Corporations Regulations (Amendment) (Cth)

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Statutory Rules 1993

No. 135 1

__________________

Corporations Regulations 2(Amendment)

I, The Governor-General of the Commonwealth of Australia, acting with the advice of the Federal Executive Council and under section 4 of the Acts Interpretation Act 1901, make the following Regulations under the Corporations Act 1989.

Dated 22 June 1993.

BILL HAYDEN

Governor-General

By His Excellency’s Command,

M. LAVARCH

Attorney -General

____________

1. Commencement

1.1 These Regulations commence on 23 June 1993.

2. Amendment

2.1 The Corporations Regulations are amended as set out in these Regulations.

3. New Regulation 1. 16

3.1 After regulation 1.15, insert in Chapter 1:

Identification of order lodged with Commission

“1.16If an order or copy of an order of a court is lodged with the Commission, it must be accompanied by a cover page in Form 105 identifying the legislative provision or other law under which the order was made and the nature of the order.”.

4. Regulation 3.8.02 (Documents that are to accompany an annual return)

4.1 Paragraphs 3.8.02 (a) and (b):

Omit “group accounts” (wherever occurring), substitute “consolidated accounts”.

5. Regulation 3.8.03 (Annexures and amendments)

5.1 Subregulation 3.8.03 (2):

Omit “group accounts”, substitute “consolidated accounts”.

6. New Regulation 3.8.04

6.1 After regulation 3.8.03, insert in Chapter 3:

An agent may lodge the annual return

“3.8.04.(1) A company may appoint an agent to lodge a notice to the Commission under subsections 335a (1) and (2) of the Corporations Law.

“(2) An agent appointed under subregulation (1) may lodge a notice to the Commission under subsection 335a (1) or (2) of the Corporations Law and must sign the notice on behalf of the company.”.

7. Regulation 4.2.02 (Documents to accompany application for reservation of name)

7.1 After “section”,

insert “373,”.

8. Substitution of Part heading

8.1 The heading to Part 5.2 is omitted and the following heading substituted:

“PART 5.2—RECEIVERS, AND OTHER CONTROLLERS, OF CORPORATIONS”.

9. New regulation 5.2.001

9.1 Before regulation 5.2.01, insert in Part 5.2:

Controller’s notice to owner or lessor of property—how given

“5.2.001. A notice under subsection 419A (3) of the Corporations Law must be given to the owner or lessor, as the case may be, by personal delivery or by prepaid post to the owner’s or lessor’s usual place of residence or business or the place of residence or business last known to the controller.”.

10. Regulation 5.2.01 (Certified copies of reports)

10.1 Paragraph 5.2.01 (c):

Omit “receiver”, substitute “controller”.

10.2 Paragraphs 5.2.01 (d) and (e):

Omit the paragraphs.

10.3 Paragraph 5.2.01 (f):

After “liquidator”, insert “or provisional liquidator”.

11. Repeal of Part 5. 3 ( Official Management)

11.1 Omit the Part.

12. New Parts 5.3A and 5.4

12.1 Before Part 5.6, insert:

“PART 5.3A—ADMINISTRATION OF A COMPANY’S AFFAIRS WITH A VIEW TO EXECUTING A DEED OF COMPANY ARRANGEMENT

Administrator’s notice of ending of administration

“5.3A.01. (1)If the administration of a company ends on the happening of an event of a kind referred to in subsection 435C (2) or (3) of the Corporations Law, the administrator of the company or of the deed of company arrangement (as the case may be) must lodge a notice of the happening of the event and the ending of the administration of the company as soon as practicable after the event.

“(2) Subregulation (1) does not apply if a notice of the happening of the event is lodged in accordance with the Corporations Law or a provision of these Regulations other than this regulation.

Administrator to specify voidable transactions in statement

“5.3A.02. The administrator of a company under administration, in setting out his or her opinions in a statement referred to in paragraph 439A (4) (b) of the Corporations Law, must specify whether there are any transactions that appear to the administrator to be voidable transactions in respect of which money, property or other benefits may be recoverable by a liquidator under Part 5.7B of the Corporations Law.

Administrator to lodge notice of appointment

“5.3A.03. If an administrator is appointed under subsection 436E (4), subsection 444A (2), section 449B, subsection 449C (1), (4) or (6), or subsection 449D (1) or (2), of the Corporations Law, the administrator must lodge a notice of the appointment before the end of the next business day after the appointment.

Notice of change of administrator’s address

“5.3A.04. An administrator of a company under administration or of a deed of company arrangement must, within 14 days after a change in the location of the administrator’s office, lodge notice of the change.

Administrator’s notice to owner or lessor of property—how given

“5.3A.05. A notice under subsection 443B (3) of the Corporations Law must be given to the owner or lessor, as the case may be, by personal delivery or by prepaid post to the owner’s or lessor’s usual place of residence or business or the place of residence or business last known to the administrator.

Provisions included in deed of company arrangement

“5.3A.06. For the purposes of subsection 444A (5) of the Corporations Law, the prescribed provisions are those set out in Schedule 8A.

Administrator becomes liquidator—additional cases

“5.3a.07.(1) For the purposes of subsection 446B (1) of the Corporations Law, a company that has executed a deed of company arrangement is taken to have passed a special resolution under section 491 that the company be wound up voluntarily:

(a)
if the Court at a particular time makes an order under section 445D of the Corporations Law terminating the deed of company arrangement; or
(b)
if the deed of company arrangement specifies circumstances in which the deed is to terminate and the company is to be wound up—if those circumstances exist at a particular time.

“(2) The company is taken to have passed the special resolution:

(a)
at the time referred to in paragraph (1) (a) or (b), as the case may be; and
(b)
without a declaration having been made and lodged under section 494 of the Corporations Law.

“(3) Section 497 of the Corporations Law is taken to have been complied with in relation to the winding up.

“(4) For the purposes of subsection 499 (1) of the Corporations Law:

(a)
the company is taken to have nominated the administrator of the deed of company arrangement to be liquidator for the purposes of the winding up; and
(b)
the creditors are taken not to have nominated anyone.

“(5) The liquidator must:

(a)
within 7 days after the day on which the company is taken to have passed the resolution, lodge a written notice stating that the company is taken because of this regulation to have passed such a resolution and specifying that day; and
(b)
cause a notice of that kind to be published, within 21 days after that day:
(i)
in a national newspaper; or
(ii)
in each jurisdiction in which the company has its registered office or carries on business, in a daily newspaper that circulates generally in that jurisdiction.

“(6) Section 482 of the Corporations Law applies in relation to the winding up as if it were a winding up in insolvency or by the Court.

[Note: Section 482 of the Corporations Law empowers the Court to stay or terminate a winding up and to give consequential directions.]

“(7) An application under section 482 of the Corporations Law as applying because of subregulation (6) may be made:

(a)
despite subsection 499 (4) of the Corporations Law, by the company pursuant to a resolution of the board; or
(b)
by the liquidator; or
(c)
by a creditor; or
(d)
by a contributory.

