Insolvency Practice Rules (Corporations) 2016 (Cth)
made under section 105‑1 of Schedule 2 to the
This is a compilation of the
The notes at the end of this compilation (the
The effect of uncommenced amendments is not shown in the text of the compiled law. Any uncommenced amendments affecting the law are accessible on the Legislation Register ( The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. For more information on any uncommenced amendments, see the series page on the Legislation Register for the compiled law.
If the operation of a provision or amendment of the compiled law is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes.
For more information about any editorial changes made in this compilation, see the endnotes.
If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. For more information on any modifications, see the series page on the Legislation Register for the compiled law.
If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes.
Contents
Division 1—Introduction 11‑1......... Name............................................................................................................................. 1
1‑10....... Authority....................................................................................................................... 1
Division 5—Definitions 25‑5......... The Dictionary.............................................................................................................. 2
5‑10....... What is a
current registration?..................................................................................... 35‑15....... Meaning of
material personal interest ......................................................................... 3
Part 2—Registering and disciplining practitioners 4
Division 15—Register of Liquidators 415‑1....... Register of Liquidators................................................................................................. 4
Division 20—Registering liquidators 520‑1....... Qualifications, experience, knowledge and abilities required by applicants for registration generally 5
20‑2....... Qualifications, experience, knowledge and abilities required by applicants for registration to practise only as a restructuring practitioner.............................................................................................. 6
20‑5....... Conditions on registration of liquidators...................................................................... 7
Division 35—Notice requirements 935‑1....... Events of which a registered liquidator must notify ASIC........................................... 9
Division 40—Disciplinary and other action 1040‑1....... Industry bodies that may notify ASIC of grounds for disciplinary action................. 10
Division 50—Part 2 committees 1150‑1....... Authority..................................................................................................................... 11
50‑5....... Part 2 committee may generally determine its own procedures................................. 11
50‑6....... Virtual meetings.......................................................................................................... 11
50‑7....... Electronic recording and keeping of minutes............................................................. 12
50‑10..... ARITA may appoint a member of a Part 2 committee............................................... 12
50‑15..... Knowledge and experience required of a member of a Part 2 committee appointed by ARITA 13
50‑20..... Chair of a Part 2 committee........................................................................................ 13
50‑25..... Resignation of Part 2 committee members................................................................. 13
50‑30..... Part 2 committee to be reconstituted—removing ARITA members.......................... 13
50‑35..... Part 2 committee to be reconstituted—removing members appointed by the Minister 13
50‑40..... Part 2 committee to be reconstituted—replacing members........................................ 14
50‑45..... Termination of consideration, and transfer, of a matter............................................. 14
50‑50..... Duty to disclose interests............................................................................................ 14
50‑55..... Natural justice and rules of evidence.......................................................................... 14
50‑60..... Decisions made at a meeting...................................................................................... 15
50‑65..... Decisions made without a meeting............................................................................. 15
50‑70..... Keeping records of decisions...................................................................................... 15
50‑75..... Inquiries by a Part 2 committee.................................................................................. 16
50‑80..... Interviewing applicants............................................................................................... 16
50‑85..... Interviewing liquidators—proposed cancellation of registration............................... 17
50‑90..... Decisions on disciplinary matters............................................................................... 18
50‑95..... Reports of a Part 2 committee.................................................................................... 18
50‑100... Industry disciplinary bodies to which a Part 2 committee may disclose information 18
Part 3—General rules relating to external administrations 20
Division 60—Remuneration and other benefits received by external administrators 20
Subdivision A— Remuneration of restructuring practitioners 2060‑1A.... Authority..................................................................................................................... 20
60‑1B.... Remuneration for restructuring practitioners for companies...................................... 20
60‑1C.... Remuneration for restructuring practitioners for restructuring plans......................... 20
Subdivision B— Duties of external administrators relating to remuneration and benefits etc . 2160‑2....... External administrator must not derive profit or advantage from the administration of the company—exceptions................................................................................................................... 21
Division 70—Information 2270‑1....... Time for complying with reasonable requests............................................................ 22
70‑5....... Notice requirements for unreasonable requests.......................................................... 22
70‑10..... Right of creditors to request information etc. from external administrator................ 23
70‑15..... Right of individual creditor to request information etc. from external administrator 23
70‑20..... Right of members to request information etc. from external administrator in a members’ voluntary winding up.................................................................................................................................... 24
70‑25..... Right of individual member to request information etc. from external administrator in a members’ voluntary winding up.................................................................................................................. 25
70‑30..... Initial information required to be given to creditors in certain administrations......... 26
70‑35..... Initial remuneration notice.......................................................................................... 27
70‑40..... Report about dividends to be given in certain external administrations..................... 28
70‑45..... Reports about remuneration to be given before remuneration determinations are made....... 29
70‑50..... Report about remuneration to be given by provisional liquidators............................ 30
70‑55..... Requests for information by the Commonwealth....................................................... 31
70‑60..... Reporting to ASIC...................................................................................................... 31
Division 75—Meetings 33
Subdivision A—Preliminary 3375‑1....... Authority..................................................................................................................... 33
Subdivision B—Convening meetings 3375‑5....... When certain meetings must be convened.................................................................. 33
75‑10..... Persons to whom notice of meetings to be given....................................................... 33
75‑15..... How notice of meetings to be given........................................................................... 33
75‑20..... Time for giving notice of meetings............................................................................ 34
75‑25..... Notice about voting by proxy and appointment of attorney....................................... 34
75‑30..... Time and place of meetings........................................................................................ 35
75‑35..... Notices of meetings held using virtual meeting technology....................................... 35
75‑40..... Notification of meetings on ASIC website................................................................. 35
Subdivision C—Procedures at meetings 3775‑50..... Presiding at meetings.................................................................................................. 37
75‑70..... Proposed resolutions and amendments of proposed resolutions................................ 37
75‑75..... Virtual meetings.......................................................................................................... 38
75‑85..... Entitlement to vote at meetings of creditors............................................................... 39
75‑86..... Other persons entitled to vote—persons by whom money is advanced to a company 40
75‑87..... Votes of secured creditors.......................................................................................... 40
