Corporations Amendment (Insolvency) Act 2007 (Cth)

Corporations Amendment (Insolvency) Act 2007

No. 132, 2007

An Act to amend the Corporations Act 2001, and for other purposes

Contents

Corporations Amendment (Insolvency) Act 2007

No. 132, 2007

An Act to amend the Corporations Act 2001, and for other purposes

[Assented to 20 August 2007]

The Parliament of Australia enacts:

1Short title

This Act may be cited as the Corporations Amendment (Insolvency) Act 2007.

2Commencement

(1)
Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

Commencement information
Column 1	Column 2	Column 3
Provision(s)	Commencement	Date/Details
1. Sections 1 to 3 and anything in this Act not elsewhere covered by this table	The day on which this Act receives the Royal Assent.	20 August 2007
2. Schedule 1, items 1 to 48	A single day to be fixed by Proclamation. However, if any of the provision(s) do not commence within the period of 6 months beginning on the day on which this Act receives the Royal Assent, they commence on the first day after the end of that period.	31 December 2007 (see F2007L03798)
3. Schedule 1, items 49 and 50	On the first day after the end of the period of 6 months beginning on the day on which the provision(s) covered by table item 2 commence.	1 July 2008
4. Schedule 1, items 51 to 120	At the same time as the provision(s) covered by table item 2.	31 December 2007
5. Schedule 1, item 121	At the same time as the provision(s) covered by table item 3.	1 July 2008
6. Schedule 1, items 122 to 133	At the same time as the provision(s) covered by table item 2.	31 December 2007
7. Schedule 2, items 1 to 10	At the same time as the provision(s) covered by table item 2.	31 December 2007
8. Schedule 2, item 11	At the same time as the provision(s) covered by table item 3.	1 July 2008
9. Schedule 2, item 12	At the same time as the provision(s) covered by table item 2.	31 December 2007
10. Schedules 3 to 6	At the same time as the provision(s) covered by table item 2.	31 December 2007

Note: This table relates only to the provisions of this Act as originally passed by both Houses of the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent.
(2)
Column 3 of the table contains additional information that is not part of this Act. Information in this column may be added to or edited in any published version of this Act.

3Schedule(s)

Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

Schedule 1Improving outcomes for creditorsPart 1Enhancing protection of employee entitlements

Corporations Act 2001

Section 9

Insert:
eligible employee creditor, in relation to a company, means a creditor whose debt or claim would, in a winding up of the company, be payable in priority to other unsecured debts and claims in accordance with paragraph 556(1)(e), (g) or (h) or section 560 or 561.

Section 9

Insert:
superannuation guarantee charge has the same meaning as in the Superannuation Guarantee (Administration) Act 1992.

Section 9

Insert:
superannuation guarantee shortfall has the same meaning as in the Superannuation Guarantee (Administration) Act 1992.

Before section 444E

Insert:

444DAGiving priority to eligible employee creditors

(1)
A deed of company arrangement must contain a provision to the effect that, for the purposes of the application by the administrator of the property of the company coming under his or her control under the deed, any eligible employee creditors will be entitled to a priority at least equal to what they would have been entitled if the property were applied in accordance with sections 556, 560 and 561.
(2)
However, the rule in subsection (1) does not apply if:
(a)
at a meeting of eligible employee creditors held before the meeting convened under section 439A, the eligible employee creditors pass a resolution agreeing to the non‑inclusion of such a provision; or
(b)
the Court makes an order under subsection (5) approving the non‑inclusion of such a provision.
Meeting of eligible employee creditors
(3)
The administrator of the company must convene a meeting under paragraph (2)(a) by giving written notice of the meeting to as many of the eligible employee creditors as reasonably practicable at least 5 business days before the meeting.
(4)
A notice under subsection (3) must be accompanied by a copy of a statement setting out:
(a)
the administrator’s opinion whether the non‑inclusion of such a provision would be likely to result in the same or a better outcome for eligible employee creditors as a whole than would result from an immediate winding up of the company; and
(b)
his or her reasons for that opinion; and
(c)
such other information known to the administrator as will enable the eligible employee creditors to make an informed decision about the matter covered by paragraph (a).
Court approval
(5)
The Court may approve the non‑inclusion of such a provision if the Court is satisfied that the non‑inclusion of the provision would be likely to result in the same or a better outcome for eligible employee creditors as a whole than would result from an immediate winding up of the company.
(6)
The Court may only make an order under subsection (5) on the application of:
(a)
the administrator, or proposed administrator, of the deed; or
(b)
an eligible employee creditor; or
(c)
any interested person.
(7)
The Court may make an order under subsection (5) before or after the meeting convened under section 439A.

444DBSuperannuation contribution debts not admissible to proof

Whole of superannuation contribution debt
(1)
A deed of company arrangement must contain a provision to the effect that the administrator of the deed must determine that the whole of a debt by way of a superannuation contribution is not admissible to proof against the company if:
(a)
a debt by way of superannuation guarantee charge:
(i) has been paid; or
(ii)
is, or is to be, admissible to proof against the company; and
(b)
the administrator of the deed is satisfied that the superannuation guarantee charge is attributable to the whole of the first‑mentioned debt.
(2)
If the administrator of a deed of company arrangement determines, under a provision covered by subsection (1), that the whole of a debt is not admissible to proof against the company, the whole of the debt is extinguished.
Part of superannuation contribution debt
(3)
A deed of company arrangement must contain a provision to the effect that the administrator of the deed must determine that a particular part of a debt by way of a superannuation contribution is not admissible to proof against the company if:
(a)
a debt by way of superannuation guarantee charge:
(i) has been paid; or
(ii)
is, or is to be, admissible to proof against the company; and
(b)
the administrator of the deed is satisfied that the superannuation guarantee charge is attributable to that part of the first‑mentioned debt.
(4)
If the administrator of a deed of company arrangement determines, under a provision covered by subsection (3), that a part of a debt is not admissible to proof against the company, that part of the debt is extinguished.
Definition
(5)
In this section:
superannuation contribution has the same meaning as in section 556.

After section 553AA

Insert:

553ABSuperannuation contribution debts not admissible to proof

Whole of superannuation contribution debt
(1)
In a winding up, the liquidator must determine that the whole of a debt by way of a superannuation contribution is not admissible to proof against the company if:
(a)
a debt by way of superannuation guarantee charge:
(i) has been paid; or
(ii)
is, or is to be, admissible to proof against the company; and
(b)
the liquidator is satisfied that the superannuation guarantee charge is attributable to the whole of the first‑mentioned debt.
(2)
If the liquidator determines, under subsection (1), that the whole of a debt is not admissible to proof against the company, the whole of the debt is extinguished.
Part of superannuation contribution debt
(3)
In a winding up, the liquidator must determine that a particular part of a debt by way of a superannuation contribution is not admissible to proof against the company if:
(a)
a debt by way of superannuation guarantee charge:
(i) has been paid; or
(ii)
is, or is to be, admissible to proof against the company; and
(b)
the liquidator is satisfied that the superannuation guarantee charge is attributable to that part of the first‑mentioned debt.
(4)
If the liquidator determines, under subsection (3), that a part of a debt is not admissible to proof against the company, that part of the debt is extinguished.
Definition
(5)
In this section:
superannuation contribution has the same meaning as in section 556.

Paragraph 556(1)(e)

Omit “and superannuation contributions”, substitute “, superannuation contributions and superannuation guarantee charge”.

After subsection 556(1A)

Insert:
(1AB)
For the purposes of paragraph (1)(e), if:
(a)
the company has a superannuation guarantee shortfall for a quarter; and
(b)
the shortfall relates to one or more employees; and
(c)
the quarter ends before the relevant date;
superannuation guarantee charge in respect of the quarter is taken to be payable by the company in respect of services rendered to the company by those employees before the relevant date.
(1AC)
If:
(a)
the company has a superannuation guarantee shortfall for a quarter; and
(b)
the shortfall relates to one or more employees; and
(c)
the relevant date occurs during the quarter; and
(d)
the relevant date is not the first day of the quarter;
then:
(e)
for the purposes of paragraph (1)(e), so much of the superannuation guarantee charge in respect of the quarter as is attributable to the period before the relevant date is taken to be payable by the company in respect of services rendered to the company by those employees before the relevant date; and
(f)
the remainder of the superannuation guarantee charge in respect of the quarter is taken:
(i) to be an expense referred to in paragraph (1)(a); and
(ii)
not to be an amount of superannuation guarantee charge referred in paragraph (1)(e).
(1AD)
If:
(a)
the company has a superannuation guarantee shortfall for a quarter; and
(b)
the shortfall relates to one or more employees; and
(c)
the relevant date is the first day of the quarter;
the superannuation guarantee charge in respect of the quarter is taken:
(d)
to be an expense referred to in paragraph (1)(a); and
(e)
not to be an amount of superannuation guarantee charge referred in paragraph (1)(e).
(1AE)
For the purposes of paragraph (1)(e), if:
(a)
the company has a superannuation guarantee shortfall for a quarter; and
(b)
the shortfall relates to one or more employees; and
(c)
the quarter begins after the relevant date; and
(d)
one or more payments were made by the company during the quarter on account of wages payable to those employees in respect of services rendered to the company by those employees before the relevant date; and
(e)
those payments were made as a result of an advance of money by a person after the relevant date for the purpose of making those payments;
then:
(f)
for the purposes of paragraph (1)(e), so much of the superannuation guarantee charge in respect of the quarter as is attributable to those payments is taken to be payable by the company in respect of services rendered to the company by those employees before the relevant date; and
(g)
the remainder of the superannuation guarantee charge in respect of the quarter is taken:
(i) to be an expense referred to in paragraph (1)(a); and
(ii)
not to be an amount of superannuation guarantee charge referred in paragraph (1)(e).
(1AF)
If:
(a)
the company has a superannuation guarantee shortfall for a quarter; and
(b)
the shortfall relates to one or more employees; and
(c)
the relevant date occurs during the quarter; and
(d)
one or more payments were made by the company during the quarter on account of wages payable to those employees in respect of services rendered to the company by those employees before the relevant date; and
(e)
those payments were made as a result of an advance of money by a person after the relevant date for the purpose of making those payments;
then:
(f)
for the purposes of paragraph (1)(e), so much of the superannuation guarantee charge in respect of the quarter as is attributable to either or both of the following:
(i) those payments;
(ii)
the period before the relevant date;
is taken to be payable by the company in respect of services rendered to the company by those employees before the relevant date; and
(g)
the remainder of the superannuation guarantee charge in respect of the quarter is taken:
(i) to be an expense referred to in paragraph (1)(a); and
(ii)
not to be an amount of superannuation guarantee charge referred in paragraph (1)(e); and
(h)
subsections (1AC) and (1AD) do not apply to the superannuation guarantee charge in respect of the quarter.

Subsection 556(2)

Insert:
quarter has the same meaning as in the Superannuation Guarantee (Administration) Act 1992.