Publication of notice of failure to execute instrument of terms of deed

“5.3A.08.For the purposes of paragraph 450C (b) of the Corporations Law, a notice under paragraph 450C (a) of the Corporations Law must be published:

(a)
in a national newspaper; or
(b)
in each jurisdiction in which the company has its registered office or carries on business, in a daily newspaper that circulates generally in that jurisdiction.

Publication of notice of termination of deed by creditors

“5.3A.09.For the purposes of paragraph 450D (c) of the Corporations Law, a notice under paragraph 450D (a) of the Corporations Law must be published:

(a)
in a national newspaper; or
(b)
in each jurisdiction in which the company has its registered office or carries on business, in a daily newspaper that circulates generally in that jurisdiction.

“PART 5.4—WINDING UP IN INSOLVENCY

Applications to Court for winding up—prescribed agency

“5.4.01.The Insurance and Superannuation Commissioner appointed under the Insurance and Superannuation Commissioner Act 1987 is a prescribed agency for the purposes of paragraph 459P (1) (g) of the Corporations Law.”.

13. Regulation 5.6.01 (Matters for entry in liquidator’s or provisional liquidator’s books)

13.1 After “liquidator’s”, insert “or provisional liquidator’s”.

14. Regulation 5.6.02 (Inspection of books kept under section 531 of the Corporations Law)

14.1 After “liquidator”, insert “ or provisional liquidator”.

15. Regulation 5.6.03 (Notice of intention to disclaim lease)

15.1 Omit the regulation.

16. Regulation 5.6.11 (Application)

16.1 Subregulation 5.6.11 (2):

Omit “5.6.36”, substitute “5.6.36A”.

16.2 Paragraph 5.6.11 (2) (a):

Omit “Part 5.3, 5.4,”, substitute “Part 5.3A, 5.4, 5.4B,”.

16.3 Subparagraph 5.6.11 (2) (a) (iii):

Omit “and”, substitute “or”.

16.4 Paragraph 5.6.11 (2) (a):

After subparagraph (2) (a) (iii), insert:

“(iv)
a meeting of a committee of creditors; and”.

16.5 Subregulation 5.6.11 (2):

After paragraph 5.6.11 (2) (a), insert:

“(aa)
a meeting of creditors of a company held under a deed of company arrangement; and”.

16.6 Subregulation 5.6.11 (3):

Omit “5.6.36”, substitute “5.6.36A”.

16.7 Paragraph 5.6.11 (3) (c):

After “(2) (a)”, insert “,(aa)”.

17 Regulation 5.6.12 (Notice of meeting)

17.1 Subregulation (1):

Omit the subregulation, substitute:

“(1) The convenor of a meeting must give notice in writing of the meeting to every person appearing on the company’s books or otherwise to be:

(a)
in the case of a meeting referred to in subparagraph 5.6.11 (2) (a) (i)—a member, creditor or contributory of the company; or
(b)
in the case of a meeting referred to in subparagraph 5.6.11 (2) (a) (ii)—a member or creditor of the company; or
(c)
in the case of a meeting referred to in subparagraph 5.6.11 (2) (a) (iii)—a member of the committee of inspection; or
(d)
in the case of a meeting referred to in subparagraph 5.6.11 (2) (a) (iv)—a member of the committee of creditors; or
(e)
in the case of a meeting referred to in paragraph 5.6.11 (2) (aa)—a creditor of the company; or
(f)
in the case of a meeting referred to in paragraph 5.6.11 (2) (b)—a holder of a debenture of a corporation.

“(1A) The notice must be given to a person:

(a)
by delivering it personally; or
(b)
by sending it to the person by prepaid post; or
(c)
if the person has a facsimile transmission number to which notices may be sent to the person—by faxing it to the person at that number; or
(d)
if the person has a document exchange number to which notices may be sent to the person—by lodging it with the exchange at, or for delivery to, the person’s receiving facilities identified by that number.

“(1B) The notice must be given not less than 14 days before the day of the meeting, except:

(a)
in the case of a meeting of creditors under section 436E, 439A or 445F, or subsection 449C (4), of the Corporations Law; or
(b)
as provided by subregulation (1C) or (1D).

“(1C) If a liquidator thinks it appropriate, he or she may convene a meeting of a committee of inspection by giving less than 14 days’ notice of the meeting in accordance with subregulations (1) and (1A).

“(1D) If the administrator of a company under administration thinks it appropriate, he or she may convene a meeting of a committee of creditors by giving less than 14 days’ notice of the meeting in accordance with subregulations (1) and (1A).”.

17.2 After paragraph 5.6.12 (2) (a), insert:

“(aa)
if convening a meeting of creditors under section 436E of the Corporations Law—in accordance with Form 529A; or”.

17.3 Subregulations (6) and (7):

Omit the subregulations.

18. New regulations 5.6.13A and 5.6.13B

18.1 After regulation 5.6.13, insert:

If telephone conference facilities are available

“5.6.13A. If telephone conference facilities are expected to be available at the place where the meeting is to be held and the convenor of the meeting considers that, having regard to all the circumstances, it will be appropriate to use those facilities, the notice of the meeting must:

(a)
set out the relevant telephone number; and
(b)
indicate that a person, or the proxy or attorney of a person, who wishes to participate in the meeting by telephone must give to the convenor, not later than the second-last working day before the day on which the meeting is to be held, a written statement setting out:
(i)
the name of the person and of the proxy or attorney (if any); and
(ii)
an address to which notices to the person, proxy or attorney may be sent; and
(iii)
a telephone number at which the person, proxy or attorney may be contacted; and
(iv)
any facsimile transmission number to which notices to the person, proxy or attorney may be sent; and
(c)
indicate that a person, or the proxy or attorney of a person, who participates in the meeting by telephone must pay any costs incurred by the person, proxy or attorney in participating and is not entitled to be reimbursed for those costs from the assets of the company.

Persons, or their proxies or attorneys, participating by telephone

“5.6.13B.(1) If a person, or a person’s proxy or attorney, who wishes to participate in a meeting by means of telephone conference facilities, has given the convenor of the meeting a statement in accordance with regulation 5.6.13A, the convenor must take all reasonable steps to ensure that the person, or the person’s proxy or attorney, is contacted before the start of the meeting on the telephone number provided by that person.

“(2) If the person, proxy or attorney is contacted, the convenor must take all reasonable steps to ensure that the person, proxy or attorney can hear the proceedings, and can be heard, by means of those facilities, so that the person, proxy or attorney can participate in the meeting.

“(3) A person who, or whose proxy or attorney, participates in the meeting by telephone in accordance with this regulation is taken to be present in person at the meeting.”.

19. Regulation 5.6.14 (Place of meeting)

19.1 Omit the regulation, substitute:

Time and place of meeting

“5.6.14.(1) The convenor of a meeting must convene the meeting at the time and place that he or she thinks are most convenient for the majority of persons entitled to receive notice of the meeting.

“(2) The convenor must give not less than 7 days’ notice of the time and place of the meeting, except in the case of:

(a)
a meeting of creditors under section 436E, 439A or 445F, or subsection 449C (4), of the Corporations Law; or
(b)
a meeting of a committee of creditors; or
(c)
a meeting of a committee of inspection.”.