75‑90..... Evidence relating to proof of debt.............................................................................. 41
75‑95..... Evidence of liability for debt...................................................................................... 41
75‑97..... Voting by proxy if financially interested.................................................................... 41
75‑100... Decisions in relation to entitlement to vote at creditors’ meeting.............................. 42
75‑105... Quorum....................................................................................................................... 42
75‑110... Voting on resolutions.................................................................................................. 43
75‑115... When a resolution is passed at a meeting of creditors after a poll is demanded or required 44
75‑120... When a resolution is passed at a meeting of contributories after a poll is demanded or required 45
75‑125... Resolution about remuneration must deal only with remuneration............................ 46
75‑130... When a resolution is passed without a meeting of creditors...................................... 46
75‑135... When a resolution is passed without a meeting of contributories.............................. 47
75‑140... Adjournment of meetings........................................................................................... 47
75‑145... Minutes of meetings................................................................................................... 48
75‑146... Electronic recording and keeping of information....................................................... 49
Subdivision D—Rules about proxies and attorneys 5075‑150... Appointment of proxies.............................................................................................. 50
75‑152... External administrator holding a proxy may appoint deputy..................................... 50
75‑155... Person may attend and vote by attorney..................................................................... 50
Subdivision E—Additional rules about pooled groups 5175‑180... Meetings of eligible unsecured creditors.................................................................... 51
75‑185... Copy of notice etc. to be given to certain creditors of the company.......................... 52
75‑190... When is a resolution passed at a meeting—pooled groups........................................ 52
75‑195... Directions to external administrator to convene a meeting—when reasonable and not reasonable 53
75‑200... Notice requirements for unreasonable directions....................................................... 54
Subdivision F—Additional rules for particular kinds of external administration 5475‑225... Companies under administration—how certain meetings are convened.................... 54
Subdivision G—Other rules about meetings 5575‑250... Directions to external administrator to convene a meeting—when reasonable and not reasonable 55
75‑255... Notice requirements for unreasonable directions....................................................... 56
75‑265... Requirements relating to meetings to remove external administrator of acompany.. 56
75‑270... Substantial compliance with Division is sufficient.................................................... 58
Division 80—Committees of inspection etc. 5980‑5....... Eligibility and procedures........................................................................................... 59
80‑10..... Resignation, removal and vacancies........................................................................... 60
80‑15..... Reasonable requests for information etc..................................................................... 60
80‑20..... Time for complying with reasonable requests............................................................ 61
80‑25..... Notice requirements for unreasonable requests.......................................................... 62
Division 90—Review of the external administration of a company 6390‑1....... Authority..................................................................................................................... 63
90‑4....... Appointment of reviewing liquidator by creditors etc................................................ 63
90‑7....... Limits on reviewing remuneration, costs and expenses............................................. 63
90‑12..... Notice to be given if ASIC appoints a reviewing liquidator...................................... 63
90‑18..... Declaration of relevant relationships of proposed reviewing liquidator.................... 63
90‑22..... Powers and duties of reviewing liquidators................................................................ 64
90‑24..... Reporting by reviewing liquidators............................................................................ 65
Part 5—Transitional matters ................................................................................................................. 66
Division 110— Transitional matters relating to the Insolvency Practice Rules (Corporations) Amendment (Restricting Related Creditor Voting Rights) Rules 2018 66110‑1..... Meeting procedures in relation to creditors who have been assigned debts…..... ..66
110‑2..... Voting procedures in relation to creditors who have been assigned debts.... ……..66
Division 115— Transitional matters relating to Schedule 1 to the Insolvency Practice Rules (Corporations) Amendment (Corporate Insolvency Reforms) Rules 2020 67115‑1..... Application of amendments relating to liquidator registration conditions................. 67
Division 120— Transitional matters relating to Schedule 2 to the Insolvency Practice Rules (Corporations) Amendment (Corporate Insolvency Reforms) Rules 2020 68120‑1..... Definitions.................................................................................................................. 68
120‑5..... Application—virtual meetings.................................................................................... 68
120‑10... Application—recording and keeping of information................................................. 68
125‑1..... Definitions.................................................................................................................. 69
125‑5..... Application—virtual meetings.................................................................................... 69
125‑10... Application—keeping of information......................................................................... 69
Endnotes 70
Endnote 1 — About the endnotes 70
Endnote 2 — Abbreviation key 71
Endnote 3 — Legislation history 72
Endnote 4 — Amendment history 73
This instrument is the
Insolvency Practice Rules (Corporations) 2016 .
This instrument is made under the
Corporations Act 2001 .
Note: A number of expressions used in this instrument are defined in section 9 of the Act and section 5‑5 of Schedule 2 to the Act.
In this instrument:
Act means theCorporations Act 2001 .
ARITA means the Australian Restructuring Insolvency and Turnaround Association, ACN 002 472 362.
current , in relation to the registration of a person as a liquidator: see section 5‑10.
disciplinary action , in relation to a person who is registered as a liquidator, means:
(a) any action taken by ASIC in relation to the person under Division 40 of the Insolvency Practice Schedule (Corporations), other than:
(i) the giving of a direction under subsection 40‑10(2) of the Schedule in relation to information that ASIC reasonably suspects is incomplete or incorrect; or
(ii) the giving of a notice under section 40‑40 of the Schedule (a show‑cause notice); or
(b) the suspension or cancellation, or deemed suspension or cancellation, of the registration of the person as a liquidator, or as a liquidator of a specified body corporate, under the old Act; or
(c) any action taken in respect of the person as a liquidator, or as a liquidator of a specified body corporate, under paragraph 1292(9)(a), (b) or (c) of the old Act.
Insolvency Practice Schedule (Corporations) means Schedule 2 to the Act.
material personal interest has a meaning affected by section 5‑15.
old Act means theCorporations Act 2001 , as in force immediately before the day on which Part 1 of Schedule 2 to theInsolvency Law Reform Act 2016 commences.
Part 2 committee means a committee convened under one of the following provisions of the Insolvency Practice Schedule (Corporations):
(a) subsection 20‑10(1) (applications for registration);
(b) subsection 20‑45(1) (applications to vary etc. conditions of registration);
(c) subsection 40‑45(1) (disciplinary action);
(d) subsection 40‑75(1) (applications to lift or shorten a suspension).
regulations means theCorporations Regulations 2001 .
resolution : see sections 75‑115, 75‑120, 75‑130 and 75‑190.
show of hands : a vote taken on a show of hands includes a vote taken using any electronic mechanism that indicates the intentions of a person in respect of the vote.
(1) If, at a particular time:
(a) a person is registered as a liquidator; and
(b) that registration has not been broken by cancellation of, or a failure to renew, the registration;
the registration of the person as a liquidator is
current at that time.
(2) The registration is taken to have first begun on the day on which the unbroken chain of registration first began.
(3) To avoid doubt, the registration of a person as a liquidator is not broken because:
(a) the person was registered as a liquidator, or as a liquidator of a specified body corporate, under the old Act; and
(b) on the commencement of Part 1 of Schedule 2 to the
Insolvency Law Reform Act 2016, the person was taken to be registered as a liquidator under Subdivision B of Division 20 of the Insolvency Practice Schedule (Corporations) because of the operation of section 1553 of theCorporations Act 2001 .
Without limiting the circumstances in which a member of a Part 2 committee has a
material personal interest that relates to a matter, a member of a Part 2 committee has a material personal interest that relates to a matter if the matter relates to a related entity of the member.