Section 560

Repeal the section, substitute:

560Advances for company to make priority payments in relation to employees

If:
(a)
a payment has been made by a company:
(i) on account of wages; or
(ii)
on account of superannuation contributions (within the meaning of section 556); or
(iii)
in respect of leave of absence, or termination of employment, under an industrial instrument; and
(b)
the payment was made as a result of an advance of money by a person (whether before, on or after the relevant date) for the purpose of making the payment;
then:
(c)
the person by whom the money was advanced has the same rights under this Chapter as a creditor of the company; and
(d)
subject to paragraph (e), the person by whom the money was advanced has, in the winding up of the company, the same right of priority of payment in respect of the money so advanced and paid as the person who received the payment would have had if the payment had not been made; and
(e)
the right of priority conferred by paragraph (d) is not to exceed the amount by which the sum in respect of which the person who received the payment would have been entitled to priority in the winding up has been diminished by reason of the payment.

Paragraph 1364(2)(f)

After “meetings of creditors,”, insert “meetings of eligible employee creditors,”.

Superannuation Guarantee (Administration) Act 1992

Section 52

Repeal the section.

Subsection 64B(3)

Omit “An”, substitute “Subject to subsection (3A), an”.

After subsection 64B(3)

Insert:
(3A)
The Commissioner may vary an employee’s proportion of an amount if the amount of the charge payment has been affected by:
(a)
the application of the monetary limit imposed by subsection 556(1A) of the Corporations Act 2001 in respect of the employee; or
(b)
the application of the monetary limit imposed by paragraph 109(1)(e) of the Bankruptcy Act 1966 in respect of the employee.
14
Application—section 52 of the Superannuation Guarantee (Administration) Act 1992
The repeal of section 52 of the Superannuation Guarantee (Administration) Act 1992 by this Schedule, in so far as it relates to a company that is being wound up under the Corporations Act 2001, applies if the relevant date (within the meaning of the Corporations Act 2001) is on or after the day on which this item commences.
15
Application—subsection 64B(3A) of the Superannuation Guarantee (Administration) Act 1992
(1) Paragraph 64B(3A)(a) of the Superannuation Guarantee (Administration) Act 1992 applies if the relevant date (within the meaning of the Corporations Act 2001) is on or after the day on which this item commences.
(2) Paragraph 64B(3A)(b) of the Superannuation Guarantee (Administration) Act 1992, in so far as it relates to a bankruptcy, applies if the date of the bankruptcy is on or after the day on which this item commences.
(3) Paragraph 64B(3A)(b) of the Superannuation Guarantee (Administration) Act 1992, in so far as it relates to a personal insolvency agreement, applies if the relevant authority under section 188 of the Bankruptcy Act 1966 became effective on or after the day on which this item commences.

Part 2Better informing creditor decisions

Corporations Act 2001

Section 9

Insert:
declaration of indemnities, in relation to an administrator of a company under administration, means a written declaration:
(a)
stating whether the administrator has, to any extent, been indemnified (otherwise than under section 443D), in relation to that administration, for:
(i) any debts for which the administrator is, or may become, liable under Subdivision A of Division 9 of Part 5.3A; or
(ii)
any debts for which the administrator is, or may become, liable under a remittance provision as defined in section 443BA; or
(iii)
his or her remuneration as determined under section 449E; and
(b)
if so, stating:
(i) the identity of each indemnifier; and
(ii)
the extent and nature of each indemnity.

Section 9

Insert:
declaration of relevant relationships has the meaning given by section 60.

Section 9

Insert:
firm, in relation to an administrator or liquidator, means:
(a)
if the administrator or liquidator is a partner or employee of a partnership (the partnership firm) that provides advice or other services in relation to externally‑administered bodies corporate—the partnership firm; or
(b)
if the administrator or liquidator is an officer or employee of a body corporate (the body corporate firm) that provides advice or other services in relation to externally‑administered bodies corporate—the body corporate firm.

After section 59

Insert:

60Declaration of relevant relationships

Administrator
(1)
In this Act, a declaration of relevant relationships, in relation to an administrator of a company under administration, means a written declaration:
(a)
stating whether any of the following:
(i) the administrator;
(ii)
if the administrator’s firm (if any) is a partnership—a partner in that partnership;
(iii)
if the administrator’s firm (if any) is a body corporate—that body corporate or an associate of that body corporate;
has, or has had within the preceding 24 months, a relationship with:
(iv)
the company; or
(v)
an associate of the company; or
(vi)
a former liquidator, or former provisional liquidator, of the company; or
(vii)
a person who is entitled to enforce a charge on the whole, or substantially the whole, of the company’s property; and
(b)
if so, stating the administrator’s reasons for believing that none of the relevant relationships result in the administrator having a conflict of interest or duty.
Liquidator
(2)
In this Act, a declaration of relevant relationships, in relation to a liquidator of a company, means a written declaration:
(a)
stating whether any of the following:
(i) the liquidator;
(ii)
if the liquidator’s firm (if any) is a partnership—a partner in that partnership;
(iii)
if the liquidator’s firm (if any) is a body corporate—that body corporate or an associate of that body corporate;
has, or has had within the preceding 24 months, a relationship with:
(iv)
the company; or
(v)
an associate of the company; or
(vi)
a former liquidator, or former provisional liquidator, of the company; or
(vii)
a former administrator of the company; or
(viii)
a former administrator of a deed of company arrangement executed by the company; and
(b)
if so, stating the liquidator’s reasons for believing that none of the relevant relationships result in the liquidator having a conflict of interest or duty.

At the end of section 425

Add:
(8)
In exercising its powers under this section, the Court must have regard to whether the remuneration is reasonable, taking into account any or all of the following matters:
(a)
the extent to which the work performed by the receiver was reasonably necessary;
(b)
the extent to which the work likely to be performed by the receiver is likely to be reasonably necessary;
(c)
the period during which the work was, or is likely to be, performed by the receiver;
(d)
the quality of the work performed, or likely to be performed, by the receiver;

(e)
the complexity (or otherwise) of the work performed, or likely to be performed, by the receiver;
(f)
the extent (if any) to which the receiver was, or is likely to be, required to deal with extraordinary issues;
(g)
the extent (if any) to which the receiver was, or is likely to be, required to accept a higher level of risk or responsibility than is usually the case;
(h)
the value and nature of any property dealt with, or likely to be dealt with, by the receiver;
(i) whether the receiver was, or is likely to be, required to deal with:
(i) one or more other receivers; or
(ii)
one or more receivers and managers; or
(iii)
one or more liquidators; or
(iv)
one or more administrators; or
(v)
one or more administrators of deeds of company arrangement;
(j)
the number, attributes and behaviour, or the likely number, attributes and behaviour, of the company’s creditors;
(k)
if the remuneration is ascertained, in whole or in part, on a time basis:
(i) the time properly taken, or likely to be properly taken, by the receiver in performing the work; and
(ii)
whether the total remuneration payable to the receiver is capped;
(l)
any other relevant matters.

After section 436D

Insert:

436DADeclarations by administrator—indemnities and relevant relationships

Scope
(1)
This section applies to an administrator appointed under section 436A, 436B or 436C.
Declaration of relationships and indemnities
(2)
As soon as practicable after being appointed, the administrator must make:
(a)
a declaration of relevant relationships; and
(b)
a declaration of indemnities.
Note: Failure to comply with this subsection is an offence (see subsection 1311(1)).
Notification of creditors
(3)
The administrator must:
(a)
give a copy of each declaration under subsection (2) to as many of the company’s creditors as reasonably practicable; and
(b)
do so at the same time as the administrator gives those creditors notice of the meeting referred to in section 436E.
Note: Failure to comply with this subsection is an offence (see subsection 1311(1)).
(4)
The administrator must table a copy of each declaration under subsection (2) at the meeting referred to in section 436E.
Note: Failure to comply with this subsection is an offence (see subsection 1311(1)).
Updating of declaration
(5)
If:
(a)
at a particular time, the administrator makes:
(i) a declaration of relevant relationships; or
(ii)
a declaration of indemnities;
under subsection (2) or this subsection; and
(b)
at a later time:
(i) the declaration has become out‑of‑date; or
(ii)
the administrator becomes aware of an error in the declaration;
the administrator must, as soon as practicable, make:
(c)
if subparagraph (a)(i) applies—a replacement declaration of relevant relationships; or
(d)
if subparagraph (a)(ii) applies—a replacement declaration of indemnities.
Note: Failure to comply with this subsection is an offence (see subsection 1311(1)).
(6)
The administrator must table a copy of a replacement declaration under subsection (5):
(a)
if:
(i) there is a committee of creditors; and
(ii)
the next meeting of the committee of creditors occurs before the next meeting of the company’s creditors;
at the next meeting of the committee of creditors; or
(b)
in any other case—at the next meeting of the company’s creditors.
Note: Failure to comply with this subsection is an offence (see subsection 1311(1)).
Defence
(7)
In a prosecution for an offence constituted by a failure to include a particular matter in a declaration under this section, it is a defence if the defendant proves that:
(a)
the defendant made reasonable enquiries; and
(b)
after making these enquiries, the defendant had no reasonable grounds for believing that the matter should have been included in the declaration.

Subsection 446A(4)

Repeal the subsection.

At the end of section 446A

Add:
Note: See also section 499 (appointment of liquidator).

After section 449C

Insert:

449CADeclarations by administrator—indemnities and relevant relationships

Scope
(1)
This section applies to an administrator appointed under subsection 449C(1) otherwise than by the Court.
Declaration of relationships and indemnities
(2)
As soon as practicable after being appointed, the administrator must make:
(a)
a declaration of relevant relationships; and
(b)
a declaration of indemnities.
Note: Failure to comply with this subsection is an offence (see subsection 1311(1)).
Notification of creditors
(3)
The administrator must:
(a)
give a copy of each declaration under subsection (2) to as many of the company’s creditors as reasonably practicable; and
(b)
do so at the same time as the administrator gives those creditors notice of the meeting convened under subsection 449C(4).
Note: Failure to comply with this subsection is an offence (see subsection 1311(1)).
(4)
The administrator must table a copy of each declaration under subsection (2) at the meeting convened under subsection 449C(4).
Note: Failure to comply with this subsection is an offence (see subsection 1311(1)).
Updating of declaration
(5)
If:
(a)
at a particular time, the administrator makes:
(i) a declaration of relevant relationships; or
(ii)
a declaration of indemnities;
under subsection (2) or this subsection; and
(b)
at a later time:
(i) the declaration has become out‑of‑date; or
(ii)
the administrator becomes aware of an error in the declaration;
the administrator must, as soon as practicable, make:
(c)
if subparagraph (a)(i) applies—a replacement declaration of relevant relationships; or
(d)
if subparagraph (a)(ii) applies—a replacement declaration of indemnities.
Note: Failure to comply with this subsection is an offence (see subsection 1311(1)).
(6)
The administrator must table a copy of a replacement declaration under subsection (5):
(a)
if:
(i) there is a committee of creditors; and
(ii)
the next meeting of the committee of creditors occurs before the next meeting of the company’s creditors;
at the next meeting of the committee of creditors; or
(b)
in any other case—at the next meeting of the company’s creditors.
Note: Failure to comply with this subsection is an offence (see subsection 1311(1)).
Defence
(7)
In a prosecution for an offence constituted by a failure to include a particular matter in a declaration under this section, it is a defence if the defendant proves that:
(a)
the defendant made reasonable enquiries; and
(b)
after making these enquiries, the defendant had no reasonable grounds for believing that the matter should have been included in the declaration.