20.New regulations 5.6.14A and 5.6.14B

20.1 After regulation 5.6.14, insert:

Advertisement of a meeting

“5.6.14A. The convenor of a meeting must advertise the meeting in each State, Territory and excluded Territory in which the company carries on business, or has carried on business at any time during the 2 years immediately before the day of the meeting, in a daily newspaper circulating generally in that State, Territory or excluded Territory.

Meetings not convened in accordance with Regulations

“5.6.14B. A meeting may be held if all the persons who are entitled to be present at, and to vote at, the meeting agree, even if it has not been convened in accordance with these Regulations.”.

21. Regulation 5.6.15 (Costs of convening meetings of creditors, etc.)

21.1 Subregulation 5.6.15 (1):

Omit “official manager” (first occurring), substitute, “administrator of a company under administration or of a deed of company arrangement”.

21.2 Paragraph 5.6.15 (1) (a):

Omit “official manager” (twice occurring), substitute, in each case, “administrator”.

21.3 Subregulation 5.6.15 (2):

After “inspection”, insert “or a committee of creditors”.

22. Regulation 5.6.16 (Quorum)

22.1 Subregulation 5.6.16 (2):

After “proxy”, insert “or attorney”.

22.2 After subregulation 5.6.16 (4), insert:

“(4A) A meeting convened under section 439A of the Corporations Law must not be adjourned to a day that is more than 60 days after the first day on which the meeting was held.

“(4b) The convenor of the meeting, or a person nominated by the convenor, must immediately give notice of the adjournment to the persons to whom notice of the meeting must be given under regulation 5.6.12.

“(4C) A meeting on the date and at the place to which the meeting is adjourned is not to be taken to be incompetent to act only because of a failure to comply with subregulation (4B) unless the Court, on the application of the convenor of the meeting, or of a creditor or contributory, otherwise declares.”.

23. Regulation 5.6.17 ( Chairperson)

23.1 Paragraph 5.6.17 (1) (c):

Omit “official manager”, substitute “administrator of the company under administration or of a deed of company arrangement”.

24. Regulation 5.6.18 (Adjournment of meeting)

24.1 After subregulation 5.6.18 (1), insert:

“(1A) A meeting convened under section 439A of the Corporations Law must not be adjourned to a day that is more than 60 days after the first day on which the meeting was held.”.

24.2 Paragraph 5.6.18 (2) (c):

Omit the paragraph, substitute:

“(c)
the liquidator or provisional liquidator, or the administrator of a company under administration or of a deed of company arrangement, otherwise orders; or”.

25. Regulation 5.6.19 (Voting on resolutions)

25.1 Subregulation 5.6.19 (1):

Omit “a show of hands”, substitute “the voices”.

25.2 Subregulation 5.6.19 (1):

Omit “the show of hands”, substitute “the voices”.

25.3 Paragraph 5.6.19 (1) (b):

Omit “or by proxy”, substitute “, by proxy or by attorney”.

25.4 Paragraph 5.6.19 (1) (c):

Omit “or by proxy”, substitute “, by proxy or by attorney”.

25.5 Subregulation 5.6.19 (2):

Omit “a show of hands”, substitute “the voices”.

25.6 Subregulation 5.6.19 (5):

Omit “a show of hands”, substitute “the voices”.

25.7 Add at the end:

“(6) If a creditor of a company, by contract, surrenders or limits all or some of his or her rights to vote at a meeting of creditors, then the creditor must not vote except in accordance with the contract and any vote which is not in accordance with the contract will not be counted.”.

26. Regulation 5.6.21 (Carrying of resolutions after a poll has been demanded)

26.1 Omit the regulation, substitute:

Carrying of resolutions after a poll has been demanded at a meeting of creditors

“5.6.21.(1) This regulation applies to a poll taken at a meeting of creditors.

“(2) A resolution is carried if:

(a)
a majority of the creditors voting (whether in person, by attorney or by proxy) vote in favour of the resolution; and
(b)
the value of the debts owed by the corporation to those voting in favour of the resolution is more than half the total debts owed to all the creditors voting (whether in person, by proxy or by attorney).

“(3) A resolution is not carried if:

(a)
a majority of creditors voting (whether in person, by proxy or by attorney) vote against the resolution; and
(b)
the value of the debts owed by the corporation to those voting against the resolution is more than half the total debts owed to all creditors voting (whether in person, by proxy or by attorney).

“(4) If no result is reached under subregulation (2) or (3), then:

(a)
the person presiding at the meeting may exercise a casting vote in favour of the resolution, in which case the resolution is carried; or
(b)
the person presiding at the meeting may exercise a casting vote against the resolution, in which case the resolution is not carried.

“(5) In this regulation, “creditor” includes a debenture holder.

27.Regulation 5.6.22 (Casting vote)

27.1 Omit the regulation, substitute:

Carrying of resolution after a poll has been demanded at a meeting of contributories or members

“5.6.22.(1) This regulation applies to a poll taken at a meeting of contributories or members.

“(2) In counting the majority on a poll demanded on the question that a resolution be carried, regard must be made to:

(a)
the number of votes cast for or against the resolution; and
(b)
the number of votes to which each member is entitled by the Corporations Law or the articles of the company.

“(3) The chairperson of the meeting has a casting vote in addition to his or her deliberative vote.”.

28. Regulation 5.6.23 (Creditors who may vote)

28.1 Paragraph 5.6.23 (1) (a):

Omit “official manager”, substitute “administrator of a company under administration or of a deed of company arrangement”.

29. Regulation 5.6.24 (Votes of secured creditors)

29.1 Paragraph 5.6.24 (1) (c):

Omit the paragraph, substitute:

“(c)
the creditor’s estimate of the value of the security;”.

29.2 Subregulation 5.6.24 (2):

Omit “assessed”, substitute “estimated”.

29.3 Add at the end:

“(4) This regulation does not apply to a meeting of creditors convened under Part 5.3A of the Corporations Law.”.

30 Regulation 5.6.25 (Creditors may be required to give up security)

30.1 Omit the regulation.

31. Regulation 5.6.27 (Minutes of meeting)

31.1 Subregulation 5.6.27 (1):

Omit “Within one month of a meeting, the chairperson must”, substitute “The chairperson must, within the period specified in subregulation (6)”.

31.2 Subregulation 5.6.27 (2):

Omit the subregulation, substitute:

“(2) A record of the persons present in person, by proxy or by attorney at a meeting must be prepared and kept:

(a)
if the meeting is of members or contributories—in accordance with Form 531a; and
(b)
if the meeting is of creditors or debenture holders—in accordance with Form 531b; and
(c) if the meeting is of a committee of inspection or a committee of creditors—in accordance with Form 531c.”.

31.3 Subregulation 5.6.27 (3):

Omit ‘‘a period of 1 month after the meeting”, substitute “the period specified in subregulation (6)”.

31.4 After subregulation 5.6.27 (3), insert:

“(3A) If the chairperson:

(a)
dies without having signed the minutes as required by subregulation (1), or without having lodged a certified copy of the minutes as required by subregulation (3); or
(b)
becomes incapable, whether through illness or other cause, of signing the minutes as required by subregulation (1), or of lodging a certified copy of the minutes as required by subregulation (3);

the convenor of the meeting, if he or she attended the meeting, or a creditor, member or contributory who attended the meeting, may sign the minutes as required by subregulation (1) and may certify and lodge a copy of the minutes as required by subregulation (3).”.

