolvency laws reflect attempted reconciliation of two competing goals: a fresh start for debtors and protection of the interests of creditors (together with equality of distribution for creditors).

While I have no major problem with bankrupts being released after 3 years with a “clean slate”  where they’ve been bankrupted on a creditor’s petition (the currrent legal regime), perhaps we should have a different regime when dealing with (strategic) voluntary bankruptcies.  I suggest that in that situation a discharged voluntary bankrupt should be required to continue contributing one-third of his/her income and assets acquired at any time within (say) 10 years after discharge. That would still allow a debtor to make a “fresh start” but prevent lawyered-up middle class debtors from taking advantage of short-term impecuniosity to avoid their creditors (who in D’Arcy’s case consisted only of his own parents and his victim Cowley).

This entry was posted in Law, Sport-general by Ken Parish. Bookmark the permalink.

About Ken Parish

Ken Parish is a legal academic at Charles Darwin University, with research areas in public law (constitutional and administrative law) and teaching & learning theory and practice. He has been a legal academic for almost 12 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in he early 1990s.

26 thoughts on “Playing the bankruptcy game

  1. Yes, perhaps the Trustee should have the discretion about releasing the bankrupt based on an assessment of the potential for further recovery. I suppose the problem is that the law relies on a vanished stigma. I wonder if the change in attitude came about through people going VB to avoid tax debts? I seem to recall reading that there has been a significant increase in VB for that reason. Though maybe my memory is wrong.

  2. Now surely if D’Arcy took up boxing, and did a few rounds with Mundine, he would clear up his bankruptcy in an afternoon. There must be a few photos from Cowley’s medical report that would make errr, a knockout promotional poster for the big day. Ahh boxing, it’s the sport of kings. Well, king hits anyhow. After a short but exciting career in the ring, Tony Abbot (probably PM by then) would see an immediate opening on his team, and the rest (as they say) isn’t history… yet.

    When life throws you a lemon, you just have to take it on the chin.

  3. Between 1990 and 2008 there was a 261% increase in the number of personal insolvencies in Australia. We suggest one important aspect of this increase is that
    Australian personal insolvency has become an increasingly middle class phenomenon.

    I rather suspect that your average bankrupt is more typically struggling with a debt management problem than an anger management problem.

  4. There are dangers to tightening the bankruptcy regime. The US has veered dangerously close to re-inventing debt peonage under a new name. In a world where creditors are quite blatant about transferring as much risk to borrowers as humanly possible (or impossible for that matter) I am not sure that pro-creditor legislation is a really really great idea.

    I really could not care less about whether a Nick D’Arcy is or is not rorting the system. The respective lawyers put their clients in the best light. That is what lawyers do. His situation is so atypical that its not a good case to ground a policy. And one obvious reason for an increase in either insolvencies or voluntary bankruptcies is the state of the economy.

  5. ” And one obvious reason for an increase in either insolvencies or voluntary bankruptcies is the state of the economy. ”

    The figures quoted end at 2008 i.e. the peak of what was arguably the largest economic boom Australia has expereinced, so “the state of the economy” doesn’t really explain anything useful I don’t think.

    However your more general point is well made. Nevertheless I still think the question is worth discussing. Requiring a debtor who chooses voluntary bankruptcy (NOT those bankrupted by their creditors) to continue repaying those debts from just 1/3 of their ongoing income for up to ten years hardly merits the description “debt peonage”.

  6. Bankruptcy used to carry a stigma. Now it is a lifestyle choice.

    This change is a symptom of the breakdown of the face-to-face society, where the people harmed by default were the people in a locale.

    It would appear that a new form of stigma needs to be attached to bankruptcy as a deterrent against callous or reckless actions.

  7. It’s also worth pointing out that the 261% increase in personal (as opposed to corporate) bankruptcies between 1990 and 2008 is not only overwehlmingly middle class but also attributable entirely to non-business bankruptcies. Business-related personal bankruptcies actually fell slightly over that period. Thus the increase must flow from risky, highly-geared personal investment strategies like negatively geared housing investment, share schemes etc and credit card-fuelled personal consumption debt.

    As Katz comments, these appear to be lifestyle choice decisions in a society where bankruptcy no longer carries a stigma. Contrary to Alan’s suggestion, I don’t think there is a powerful case for continuing to support an excessively liberal approach to bankruptcy relief. Financial market deregulation in the 1980s and easy debt availability in its wake are clearly also important factors. Similarly the emphasis on building a superannuation nest-egg rather than relying on the age pension following the Hawke-Keating implementation of universal occupational super is also relevant. A significant minority may have sought to build that nest-egg by excessively risky means, relying on the stigma-free “get out of gaol” or “clean slate” card of bankruptcy if the strategy comes unstuck. Perhaps it’s in the interests of major credit providers to encourage people to take on excessive debt, after all despite the huge increase in bankruptcies they still represent just 0.15% of the population so the vast majority still repay their debts. However surely it isn’t in the broader public interest to perpetuate a system that encourages excessive personal debt.