Subsection 449E(1)

Repeal the subsection, substitute:
(1)
The administrator of a company under administration is entitled to receive such remuneration as is determined:
(a)
by agreement between the administrator and the committee of creditors (if any); or
(b)
by resolution of the company’s creditors; or
(c)
if there is no such agreement or resolution—by the Court.
(1A)
The administrator of a company under a deed of company arrangement is entitled to receive such remuneration as is determined:
(a)
by agreement between the administrator and the committee of inspection (if any); or
(b)
by resolution of the company’s creditors; or
(c)
if there is no such agreement or resolution—by the Court.
(1B)
To be effective, a resolution under paragraph (1)(b) or (1A)(b) must deal exclusively with remuneration of the administrator.
Note: This means that the resolution must not be bundled with any other resolution.
(1C)
The Court may determine remuneration under paragraph (1)(c) even if:
(a)
there has been no meeting of the committee of creditors; or
(b)
there has been no meeting of the company’s creditors.
(1D)
The Court may determine remuneration under paragraph (1A)(c) even if:
(a)
there has been no meeting of the committee of inspection; or
(b)
there has been no meeting of the company’s creditors.

Subsection 449E(2)

Omit “fixed under paragraph (1)(a)”, substitute “determined under paragraph (1)(a) or (b) or paragraph (1A)(a) or (b)”.

Subsection 449E(2)

After “on the application”, insert “of ASIC,”.

At the end of section 449E

Add:
(4)
In exercising its powers under subsection (1), (1A) or (2), the Court must have regard to whether the remuneration is reasonable, taking into account any or all of the following matters:
(a)
the extent to which the work performed by the administrator was reasonably necessary;
(b)
the extent to which the work likely to be performed by the administrator is likely to be reasonably necessary;
(c)
the period during which the work was, or is likely to be, performed by the administrator;
(d)
the quality of the work performed, or likely to be performed, by the administrator;
(e)
the complexity (or otherwise) of the work performed, or likely to be performed, by the administrator;
(f)
the extent (if any) to which the administrator was, or is likely to be, required to deal with extraordinary issues;
(g)
the extent (if any) to which the administrator was, or is likely to be, required to accept a higher level of risk or responsibility than is usually the case;
(h)
the value and nature of any property dealt with, or likely to be dealt with, by the administrator;
(i) whether the administrator was, or is likely to be, required to deal with:
(i) one or more receivers; or
(ii)
one or more receivers and managers;
(j)
the number, attributes and behaviour, or the likely number, attributes and behaviour, of the company’s creditors;
(k)
if the remuneration is ascertained, in whole or in part, on a time basis:
(i) the time properly taken, or likely to be properly taken, by the administrator in performing the work; and
(ii)
whether the total remuneration payable to the administrator is capped;
(l)
any other relevant matters.
(5)
Before remuneration is determined under paragraph (1)(a), the administrator must:
(a)
prepare a report setting out:
(i) such matters as will enable the committee of creditors to make an informed assessment as to whether the proposed remuneration is reasonable; and
(ii)
a summary description of the major tasks performed, or likely to be performed, by the administrator; and
(iii)
the costs associated with each of those major tasks; and
(b)
give a copy of the report to each member of the committee of creditors at the same time as the member is notified of the relevant meeting of the committee.
(6)
Before remuneration is determined under paragraph (1A)(a), the administrator must:
(a)
prepare a report setting out:
(i) such matters as will enable the committee of inspection to make an informed assessment as to whether the proposed remuneration is reasonable; and
(ii)
a summary description of the major tasks performed, or likely to be performed, by the administrator; and
(iii)
the costs associated with each of those major tasks; and
(b)
give a copy of the report to each member of the committee of inspection at the same time as the member is notified of the relevant meeting of the committee.
(7)
Before remuneration is determined under paragraph (1)(b) or (1A)(b), the administrator must:
(a)
prepare a report setting out:
(i) such matters as will enable the company’s creditors to make an informed assessment as to whether the proposed remuneration is reasonable; and
(ii)
a summary description of the major tasks performed, or likely to be performed, by the administrator; and
(iii)
the costs associated with each of those major tasks; and
(b)
give a copy of the report to each of the company’s creditors at the same time as the creditor is notified of the relevant meeting of creditors.

After subsection 473(4)

Insert:
(4A)
If:
(a)
no remuneration has been fixed under paragraph (3)(a) or (b); and
(b)
a meeting of the company’s creditors is convened; and
(c)
a resolution under subparagraph (3)(b)(i) cannot be passed because of the lack of a quorum; and
(d)
there has been no previous application of this subsection to the remuneration of the liquidator;
the creditors are taken to have passed a resolution under subparagraph (3)(b)(i) determining that the liquidator is entitled to remuneration of:
(e)
whichever is the greater of the following amounts:
(i) $5,000;
(ii)
if an amount is specified in regulations for the purposes of this subparagraph—that amount; or
(f)
if the liquidator determines a lesser amount—that lesser amount.
(4B)
Subsection (4A) does not limit the Court’s powers under subsection (6).

At the end of section 473

Add:
(10)
In exercising its powers under subsection (3), (5) or (6), the Court must have regard to whether the remuneration is reasonable, taking into account any or all of the following matters:
(a)
the extent to which the work performed by the liquidator was reasonably necessary;
(b)
the extent to which the work likely to be performed by the liquidator is likely to be reasonably necessary;
(c)
the period during which the work was, or is likely to be, performed by the liquidator;
(d)
the quality of the work performed, or likely to be performed, by the liquidator;
(e)
the complexity (or otherwise) of the work performed, or likely to be performed, by the liquidator;
(f)
the extent (if any) to which the liquidator was, or is likely to be, required to deal with extraordinary issues;
(g)
the extent (if any) to which the liquidator was, or is likely to be, required to accept a higher level of risk or responsibility than is usually the case;
(h)
the value and nature of any property dealt with, or likely to be dealt with, by the liquidator;
(i) whether the liquidator was, or is likely to be, required to deal with:
(i) one or more receivers; or
(ii)
one or more receivers and managers;
(j)
the number, attributes and behaviour, or the likely number, attributes and behaviour, of the company’s creditors;
(k)
if the remuneration is ascertained, in whole or in part, on a time basis:
(i) the time properly taken, or likely to be properly taken, by the liquidator in performing the work; and
(ii)
whether the total remuneration payable to the liquidator is capped;
(l)
any other relevant matters.
(11)
Before remuneration is determined under paragraph (3)(a), the liquidator must:
(a)
prepare a report setting out:
(i) such matters as will enable the committee of inspection to make an informed assessment as to whether the proposed remuneration is reasonable; and
(ii)
a summary description of the major tasks performed, or likely to be performed, by the liquidator; and
(iii)
the costs associated with each of those major tasks; and
(b)
give a copy of the report to each member of the committee of inspection at the same time as the member is notified of the relevant meeting of the committee.
(12)
Before remuneration is determined under subparagraph (3)(b)(i), the liquidator must:
(a)
prepare a report setting out:
(i) such matters as will enable the company’s creditors to make an informed assessment as to whether the proposed remuneration is reasonable; and
(ii)
a summary description of the major tasks performed, or likely to be performed, by the liquidator; and
(iii)
the costs associated with each of those major tasks; and
(b)
give a copy of the report to each of the company’s creditors at the same time as the creditor is notified of the relevant meeting of creditors.

At the end of section 495

Add:
(5)
Before remuneration is fixed under subsection (1), the liquidator or liquidators, or the proposed liquidator or proposed liquidators, must:
(a)
prepare a report setting out:
(i) such matters as will enable the members to make an informed assessment as to whether the proposed remuneration is reasonable; and
(ii)
a summary description of the major tasks likely to be performed by the liquidator or liquidators, or the proposed liquidator or proposed liquidators, as the case may be; and
(iii)
the costs associated with each of those major tasks; and
(b)
table the report at the relevant general meeting.

Subsection 499(3)

Repeal the subsection, substitute:
(3)
The remuneration to be paid to the liquidator may be fixed:
(a)
if there is a committee of inspection—by that committee; or
(b)
by resolution of the creditors.
(3A)
If:
(a)
no remuneration has been fixed under subsection (3); and
(b)
a meeting of the company’s creditors is convened; and
(c)
a resolution under paragraph (3)(b) cannot be passed because of the lack of a quorum; and
(d)
there has been no previous application of this subsection to the remuneration of the liquidator;
the creditors are taken to have passed a resolution under paragraph (3)(b) determining that the liquidator is entitled to remuneration of:
(e)
whichever is the greater of the following amounts:
(i) $5,000;
(ii)
if an amount is specified in regulations for the purposes of this subparagraph—that amount; or
(f)
if the liquidator determines a lesser amount—that lesser amount.

At the end of section 499

Add:
(6)
Before remuneration is fixed under subsection (3) by the committee of inspection, the liquidator must:
(a)
prepare a report setting out:
(i) such matters as will enable the members of the committee to make an informed assessment as to whether the proposed remuneration is reasonable; and
(ii)
a summary description of the major tasks performed, or likely to be performed, by the liquidator; and
(iii)
the costs associated with each of those major tasks; and
(b)
give a copy of the report to each member of the committee at the same time as the member is notified of the relevant meeting of the committee.
(7)
Before remuneration is fixed under subsection (3) by resolution of the creditors, the liquidator must:
(a)
prepare a report setting out:
(i) such matters as will enable the creditors to make an informed assessment as to whether the proposed remuneration is reasonable; and
(ii)
a summary description of the major tasks performed, or likely to be performed, by the liquidator; and
(iii)
the costs associated with each of those major tasks; and
(b)
give a copy of the report to each of the creditors at the same time as the creditor is notified of the relevant meeting of creditors.

Section 504

Before “Any member”, insert “(1)”.