31.5 Subregulation 5.6.27 (4):

Omit “official manager, after a meeting of creditors or members”, substitute “administrator of a company under administration or of a deed of company arrangement, after a meeting of creditors”.

31.6 Add at the end:

“(6) For the purposes of subregulations (1) and (3), the specified period is:

(a)
for a meeting other than a meeting convened under section 436E or 439A of the Corporations Law—1 month after the end of the meeting; or
(b)
for a meeting convened under section 436E or439A of the Corporations Law—14 days after the end of the meeting.”.

32. Regulation 5.6.28 (Appointment of proxies)

32.1 Subregulation 5.6.28 (2):

Omit the subregulation, substitute:

“(2) Subject to subregulation (3) and to regulation 5.6.30, a proxy appointed under this regulation has the same right to speak and vote at the meeting as the person who appointed the proxy”.

32.2 Add at the end:

“(3) A person claiming to be the proxy of a person entitled to attend and vote at a meeting is not entitled to speak or vote as proxy at the meeting (except in relation to the election of a chairperson) unless the instrument of appointment of the proxy, as required by regulation 5.6.29, or a facsimile copy of the instrument, has been lodged with the person named in the notice convening the meeting as the person who is to receive the instrument, or with the chairperson.”.

33. New regulation 5.6.31A

33.1 After regulation 5.6.31, insert:

Person may attend and vote by attorney

“5.6.31A(1)A person entitled to attend and vote at a meeting may attend and vote at a meeting by his or her attorney.

“(2) A person claiming to be the attorney of a person entitled to attend and vote at a meeting is not entitled to speak or vote as attorney at the meeting (except in relation to the election of a chairperson) unless:

(a)
the instrument by which the person was appointed as attorney has been produced to the chairperson; or
(b)
the chairperson is otherwise satisfied that the person claiming to be the attorney of the person entitled to vote is the duly authorised attorney of that person.”.

34 Regulation 5.6.32 (Liquidator, etc. may act as proxy)

34.1 Paragraph 5.6.32 (c):

Omit “official manager”, substitute “administrator of a company under administration or of a deed of company arrangement”.

35. Regulation 5.6.33 (Voting by proxy if financially interested)

35.1 Subregulation (1):

Omit “subregulation (2)”, insert “subregulations (2) and (3)”.

35.2 Add at the end:

“(3) If a person holds a special proxy to vote:

(a)
in favour of his or her appointment as the administrator of a company under administration or of a deed of company arrangement; or
(b)
against the termination of his or her appointment as the administrator of a company under administration or of a deed of company arrangement;

he or she may use the proxy and vote accordingly.”.

36. Regulation 5.6.34 (Liquidator, etc. may appoint deputy)

36.1 Paragraph 5.6.34 (b):

Omit “official manager”, substitute “administrator of a company under administration or of a deed of company arrangement”.

37. New regulation 5.6.36A

37.1 After regulation 5.6.36, insert:

Facsimile copies of proxies

“5.6.36A.(1) A person who, for the purposes of a meeting, lodges a faxed copy of an instrument appointing a proxy or of any document relating to the validity of the appointment, must lodge the original instrument or document in the manner referred to in subregulation 5.6.28 (3) within 72 hours after lodging the faxed copy.”.

“(2) A failure by a person to comply with subregulation (1) will not invalidate the meeting or anything done at the meeting unless the Court, on the application of the convenor of the meeting or of a creditor, member or contributory, otherwise declares.

38. Regulation 5.6.37 (Establishing title to priority)

38.1 Omit “5.6.38”, substitute “5.6.39”.

39. Regulation 5.6.38 (Proof of debt or claim)

39.1 Omit the regulation.

40. New regulation 5.6.43A

40.1 After regulation 5.6.43, insert:

Debt or claim of uncertain value—appeal to Court

“5.6.43A.(1) An appeal to the Court under subsection 554A (3) of the Corporations Law must be made:

(a)
within 21 days after the person aggrieved becomes aware of the liquidator’s estimate or, if the period is extended under subregulation (2), within the extended period; and
(b)
in accordance with the rules.

“(2) Upon application by the person aggrieved before or after the end of the period of 21 days referred to in subregulation (1), the Court may extend the period within which an appeal must be made.”.

41 Regulation 5.6.44 (Debt or claim payable at a future time)

41.1 Subregulation 5.6.44 (1):

Omit the subregulation.

41.2 Subregulation 5.6.44 (2):

Omit “A debt or claim admitted for payment under subregulation (1) is subject to a deduction at the rate of 8% per year”, substitute “The discount by which the amount payable on the future date is to be reduced under section 554B of the Corporations Law is 8% per year”.

42. Regulation 5.6.47 (Admission of debt or claim without formal proof)

42.1 Subregulation 5.6.47 (1):

Omit the subregulation.

43. New Regulation 5.6.70a

43.1 After Regulation 5.6.70, insert:

Prescribed rate of interest on debts and claims from relevant date to date of payment

“5.6.70a. For the purposes of section 563b of the Corporations Law, the prescribed rate of interest on the amount paid in respect of an admitted debt or claim for the period starting on the relevant date and ending on the day on which the payment is made is 8% per year.”.

44. Regulation 9.2.04 (Practical experience in auditing)

44.1 Paragraphs 9.2.04 (a) and (c):

Omit “subsections 332 (3) and (4)”, substitute “sections 331b, 331c, 331d and 331e”.

45. New Part 9.5

45.1 After regulation 9.4.01, insert:

“PART 9.5—DELEGATION OF POWERS AND FUNCTIONS UNDER THE CORPORATIONS LAW

Prescribed functions—subsection 1345a (1) of the Corporations Law

“9.5.01. For the purposes of subsection 1345a (1) of the Corporations Law, the functions and powers of the Minister under the following provisions of the Corporations Law are prescribed:

(a)
subsection 367 (4) (Names available with Minister’s consent);
(b)
subsection 702 (5) (Publication of register in the Gazette);
(c)
Part 9.7 (Unclaimed property).”.

46. Schedule 1

46.1 New item 1a:

After item 1 and before “CHAPTER 2 — CONSTITUTION OF COMPANIES”, insert:

“1a	Regulation 1.16	Cover page for	105”.
office copy of a
court order

46.2 New item 2a:

After item 2, insert:

“2A	Subsection 187 (3)	Certification of	207z”.
compliance with
stamp duty law

46.3 New item 32a:

After item 32, insert:

“32a	Subsection 335 a	Notification of	361”.
(1) & (2)	address for the
purpose of service
of annual return

46.4 New item 44a:

After item 44, insert:

“44A	Subsection 419A (3)	Notice of controller’s	503.”
intention not to
exercise property
rights

46.5 Item 45:

Omit the item, substitute:

“45	Subsection 427 (1)	Notification that	504.”
Subsection 427 (1A) (a)	a person has been
Paragraph 427 (1B) (a)		appointed controller/ entered into possession etc.

46.6 Item 46:

Omit column 2 of the item, substitute:

“Subsections 427 (2) & (4)

Paragraph 450A (1) (a)

Subsections 537 (1) & (2)

Regulation 5.3A.03”.