(1) This section is made for the purposes of subsection 15‑1(3) of the Insolvency Practice Schedule (Corporations).
(2) The Register of Liquidators must include each of the following for each person who is registered as a liquidator:
(a) the name of the person;
(b) the date on which the person’s current registration as a liquidator first began;
(c) the address of the principal place where the person practises as a registered liquidator;
(d) the address of each other place where the person practises as a registered liquidator;
(e) if the person practises as a registered liquidator as a member of a firm or under a name or style other than the person’s own name—the name of that firm or the name or style under which the person practises;
(f) particulars of any disciplinary action taken against the person (other than a direction given under section 40‑5 of the Insolvency Practice Schedule (Corporations));
(g) a summary of the current conditions imposed on the person as a registered liquidator.
(3) ASIC may include other information on the Register of Liquidators if it is relevant to:
(a) the registration of a person as a liquidator; or
(b) a person’s practice as a liquidator.
(4) ASIC must make the information included on the Register of Liquidators under subsection (2) publicly available.
(5) ASIC may make the information included on the Register of Liquidators under subsection (3) publicly available.
20‑1
Qualifications, experience, knowledge and abilities required by applicants for registration generally (1) This section:
(a) is made for the purposes of paragraph 20‑20(4)(a) of the Insolvency Practice Schedule (Corporations); and
(b) applies in relation to an application for registration as a liquidator, other than an application to which section 20‑2 of these Rules applies.
(2) A committee to which an application for registration as a liquidator to which this section applies is referred under section 20‑15 of the Insolvency Practice Schedule (Corporations) must be satisfied that the applicant has each of the following qualifications, experience, knowledge and abilities:
(a) the applicant has completed the academic requirements for the award of a tertiary qualification that includes at least 3 years of full‑time study (or its equivalent) in commercial law and accounting;
(b) the applicant has completed the academic requirements for at least 2 course units accredited under the Australian Qualifications Framework Level 8 (or equivalent study) in the practice of external administrators of companies, receivers, receivers and managers, and trustees under the
Bankruptcy Act 1966 ;(c) if the applicant wishes to be registered to practise as an external administrator of companies, receiver and receiver and manager—the applicant has, during the 5 years immediately preceding the day on which the application is made, been engaged in at least 4,000 hours of relevant employment at senior level;
(d) if the applicant wishes to be registered to practise only as a receiver, and receiver and manager—the applicant has, during the 5 years immediately preceding the day on which the application is made, been engaged in at least 4,000 hours of relevant employment at senior level;
(e) the applicant has demonstrated the capacity to perform satisfactorily the functions and duties of a registered liquidator;
(f) the applicant is able to satisfy any conditions to be imposed under the Insolvency Practice Schedule (Corporations) if the applicant is registered as a liquidator.
(3) For the purposes of paragraph (2)(c),
relevant employment must include:
(a) employment that involves any of the following:
(i) assisting a registered liquidator in the performance of the registered liquidator’s duties as external administrator of companies, receiver or receiver and manager;
(ii) providing advice in relation to the external administration of companies, receivership or receivership and management;
(iii) providing advice in relation to Subdivision C of Division 3 of Part 5.7B of the Act;
(iv) providing advice in relation to the restructuring of company debt outside the external administration of companies, receivership or receivership and management; and
(b) employment that provides direct or indirect exposure to processes (including bankruptcy) under the
Bankruptcy Act 1966 ; and(c) any other employment that the committee considers relevant.
(4) For the purposes of paragraph (2)(d),
relevant employment must include:
(a) employment that involves any of the following:
(i) assisting a registered liquidator in the performance of the registered liquidator’s duties as receiver and receiver and manager;
(ii) providing advice in relation to receivership or receivership and management;
(iii) providing advice in relation to Subdivision C of Division 3 of Part 5.7B of the Act;
(iv) providing advice in relation to the restructuring of company debt outside the external administration of companies, receivership or receivership and management; and
(b) employment that provides direct or indirect exposure to the external administration of companies and processes (including bankruptcy) under the
Bankruptcy Act 1966 ; and(c) any other employment that the committee considers relevant.
(1) This section:
(a) is made for the purposes of paragraph 20‑20(4)(a) of the Insolvency Practice Schedule (Corporations); and
(b) applies in relation to an application (a
restructuring practitioner application ) for registration as a liquidator if the applicant wishes to be registered to practise only as a restructuring practitioner for a company or for a restructuring plan.(2) A committee to which a restructuring practitioner application is referred under section 20‑15 of the Insolvency Practice Schedule (Corporations) must be satisfied that the applicant has each of the following qualifications, experience, knowledge and abilities:
(a) the applicant is a recognised accountant;
(b) the applicant has demonstrated the capacity to perform satisfactorily the functions and duties of a restructuring practitioner for a company and for a restructuring plan;
(c) the applicant is able to satisfy any conditions to be imposed under the Insolvency Practice Schedule (Corporations) if the applicant is registered as a liquidator.
Definitions
(3) In this section:
recognised accountant means:
(a) a member of Chartered Accountants Australia and New Zealand (
CAANZ ) who:
(i) holds a Certificate of Public Practice issued by CAANZ; and
(ii) is entitled to use the letters “CA” or “FCA”; and
(iii) is subject to, and complies with, CAANZ’s continuing professional education requirements; or
(b) a member of CPA Australia who:
(i) holds a Public Practice Certificate issued by CPA Australia Ltd; and
(ii) is entitled to use the letters “CPA” or “FCPA”; and
(iii) is subject to, and complies with, CPA Australia’s continuing professional education requirements; or
(c) a member of the Institute of Public Accountants (
IPA ) who:
(i) holds a Public Practice Certificate issued by IPA; and
(ii) is entitled to use the letters “FIPA” or “MIPA”; and
(iii) is subject to, and complies with, IPA’s continuing professional education requirements.
(1) This section is made for the purposes of section 20‑35 of the Insolvency Practice Schedule (Corporations).
Registered liquidators generally
(2) It is a condition on the registration of any person as a registered liquidator that:
(a) the person undertake at least 120 hours of continuing professional education during:
(i) the period of 3 years starting on the day the person is first registered as a liquidator; and
(ii) each subsequent period of 3 years during which the person is registered as a liquidator; and
(b) at least 30 hours of the 120 hours of continuing professional education is capable of being objectively verified by a competent source.
Restructuring practitioners
(3) If a committee decides under 20‑20(6) of the Insolvency Practice Schedule (Corporations) that a person’s registration is to be subject to a condition that the person act as the external administrator of a company only in the capacity of a restructuring practitioner for the company or for a restructuring plan made by the company, it is a condition on the registration of the person as a registered liquidator that the person must not carry out work as an external administrator of a company otherwise than in that capacity.
