Sublime builder could have been insolvent since 2012, says liquidator

The report, dated Tuesday and prepared by Vincents Chartered Accountants, said Sublime Constructions director Minh Phan and former director, Dee Vong Sisomphou, may be guilty of numerous other breaches of the Corporations Act including engaging in "uncommercial transactions" exceeding $3 million.

Have you been affected by the Sublime wind up? Email david.ellery@fairfaxmedia.com.au

In addition at least 45 transactions, with a value of more than $760,000, may have breached the "unfair preference" rule that prohibits favouring some creditors over others.

"The company's director and former director failed to properly apply the degree of care and diligence required of them by the Corporations Act," liquidators Nick Combis and Steven Staatz wrote.

"Our evaluation… broadly concurs with the opinion formed by the administrator (Mackay Goodwin), namely that the company may have become insolvent at least as early as March 2012.

The report said Mr Phan and Mr Sisomphou "engaged in loans between the company and related entities (including themselves) at a time when the company was insolvent".

It also concluded the pair "failed to exercise adequate supervision and controls to monitor the company's record keeping and financial position in order to detect and prevent frauds by its officers".

Fairfax Media is able to reveal Sublime Constructions is already under investigation by the ACT Policing Fraud Investigations Team and the ACT Construction Occupations Registrar over claims it falsified insurance certificates to trick clients into signing building contracts worth millions of dollars.

The allegedly fraudulent behaviour has been raised by individual homeowners who have been left hundreds of thousands of dollars out of pocket and the ACT Master Builders' Association.

Mr Phan told Fairfax Media he would be "breaking the law" if he commented on the insurance certificate allegations.

Mr Sisomphou said he had not been involved in sourcing insurance or financing.

"The allegations that QBE certificates provided to Sublime Constructions clients had been altered has come as a complete surprise," he said in a statement.

Former Sublime clients Tanya Nguyen and Thuy Ha have given Fairfax Media copies of home warranty insurance certificates provided by Sublime and the insurer, QBE, respectively.

In Ms Nguyen's case the certificate from Sublime lists the value of the work as $439,892, the amount on the contract. The certificate subsequently provided to her by QBE was for $229,892 or $210,000.

Ms Ha's Sublime certificate is for $584,335, $400,000 more than the $184,355 worth of cover actually provided by QBE.

Both women said the apparent deception was crucial to their decision to proceed as building contracts should not be signed until valid certificates of home warranty insurance have been provided. Ms Ha and her partners have been left about $60,000 out of pocket. Ms Nguyen said the experience cost her almost $160,000.

Jerry Howard, the deputy executive director of the ACT MBA, said the MBA Fidelity Fund had refused Sublime Constructions further home warranty insurance in early 2013.

"We visited some of their sites after complaints and claims by clients," he told Fairfax.

"We formed the view they had no idea how to run a construction (project). There were obvious errors and quality issues and we formed the view they shouldn't be in the industry."

Mr Phanh denied Sublime Constructions had been refused cover by the MBA Fidelity fund but did acknowledge switching home warranty insurance coverage to QBE in 2013.

Mr Sisomphou said until the Fairfax Media inquiry he had not been aware the MBA had refused the company insurance.

Mr Combis and Mr Staatz wrote that: "in addition to loan finance from related and non-bank third parties, the company financed its operations through the non-payment of ATO debts, combined with a considerable reliance on a bank overdraft and personal credit cards of the directors.

"We have prepared and lodged a report with ASIC detailing suspected offences (by Mr Phan and Mr Sisomphou) identified in our investigations to date."

The liquidators have called a meeting of creditors for October 22. Sublime Construction and Development's debts include $3 million dollars in secured lending from NAB, unpaid superannuation obligations exceeding $100,000, at least $1 million owed to unsecured creditors and liquidators' fees expected to total more than $200,000.