At the end of section 504

Add:
(2)
In exercising its powers under subsection (1), the Court must have regard to whether the remuneration is reasonable, taking into account any or all of the following matters:
(a)
the extent to which the work performed by the liquidator was reasonably necessary;
(b)
the extent to which the work likely to be performed by the liquidator is likely to be reasonably necessary;
(c)
the period during which the work was, or is likely to be, performed by the liquidator;
(d)
the quality of the work performed, or likely to be performed, by the liquidator;
(e)
the complexity (or otherwise) of the work performed, or likely to be performed, by the liquidator;
(f)
the extent (if any) to which the liquidator was, or is likely to be, required to deal with extraordinary issues;
(g)
the extent (if any) to which the liquidator was, or is likely to be, required to accept a higher level of risk or responsibility than is usually the case;
(h)
the value and nature of any property dealt with, or likely to be dealt with, by the liquidator;
(i) whether the liquidator was, or is likely to be, required to deal with:
(i) one or more receivers; or
(ii)
one or more receivers and managers;
(j)
the number, attributes and behaviour, or the likely number, attributes and behaviour, of the company’s creditors;
(k)
if the remuneration is ascertained, in whole or in part, on a time basis:
(i) the time properly taken, or likely to be properly taken, by the liquidator in performing the work; and
(ii)
whether the total remuneration payable to the liquidator is capped;
(l)
any other relevant matters.

After section 506

Insert:

506ADeclarations by liquidator—relevant relationships

Scope
(1)
This section applies if the liquidator of a company is required to convene a meeting under section 497.
Declaration of relevant relationships
(2)
Before convening the meeting, the liquidator must make a declaration of relevant relationships.
Note: Failure to comply with this subsection is an offence (see subsection 1311(1)).
Notification of creditors
(3)
The liquidator must:
(a)
give a copy of each declaration under subsection (2) to as many of the company’s creditors as reasonably practicable; and
(b)
do so at the same time as the liquidator gives those creditors notice of the meeting.
Note: Failure to comply with this subsection is an offence (see subsection 1311(1)).
(4)
The liquidator must table a copy of each declaration under subsection (2) at the meeting.

Note: Failure to comply with this subsection is an offence (see subsection 1311(1)).
Updating of declaration
(5)
If:
(a)
at a particular time, the liquidator makes a declaration of relevant relationships under subsection (2) or this subsection; and
(b)
at a later time:
(i) the declaration has become out‑of‑date; or
(ii)
the liquidator becomes aware of an error in the declaration;
the liquidator must, as soon as practicable, make a replacement declaration of relevant relationships.
Note: Failure to comply with this subsection is an offence (see subsection 1311(1)).
(6)
The liquidator must table a copy of a replacement declaration under subsection (4):
(a)
if:
(i) there is a committee of inspection; and
(ii)
the next meeting of the committee of inspection occurs before the next meeting of the company’s creditors;
at the next meeting of the committee of inspection; or
(b)
in any other case—at the next meeting of the company’s creditors.
Note: Failure to comply with this subsection is an offence (see subsection 1311(1)).
Defence
(7)
In a prosecution for an offence constituted by a failure to include a particular matter in a declaration under this section, it is a defence if the defendant proves that:
(a)
the defendant made reasonable enquiries; and
(b)
after making these enquiries, the defendant had no reasonable grounds for believing that the matter should have been included in the declaration.

Paragraph 508(1)(b)

Repeal the paragraph, substitute:
(b)
in the case of a creditors’ voluntary winding up:
(i) convene a meeting of the creditors; or
(ii)
prepare a report that complies with subsection (3), and lodge a copy of the report with ASIC;
Note: The heading to section 508 is altered by omitting “meeting of creditors” and substituting “obligations of liquidator—meeting or report”.

Subsection 508(1)

Omit “from the commencement of the winding up”, substitute “beginning on the day on which the company resolved that it be wound up voluntarily”.

Subsection 508(1)

Omit all the words after “each succeeding year”.

Subsection 508(2)

Repeal the subsection, substitute:
(2)
The liquidator must lay before a meeting convened under paragraph (1)(a) or subparagraph (1)(b)(i) an account of:
(a)
the liquidator’s acts and dealings; and
(b)
the conduct of the winding up;
during that first year or that succeeding year, as the case may be.
(3)
A report referred to in subparagraph (1)(b)(ii) must set out:
(a)
an account of:
(i) the liquidator’s acts and dealings; and
(ii)
the conduct of the winding up;
during that first year or that succeeding year, as the case may be; and
(b)
a description of the acts and dealings that remain to be carried out by the liquidator in order to complete the winding up; and
(c)
an estimate of when the winding up is likely to be completed.
(4)
If a liquidator prepares a report under subparagraph (1)(b)(ii), the liquidator must, within 14 days of lodging a copy of the report with ASIC, give each creditor of the company a written notice stating that:
(a)
the liquidator has decided not to convene a meeting of the creditors under subparagraph (1)(b)(i); and
(b)
the liquidator has:
(i) prepared a report under subparagraph (1)(b)(ii); and
(ii)
lodged a copy of the report with ASIC; and
(c)
if the creditor requests the liquidator to give the creditor a copy of the report free of charge, the liquidator will comply with the request.
Note: For electronic notification under this subsection, see section 600G.
(5)
If a request is made as mentioned in paragraph (4)(c), the liquidator must comply with the request as soon as practicable.

Part 3Streamlining external administration

Corporations Act 2001

41
Section 9 (paragraph (b) of the definition of controller)
Omit “charge.”, substitute “charge;”.
42
Section 9 (at the end of the definition of controller)
Add:
and has a meaning affected by paragraph 434F(b) (which deals with 2 or more persons appointed as controllers).

Section 9 (definition of liquidator)

Repeal the definition, substitute:
liquidator:
(a)
has a meaning affected by paragraph 530(b) (which deals with 2 or more persons appointed as liquidators); and
(b)
in Chapter 7, includes a provisional liquidator.
44
Section 9 (paragraph (b) of the definition of managingcontroller)
Omit “corporation.”, substitute “corporation;”.
45
Section 9 (at the end of the definition of managingcontroller)
Add:
and has a meaning affected by paragraph 434G(b) (which deals with 2 or more persons appointed as managing controllers).

Section 9

Insert:
provisional liquidator has a meaning affected by paragraph 530AA(b) (which deals with 2 or more persons appointed as provisional liquidators).

Section 9

Insert:
receiver has a meaning affected by paragraph 434D(b) (which deals with 2 or more persons appointed as receivers).
48
Section 9 (at the end of the definition of receiver and manager)
Add “and has a meaning affected by paragraph 434E(b) (which deals with 2 or more persons appointed as receivers and managers)”.

After section 157

Insert:

157AChange of name of company under external administration

Application by liquidator
(1)
The liquidator of a company that is being wound up may lodge an application with ASIC to change the name of the company if the liquidator is satisfied that the proposed change of name is in the interests of the creditors of the company as a whole.
(2)
Subsection (1) does not apply to a members’ voluntary winding up.
Application by administrator
(3)
The administrator of a company under administration may lodge an application with ASIC to change the name of the company if the administrator is satisfied that the proposed change of name is in the interests of the creditors of the company as a whole.
Application by deed administrator
(4)
The administrator of a deed of company arrangement may lodge an application with ASIC to change the name of the company if the administrator is satisfied that the proposed change of name is in the interests of the creditors of the company as a whole.
Application by managing controller
(5)
If:
(a)
a person is the managing controller of property of a company; and
(b)
the person is entitled to enforce a charge on the whole, or substantially the whole, of the company’s property;
the person may lodge an application with ASIC to change the name of the company if the person is satisfied that the proposed change of name is in the interests of the creditors of the company as a whole.
Application by receiver
(6)
If:
(a)
a person is a receiver of property of a company; and
(b)
the property subject to the receivership consists of, or includes, goodwill in relation to the name of the company;
the person may lodge an application with ASIC to change the name of the company if the person is satisfied that the proposed change of name is in the interests of the creditors of the company as a whole.
Change of name
(7)
If:
(a)
an application is lodged under subsection (1), (3), (4), (5) or (6); and
(b)
the proposed name is available;
ASIC must change the company’s name by altering the details of the company’s registration to reflect the change. The change of name takes effect when ASIC alters the details of the company’s registration.
Note: For available names, see section 147.

At the end of Division 2 of Part 2B.6

Add:

161ACompany under external administration—former name to be used on documents

(1)
This section applies to a company if:
(a)
any of the following conditions is satisfied:
(i) the company is being wound up;
(ii)
the company is under administration;
(iii)
the company has executed a deed of company arrangement that has not yet terminated;
(iv)
there is a managing controller of property of the company;
(v)
there is a receiver of property of the company; and
(b)
any of the following conditions is satisfied:
(i) a change of the company’s name takes effect;
(ii)
in the case of a company that is being wound up—a change of the company’s name took effect during the 6‑month period ending immediately before the relevant date;
(iii)
in the case of a company under administration—a change of the company’s name took effect during the 6‑month period ending immediately before the administration began;
(iv)
in the case of a company that has executed a deed of company arrangement—a change of the company’s name took effect during the 6‑month period ending immediately before the beginning of the administration that ended when the deed was executed;
(v)
in the case of a company where there is a managing controller—a change in the company’s name took effect during the 6‑month period ending immediately before the appointment of the managing controller;
(vi)
in the case of a company where there is a receiver—a change in the company’s name took effect during the 6‑month period ending immediately before the appointment of the receiver.
(2)
If subparagraph (1)(b)(i), (ii), (iv), (v) or (vi) applies, the company must set out its former name on all its public documents and negotiable instruments.
(3)
If subparagraph (1)(b)(iii) applies, then, except with the leave of the Court, the company must set out its former name on all its public documents and negotiable instruments.
(4)
An offence based on subsection (2) or (3) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
(5)
The regulations may exempt a specified company, or a class of companies, from the requirement in subsection (2) or (3). The exemption may relate to specified documents or instruments, or a specified class of documents or instruments.
(6)
The Court may only grant leave under subsection (3) on the application of the administrator of the deed of company arrangement.
(7)
The Court may only grant leave under subsection (3) if it is satisfied that the granting of leave will not result in any significant risk to the interests of the company’s creditors (including contingent or prospective creditors) as a whole.

After section 250P

Insert:

250PAAExemptions by ASIC—class orders relating to externally‑administered companies

(1)
ASIC may, by legislative instrument, make an order exempting any of the following from section 250N:
(a)
a specified class of companies that are being wound up;
(b)
a specified class of companies under administration;
(c)
a specified class of companies subject to deeds of company arrangement.
(2)
The order may be:
(a)
unconditional; or
(b)
subject to one or more specified conditions.
(3)
ASIC must cause a copy of the order to be published in the Gazette.

250PABExemptions by ASIC—individual externally‑administered companies

(1)
The liquidator of a company that is being wound up may lodge an application with ASIC to exempt the company from section 250N.
(2)
The administrator of a company under administration may lodge an application with ASIC to exempt the company from section 250N.
(3)
The administrator of a deed of company arrangement may lodge an application with ASIC to exempt the company from section 250N.
(4)
If an application is lodged under subsection (1), (2) or (3), ASIC may, by writing, exempt the company from section 250N.
(5)
The exemption may be:
(a)
unconditional; or
(b)
subject to one or more specified conditions.
(6)
ASIC must cause a copy of the exemption to be published in the Gazette.