46.7 Item 47:

Omit column 2 of the item, substitute:

“Subsection 427 (3)

Subsection 537 (1)

Regulation 5.3A.04”.

46.8 Item 48:

Omit column 2 of the item, substitute:

“Paragraph 147 (2) (b)

Subsection 421A (1)

Paragraph 429 (2) (b)

Subsection 430 (1)

Subsection 438B (2)

Paragraph 439A (4) (a)

Subsection 475 (1)

Subsection 475 (2)

Subsection 497 (5)”.

46.9 Item 50:

Omit the item, substitute:

“50	Paragraph 411 (9) (a)	Presentation of	508
Subsection 432 (1A)	accounts by
Regulation 5.3A 06 &	scheme administrator/
Schedule 8A	controller/ administrator of deed
of company
arrangement

46.10 Item 51:

Omit the item, substitute:

“51	Subparagraph	Presentation of	509
497 (2) (b) (i)	summary of affairs
of a company

46.11 Item 51:

After the item, insert:

“51A		Subsection 438C (3)		Notice to deliver	509A
books of company
to the administrator
51B	Subsection 443B (3)		Notice of administrator’s			509B
intention not to exercise
property rights
51C	Paragraph 445F (2) (a)		Notice of meeting of			509C
creditors to vary or
terminate deed of
company arrangement
51D	Paragraph 446a (5) (a)		Notice of special			509D
Subregulation 5.3A.07 (5)		resolution to wind up company
51E	Paragraph 450B (a)		Notice to creditors of			509E
execution of a deed of
company arrangement
51F	Paragraph 450C (a)		Notice of failure to			509F
execute deed of
company arrangement
51G	Paragraphs 450D (a) & (b)		Notice of termination of deed of company arrangement			509G
51H	Paragraph 459e (2) (e)		Creditor’s statutory			509h
demand for payment
of debt”.

46.12 Items 52, 53, 54, 55, 56, 57, 58 and 59:

Omit the items.

46.13 Item 60:

Omit Column 2 of the item, substitute:

“Section 465A

Paragraphs 470 (1) (a),

(b) & (c)”.

46.14 Item 62:

Omit “subsection 496 (1)” from Column 2, substitute “subsection 496 (2)”.

46.15 Item 66:

Omit the item, substitute:

“66.	Subsection 568A (1)	Notice of disclaimer
of onerous property”.

46.16 Item 67:

Omit the item.

46.17 Item 71:

After the item, insert:

“71A	Paragraph 5.6.12 (2) (aa)	Notice of first meeting of creditors of company	529A
under administration
“71B	Subsection 449C (5)	Notice of meeting of	529B
creditors to ratify
appointment of
administrator

46.18 Item 73:

Omit the item, substitute:

“73	Paragraph 5.6.27 (2) (a)	List of persons	531a
present at meeting
of members or
contributories
73a	Paragraph 5.6.27 (2) (b)	List of persons	531b
present at meeting
of creditors or
debenture holders
73b	Paragraph 5.6.27 (2) (c)	List of persons	531c”.
present at meeting
of committee of
inspection or
committee of
creditors

46.19 Item 123:

Omit “Subsection 882 (3)” and “Subsection 883 (1)” from Column 2, substitute “Sections 882 and 883”.

46.20 Item 153:

Omit Columns 2 and 3 of the item, substitute:

“subsections 1288 (1) & (3)

Presentation of triennial statement by an auditor”.

46.21 Item 154:

Omit Columns 2 and 3 of the item, substitute:

“subsections 1288 (1), (3) and (5)

Presentation of statement by a liquidator”.

47. Schedule 2

47.1 New Form 105:

After Form 911, insert:

47.2 Form 207:

After the words “If shares are allotted other than for cash, form 208 ‘Notification of details of shares allotted other than for cash’ must be lodged with this form.”, insert:

“If shares are allotted, or deemed to be allotted, as fully or partly paid up shares otherwise than for cash, under a contract in writing, form 207z ‘Certification of compliance with stamp duty law’ must be lodged with this form.”.

47.3 New Form 207Z:

After Form 207, insert:

47.4 New Form 361

After Form 316, insert:

47.5 New Form 503:

After Form 502, insert:

FORM 503 Subsection 419A(3)

Corporations Law

NOTICE OF CONTROLLER’S INTENTION NOT TO EXERCISE PROPERTY RIGHTS

To: (name), of (address), the *owner/*lessor of property (“the specified property”) being:

(name and description of property including, if appropriate, relevant reference numbers and account numbers identifying contracts such as leasing arrangements in relation to that property)

I (name), of (address), the controller of property of (name of corporation) (“the corporation”) give you notice that I do not propose to exercise rights in relation to the specified property as controller of the specified property, whether on behalf of the corporation or anyone else.

Dated 19

(Controller’s signature)

*Delete if not applicable

NOTES:

1. Under subsection 419A (4) the controller is not liable for rent or other amounts payable by the corporation in relation to the specified property while this notice is in force, but the notice does not affect a liability of the corporation.

2. Under subsection 419A (5), this notice ceases to have effect if the controller:
(a) revokes the notice, by writing to the owner/lessor; or
(b)
exercises or purports to exercise a right in relation to the specified property as the controller.

–––––––––––––––

47.6 Forms 504, 505, 506, 507, 508 and 509:

Omit the forms, substitute:

FORM 509A Subsection 438C(3)

A.C.N. or A.R.B.N.

Corporations Law

NOTICE TO DELIVER BOOKS OF COMPANY TO THE ADMINISTRATOR

Limited (administrator appointed)

To: (name) of (address)

1. I (name), of (address), the administrator of the company, give you notice under subsection 438C (3) that I require you to deliver to me, at the above address, within (insert number being not less than 3) business days of the date of this notice, the books specified in the Schedule, being books of the company, that are in your possession.

2. Note that under subsection 438C (5), you must comply with this notice except so far as you are entitled as against the company and the administrator, to retain possession of the books.

SCHEDULE

(insert specified books)

Dated

19

(administrator’s signature)

–––––––––––––

FORM 509B Subsection 443B (3)

Corporations Law

NOTICE OF ADMINISTRATOR’S INTENTION NOT TO EXERCISE PROPERTY RIGHTS

Limited (administrator appointed)

To: (name), of (address), the *owner/*lessor of property (“the specified property”) being:

(name and description of property, including, if appropriate, relevant reference numbers and account numbers identifying contracts such as leasing arrangements in relation to that property)

I (name), of (address), the administrator of (name of company) (“the company”) give you notice that I do not propose to exercise rights in relation to the specified property.

Dated 19

(administrator’s signature)

*Delete if not applicable

NOTES

1. Under subsection 443B (4), the administrator is not liable for rent or other amounts payable by the company in relation to the specified property while this notice is in force, but the notice does not affect a liability of the company.

2. Under subsection 443B (5), this notice ceases to have effect if:
(a)
the administrator revokes the notice, by writing to the owner/lessor; or
(b)
the company exercises or purports to exercise a right in relation to the specified property.

–––––––––––––

FORM 509C Paragraph 445F (2) (a)

A.C.N. or A.R.B.N.