Suspended registrations
(4) It is a condition on the registration of any person whose registration as a liquidator has been suspended that the person must, during the period of the suspension, maintain:
(a) adequate and appropriate professional indemnity insurance; and
(b) adequate and appropriate fidelity insurance;
against the liabilities that the person may incur as a result of work carried out as a registered liquidator before the suspension takes effect.
35‑1
Events of which a registered liquidator must notify ASIC The following are events in relation to which a registered liquidator must lodge a notice with ASIC under paragraph 35‑5(1)(b) of the Insolvency Practice Schedule (Corporations):
(a) the registered liquidator ceases to practise;
(b) the registered liquidator changes his or her name;
(c) if the registered liquidator practises as a member of a firm, or under a name or style other than the person’s own name—the name of the firm, or that other name or style, changes;
(d) the address of any place where the registered liquidator practises as such changes.
40‑1
Industry bodies that may notify ASIC of grounds for disciplinary action The following industry bodies are prescribed for the purposes of section 40‑110 of the Insolvency Practice Schedule (Corporations):
(a) ARITA;
(b) CPA Australia;
(c) Chartered Accountants Australia and New Zealand;
(d) the Institute of Public Accountants;
(e) the New South Wales Bar Association;
(f) the Law Society of New South Wales;
(g) the Victorian Legal Services Commissioner;
(h) the Victorian Legal Services Board;
(i) the Bar Association of Queensland;
(j) the Queensland Law Society;
(k) the Legal Practice Board of Western Australia;
(l) the Law Society of South Australia;
(m) the Legal Profession Conduct Commissioner of South Australia;
(n) the Law Society of Tasmania;
(o) the Law Society of the Australian Capital Territory;
(p) the Law Society Northern Territory.
Unless otherwise stated, a provision of this Division is made for the purposes of section 50‑25 of the Insolvency Practice Schedule (Corporations).
50‑5
Part 2 committee may generally determine its own procedures Subject to the Insolvency Practice Schedule (Corporations) and these Rules, a Part 2 committee may determine its own procedures.
(1) This section applies in relation to any meeting of a Part 2 committee, including a meeting convened for the purposes of interviewing an applicant under the Insolvency Practice Schedule (Corporations).
Meetings may be held using virtual meeting technology
(2) Virtual meeting technology may be used in holding the meeting, provided the technology gives each member of the committee a reasonable opportunity to participate without being physically present in the same place.
(3) All members so participating in the meeting are taken for all purposes to be present in person at the meeting while so participating.
(4) If virtual meeting technology is used in holding the meeting, each member must be given the opportunity to participate in the vote in real time.
Place and time of virtual meetings
(5) If any of the members is entitled to physically attend the meeting:
(a) the place for the meeting is taken to be:
(i) if there are 2 or more locations at which persons who are entitled to physically attend the meeting may do so—the main location for the meeting as set out in the notice of the meeting; and
(ii) otherwise—the location where the persons may physically attend the meeting; and
(b) the time for the meeting is taken to be the time at the place for the meeting.
(6) If none of the members is entitled to physically attend the meeting:
(a) the place for the meeting is taken to be the address of the ASIC office of ASIC’s delegate to the committee; and
(b) the time for the meeting is taken to be the time at the place for the meeting.
Tabling of documents at virtual meetings
(7) If:
(a) virtual meeting technology is used in holding a meeting; and
(b) a document is required or permitted to be tabled at the meeting;
the document is taken to have been tabled at the meeting if a copy of the document is made reasonably accessible to persons attending the meeting, for example by:
(c) giving a copy of the document before the meeting to the persons entitled to attend the meeting; or
(d) giving a copy of the document during the meeting to the persons attending the meeting; or
(e) screencasting the document in a reasonable way during the meeting to the persons attending the meeting, as a whole.
(1) If minutes are required to be recorded, the minutes may be recorded in electronic form if, at the time of the recording of the minutes, it was reasonable to expect that the minutes would be readily accessible so as to be useable for subsequent reference.
(2) If minutes are required to be kept, the requirement is taken to be satisfied if:
(a) the minutes are kept in electronic form; and
(b) having regard to all the relevant circumstances at the time of the generation of the electronic form of the minutes, the method of generating the electronic form of the minutes provided a reliable means of assuring the maintenance of the integrity of the information contained in the minutes; and
(c) at the time of the generation of the electronic form of the minutes, it was reasonable to expect that the information contained in the electronic form of the minutes would be readily accessible so as to be useable for subsequent reference.
(3) For the purposes of paragraph (2)(b), the integrity of information contained in the minutes is maintained if, and only if, the information has remained complete and unaltered, apart from:
(a) the addition of any endorsement; or
(b) any immaterial change;
which arises in the normal course of communication, storage or display.
50‑10
ARITA may appoint a member of a Part 2 committee For the purposes of the following provisions of the Insolvency Practice Schedule (Corporations), the prescribed body is ARITA:
(a) paragraph 20‑10(2)(b) (applications for registration);
(b) paragraph 20‑45(2)(b) (applications to vary etc. conditions of registration);
(c) paragraph 40‑45(2)(b) (disciplinary action);
(d) paragraph 40‑75(2)(b) (applications to lift or shorten a suspension).
50‑15
Knowledge and experience required of a member of a Part 2 committee appointed by ARITA (1) This section is made for the purposes of paragraph 50‑5(2)(a) of the Insolvency Practice Schedule (Corporations).
(2) A person appointed by ARITA as a member of a committee convened under Part 2 of the Insolvency Practice Schedule (Corporations) must have at least 5 years’ experience as a registered liquidator.
ASIC’s delegate to a Part 2 committee is to be the Chair of the committee.
(1) A member of a Part 2 committee may resign from the committee by giving notice in writing of that fact to the Chair.
(2) The resignation takes effect on the later of:
(a) the day on which the notice is given; and
(b) a day specified in the notice.
50‑30
Part 2 committee to be reconstituted—removing ARITA members (1) This section applies if the Chair of a Part 2 committee is satisfied that a member of the committee chosen by ARITA:
(a) is unable to perform the duties of a member because of physical or mental incapacity; or
(b) has neglected his or her duties as a member; or
(c) is unable to carry out the duties of a member because of a material personal interest in a matter to be considered by the committee; or
(d) has been convicted of an offence involving fraud or dishonesty.
(2) The Chair must give ARITA notice of that fact as soon as reasonably practicable after becoming satisfied.
(3) If ARITA is given notice under subsection (2), the person ceases to be a member of the committee on the day on which the notice is given.
50‑35
Part 2 committee to be reconstituted—removing members appointed by the Minister (1) This section applies if the Minister is satisfied that a member of a Part 2 committee appointed by the Minister:
(a) is unable to perform the duties of a member because of physical or mental incapacity; or
(b) has neglected his or her duties as a member; or
(c) is unable to carry out the duties of a member because of a material personal interest in a matter to be considered by the committee; or
(d) has been convicted of an offence involving fraud or dishonesty.