Sub‑subparagraph 411(4)(a)(ii)(A)

Before “passed”, insert “unless the Court orders otherwise—”.

Subsection 421(1)

Before “controller” (first occurring), insert “managing”.
Note: The heading to section 421 is altered by omitting “Controller’s” and substituting “Managing controller’s”.

Subparagraph 421(1)(a)(i)

Before “controller’s”, insert “managing”.

Subparagraph 421(1)(a)(iii)

Before “controller”, insert “managing”.

Paragraphs 421(1)(b), (c) and (d)

Before “controller”(wherever occurring), insert “managing”.

Subsection 421(2)

Before “controller”, insert “managing”.

Subsection 421A(3)

Repeal the subsection.

Subsection 422(1)

After “receiver” (first occurring), insert “or managing controller”.
Note: The heading to section 422 is altered by adding at the end “or managing controller”.

Subsection 422(1)

After “receiver” (last occurring), insert “or managing controller”.

Subsection 422(2)

After “receiver”, insert “or managing controller”.

Subsection 422(2)

Omit “receiver’s opinion”, substitute “opinion of the receiver or managing controller”.

Paragraph 422(3)(a)

Omit “under a law referred to in paragraph (1)(a)”.

At the end of section 422

Add:
(4)
If:
(a)
there is a managing controller in relation to property of a corporation; and
(b)
it appears to the Court that:
(i) a past or present officer or employee, or a member, of the corporation has been guilty of an offence in relation to the corporation; or
(ii)
a person who has taken part in the formation, promotion, administration, management or winding up of the corporation has engaged in conduct referred to in paragraph (1)(b) in relation to the corporation; and
(c)
it appears to the Court that the managing controller has not lodged a report about the matter;
the Court may, on the application of a person interested in the appointment of the managing controller, direct the managing controller to lodge such a report.

Subsections 427(1), (1A) and (1B)

Repeal the subsections, substitute:
(1)
A person who:
(a)
obtains an order for the appointment of a receiver of property of a corporation; or
(b)
appoints such a receiver under a power contained in an instrument;
must, within 7 days after obtaining the order or making the appointment, lodge notice that the order has been obtained, or that the appointment has been made, as the case may be.
(1A)
A person who appoints another person to enter into possession, or take control, of property of a corporation (whether or not as agent for the corporation) for the purpose of enforcing a charge otherwise than as receiver of that property must, within 7 days after making the appointment, lodge notice of the appointment.
(1B)
A person who enters into possession, or takes control, as mentioned in subsection (1A) must, within 7 days after entering into possession or taking control, lodge notice that the person has done so, unless another person:
(a)
appointed the first‑mentioned person so to enter into possession or take control; and
(b)
complies with subsection (1A) in relation to the appointment.

Subsection 427(4)

Repeal the subsection, substitute:
(4)
A person who ceases to be a controller of property of a corporation must, within 7 days after so ceasing, lodge notice that the person has so ceased.

At the end of Part 5.2

Add:

434DAppointment of 2 or more receivers of property of a corporation

If 2 or more persons have been appointed as receivers of property of a corporation:
(a)
a function or power of a receiver of property of the corporation may be performed or exercised by any one of them, or by any 2 or more of them together, except so far as the order or instrument appointing them otherwise provides; and
(b)
a reference in this Act to a receiver, or to the receiver, of property of a corporation is, in the case of the first‑mentioned corporation, a reference to whichever one or more of those receivers the case requires.

434EAppointment of 2 or more receivers and managers of property of a corporation

If 2 or more persons have been appointed as receivers and managers of property of a corporation:
(a)
a function or power of a receiver and manager of property of the corporation may be performed or exercised by any one of them, or by any 2 or more of them together, except so far as the order or instrument appointing them otherwise provides; and
(b)
a reference in this Act to a receiver and manager, or to the receiver and manager, of property of a corporation is, in the case of the first‑mentioned corporation, a reference to whichever one or more of those receivers and managers the case requires.

434FAppointment of 2 or more controllers of property of a corporation

If 2 or more persons have been appointed as controllers of property of a corporation:
(a)
a function or power of a controller of property of the corporation may be performed or exercised by any one of them, or by any 2 or more of them together, except so far as the order or instrument appointing them otherwise provides; and
(b)
a reference in this Act to a controller, or to the controller, of property of a corporation is, in the case of the first‑mentioned corporation, a reference to whichever one or more of those controllers the case requires.

434GAppointment of 2 or more managing controllers of property of a corporation

If 2 or more persons have been appointed as managing controllers of property of a corporation:
(a)
a function or power of a managing controller of property of the corporation may be performed or exercised by any one of them, or by any 2 or more of them together, except so far as the order or instrument appointing them otherwise provides; and
(b)
a reference in this Act to a managing controller, or to the managing controller, of property of a corporation is, in the case of the first‑mentioned corporation, a reference to whichever one or more of those managing controllers the case requires.

At the end of subsection 436E(3)

Add:
Note: For electronic notification under paragraph (a), see section 600G.

After subsection 436E(3)

Insert:
(3A)
A notice under paragraph (3)(b) that relates to a company may be combined with a notice under paragraph 450A(1)(b) that relates to the company.

Section 436G

Before “A person”, insert “(1)”.

Section 436G

Omit “he or she”, substitute “the person”.

At the end of section 436G

Add:
(2)
If a member of such a committee is a body corporate, the member may be represented at meetings of the committee by:
(a)
an officer or employee of the member; or
(b)
an individual authorised in writing by the member for the purposes of this subsection.

At the end of subsection 439A(3)

Add:
Note: For electronic notification under paragraph (a), see section 600G.

At the end of subsection 439A(4)

Add:
Note: For electronic notification, see section 600G.

Subsection 445F(2)

Repeal the subsection, substitute:
(2)
The deed’s administrator must convene the meeting by giving written notice of the meeting:
(a)
to as many of the company’s creditors as reasonably practicable; and
(b)
at least 5 business days before the meeting.
Note: For electronic notification, see section 600G.

Subsection 445F(3)

Omit “paragraph (2)(a)”, substitute “subsection (2)”.

At the end of subsection 449C(5)

Add:
Note: For electronic notification under paragraph (a), see section 600G.

After subsection 450A(1)

Insert:
(1A)
A notice under paragraph (1)(b) that relates to a company may be combined with a notice under paragraph 436E(3)(b) that relates to the company.

At the end of subsection 450A(3)

Add:
Note: For electronic notification, see section 600G.

Paragraph 450B(b)

Repeal the paragraph.

At the end of section 450B

Add:
Note: For electronic notification under paragraph (a), see section 600G.

Paragraph 450C(b)

Repeal the paragraph, substitute:
(b)
send such a notice to each of the company’s creditors.

At the end of section 450C

Add:
Note: For electronic notification under paragraph (b), see section 600G.

Paragraph 450D(b)

Omit “creditors; and”, substitute “creditors.”.

Paragraph 450D(c)

Repeal the paragraph.

At the end of section 450D

Add:
Note: For electronic notification under paragraph (b), see section 600G.

Subsection 468(1)

Omit “and any transfer of shares or alteration in the status of the members of the company”.

After section 468

Insert:

468AEffect of winding up on company’s members

Transfer of shares
(1)
A transfer of shares in a company that is made after the commencement of the winding up by the Court is void except if:
(a)
both:
(i) the liquidator gives written consent to the transfer; and
(ii)
that consent is unconditional; or
(b)
all of the following subparagraphs apply:
(i) the liquidator gives written consent to the transfer;
(ii)
that consent is subject to one or more specified conditions;
(iii)
those conditions have been satisfied; or
(c)
the Court makes an order under subsection (4) authorising the transfer.
(2)
The liquidator may only give consent under paragraph (1)(a) or (b) if he or she is satisfied that the transfer is in the best interests of the company’s creditors as a whole.
(3)

If the liquidator refuses to give consent under paragraph (1)(a) or (b) to a transfer of shares in the company:
(a)
the prospective transferor; or
(b)
the prospective transferee; or
(c)
a creditor of the company;
may apply to the Court for an order authorising the transfer.
(4)
If the Court is satisfied, on an application under subsection (3), that the transfer is in the best interests of the company’s creditors as a whole, the Court may, by order, authorise the transfer.
(5)
If the liquidator gives consent under paragraph (1)(b) to a transfer of shares in the company:
(a)
the prospective transferor; or
(b)
the prospective transferee; or
(c)
a creditor of the company;
may apply to the Court for an order setting aside any or all of the conditions to which the consent is subject.
(6)
If the Court is satisfied, on an application under subsection (5), that any or all of the conditions covered by the application are not in the best interests of the company’s creditors as a whole, the Court may, by order, set aside any or all of the conditions.
(7)
The liquidator is entitled to be heard in a proceeding before the Court in relation to an application under subsection (3) or (5).
Alteration in the status of members
(8)
An alteration in the status of members of a company that is made after the commencement of the winding up by the Court is void except if:
(a)
both:
(i) the liquidator gives written consent to the alteration; and
(ii)
that consent is unconditional; or
(b)
all of the following subparagraphs apply:
(i) the liquidator gives written consent to the alteration;
(ii)
that consent is subject to one or more specified conditions;
(iii)
those conditions have been satisfied; or
(c)
the Court makes an order under subsection (12) authorising the alteration.
(9)
The liquidator may only give consent under paragraph (8)(a) or (b) if he or she is satisfied that the alteration is in the best interests of the company’s creditors as a whole.
(10)
The liquidator must refuse to give consent under paragraph (8)(a) or (b) if the alteration would contravene Part 2F.2.
(11)
If the liquidator refuses to give consent under paragraph (8)(a) or (b) to an alteration in the status of members of a company:
(a)
a member of the company; or
(b)
a creditor of the company;
may apply to the Court for an order authorising the alteration.
(12)
If the Court is satisfied, on an application under subsection (11), that:
(a)
the alteration is in the best interests of the company’s creditors as a whole; and
(b)
the alteration does not contravene Part 2F.2;
the Court may, by order, authorise the alteration.
(13)
If the liquidator gives consent under paragraph (8)(b) to an alteration in the status of members of a company:
(a)
a member of the company; or
(b)
a creditor of the company;
may apply to the Court for an order setting aside any or all of the conditions to which the consent is subject.
(14)
If the Court is satisfied, on an application under subsection (13), that any or all of the conditions covered by the application are not in the best interests of the company’s creditors as a whole, the Court may, by order, set aside any or all of the conditions.
(15)
The liquidator is entitled to be heard in a proceeding before the Court in relation to an application under subsection (11) or (13).

Subsection 473(4)

Omit “to which is attached”, substitute “and”.

At the end of subsection 473(4)

Add:
Note: For electronic notification, see section 600G.