Corporations Law

NOTICE OF MEETING OF

CREDITORS TO VARY OR TERMINATE DEED OF COMPANY ARRANGEMENT

Limited (subject to deed of company arrangement)

1. Notice is given that a meeting of the creditors of the company will be held at (insert address and place of meeting) on (insert date) at (insert time)*a.m./*p.m.

2. The purpose of the meeting is to consider and vote on the following resolutions:

(Set out each resolution under section 445A or paragraph 445C (b) that the administrator of the deed of company arrangement proposes to be voted on at the meeting or, as the case may be, that creditors, in a request made under paragraph 445F (1) (b), have proposed to be voted on at the meeting.)

Dated
19

(signature of administrator)

*Delete if not applicable

–––––––––––––––

FORM 509E Paragraph 450B(a)

Corporations Law

NOTICE TO CREDITORS OF EXECUTION OF A DEED OF

COMPANY ARRANGEMENT

Limited (subject to deed of company arrangement)

*To (name) of (address)

*To creditors of the company

1. Notice is given under section 450B that the company executed a deed of company arrangement on (insert date).

2. A copy of the deed may be inspected at (insert address).

Dated
19

(Signature of administrator of the
deed of company arrangement)

*Delete if not applicable

––––––––––––

FORM 509FParagraph 450C (a)

A.C.N. or A.R.B.N.

Corporations Law

NOTICE OF FAILURE TO EXECUTE DEED OF COMPANY ARRANGEMENT

Limited (administrator appointed)

Notice is given under section 450C that the company has failed to execute an instrument setting out the terms of a deed of company arrangement within the period ending on (insert date), as required by paragraph *444B (2) (a)/*444B (2) (b).

Dated
19
(Signature of administrator of the
deed of company arrangement)

*Delete if not applicable

–––––––––––

FORM 509H Paragraph 459E (2) (e)

Corporations Law

CREDITOR’S STATUTORY DEMAND FOR PAYMENT OF DEBT

To (name and A.C.N. or A.R.B.N. of debtor company) of (address of the company’s registered office)

1. The company owes (name) of (address)(“the creditor”)

*the amount of $(insert amount), being the amount of the debt described in the Schedule.
*the amount of $(insert total amount), being the total of the amounts of the debts described in the Schedule.

*2. The amount is due and payable by the company.

*2. Attached is the affidavit of (insert name of deponent of the affidavit), dated (insert date of affidavit), verifying that the amount is due and payable by the company.

3. The creditor requires the company, within 21 days after service on the company of this demand:
(a)
to pay to the creditor the *amount of the debt/*total of the amounts of the debts; or
(b)
to secure or compound for the *amount of the debt/*total of the amounts of the debts, to the creditor’s reasonable satisfaction.

4. The creditor may rely on a failure to comply with this demand within the period for compliance set out in subsection 459F (2) as grounds for an application to a court having jurisdiction under the Corporations Law for the winding up of the company.

5. Section 459G of the Corporations Law provides that a company served with a demand may apply to a court having jurisdiction under the Corporations Law for an order setting the demand aside. An application must be made within 21 days after the demand is served and, within the same period:
(a)
an affidavit supporting the application must be filed with the court; and
(b)
a copy of the application and a copy of the affidavit must be served on the person who served the demand.

6. The address of the creditor for service of copies of any application and affidavit is (insert the address for service of the documents in the State or Territory in which the demand is served on the company, being, if solicitors are acting for the creditor, the address of the solicitors).

SCHEDULE

Description of the debt Amount of the debt
(indicate if it is a judgment debt,
giving the name of the court
and the date of the order)

*Total Amount

Dated:

19

signed:

Print name:

capacity:

Corporation or

partnership name (if applicable):

NOTES:

1. The form must be signed by the creditor or the creditor’s solicitor. It may be signed on behalf of a partnership by a partner, and on behalf of a corporation by a director or by the secretary or an executive officer of the corporation.
2. The amount of the debt or, if there is more than one debt, the total of the amounts of the debts, must exceed the statutory minimum of $2,000.
3. Unless the debt, or each of the debts, is a judgment debt, the demand must be accompanied by an affidavit that:
(a)
verifies that the debt, or the total of the amounts of the debts, is due and payable by the company; and
(b)
complies with the rules.
4. A person may make a demand relating to a debt that is owed to the person as assignee.

*Delete if not applicable

–––––––––––––

47.7 Forms 510, 511, 512, 513, 514, 515, 516 and 518:

Omit the forms.

47.8 Forms 519, 524 and 525:

Omit the forms, substitute, in the appropriate numerical positions:

FORM 525Subsection 568A (1)

Corporations Law

NOTICE OF DISCLAIMER OF ONEROUS PROPERTY

Limited (in liquidation)

To

1. I (insert name), of (insert address), the liquidator of the company, for the purposes of paragraph 568A(1)*(a)*(b)*(c)*(d) give notice that I disclaim the property described in the Schedule.
2. The property is property of the company and consists of

*land burdened with onerous covenants

*shares

*property that is unsaleable or is not readily saleable

*property that may give rise to a liability to pay money or some
  other onerous obligation
*property where it is reasonable to expect that the costs,
  charges and expenses that would be incurred in realising the
  property would exceed the proceeds of realising the property
*a contract.
2. *The Court granted leave to disclaim the property on (insert date).

SCHEDULE

(Here set out a description of the disclaimed property)

Dated

19

(Signature of liquidator)

*Delete if not applicable

NOTES:

1. A person claiming an interest in the disclaimed property may apply to the Court, within the time permitted by subsection 568B(1), for the disclaimer to be set aside.
2. A disclaimer, as from the day on which it takes effect under subsection 568C (3), is taken to have terminated the company’s rights, interests, liabilities and property in or in respect of the disclaimed property, but does not affect any other person’s rights or liabilities except in so far as is necessary in order to release the company and its property from liability.

–––––––––––––

47.9 Form 526:

Omit the form.

47.10 Form 529:

Omit the form, substitute:

FORM 529

Subregulation 5.6.12 (2)

Corporations Law

A.C.N or A.R.B.N.:

NOTICE OF MEETING

Limited

Notice is given that a *meeting of the *creditors/ *members/ *contributories/ *holders of debentures/ *committee of creditors/ *committee of inspection/ *joint meeting of creditors and members of the company will be held at (insert address of place of meeting) on (insert date) at (insert time) *a.m./*p.m.

Agenda: (Set out the purpose for which the meeting is called. If the notice relates to a meeting of creditors called under subsection 497 (1), the notice is to state that a person is not entitled to vote as a creditor at the meeting unless he or she has lodged with the chairperson ofthe meetingparticulars of the debt or claim which he or she claims to be due to him or her from the company).

Dated

Signature

*Delete if not applicable

___________

47.11 New Forms 529A and 529B:

After Form 529, insert:

FORM 529A Paragraph 5.6.12 (2) (aa)

Corporations Law

NOTICE OF FIRST MEETING OF

CREDITORS OF COMPANY UNDER ADMINISTRATION

Limited (administrator appointed)

1. On (insert date)

*the company under section 436A
*the liquidator/provisional liquidator of the company under section 436B
*a chargee of property of the company under section 436C

appointed (insert name) of (insert address) as the administrator of the company.