(2) The Minister must give the Chair notice of that fact as soon as reasonably practicable after becoming satisfied.
(3) If the Chair is given notice under subsection (2), the person ceases to be a member of the committee on the day on which the notice is given.
50‑40
Part 2 committee to be reconstituted—replacing members (1) If a person chosen by ARITA to be a member of a Part 2 committee ceases to be a member of the committee, ARITA must choose a replacement in accordance with the Act.
(2) If a person appointed by the Minister to be a member of a Part 2 committee ceases to be a member of the committee, the Minister must choose a replacement in accordance with the Act.
(3) Notice of the replacement of a member under subsection (1) or (2) must be given to the person in relation to whom the Part 2 committee has been convened.
50‑45
Termination of consideration, and transfer, of a matter (1) If the Chair of a Part 2 committee is satisfied that a matter could more efficiently or fairly be dealt with by terminating the consideration of the matter by the committee and transferring the matter to another committee (the
new committee ), the Chair may do so.(2) If a matter is transferred under subsection (1), the new committee must deal with the matter afresh.
(1) A member of a Part 2 committee who has a material personal interest that relates to a matter to be considered by the committee under Part 2 of the Insolvency Practice Schedule (Corporations), must disclose details of that interest to the Chair.
(2) The member must disclose the details of the interest as soon as practicable after the member becomes aware that the member has the material personal interest that relates to the matter.
(1) A Part 2 committee must observe natural justice.
(2) A Part 2 committee is not bound by any rules of evidence but may inform itself on any matter as it sees fit.
(1) A Part 2 committee may make a decision in relation to a matter at a meeting, provided each member of the committee is present at the meeting.
(3) At a meeting of a Part 2 committee, a matter is to be decided by a majority of the votes of the members.
(4) A committee mustkeep minutes of proceedings at its meetings.
(1) A Part 2 committee may make a decision in relation to a matter without a meeting.
(2) A Part 2 committee makes a decision in relation to a matter without a meeting if a majority of the members of the committee sign a document that:
(a) sets out the terms of the decision; and
(b) states that each member signing the document is in favour of the decision.
(3) A decision under this section is taken to have been made:
(a) on the day on which the document is signed; or
(b) if the members sign the document on different days—on the day on which the document is signed by the last member to sign the document who makes up the majority.
(4) Two or more separate documents that are identical in all material respects (apart from signatures), each of which is signed by one or more members of a Part 2 committee, are taken for the purposes of subsection (2) to constitute a single document.
(1) A Part 2 committee must keep a written record of its decisions.
(2) A written record of a decision of a Part 2 committee may be kept in electronic form if, at the time of the making of the record, it was reasonable to expect that the record would be readily accessible so as to be useable for subsequent reference.
(3) If a written record of a decision of a Part 2 committee is required to be kept at a place, the requirement is taken to be satisfied if:
(a) an electronic form of the record is open for inspection at the place in accordance with the Act, the regulations or these Rules; and
(b) having regard to all the relevant circumstances at the time of the generation of the electronic form of the record, the method of generating the electronic form of the record provided a reliable means of assuring the maintenance of the integrity of the information contained in the record; and
(c) at the time of the generation of the electronic form of the record, it was reasonable to expect that the information contained in the electronic form of the record would be readily accessible so as to be useable for subsequent reference.
(4) For the purposes of paragraph (3)(b), the integrity of information contained in a record is maintained if, and only if, the information has remained complete and unaltered, apart from:
(a) the addition of any endorsement; or
(b) any immaterial change;
which arises in the normal course of communication, storage or display.
(1) A Part 2 committee considering a matter under Part 2 of the Insolvency Practice Schedule (Corporations) may make inquiries of any person for the purposes of making a decision in relation to the matter.
(2) Inquiries made must be inquiries:
(a) that are reasonable, for the purpose of making an informed decision; or
(b) that the Chair of the committee believes are appropriate in order for the committee to have sufficient information to make the decision.
(1) This section applies if a Part 2 committee is required to interview an applicant under one of the following provisions of the Insolvency Practice Schedule (Corporations):
(a) paragraph 20‑20(2)(a) (application for registration as a liquidator);
(b) subsection 20‑55(2) (application to vary etc. conditions of registration);
(c) subsection 40‑85(2) (application to lift or shorten a suspension).
(2) The Chair of the committee must, after consultation with the other members of the committee:
(a) fix a date and time for the interview; and
(b) fix the manner of the interview; and
(c) give written notice of the following to the applicant and the other members of the committee:
(i) if there is only one location at which the applicant and the members may physically attend the interview—the date, time and place for the interview;
(ii) if there are 2 or more locations at which the applicant and the members may physically attend the interview—the date and time for the interview at each location, and the main location for the interview;
(iii) if virtual meeting technology is to be used in holding the interview—sufficient information to allow the applicant and the members to participate in the interview by means of the technology.
(3) A Part 2 committee must interview the applicant as soon as practicable and, for that purpose:
(a) any member of the committee may participate in the interview by means of virtual meeting technology; and
(b) the applicant may participate in the interview by means of virtual meeting technology.
(4) At an interview, the committee may ask the applicant any question that the committee reasonably believes to be related to:
(a) the application; or
(b) a reference accompanying the application; or
(c) any matter that is relevant to the committee’s decision in relation to the application.
50‑85
Interviewing liquidators—proposed cancellation of registration (1) This section applies if:
(a) a Part 2 committee is convened under subsection 40‑45(1) of the Insolvency Practice Schedule (Corporations); and
(b) the committee is proposing to decide, under paragraph 40‑55(1)(c) of the Schedule, that the liquidator’s registration should be cancelled.
(2) The Chair of the Part 2 committee must, after consultation with the other members of the committee:
(a) fix a date and time to interview the liquidator; and
(b) fix the manner of the interview; and
(c) give written notice of the following to the liquidator and the other members of the committee:
(i) if there is only one location at which the liquidator and the members may physically attend the interview—the date, time and place for the interview;
(ii) if there are 2 or more locations at which the liquidator and the members may physically attend the interview—the date and time for the interview at each location, and the main location for the interview;
(iii) if virtual meeting technology is to be used in holding the interview—sufficient information to allow the liquidator and the members to participate in the interview by means of the technology.
(3) A Part 2 committee must interview the liquidator as soon as practicable and, for that purpose:
(a) any member of the committee may participate in the interview by means of virtual meeting technology; and
(b) the liquidator may participate in the interview by means of virtual meeting technology.
(4) At an interview, the committee may ask the liquidator any question that the committee reasonably believes to be related to any matter that is relevant to the committee’s proposed decision to cancel the liquidator’s registration.
If a matter is referred to a Part 2 committee under section 40‑50 of the Insolvency Practice Schedule (Corporations), the committee must use its best endeavours to decide the matter within 60 days after the matter is referred to it.