After subsection 477(3)

Insert:
(4)
If:
(a)
a company is being wound up under a creditors’ voluntary winding up; and
(b)
the meeting of creditors has not been held under section 497;
the liquidator of the company must not exercise a power conferred by paragraph (1)(b) or (c) or (2)(m), except with the leave of the Court.

Subsection 493(1)

Omit “(1)”.

Subsection 493(2)

Repeal the subsection.

After section 493

Insert:

493AEffect of voluntary winding up on company’s members

Transfer of shares
(1)
A transfer of shares in a company that is made after the passing of the resolution is void except if:
(a)
both:
(i) the liquidator gives written consent to the transfer; and
(ii)
that consent is unconditional; or
(b)
all of the following subparagraphs apply:
(i) the liquidator gives written consent to the transfer;
(ii)
that consent is subject to one or more specified conditions;
(iii)
those conditions have been satisfied; or
(c)
the Court makes an order under subsection (4) authorising the transfer.
(2)
The liquidator may only give consent under paragraph (1)(a) or (b) if he or she is satisfied that the transfer is in the best interests of the company’s creditors as a whole.
(3)
If the liquidator refuses to give consent under paragraph (1)(a) or (b) to a transfer of shares in the company:
(a)
the prospective transferor; or
(b)
the prospective transferee; or
(c)
a creditor of the company;
may apply to the Court for an order authorising the transfer.
(4)
If the Court is satisfied, on an application under subsection (3), that the transfer is in the best interests of the company’s creditors as a whole, the Court may, by order, authorise the transfer.
(5)
If the liquidator gives consent under paragraph (1)(b) to a transfer of shares in the company:
(a)
the prospective transferor; or
(b)
the prospective transferee; or
(c)
a creditor of the company;
may apply to the Court for an order setting aside any or all of the conditions to which the consent is subject.
(6)
If the Court is satisfied, on an application under subsection (5), that any or all of the conditions covered by the application are not in the best interests of the company’s creditors as a whole, the Court may, by order, set aside any or all of the conditions.
(7)
The liquidator is entitled to be heard in a proceeding before the Court in relation to an application under subsection (3) or (5).
Alteration in the status of members
(8)
An alteration in the status of members of a company that is made after the passing of the resolution is void except if:
(a)
both:
(i) the liquidator gives written consent to the alteration; and
(ii)
that consent is unconditional; or
(b)
all of the following subparagraphs apply:
(i) the liquidator gives written consent to the alteration;
(ii)
that consent is subject to one or more specified conditions;
(iii)
those conditions have been satisfied; or
(c)
the Court makes an order under subsection (12) authorising the alteration.
(9)
The liquidator may only give consent under paragraph (8)(a) or (b) if he or she is satisfied that the alteration is in the best interests of the company’s creditors as a whole.
(10)
The liquidator must refuse to give consent under paragraph (8)(a) or (b) if the alteration would contravene Part 2F.2.
(11)
If the liquidator refuses to give consent under paragraph (8)(a) or (b) to an alteration in the status of members of a company:
(a)
a member of the company; or
(b)
a creditor of the company;
may apply to the Court for an order authorising the alteration.
(12)
If the Court is satisfied, on an application under subsection (11), that:
(a)
the alteration is in the best interests of the company’s creditors as a whole; and
(b)
the alteration does not contravene Part 2F.2;
the Court may, by order, authorise the alteration.
(13)
If the liquidator gives consent under paragraph (8)(b) to an alteration in the status of members of a company:
(a)
a member of the company; or
(b)
a creditor of the company;
may apply to the Court for an order setting aside any or all of the conditions to which the consent is subject.
(14)
If the Court is satisfied, on an application under subsection (13), that any or all of the conditions covered by the application are not in the best interests of the company’s creditors as a whole, the Court may, by order, set aside any or all of the conditions.
(15)
The liquidator is entitled to be heard in a proceeding before the Court in relation to an application under subsection (11) or (13).

At the end of subsection 496(2)

Add:
Note: For electronic notification, see section 600G.

Subsection 496(3)

Omit “$200”, substitute “$1,000”.

Subsection 497(1)

Repeal the subsection, substitute:
(1)
The liquidator of the company must cause a meeting of the company’s creditors to be convened within 11 days after the day of the meeting of the company at which the resolution for voluntary winding up is passed.

Subsection 497(2)

Omit “The company”, substitute “The liquidator”.

Subsection 497(2)

Omit “a meeting”, substitute “the meeting of the company’s creditors”.

100

Paragraph 497(2)(a)

Omit “by post”.

101

At the end of subsection 497(2)

Add:
Note: For electronic notification under paragraph (a), see section 600G.

102

Subsection 497(3)

Omit “ requires the company”, substitute “requires the liquidator”.

103

Subsection 497(3)

Omit “$200”, substitute “$1,000”.

104

Subsection 497(3)

Omit “whom the company”, substitute “whom the liquidator”.

105

Subsection 497(3)

Omit “the company must”, substitute “the liquidator must”.

106

Subsection 497(4)

Repeal the subsection.

107

Subsection 497(5)

Repeal the subsection, substitute:
(5)
Within 7 days after the day of the meeting of the company at which the resolution for voluntary winding up is passed, the directors of the company must give the liquidator a statement, in the prescribed form, about the company’s business, property, affairs and financial circumstances.

108

Subsections 497(6) and (7)

Repeal the subsections.

109

Subsection 497(7A)

Omit “(3), (4), (5) (6) or (7)”, substitute “(5)”.

110

Subsection 497(8)

Omit “director appointed under subsection (5)”, substitute “liquidator”.

111

At the end of section 497

Add:
(11)
At a meeting of creditors held under this section, the creditors may, by resolution:
(a)
remove the liquidator from office; and
(b)
appoint another person as liquidator instead.

112

Subsections 499(1) and (2)

Repeal the subsections, substitute:
(1)
The company in general meeting must appoint a liquidator for the purpose of winding up the affairs and distributing the property of the company.
(2)
However, subsection (1) does not apply to the company if section 446A applies in relation to the company.
(2A)
If section 446A applies in relation to the company because of paragraph 446A(1)(a):
(a)
the company’s creditors may, at the meeting at which the resolution referred to in that paragraph is passed, appoint a person to be liquidator for the purpose of winding up the affairs and distributing the property of the company; and
(b)
if an appointment is not made under paragraph (a) of this subsection before the end of the meeting at which the resolution referred to in paragraph 446A(1)(a) is passed:
(i) the company’s creditors are taken to have appointed the administrator of the company to be liquidator for the purpose of winding up the affairs and distributing the property of the company; and
(ii)
the appointment under subparagraph (i) of this paragraph takes effect at the end of that meeting.
(2B)
If section 446A applies in relation to the company because of paragraph 446A(1)(b):
(a)
the company’s creditors are taken to have appointed the administrator of the company to be liquidator for the purpose of winding up the affairs and distributing the property of the company; and
(b)
the appointment takes effect at the time referred to in that paragraph.
(2C)
If section 446A applies in relation to the company because of paragraph 446A(1)(c):
(a)
the company’s creditors may, at the meeting at which the resolution referred to in subparagraph 446A(1)(c)(ii) is passed, appoint a person to be liquidator for the purpose of winding up the affairs and distributing the property of the company; and
(b)
if an appointment is not made under paragraph (a) of this subsection before the end of the meeting at which the resolution referred to in subparagraph 446A(1)(c)(ii) is passed:
(i) the company’s creditors are taken to have appointed the administrator of the deed to be liquidator for the purpose of winding up the affairs and distributing the property of the company; and
(ii)
the appointment under subparagraph (i) of this paragraph takes effect at the end of that meeting.

113

Subsection 506(4)

Repeal the subsection.

114

Before section 530A

Insert:

530Appointment of 2 or more liquidators of a company

If 2 or more persons have been appointed as liquidators of a company:
(a)
a function or power of a liquidator of the company may be performed or exercised by any one of them, or by any 2 or more of them together, except so far as the order or resolution appointing them otherwise provides; and
(b)
a reference in this Act to a liquidator, or to the liquidator, of a company is, in the case of the first‑mentioned company, a reference to whichever one or more of those liquidators the case requires.

530AAAppointment of 2 or more provisional liquidators of a company

If 2 or more persons have been appointed as provisional liquidators of a company:
(a)
a function or power of a provisional liquidator of the company may be performed or exercised by any one of them, or by any 2 or more of them together, except so far as the order appointing them otherwise provides; and
(b)
a reference in this Act to a provisional liquidator, or to the provisional liquidator, of a company is, in the case of the first‑mentioned company, a reference to whichever one or more of those provisional liquidators the case requires.

115

Paragraph 539(4)(b)

Omit “1289(2)”, substitute “1289(5)”.

116

At the end of subsection 539(5)

Add:
Note: For electronic notification, see section 600G.

117

At the end of section 549

Add:
(4)
If a member of the committee is a body corporate, the member may be represented at meetings of the committee by:
(a)
an officer or employee of the member; or
(b)
an individual authorised in writing by the member for the purposes of this subsection.

118

At the end of subsection 550(3)

Add:
Note: For electronic notification, see section 600G.

119

At the end of subsection 568A(1)

Add:
Note: For electronic notification under paragraph (b), see section 600G.

120

At the end of Division 3 of Part 5.9

Add:

600GElectronic methods of giving or sending certain notices etc.

(1)
This section applies if a person (the notifier) is authorised or required to give or send a notice, or other document, to a person (the recipient) under any of the following provisions:
(a)
paragraph 436E(3)(a);
(b)
paragraph 439A(3)(a);
(c)
subsection 439A(4);
(d)
subsection 445F(2);
(e)
paragraph 449C(5)(a);
(f)
subsection 450A(3);
(g)
paragraph 450B(a);
(h)
paragraph 450C(b);
(i) paragraph 450D(b);
(j)
subsection 473(4);
(k)
subsection 496(2);
(l)
paragraph 497(2)(a);
(m)
subsection 508(4);
(n)
subsection 539(5);
(o)
subsection 550(3);
(p)
paragraph 568A(1)(b);
(q)
subsection 574(2);
(r)
subsection 574(3);
(s)
subsection 579J(1);
(t)
subsection 579J(2);
(u)
subsection 579K(1);
(v)
subsection 579K(2);
(w)
subsection 579K(3);
(x)
subsection 579K(4).
(2)
If the recipient nominates a fax number, or electronic address, by which the recipient may be notified of such notices or documents, the notifier may give or send the notice or document to the recipient by sending it to that fax number or electronic address.
(3)
If the recipient nominates any other electronic means by which the recipient may be notified of such notices or documents, the notifier may give or send the notice or document to the recipient by using that electronic means.
(4)
If the recipient nominates:
(a)
an electronic means (the nominated notification means) by which the recipient may be notified that such notices or documents are available; and
(b)
an electronic means (the nominated access means) the recipient may use to access such notices or documents;
the notifier may give or send the document to the recipient by notifying the recipient (using the nominated notification means):
(c)
that the notice or document is available; and
(d)
how the recipient may use the nominated access means to access the notice or document.
(5)
A notice or document sent to a fax number or electronic address, or by other electronic means, is taken to be given or sent on the business day after it is sent.
(6)
A notice or document given or sent under subsection (4) is taken to be given or sent on the business day after the day on which the recipient is notified that the notice or document is available.
(7)
Subsections (2), (3) and (4) do not limit the provisions mentioned in subsection (1).