2. Notice is now given that a meeting of the creditors of the company will be held at (insert address and place of meeting) on (insert date) at (insert time) *a.m./*p.m.

3. The purpose of the meeting is to determine:

(a)
whether to appoint a committee of creditors; and
(b)
if so, who are to be the committee’s members.

4. At the meeting, creditors may also, by resolution:
(a)
remove the administrator from office; and
(b)
appoint someone else as administrator of the company.

5.* Details of the instrument under the terms of which the administrator was appointed are:
(a)
date of the instrument:(insert date)
(b)
nature of instrument: (insert type of instrument, eg mortgage)
(c)
place of registration:(insert, if applicable)
(d)
registered charge number: (insert, if applicable)

Dated

19

(administrator’s signature)

*Delete if not applicable

–––––––––––––––

FORM 529BSubsection 449C (5)

Corporations Law

NOTICE OF MEETING OF

CREDITORS TO RATIFY APPOINTMENT OF ADMINISTRATOR

Limited (administrator appointed)

1. On (insert date)

*the company, under subsection 449C (1) and subparagraph 449C (2) (b) (i),
*the liquidator/provisional liquidator of the company, under subsection 449C (1) and subparagraph 449C (2) (b) (ii),
*a chargee of property of the company, under subsection 449C (1) and subparagraph 449C (2) (b) (iii),

appointed (insert name) of (insert address) as the administrator of the company in place of the previous administrator of the company.

2. The new administrator was appointed because the previous administrator (here set out the applicable circumstances under paragraph 449C (1) (a), (b) or (c), as the case may be).

3. Notice is now given that a meeting of the creditors of the company will be held at (insert address and place of meeting) on (insert date) at (insert time) *a.m./*p.m.

4. The purpose of the meeting is:

(a)
to determine whether to remove the person appointed from office; and
(b)
if so, to appoint someone else as administrator of the company.

5.* Details of the instrument under the terms of which the previous administrator was appointed are:

(a)

date of the instrument (insert date);

(b)
nature of instrument (insert type of instrument, eg mortgage);
(c)
place of registration (insert, if applicable);
(d)
registered charge number (insert, if applicable).

Dated

19

(signature of convenor of the meeting)

*Delete if not applicable

––––––––––––––

47.12 Form 531:

Omit the form, substitute:

FORM 531A

Paragraph 5.6.27 (2) (a)

Corporations Law

A.C.N. or A.R.B.N.

LIST OF PERSONS PRESENT AT MEETING OF:

*MEMBERS/

*CONTRIBUTORIES

Limited

Meeting held at (place of meeting) on (date).

No.

Name

Represented by

(Signature of person attending)

*Number of shares

*Number of votes

(NOTE:

If a joint meeting of creditors and members is held, both Form 531a and 531b should be completed)

*Delete if not applicable

–––––––––––––

FORM 531B

Paragraph 5.6.27 (2) (b)

Corporations Law

A.C.N. or A.R.B.N.

LIST OF PERSONS PRESENT AT MEETING OF:

*CREDITORS/

*DEBENTURE HOLDERS

Limited

Meeting held at (place of meeting) on (date).

No.

Name

Represented by

(Signature of person attending)

Amount of proof lodged or Amount of debentures held

Nature of any security

Value of any security, as estimated by the creditor

**Balance of creditor’s debt after deducting the value of the security

(NOTE:

If a joint meeting of creditors and members is held, both Form 531a and 531b should be completed.)

*Delete if not applicable

**Do not complete in the case of a meeting convened under

Part 5.3a of the Corporations Law

–––––––––––––

FORM 531 C

Paragraph 5.6.27 (2) (c)

Corporations Law

A.C.N. or A.R.B.N.

LIST OF PERSONS PRESENT AT MEETING OF:

*COMMITTEE OF INSPECTION/

*COMMITTEE OF CREDITORS

Limited

Meeting held at (place of meeting) on (date).

No.

Name

Represented by

(Signature of person attending)

*Delete if not applicable

––––––––––––

47.13 Forms 903a, 903b, 906, 907 and 908:

Omit the forms, substitute in the appropriate alphanumerical positions:

48. New Schedule 8A

48.1 After Schedule 8, insert:

SCHEDULE 8A Regulation 5.3A.06

DEED OF COMPANY ARRANGEMENT—PRESCRIBED PROVISIONS

Administrator deemed agent of company

1. In exercising the powers conferred by this deed and carrying out the duties arising under this deed, the administrator is taken to act as agent for and on behalf of the company.

Powers of administrator

2. For the purpose only of administering this deed, the administrator has the following powers:

(a) to enter upon or take possession of the property of the company;

(b) to lease or let on hire property of the company;

(c) to grant options over property of the company on such conditions as the administrator thinks fit;

(d) to insure property of the company;

(e) to repair, renew or enlarge property of the company;

(f) to call in, collect or convert into money the property of the company;

(g) to administer the assets available for the payment of claims of creditors in accordance with the provisions of this deed;

(h) to purchase, hire, lease or otherwise acquire any property or interest in property from any person or corporation;

(i) to borrow or raise money, whether secured upon any or all of the assets of the company or unsecured, for any period on such terms as the administrator thinks fit and whether in substitution for any existing security or otherwise;

(j) to bring, prosecute and defend in the name and on behalf of the company or in the name of the administrator any actions, suits or proceedings;

(k) to refer to arbitration any question affecting the company;

(l) to make payments to any secured creditor of the company and any person who is the owner or lessor of property possessed used or occupied by the company;

(m) to convene and hold meetings of the members or creditors of the company for any purpose the administrator thinks fit;

(n) to make interim or other distributions of the proceeds of the realisation of the assets available for the payment of claims of creditors as provided in this deed;

(o) to appoint agents to do any business or to attend to any matter or affairs of the company that the administrator is unable to do, or that it is unreasonable to expect the administrator to do, in person;

(p) to engage or discharge employees on behalf of the company;

(q) to appoint a solicitor, accountant or other professionally qualified person to assist the administrator;

(r) to permit any person authorised by the administrator to operate any account in the name of the company;

(s) to sell, call in or convert into money any of the property of the company, to apply the money in accordance with this deed and otherwise effectively and properly to carry out his or her duties as administrator;

(t) to do all acts and execute in the name and on behalf of the company all deeds, receipts and other documents, using the company’s common or official seal when necessary;

(u) subject to the Bankruptcy Act1966, to prove in the bankruptcy of any contributory or debtor of the company or under any deed executed under that Act;

(v) subject to the Corporations Law, to prove in the winding up of any contributory or debtor of the company or under any scheme of arrangement entered into, or deed of company arrangement executed, under the Corporations Law;

(w) to draw, accept, make or endorse any bill of exchange or promissory note in the name and on behalf of the company;

(x) to take out letters of administration of the estate of a deceased contributory or debtor, and do any other act necessary for obtaining payment of any money due from a contributory or debtor, or the estate of a contributory or debtor, that cannot be conveniently done in the name of the company;

(y) to bring or defend an application for the winding up of the company;

(z) to carry on the business of the company on such terms and conditions and for such purposes and times and in such manner as the administrator thinks fit subject only to the limitations imposed by this deed;

(za) to sell any or all of the property of the company including the whole of the business or undertaking of the company at any time the administrator thinks fit, either by public auction or by private contract and either for a lump sum or for a sum payable by instalments or for a sum on account and to obtain a mortgage charge or encumbrance for the balance or otherwise;

(zb) to close down the whole or any part of any business of the company;

(zc) to enter into and complete any contract for the sale of shares in the company;

(zd) to compromise any debts or claims brought by or against the company on such terms as the administrator thinks fit and to take security for the discharge of any debt forming part of the property of the company;

(ze) to pay any class of creditors in full, subject to Subdivision D of Division 6 of Part 5.6 of the Corporations Law;

(zf) to do anything that is incidental to exercising a power set out in this clause;

(zg) to do anything else that is necessary or convenient for the purpose of administering this deed.