(1) This section applies if a Part 2 committee is required to give a report under one of the following provisions of the Insolvency Practice Schedule (Corporations):
(a) section 20‑25 (registration);
(b) section 20‑60 (varying etc. conditions of registration);
(c) section 40‑60 (disciplinary action);
(d) section 40‑90 (lifting or shortening suspension).
(2) The committee must prepare the report in writing.
(3) The report must include a statement of the reasons of any minority in the decision.
(4) Each member of the committee must sign the report.
50‑100
Industry disciplinary bodies to which a Part 2 committee may disclose information The following bodies are prescribed for the purposes of subparagraph 50‑35(2)(b)(iv) of the Insolvency Practice Schedule (Corporations):
(a) ARITA;
(b) CPA Australia;
(c) Chartered Accountants Australia and New Zealand;
(d) the Institute of Public Accountants;
(e) the New South Wales Bar Association;
(f) the Law Society of New South Wales;
(g) the Victorian Legal Services Commissioner;
(h) the Victorian Legal Services Board;
(i) the Bar Association of Queensland;
(j) the Queensland Law Society;
(k) the Legal Practice Board of Western Australia;
(l) the Law Society of South Australia;
(m) the Legal Profession Conduct Commissioner of South Australia;
(n) the Law Society of Tasmania;
(o) the Law Society of the Australian Capital Territory;
(p) the Law Society Northern Territory.
Part 3—General rules relating to external administrations
Division 60—Remuneration and other benefits received by external administrators
This Subdivision is made for the purposes of subsection 60‑18(1) of the Insolvency Practice Schedule (Corporations).
(1) A restructuring practitioner for a company under restructuring is entitled to receive remuneration, in accordance with a remuneration determination for the restructuring practitioner made under this section, for necessary work properly performed by the restructuring practitioner in relation to the restructuring.
(2) The determination must be made:
(a) by resolution of the board; and
(b) on or before the day on which the restructuring practitioner is appointed.
(3) The determination may specify the restructuring practitioner’s remuneration only by specifying:
(a) an amount of remuneration; and
(b) a method for working out an amount of remuneration that, in the event that the board consents in writing to beginning or proceeding with proceedings relating to the restructuring of the company, the restructuring practitioner would be entitled to receive for necessary work properly performed in relation to the proceedings.
(1) A restructuring practitioner for a restructuring plan is entitled to receive remuneration, in accordance with the plan, for necessary work properly performed by the restructuring practitioner in relation to the plan.
(2) The plan must specify the remuneration that the restructuring practitioner is entitled to receive.
(3) The plan may specify the restructuring practitioner’s remuneration only by specifying:
(a) an amount of remuneration as a specified percentage of payments made to creditors in accordance with the plan; and
(b) a method for working out an amount of remuneration that, in the event that the board consents in writing to beginning or proceeding with proceedings relating to the plan, the restructuring practitioner would be entitled to receive for necessary work properly performed in relation to the proceedings.
60‑2
External administrator must not derive profit or advantage from the administration of the company—exceptions (1) This section is made for the purposes of subsection 60‑20(5) of the Insolvency Practice Schedule (Corporations).
(2) The following payments made to an external administrator by or on behalf of the Commonwealth or an agency or authority of the Commonwealth are prescribed:
(a) a payment from the Assetless Administration Fund administered by ASIC;
(b) a payment made for the purposes of administering claims for financial assistance from the Commonwealth in relation to unpaid employment entitlements.
(1) This section is made for the purposes of section 70‑50 of the Insolvency Practice Schedule (Corporations).
(2) Subject to subsections (3) and (5), if the external administrator of a company receives a request for information or a report or document under Division 70 of the Insolvency Practice Schedule (Corporations), the external administrator must send the information, report or document within:
(a) 5 business days after receiving the request; or
(b) such later period as agreed with the person or body making the request.
(3) If the external administrator is reasonably satisfied that, due to the nature of the request, an extension of time is required to comply with it, the external administrator may, by written notice, extend the period for compliance.
(4) The notice must:
(a) be given to the person or body making the request; and
(b) specify the period within which the request will be complied with; and
(c) specify the reasons for the extension.
(5) This section does not apply if, under the Act or these Rules, it is not reasonable for the external administrator to comply with the request.
70‑5
Notice requirements for unreasonable requests (1) This section is made for the purposes of section 70‑50 of the Insolvency Practice Schedule (Corporations) and applies if:
(a) a request for information or a report or document is made to the external administrator under Division 70 of the Insolvency Practice Schedule (Corporations); and
(b) under the Act or these Rules, it is not reasonable for the external administrator to comply with the request.
(2) The external administrator must:
(a) notify the person or body making the request that it is not reasonable for the external administrator to comply with the request, and of the reasons why it is not reasonable; and
(b) make a written record in the books required to be kept under section 70‑10 of the Insolvency Practice Schedule (Corporations) of the fact that the request was not complied with, and of the reasons.
70‑10
Right of creditors to request information etc. from external administrator (1) This section is made for the purposes of section 70‑40 of the Insolvency Practice Schedule (Corporations).
Unreasonable requests
(2) It is not reasonable for an external administrator of a company to comply with a request to give information, provide a report or produce a document to the creditors if the external administrator, acting in good faith, is of the opinion that:
(a) complying with the request would substantially prejudice the interests of one or more creditors or a third party and that prejudice outweighs the benefits of complying with the request; or
(b) the information, report or document would be privileged from production in legal proceedings on the ground of legal professional privilege; or
(c) disclosure of the information, report or document would found an action by a person for breach of confidence; or
(d) there is not sufficient available property to comply with the request; or
(e) the information, report or document has already been provided; or
(f) the information, report or document is required to be provided under the Corporations legislation within 20 business days of the request being made; or
(g) the request is vexatious.
(3) Without limiting paragraph (2)(g), a request may be taken to be vexatious if the external administrator receives the request within 20 business days of receiving a similar request from the creditors.
Reasonable requests
(4) It is reasonable for an external administrator of a company to comply with a request to give information, provide a report or produce a document to the creditors if subsection (2) does not apply to the request.
(5) Despite paragraph (2)(d), (e) or (f), it is also reasonable for an external administrator of a company to comply with a request to give information, provide a report or produce a document to the creditors if:
(a) the creditors agree to bear the cost of complying with the request; and
(b) if required to do so by the external administrator—security for the cost of complying with the request is given to the external administrator before the request is complied with.
70‑15
Right of individual creditor to request information etc. from external administrator (1) This section is made for the purposes of section 70‑45 of the Insolvency Practice Schedule (Corporations).