121

Schedule 3 (after table item 20)

Insert:

20A

Subsection 161A(2) or (3)

10 penalty units or imprisonment for 3 months, or both.

Part 4Facilitating pooling in external administration

Corporations Act 2001

122

Section 9

Insert:
pooling determination means a determination under subsection 571(1).

123

Section 9

Insert:
pooling order means an order under subsection 579E(1).

124

At the end of subsection 473(3)

Add:
Note: See also section 579L (consolidated meetings of creditors—pooled groups).

125

At the end of section 538

Add:
(3)
Regulations made for the purposes of this section may apply in relation to the winding up of a company that is subject to:
(a)
a pooling determination; or
(b)
a pooling order.
(4)
Subsection (3) does not limit subsection (2).

126

At the end of section 539

Add:
(7)
If:
(a)
a pooling determination is in force in relation to a group of 2 or more companies; or
(b)
a pooling order is in force in relation to a group of 2 or more companies;
then:
(c)
the accounts under subsection (1) for the companies in the group may be set out in the same document; and
(d)
the statements under subsection (1) for the companies in the group may be set out in the same document.

127

Subsection 548(3)

After “inspection”, insert “as a result of a determination under subsection (1)”.
Note: The heading to section 548 is altered by adding at the end “—company not in pooled group”.

128

At the end of section 548

Add:
(4)
This section does not apply in relation to a company if:
(a)
either:
(i) a pooling determination is in force in relation to a group of 2 or more companies; or
(ii)
a pooling order is in force in relation to a group of 2 or more companies; and
(b)
the company is in the group.

129

After section 548

Insert:

548AConvening of meeting for appointment of committee of inspection—pooled group

(1)
If:
(a)
either:
(i) a pooling determination is in force in relation to a group of 2 or more companies; or
(ii)
a pooling order is in force in relation to a group of 2 or more companies; and
(b)
each company in the group is being wound up;
the liquidator or liquidators must, if requested by a creditor of a company in the group, convene a meeting, on a consolidated basis, of the creditors of the companies in the group for the purposes of determining:
(c)
whether a committee of inspection should be appointed for the group; and
(d)
if a committee of inspection is to be appointed:
(i) the number of members to represent the creditors of the companies in the group; and
(ii)
the persons who are to be members of the committee representing the creditors of the companies in the group.
(2)
The regulations may make provision for or in relation to:
(a)
the convening of, conduct of, and procedure and voting at, consolidated meetings of creditors; and
(b)
the number of persons required to constitute a quorum at any such meeting; and
(c)
the sending of notices of meetings to persons entitled to attend any such meeting; and
(d)
the lodging of copies of notices of, and of resolutions passed at, any such meeting; and
(e)
generally regulating the conduct of, and procedure at, any such meeting.
(3)
A person is not eligible to be appointed as a member of a committee of inspection as a result of a determination under subsection (1) unless the person is an eligible unsecured creditor (within the meaning of Division 8) of a company in the group.
Note: For eligible unsecured creditor, see section 579Q.
(4)
A committee of inspection for a group of 2 or more companies is taken to be a committee of inspection for each company in the group.
(5)
If:
(a)
a determination is made under subsection (1); and
(b)
immediately before the determination was made, a committee of inspection was in existence for a company in the group;
the committee mentioned in paragraph (b) ceases to exist when the determination is made.

130

Subsection 549(2)

Omit “The liquidator”, substitute “In the case of a committee of inspection appointed as a result of a determination under subsection 548(1), the liquidator”.

(iv)
the administrator must apply the amount so set aside in paying those debts in order of priority, on the basis that if the amount is insufficient to fully pay debts of the same priority, they must be paid proportionately; and
(v)
if any of those debts is not fully paid—so much of the debt as remains unpaid may be recovered from the company as an unsecured debt.

Part 3Liquidation following administration

Corporations Act 2001

At the end of subsection 443A(1)

Add:
; or (d)
the repayment of money borrowed; or
(e)
interest in respect of money borrowed; or
(f)
borrowing costs.

Paragraph 443E(1)(b)

Omit “and (3)”, substitute “, (3) and (4)”.

At the end of section 443E

Add:
(4)
If:
(a)
debts of a company under administration are secured by a floating charge on property of the company; and
(b)
the administrator has a right of indemnity under section 443D;
the right of indemnity, to the extent to which it relates to debts incurred for:
(c)
the repayment of money borrowed; or
(d)
interest in respect of money borrowed; or
(e)
borrowing costs;
does not have priority over the debts mentioned in paragraph (a), except so far as the chargee consents in writing.

At the end of Division 12 of Part 5.3A

Add:

446CLiquidator may require submission of a report about the company’s affairs

Scope
(1)
This section applies if:
(a)
at a particular time (the liquidation time), a company resolves by special resolution that it be wound up voluntarily; and
(b)
immediately before the liquidation time:
(i) the company was under administration; or
(ii)
the company was subject to a deed of company arrangement.
Report
(2)
The liquidator may, by written notice given to a person who is or has been an officer of the company, require the person to:
(a)
give the liquidator a report containing such information as is specified in the notice about:
(i) the affairs of the company, as at a date specified in the notice; or
(ii)
if one or more of the affairs of the company are specified in the notice—those affairs, as at a date specified in the notice; and
(b)
verify the report by a statement in writing in the prescribed form.
(3)
The following provisions have effect:
(a)
if subparagraph (1)(b)(i) applies—the date specified in the subsection (2) notice must not be earlier than the beginning of the administration;
(b)
if subparagraph (1)(b)(ii) applies—the date specified in the subsection (2) notice must not be earlier than the beginning of the administration that ended when the deed was executed.
Deadline for giving report to liquidator
(4)
If a person is given a notice under subsection (2), the person must give the liquidator the report required by the notice:
(a)
within 14 days after the notice was given; or
(b)
if the liquidator, by written notice given to the person, allows a longer period—within that longer period.
(5)
The liquidator may allow a longer period under paragraph (4)(b) only on written application made within the period of 14 days mentioned in paragraph (4)(a).
(6)
The liquidator may allow a longer period under paragraph (4)(b) only if the liquidator believes there are special reasons for doing so.
Report to be lodged with ASIC
(7)
The liquidator must, within 7 days after receiving a report under subsection (2), lodge a copy of the report with ASIC.
Cost of preparation of report
(8)
If:
(a)
a person is required to give a report under subsection (2); and
(b)
the person incurs costs or expenses in relation to the preparation or giving of the report;
the person is entitled to be paid by the liquidator out of the property of the company, so much of those costs and expenses as the liquidator considers reasonable.
Reasonable excuse
(9)
Subsection (4) does not apply to the extent that the person has a reasonable excuse.
Note: A defendant bears an evidential burden in relation to the matter in subsection (9), see subsection 13.3(3) of the Criminal Code.
Strict liability
(10)
An offence against subsection 1311(1) that relates to subsection (4) of this section is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.

At the end of subsection 553(1A)

Add:
Note 3: A debt or claim admissible to proof under subsection (1A) will only be covered by paragraph 556(1)(a) if the administrator of the deed is personally liable for the debt or claim (see subsection 556(1AA).

After paragraph 556(1)(b)

Insert:
(ba) if:
(i) during the period of 12 months ending when the winding up commenced, an application (the first application) was made under section 459P for the company to be wound up in insolvency; and
(ii)
when the first application was made, the company was not under administration; and
(iii)
the company began to be under administration at a time after the first application was made; and
(iv)
the first application was not withdrawn or dismissed before the administration began; and
(v)
the Court did not, in response to the first application, make an order under section 459A that the company be wound up in insolvency;
next, the costs in respect of the first application;

After paragraph 556(1)(da)

Insert:
(daa) if the company resolved by special resolution that it be wound up voluntarily—next, costs and expenses that are payable under subsection 446C(8) out of the company’s property;

After subsection 556(1)

Insert:
(1AA)
Paragraph (1)(a) does not apply to expenses:
(a)
incurred by the administrator of a deed of company arrangement; and
(b)
relating to a debt or claim admissible to proof under subsection 553(1A);
unless the administrator is personally liable for the expenses.

After subsection 588FE(2)

Insert:
(2A)
The transaction is voidable if:
(a)
the transaction is:
(i) an uncommercial transaction of the company; or
(ii)
an unfair preference given by the company to a creditor of the company; or
(iii)
an unfair loan to the company; or
(iv)
an unreasonable director‑related transaction of the company; and
(b)
the company was under administration immediately before:
(i) the company resolved by special resolution that it be wound up voluntarily; or
(ii)
the Court ordered that the company be wound up; and
(c)
the transaction was entered into, or an act was done for the purpose of giving effect to it, during the period beginning at the start of the relation‑back day and ending:
(i) when the company made the special resolution that it be wound up voluntarily; or
(ii)
when the Court made the order that the company be wound up; and
(d)
the transaction, or the act done for the purpose of giving effect to it, was not entered into, or done, on behalf of the company by, or under the authority of, the administrator of the company.
(2B)
The transaction is voidable if:
(a)
the transaction is:
(i) an uncommercial transaction of the company; or
(ii)
an unfair preference given by the company to a creditor of the company; or
(iii)
an unfair loan to the company; or
(iv)
an unreasonable director‑related transaction of the company; and
(b)
the company was subject to a deed of company arrangement immediately before:
(i) the company resolved by special resolution that it be wound up voluntarily; or
(ii)
the Court ordered that the company be wound up; and
(c)
the transaction was entered into, or an act was done for the purpose of giving effect to it, during the period beginning at the start of the relation‑back day and ending:
(i) when the company made the special resolution that it be wound up voluntarily; or
(ii)
when the Court made the order that the company be wound up; and
(d)
the transaction, or the act done for the purpose of giving effect to it, was not entered into, or done, on behalf of the company by, or under the authority of:
(i) the administrator of the deed; or
(ii)
the administrator of the company.

Paragraph 588FF(3)(a)

Repeal the paragraph, substitute:
(a)
during the period beginning on the relation‑back day and ending:
(i) 3 years after the relation‑back day; or
(ii)
12 months after the first appointment of a liquidator in relation to the winding up of the company;
whichever is the later; or

Paragraph 588FF(3)(b)

Omit “within those 3 years”, substitute “during the paragraph (a) period”.

Schedule 3 (after table item 124)

Insert:

124A

Subsection 446C(4)

25 penalty units or imprisonment for 6 months, or both.