    Katz’s suggestion about delocalisation may also be true – echoes of Smith’s Theory of Moral Sentiments. I agree too, as would Smith, that rules and structures are needed to maintain orderly/moral behaviour as innate moral sentiment declines with distance and increasing anonymity. Hence my suggestion for a longer period of (partial) ongoing legal responsibility for repaying debts. In one sense it would be a useful part of the current deleveraging process we’re seeing in the wake of the GFC and the noughties boom that preceded it.

      • Hi Mark

        I was mostly focusing on personal bankruptcies because corporate insolvency raises a range of wider issues. However in general terms I think there is a case for some wider form of safe harbour provisions to allow directors to continue running a company while insolvent to make a considered judgment on whether there is a way to trade out.

        I’ve previously written at CT about the propensity of some liquidators and receivers to gouge companies seemingly in their own interests rather than those of creditors. Provided there are sufficient safeguards, I think it’s likely to be in the interests of creditors to provide a regime (e.g. like US Chapter 11) to give the directors of an insolvent company some breathing space.

      • Ken

        I’ve asked @toplitigator to contribute here. he’s strong in both areas and his contribution would be valuable

        But, regardless, a very interesting post. thank you.

        Tex

      • Thanks for that Mark. You’ve got my email address. Feel free to provide it to @toplitigator . I’ll also DM him/her on Twitter. A post/article on this topic would be potentially very valuable, especially in light of Bowen canvassing Chapter 11 and other options for insolvency safe harbours.

        PS Apparently I can’t DM someone who is not following me on Twitter and apparently @toplitigator isn’t.

  8. D’arcy looks on the description like a clear example of congenital entitlement. The sort Hockey couldn’t care less about. Voluntary Bankruptcy in a case is a form of subsidy to the irresponsible. I mean what would a psychopath choose.

  9. Perhaps you could link in to a case in WA where a young man who drove a boat while drunk and hit a river pylon seriously injuring a young women has told her he cannot pay the $200,000 odd in damages a court has awarded her and is likely to declare bankruptcy if she pursues the debt. The young man is the son of a state independent MP and a prominent cardiologist. He had funds for his defence of the legal action against him but now says he has nothing and his parents don’t seem to feel any obligation.

  10. Ken. I’d suggest not using the word POVERTY, even in quotes, for a temporary cash flow problem of a trust fund kid, from a comfortable medical family, who will be earning in the top 1% of incomes on graduation, and who is most likely living exactly the same comfortable lifestyle as he was prior to bankruptcy.

  11. Perhaps a better reform would be to limit the ability of judgment debtors to declare bankruptcy in respect of damages. I am not sure that debt is quite the high moral issue that many commenters seem to think or that an increased rate of voluntary bankruptcy indicates a lot more than a society that relies more and more on the private debt mountain. lenders have at least some responsibility for making bad loans, an economic boom does not necessarily benefit everyone in the economy equally, and people are not always wise.

  12. I understand, but I haven’t looked up the figures, that a very large proportion of bankrupts in Australia are youngish not very well off people with mobile phone debts due to running over on “unlimited” plans. Another large group are a similar group who have purchased pretty ordinary cars on the never never.

    In USA the single largest group of bankruptcies are due to health care bills.

  13. Ramsay and Sim argue that there’s an urgent need for much more information about the circumstances of debtors and causes of debt and bankruptcy, but their article nevertheless contains lots of interesting information:

    Related to the incurring of debt, there exists the need for more research on the credit industry and its practices. Between 1997 and 2008, there was a 106% increase in the proportion of non-business related bankruptcies caused by excessive use of credit. Between 2002 and 2008, there was a 20% increase in the proportion of debt agreements caused by excessive use of credit. In 2008, 27.55% of non-business related bankruptcies and 39.41% of non-business related debt agreements were caused by excessive use of credit. Further, in 2007, 52% of bankrupts’ creditors and 61% of debt agreement debtors’ creditors were finance organisations. Of creditors among finance organisations, the creditor subtype of cards (i.e. store cards and credit cards) in 2007 was high for both bankrupts (36%) and debt agreement debtors (50%). The increase in personal insolvencies caused by excessive use of credit, and the high proportions of financial organisation creditors, coincides with increases in several forms of Australians’ debt.

    One issue relating to credit industry practices is the prevalence and expansion of the credit card industry. In January 1997, combined credit limits for credit cards (excluding charge cards and cards issued to businesses) with an interest-free period reached $19,585 million, with total value of outstanding balances owed on credit cards of $6,581 million. In January 2009, these credit limits had increased to $112,161 million with outstanding balances of $39,526 million. Over these 12 years, and not taking into account the effect of inflation, this represents a 473% increase in credit limits and a 501% increase in the amount of outstanding balances. Another factor, resulting in part from this increase in credit card debt, is the increase in Australian household debt. Between 2000 and 2008, the total amount of debt owed by Australian households rose almost six-fold. In September 1990, Australian households were $190 billion in debt. In September 2008, Australian households were $1.1 trillion in debt in real terms (i.e. adjusted to remove the effect of inflation).