Unreasonable requests
(2) It is not reasonable for an external administrator of a company to comply with a request to give information, provide a report or produce a document to a creditor if the external administrator, acting in good faith, is of the opinion that:
(a) complying with the request would substantially prejudice the interests of one or more creditors or a third party and that prejudice outweighs the benefits of complying with the request; or
(b) the information, report or document would be privileged from production in legal proceedings on the ground of legal professional privilege; or
(c) disclosure of the information, report or document would found an action by a person for breach of confidence; or
(d) there is not sufficient available property to comply with the request; or
(e) the information, report or document has already been provided; or
(f) the information, report or document is required to be provided under the Corporations legislation within 20 business days of the request being made; or
(g) the request is vexatious.
(3) Without limiting paragraph (2)(g), a request may be taken to be vexatious if the external administrator receives the request within 20 business days of receiving a similar request from the creditor.
Reasonable requests
(4) It is reasonable for an external administrator of a company to comply with a request to give information, provide a report or produce a document to a creditor if subsection (2) does not apply to the request.
(5) Despite paragraph (2)(d), (e) or (f), it is also reasonable for an external administrator of a company to comply with a request to give information, provide a report or produce a document to the creditor if:
(a) the creditor agrees to bear the cost of complying with the request; and
(b) if required to do so by the external administrator—security for the cost of complying with the request is given to the external administrator before the request is complied with.
70‑20
Right of members to request information etc. from external administrator in a members’ voluntary winding up (1) This section is made for the purposes of section 70‑46 of the Insolvency Practice Schedule (Corporations).
Unreasonable requests
(2) In a members’ voluntary winding up, it is not reasonable for the external administrator of the company to comply with a request to give information, provide a report or produce a document to the members if the external administrator, acting in good faith, is of the opinion that:
(a) complying with the request would substantially prejudice the interests of one or more creditors or a third party and that prejudice outweighs the benefits of complying with the request; or
(b) the information, report or document would be privileged from production in legal proceedings on the ground of legal professional privilege; or
(c) disclosure of the information, report or document would found an action by a person for breach of confidence; or
(d) the information, report or document has already been provided; or
(e) the information, report or document is required to be provided under the Corporations legislation within 20 business days of the request being made; or
(f) the request is vexatious.
(3) Without limiting paragraph (2)(f), a request may be taken to be vexatious if the external administrator receives the request within 20 business days of receiving a similar request from the members.
Reasonable requests
(4) It is reasonable for an external administrator of a company to comply with a request to give information, provide a report or produce a document to the members if subsection (2) does not apply to the request.
(5) Despite paragraph (2)(d) or (e), it is also reasonable for an external administrator of a company to comply with a request to give information, provide a report or produce a document to the members if:
(a) the members agree to bear the cost of complying with the request; and
(b)
if required to do so by the external administrator—security for the cost of complying with the request is given to the external administrator before the request is complied with.
70‑25
Right of individual member to request information etc. from external administrator in a members’ voluntary winding up (1) This section is made for the purposes of section 70‑47 of the Insolvency Practice Schedule (Corporations).
Unreasonable requests
(2) In a members’ voluntary winding up, it is not reasonable for an external administrator of the company to comply with a request to give information, provide a report or produce a document to a member of the company if the external administrator, acting in good faith, is of the opinion that:
(a) complying with the request would substantially prejudice the interests of one or more creditors or a third party and that prejudice outweighs the benefits of complying with the request; or
(b) the information, report or document would be privileged from production in legal proceedings on the ground of legal professional privilege; or
(c) disclosure of the information, report or document would found an action by a person for breach of confidence; or
(d) the information, report or document has already been provided; or
(e) the information, report or document is required to be provided under the Corporations legislation within 20 business days of the request being made; or
(f) the request is vexatious.
(3) Without limiting paragraph (2)(f), a request may be taken to be vexatious if the external administrator receives the request within 20 business days of receiving a similar request from the member.
Reasonable requests
(4) It is reasonable for an external administrator of a company to comply with a request to give information, provide a report or produce a document to the member if subsection (2) does not apply to the request.
(5) Despite paragraph (2)(d) or (e), it is also reasonable for an external administrator of a company to comply with a request to give information, provide a report or produce a document to the member if:
(a) the member agrees to bear the cost of complying with the request; and
(b) if required to do so by the external administrator—security for the cost of complying with the request is given to the external administrator before the request is complied with.
70‑30
Initial information required to be given to creditors in certain administrations (1) This section:
(a) is made for the purposes of section 70‑50 of the Insolvency Practice Schedule (Corporations); and
(b) applies to companies under administration, windings up by the Court and voluntary windings up; and
(c) does not apply if a provisional liquidator of a company has been appointed.
Information about creditors’ rights to be given
(2) The external administrator must give information about the following to as many creditors of the company as reasonably practicable:
(a) the fact that the external administrator has been appointed in relation to the company;
(b) the right of creditors to request information, reports and documents under sections 70‑40 and 70‑45 of the Insolvency Practice Schedule (Corporations);
(c) other than in the case of a voluntary administration—the right of creditors to direct that a meeting of the creditors be held under section 75‑15 of the Insolvency Practice Schedule (Corporations);
(d) the right of creditors to give directions to the external administrator under section 85‑5 of the Insolvency Practice Schedule (Corporations);
(e) the right of the creditors to appoint a reviewing liquidator under section 90‑24 of the Insolvency Practice Schedule (Corporations);
(f) the right of the creditors to remove and replace the external administrator under section 90‑35 of the Insolvency Practice Schedule (Corporations).
Time for giving information etc.
(3) The information must be given:
(a) in writing; and
(b) in the case of a company under administration—at the same time as notice of a meeting of the creditors referred to in section 436E of the Act is given; and
(c) in the case of a winding up by the Court—within 20 business days after the external administrator is appointed; and
(d) in the case of a voluntary winding up—within 10 business days after the day of the meeting of the company at which the resolution for voluntary winding up is passed.
(1) This section:
(a) is made for the purposes of section 70‑50 of the Insolvency Practice Schedule (Corporations); and
(b) applies if an external administrator intends to seek a remuneration determination in relation to the external administration.
(2) The external administrator of a company must give to as many of the creditors as reasonably practicable a notice (an
initial remuneration notice ) specifying the following:
(a) the method by which the external administrator seeks to be remunerated;
(b) the rate of remuneration;
(c) an estimate of the expected amount of the external administrator’s remuneration;
(d) the method by which disbursements will be calculated.
(3) The initial remuneration notice must:
(a) include a brief explanation of the types of methods that could be used to calculate remuneration; and
(b) specify the method that the external administrator proposes to use to calculate remuneration; and
(c) explain why the method is appropriate.
(4) If the external administrator proposes to receive remuneration worked out wholly or partly on a time‑cost basis, the notice must include details about the respective rates at which the remuneration of the external administrator and the other persons who will be assisting, or will be likely to assist, the administrator in the performance of his or her duties are to be calculated.