Termination of deed where arrangement fails

3. If the administrator or the committee of inspection determines that it is no longer practicable or desirable either to continue to carry on the business of the company or to implement this deed, the administrator:

(a) may cease to carry on the business of the company except so far as is necessary for the beneficial winding up of the company;

(b) must summon a meeting of creditors for the purpose of passing a resolution under section 445C (b) of the Corporations Law; and

(c) must forward to each creditor not less than 14 days prior to the meeting an up-to-date report as to the position of the company accompanied by such financial statements as the administrator thinks fit, together with a statement that he or she does not think it practicable or desirable to carry on the business of the company or to continue this deed and that this deed will be terminated if the company’s creditors resolve.

Priority

4. The administrator must apply the property of the company coming under his or her control under this deed in the order of priority specified in section 556 of the Corporations Law.

Discharge of debts

5. The creditors must accept their entitlements under this deed in full satisfaction and complete discharge of all debts or claims which they have or claim to have against the company as at the day when the administration began and each of them will, if called upon to do so, execute and deliver to the company such forms of release of any such claim as the administrator requires.

Claims extinguished

6. If the administrator has paid to the creditors their full entitlements under this deed, all debts or claims, present or future, actual or contingent, due or which may become due by the company as a result of anything done or omitted by or on behalf of the company before the day when the administration began and each claim against the company as a result of anything done or omitted by or on behalf of the company before the day when the administration began is extinguished.

Bar to creditors’ claims

7. Subject to section 444D of the Corporations Law this deed may be pleaded by the company against any creditor in bar of any debt or claim that is admissible under this deed and a creditor (whether the creditor’s debt or claim is or is not admitted or established under this deed) must not, before the termination of this deed:

(a) take or concur in the taking of any step to wind up the company; or

(b) except for the purpose and to the extent provided in this deed, institute or prosecute any legal proceedings in relation to any debt incurred or alleged to have been incurred by the company before the day when the administration began; or

(c) take any further step (including any step by way of legal or equitable execution) in any proceedings pending against or in relation to the company at the day when the administration began; or

(d) exercise any right of set-off or cross-action to which the creditor would not have been entitled had the company been wound up at the day when the administration began; or

(e) commence or take any further step in any arbitration against the company or to which the company is a party.

Making claims

8. Subdivisions A, B, C and E of Division 6 of Part 5.6 of the Corporations Law apply to claims made under this deed as if the references to the liquidator were references to the administrator of this deed.

Meetings

9. Regulations 5.6.12 to 5.6.36A of the Corporations Regulations apply, with such modifications as are necessary, to meetings of creditors or of the committee of inspection held under this deed as if the references to “the liquidator”, “the liquidator or provisional liquidator”, “ the liquidator, provisional liquidator or chairman” or “a liquidator, provisional liquidator or trustee for debenture holders”, as the case may be, were references to the administrator of this deed.

Lodging of accounts

10. Sections 432 and 434 of the Corporations Law apply to the administrator as if the reference to a controller were a reference to the administrator of this deed.

Committee of inspection

11. For the purpose of advising and assisting the administrator of this deed, there must be a committee of inspection (referred to in this clause as “the committee”) to which the following rules apply:

(a) the committee must consist of at least 3 and not more than 5 members;

(b) the creditors must appoint the members in a general meeting;

(c) a creditor is not entitled to have more than one representative (including the creditor himself or herself, if a natural person) on the committee;

(d) minutes of all resolutions and proceedings of each meeting of the committee must be made and duly entered in books to be provided from time to time for that purpose by the administrator under this deed;

(e) if the minutes of a meeting purport to be signed by the chairperson of the meeting at which the resolutions were passed or proceedings taken or by the chairperson of the next meeting of the committee, the minutes are prima facie evidence of the matters contained in them;

(f) unless the contrary is proved, the meeting is taken to have been duly had and convened and all resolutions passed and proceedings taken at the meeting are taken to have been duly passed and taken;

(g) a corporation (being otherwise qualified for membership of the committee) is not entitled to be a member of the committee but may appoint a person to represent it on the committee;

(h) subsection 548 (3) and sections 549, 550 and 551 of the Corporations Law apply, with such modifications as are necessary, to a committee of inspection established under this deed as if the references to the liquidator were references to the administrator of this deed and the references to contributories were deleted.

Termination of deed where arrangement achieves purpose

12. If the administrator has applied all of the proceeds of the realisation of the assets available for the payment of creditors or has paid to the creditors the sum of 100 cents in the dollar or any lesser sum determined by the creditors at a general meeting, the administrator must certify to that effect in writing and must within 28 days lodge with the Commission a notice of termination of this deed in the following form:

“X PTY LIMITED

I, (insert name and address) as administrator of the deed of company arrangement executed on (insert date), CERTIFY that the deed has been wholly effectuated.”,

and the execution of the notice terminates this deed, but nothing in this clause relieves the administrator of his or her obligations under clause 10 of this deed.

49. Continued application of old Part 5. 3, etc.

49.1 If, before the commencement of this regulation, a company was placed under official management:

(a)
Paragraphs 5.2.01 (d) and (e) as in force before the commencement continue to apply to copies of reports, certificates and other documents lodged for the purposes of repealed subsections 436 (15) and 448 (11), respectively, of the Corporations Law; and
(b)
Part 5.3 as in force before the commencement continues to apply in relation to the official management of the company; and
(c)
regulations 5.6.11 to 5.6.36 as in force before the commencement continue to apply to a meeting convened under repealed Part 5.3 of the Corporations Law; and
(d)
items 46, 47, 48, 51, 52, 53, 54, 55, 56, 57, 58 and 59 of Schedule 1 as in force before the commencement continue to apply in relation to the official management of the company; and
(e)
Forms 505, 506, 507, 509, 510, 511, 512, 513, 514, 515, 516, 518 and 529 in Schedule 2 as in force before the commencement continue to apply in relation to the official management of the company.”.

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NOTES

1. Notified in the Commonwealth of Australia Gazette on 23 June 1993.
2. Statutory Rules 1990 No. 455 as amended by 1991 Nos. 218, 219, 281, 341,453, 478 and 479; Act No. 200, 1991; 1992 Nos. 230, 281, 364, 395 and 450.

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Corporations Regulations (Amendment) (Cth)

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