    A further example of the growing ease of access to credit is the increasing incidence of margin lending, which is a form of debt. Margin lending involves borrowing to acquire financial products such as shares in companies. In September 2000, margin lending in Australia totalled $6,379 million, with an aggregate credit limit of $8,437 million and 84,000 client accounts. In September 2008, margin lending totalled $27,553 million, with an aggregate credit limit of $64,732 million and 202,000 client accounts. In September 2000, there was an average of 1.28 margin calls per day per 1000 clients, compared to 4.32 in September 2008. By December 2008, this rate had increased to 9.77 margin calls per day. It may be that some margin calls have led to personal insolvency when the amount borrowed was excessive.

    3 Spending habits

    Understanding the connections between personal insolvency laws and broader social issues requires exploration of spending habits. There is a relationship between personal insolvency and spending habits. Australians have increased levels of debt, and it seems logical that spending habits would form part of the equation as to why the demographics of Australian personal insolvents are changing. It is unclear how personal insolvents spent their money in the lead up to insolvency. Are Australians taking part in overconsumption and frivolous spending? Or are Australians being forced to access credit to buy essential household items as a short-term solution to financial difficulties? As mentioned above, a significant proportion of personal insolvents declare their insolvency to have been caused by excessive use of credit, but this does not determine that utilisation of credit is part of a problem of overconsumption. However, between 1997 and 2008 there was a 229% increase in the proportion of non-business related bankruptcies caused by gambling or speculation. In 1997, gambling or speculation caused 1.30% of non-business related bankruptcies, compared to 4.28% in 2008. This indicates that, to a certain extent, overconsumption, as typified by gambling and other forms of speculation, has contributed to the increase in personal insolvencies.

  14. Thanks for an interesting post Ken.

    It also seems to me to be relevant that the officials ‘forgiveness’ of D’Arcy is for a bankruptcy that directly relates to the previous events. That seems to me to be a further ground on which to oppose forgiveness by the Olympic officials.

  15. Interesting post, but I am wary about the recommendation of changing the regime regarding voluntary bankruptcy. It is a near universal truth that some people will exploit a law strategically if they want to. When the people doing the exploiting are rich and high profile, it creates resentment.

    However I think that these sort of changes can have unintended consequences. A ‘strategic’ bankruptcy is not the same thing as cheating the system. If we make the voluntary bankruptcy system less attractive for debtors, then in many cases the only thing that will change is that the creditor will have to spend more money on people like me in order to make the person bankrupt by court order.

    The fact that he has a wealthy father shouldn’t have anything to do with this – do we honestly encourage policy making on the basis that wealthy friends or family should be obliged to bail out their kin?

    A personal injury claim where insurance is not involved is inherently risky. If D’Arcy weren’t so disliked, I could easily conjure a sympathetic scenario with the same facts which would prompt sound support for the opposite point of view – viz D’Arcy has been criminally prosecuted and ‘done his time’, he has faced a civil proceeding where the plaintiff appears to have been willing to spend more in legal fees than he ended up being awarded, is now angry that D’Arcy has no money (though this is both unsurprising for a young student sportsperson) and wants to keep this judgment which cannot afford to pay hanging over his head for another 6 years further extending this ordeal which has been going on for years already etc etc etc.

    Better stop before I get carried away but only wanted to add that personal credit cards and finance seem to account for far more bankruptcy cases than business failures

  16. Pingback: A debtor’s morality | Club Troppo

  17. A significant minority may have sought to build that nest-egg by excessively risky means, relying on the stigma-free “get out of gaol” or “clean slate” card of bankruptcy if the strategy comes unstuck.

    Well gee whiz, how many banks played that game? … and I do believe they got their bailout kind of quick snappy when they help up the hand. Can you blame people for learning from their betters?

  18. I understand, but I haven’t looked up the figures, that a very large proportion of bankrupts in Australia are youngish not very well off people with mobile phone debts due to running over on “unlimited” plans.

    I think you will find those are not voluntary.

  19. Todd Zywicki’s writes on the law and economics of bankrupty at http://mason.gmu.edu/~tzywick2/publications.html

    he suggests that the decline in the stigma of bankruptcy, changes in the relative economic benefits and costs of filing bankruptcy, and changes in the consumer credit system made individuals more willing to file bankruptcy al least in the USA

    before 2008, there is an anomaly of skyrocketing consumer bankruptcy filings since 1978 in the USA during an era of economic prosperity

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