Schedule 5Miscellaneous

Australian Securities and Investments Commission Act2001

Subsection 13(2)

Omit “Part 6.12”, substitute “Part 6.10”.

Paragraph 69(2)(a)

Omit “under official management or being wound up—the official manager or liquidator of the body”, substitute “being wound up—the liquidator of the body”.

Corporations Act 2001

Section 9 (definition of administration)

Omit all the words after “given”, substitute “by section 435C.”.

Section 9 (definition of official manager)

Repeal the definition.

After subsection 256B(1)

Insert:
(1A)
To avoid doubt, a cancellation of a partly‑paid share is taken to be for consideration.

Paragraph 443D(a)

Omit “443BA(3)”, substitute “443BA(2)”.

Section 512

Repeal the section.

Paragraph 533(1)(a)

Omit “and”, substitute “or”.

Paragraph 556(1)(d)

Repeal the paragraph.

Paragraph 556(1)(dc)

Repeal the paragraph.

Subsection 539(3)

Omit “with”.
12
Subsection 556(2) (definition of official manager)
Repeal the definition.
13
Subsection 556(2) (paragraph (b) of the definition of relevant authority)
Repeal the paragraph.

Subsection 565(2)

Omit all the words after “person”, substitute “is the relation‑back day.”.

Paragraph 597A(1)(b)

Omit “examinable officer of the corporation or was such an officer”, substitute “officer or provisional liquidator of the corporation or was such an officer or provisional liquidator”.

Schedule 6Transitional

Corporations Act 2001

At the end of Chapter 10

Add:

Part 10.9—Transitional provisions relating to the Corporations Amendment (Insolvency) Act 2007

1479Definition

In this Part:
amending Act means the Corporations Amendment (Insolvency) Act 2007.

1480Schedule 1 to the amending Act (improving outcomes for creditors)

(1)
The amendment made by item 4 of Schedule 1 to the amending Act, in so far as it relates to a company subject to a deed of company arrangement, applies if the administration that ended on the execution of the deed began on or after the day on which that item commences.
(2)
The amendments made by items 5 to 9 of Schedule 1 to the amending Act, in so far as they relate to the winding up of a company, apply if the relevant date is on or after the day on which those items commence.
(3)
The amendments made by items 6 to 9 of Schedule 1 to the amending Act, in so far as they relate to a company subject to a deed of company arrangement, apply if the administration that ended on the execution of the deed began on or after the day on which those items commence.
(4)
The amendments made by items 6 to 9 of Schedule 1 to the amending Act, in so far as they relate to a company to which section 433 applies, apply if the relevant date (within the meaning of that section) is on or after the day on which those items commence.
(5)
The amendment made by item 20 of Schedule 1 to the amending Act applies in relation to a receiver appointed on or after the day on which that item commences.
(6)
The amendments made by items 21, 24, 25, 26 and 28 of Schedule 1 to the amending Act apply to the administrator of a company if the administrator is appointed on or after the day on which those items commence.
(7)
The amendments made by items 30, 31, 32, 33, 35, 36, 37, 38, 39 and 40 of Schedule 1 to the amending Act apply in relation to the liquidator of a company if the winding up of the company begins on or after the day on which those items commence.
(8)
The amendment made by item 52 of Schedule 1 to the amending Act applies in relation to a compromise or arrangement if an application relating to the compromise or arrangement was made under subsection 411(1) on or after the day on which that item commences.
(9)
The amendments made by items 53, 54, 55, 56 and 57 of Schedule 1 to the amending Act do not apply in relation to an account opened before the day on which that item commences.
(10)
The amendments made by items 59, 60, 61, 62 and 64 of Schedule 1 to the amending Act apply in relation to a managing controller of property of a corporation if:
(a)
the managing controller is appointed on or after the day on which those items commence; or
(b)
the managing controller enters into possession, or takes control, of property of the corporation on or after the day on which those items commence.
(11)
Despite the amendments made by items 65 and 66 of Schedule 1 to the amending Act:
(a)
subsection 427(1) continues to apply, in relation to an order obtained, or an appointment made, before the day on which those items commence, as if those amendments had not been made; and
(b)
subsection 427(1A) continues to apply, in relation to an appointment made before the day on which those items commence, as if those amendments had not been made; and
(c)
subsection 427(1B) continues to apply, in relation to an entry into possession, or a taking of control, before the day on which those items commence, as if those amendments had not been made; and
(d)
subsection 427(4) continues to apply, in relation to a cessation before the day on which those items commence, as if those amendments had not been made.
(12)
The amendments made by items 70, 71 and 72 of Schedule 1 to the amending Act, in so far as they relate to a company under administration, apply if the administration begins on or after the day on which those items commence.
(13)
The amendment made by item 75 of Schedule 1 to the amending Act applies to a meeting if the meeting is convened on or after the day on which that item commences.
(14)
The amendments made by items 87, 88, 92, 93 and 94 of Schedule 1 to the amending Act apply to a transfer or alteration that occurs on or after the day on which those items commence.
(15)
The amendments made by items 91, 96, 97, 98, 99, 100, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111 and 112 of Schedule 1 to the amending Act apply in relation to a winding up of a company if the winding up begins on or after the day on which those items commence.
(16)
Despite the repeal of subsection 506(4) by item 113 of Schedule 1 to the amending Act, that subsection continues to apply, in relation to the liquidators of a company where the winding up of the company began before the day on which that item commences, as if that repeal had not happened.
(17)
Sections 434D, 434E, 434F and 434G apply in relation to persons appointed on or after the day on which those sections commence.
(18)
Section 530 applies in relation to the liquidators of a company if the winding up of the company begins on or after the day on which that section commences.
(19)
Section 530AA applies to persons appointed on or after the day on which that section commences.
(20)
Subsections 571(1) and 579E(1) of the amended Act apply in relation to a group of 2 or more companies if the winding up of each company in the group begins on or after the day on which those subsections commence.

1481Schedule 2 to the amending Act (deterring corporate misconduct)

(1)
The amendment made by item 2 of Schedule 2 to the amending Act applies in relation to a compromise or arrangement if an application relating to the compromise or arrangement was made under subsection 411(1) on or after the day on which that item commences.
(2)
The amendment made by item 11 of Schedule 2 to the amending Act applies in relation to a matter that appears to a person:
(a)
during the 6‑month period ending when that item commences; or
(b)
on or after the day on which that item commences;
where the relevant date is on or after the day on which that item commences.
(3)
Section 489A applies in relation to a section 486B warrant if the warrant is issued on or after the day on which that section commences.

1482Schedule 3 to the amending Act (improving regulation of insolvency practitioners)

(1)
The amendment made by item 7 of Schedule 3 to the amending Act applies to an application for registration if the application was made on or after the day on which that item commences.
(2)
Despite the amendment made by item 9 of Schedule 3 to the amending Act, subsection 1288(3) continues to apply, in relation to a 3‑year period ending before the day on which that item commences, as if that amendment had not been made.
(3)
Subsection 1288(3) as amended by item 9 of Schedule 3 to the amending Act applies as follows:
(a)
in the case of a person whose first 12 months of registration ends on or after the day on which that item commences—that subsection applies in relation to:
(i) the person’s first 12 months of registration; and
(ii)
each subsequent period of 12 months;
(b)
in the case of a person whose first 12 months of registration ended before the day on which that item commences—that subsection applies as if the reference in paragraph 1288(3)(a) to the day on which the person’s registration begins (the initial registration day) were a reference to the last anniversary of the initial registration day that occurred before the day on which that item commences.
For this purpose, a person’s first 12 months of registration is the period of 12 months beginning on the day on which the person’s registration begins.
(4)
The amendment made by item 12 of Schedule 3 to the amending Act applies in relation to a decision made on or after the day on which that item commences.

1483Schedule 4 to the amending Act (fine‑tuning voluntary administration)

(1)
The amendments made by items 1, 5, 6, 7, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 39, 40, 45, 49, 51, 52, 53, 54, 55, 56, 57, 59, 60, 61 and 62 of Schedule 4 to the amending Act, in so far as they relate to a company under administration, apply if the administration begins on or after the day on which those items commence.
(2)
The amendments made by items 2, 3 and 4 of Schedule 4 to the amending Act apply to an appointment of an administrator if the appointment is made on or after the day on which those items commence.
(3)
The amendment made by item 8 of Schedule 4 to the amending Act applies to a transfer or alteration that occurs on or after the day on which that item commences.
(4)
The amendments made by items 23, 24, 25, 26 and 28 of Schedule 4 to the amending Act, in so far as they apply to a company that is, or is proposed to be, subject to a deed of company arrangement, apply if the administration that ends, or is to end, on the execution of the deed, began on or after the day on which those items commence.
(5)
The amendments made by items 27, 29, 30, 31, 32, 33, 34, 35, 36, 39, 40, 43, 44, 46, 55, 56 and 57 of Schedule 4 to the amending Act, in so far as they relate to a company subject to a deed of company arrangement, apply if the administration that ended on the execution of the deed began on or after the day on which those items commence.
(6)
Items 37 and 38 of Schedule 4 to the amending Act apply in relation to a company if the winding up of the company begins on or after the day on which those items commence.
(7)
The amendments made by items 41 and 42 of Schedule 4 to the amending Act apply in relation to a company subject to a deed arrangement if the administration that ended on the execution of the deed began on or after the day on which those items commence.
(8)
The amendments made by items 63, 65, 66, 67, 69 and 70 of Schedule 4 to the amending Act, in so far as they relate to the winding up of a company, apply if the relevant date is on or after the day on which those items commence.
(9)
Section 440BA, in so far as it relates to a company under administration, applies if the administration begins on or after the day on which that section commences.
(10)
Section 440BB does not apply to distress for rent that began to be carried out before the day on which that section commences.
(11)
Subsections 442C(7) and (8), in so far as they relate to a company under administration, apply if the administration begins on or after the day on which those subsections commence.
(12)
Subsections 442C(7) and (8), in so far as they relate to a company subject to a deed of company arrangement, apply if the administration that ended on the execution of the deed began on or after the day on which those subsections commence.

(13)
Section 446C applies in relation to a company as follows:
(a)
if the company was under administration immediately before the liquidation time referred to in that section—the administration begins on or after the day on which that section commences;
(b)
if the company was subject to a deed of company arrangement immediately before the liquidation time referred to in that section—the administration that ended on the execution of the deed began on or after the day on which that section commences.
(14)
Subsection 588FE(2A) applies in relation to a company if the administration referred to paragraph 588FE(2A)(b) begins on or after the day on which that subsection commences.
(15)
Subsection 588FE(2B) applies in relation to a company if the administration that ended on the execution of the deed of company arrangement referred to in paragraph 588FE(2B)(b) began on or after the day on which that subsection commences.

[Minister’s second reading speech made in—

House of Representatives on 31 May 2007

Senate on 9 August 2007]

(99/07)