(5) The initial remuneration notice:
(a) must be in writing; and
(b) must be given at the same time as the information mentioned in section 70‑30 is given to the creditors.
(1) This section:
(a) is made for the purposes of section 70‑50 of the Insolvency Practice Schedule (Corporations); and
(b) applies if a liquidator has been appointed in relation to a company.
(2) If the company is following the simplified liquidation process:
(a) the liquidator must provide to the creditors of the company a report containing information on the following:
(i) anything relating to the winding up of the company that has been done by the liquidator to date;
(ii) the date on which, in the liquidator’s opinion, the winding up of the company is likely to end;
(iii) the likelihood of creditors receiving a dividend before the affairs of the company are fully wound up; and
(b) the report must be provided within 3 months after the date of the liquidator’s appointment; and
(c) a copy of the report must be lodged with ASIC at the same time as it is provided to the creditors.
(3) If the company is not following the simplified liquidation process, or has ceased to follow the simplified liquidation process:
(a) the liquidator must provide to the creditors of the company a report containing information on the following:
(i) the estimated amounts of assets and liabilities of the company;
(ii) inquiries relating to the winding up of the company that have been undertaken to date;
(iii) further inquiries relating to the winding up of the company that may need to be undertaken;
(iv) what happened to the business of the company;
(v) the likelihood of creditors receiving a dividend before the affairs of the company are fully wound up;
(vi) possible recovery actions; and
(b) the report must be provided before:
(i) the end of the period of 3 months after the date of the liquidator’s appointment; or
(ii) the end of the period of 1 month after the date on which the company ceased to follow the simplified liquidation process;
whichever occurs later; and
(c) a copy of the report must be lodged with ASIC in the approved form at the same time as it is provided to the creditors.
70‑45
Reports about remuneration to be given before remuneration determinations are made (1) This section is made for the purposes of section 70‑50 of the Insolvency Practice Schedule (Corporations).
Reporting requirements when remuneration to be determined by committee of inspection
(2) Before a remuneration determination for an external administrator of a company is made by a committee of inspection under section 60‑10 of the Insolvency Practice Schedule (Corporations), the external administrator must:
(a) prepare a report setting out such matters as will enable the committee of inspection to make an informed assessment as to whether the proposed remuneration is reasonable; 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.
Reporting requirements when remuneration to be determined by creditors
(3) Before a remuneration determination for an external administrator of a company is made by resolution of the creditors under section 60‑10 of the Insolvency Practice Schedule (Corporations), the external administrator must:
(a) prepare a report setting out such matters as will enable the company’s creditors to make an informed assessment as to whether the proposed remuneration is reasonable; and
(b) give a copy of the report to each of the company’s creditors at the same time as the creditors are notified of the relevant meeting of creditors.
Reporting requirements when remuneration to be determined by company in a members’ voluntary winding up
(4) Before a remuneration determination for an external administrator of a company in a members’ voluntary winding up is made by resolution of the company under section 60‑10 of the Insolvency Practice Schedule (Corporations), the external administrator must:
(a) prepare a report setting out such matters as will enable the members to make an informed assessment as to whether the proposed remuneration is reasonable; and
(b) give a copy of the report to each of the members at the same time as the members are notified of the relevant general meeting of the company.
Time for giving report if proposal put without meeting
(5) Despite paragraphs (3) and (4), if the proposed remuneration determination will be put to the creditors in accordance with section 75‑40 of the Insolvency Practice Schedule (Corporations) (proposals without meeting), a copy of the report must be given to each of the creditors or members at the same time as notice of the proposal under that section is given.
Contents of report
(6) Without limiting paragraph (2)(a), (3)(a) or (4)(a), the report must set out the following:
(a) a summary description of the major tasks performed, or likely to be performed, by the external administrator;
(b) the costs associated with each of those major tasks and the method of calculation of the costs;
(c) the periods at which the external administrator proposes to withdraw funds from the administration account in respect of the administrator’s remuneration;
(d) an estimated total amount, or range of total amounts, of the external administrator’s remuneration;
(e) an explanation of the likely impact of that remuneration on the dividends (if any) to creditors.
70‑50
Report about remuneration to be given by provisional liquidators (1) This section is made for the purposes of section 70‑50 of the Insolvency Practice Schedule (Corporations).
(2) Before a determination about remuneration is made by agreement between a provisional liquidator and a committee of inspection under section 60‑16 of the Insolvency Practice Schedule (Corporations), the provisional 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 provisional 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 members are notified of the relevant meeting of the committee.
(3) Before a determination about remuneration is made by resolution of the creditors under section 60‑16 of the Insolvency Practice Schedule (Corporations), the provisional 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 provisional 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 creditors are notified of the relevant meeting of creditors.
70‑55
Requests for information by the Commonwealth (1) This section is made for the purposes of subsection 70‑55(4) of the Insolvency Practice Schedule (Corporations).
(2) Subject to subsection (3), the Commonwealth must bear the cost of providing information or a report or document requested by the Commonwealth under subsection 70‑55(2) of the Insolvency Practice Schedule (Corporations) if, in the opinion of the external administrator, there is not sufficient property available to comply with the request for the information, report or document.
(3) If:
(a) a company is under external administration; and
(b) either:
(i) a former employee of the company has made a claim for financial assistance from the Commonwealth in relation to unpaid employment entitlements; or
(ii) the Commonwealth considers that such a claim is likely to be made; and
(c) the external administrator of the company has lodged a report under the Act; and
(d) the Commonwealth requests a copy of the report in accordance with section 70‑55 of the Insolvency Practice Schedule (Corporations);
the Commonwealth must bear the cost of providing a copy of the report to the Commonwealth.
(1) This section is made for the purposes of section 70‑60 of the Insolvency Practice Schedule (Corporations).
Notice of appointment
(2) If an external administrator is appointed:
(a) under subsection 436E(4), subsection 444A(2) or subsection 449C(1), (4) or (6) of the Act; or
(b) by the Court under section 90‑15 of the Insolvency Practice Schedule (Corporations);
the external administrator must lodge with ASIC a notice of the appointment in the approved form before the end of the next business day after the appointment.
Notice of restructuring plan
(2A) If, at any time after a company makes a restructuring plan, ASIC requests a copy of the plan, the restructuring practitioner for the plan must comply with the request as soon as reasonably practicable.
Notice of ending of administration
(3) If the administration of a company ends on the happening of an event of a kind mentioned in subsection 435C(2) or (3) of the Act, the external administrator of the company must lodge with ASIC a notice of the happening of the event and the ending of the administration of the company as soon as practicable after the event.
(4) Subsection (3) does not apply if a notice of the happening of the event is lodged with ASIC in accordance with the Act.
Unless otherwise specified, this Division:
(a) is made for the purposes of section 75‑50 of the Insolvency Practice Schedule (Corporations); and
(b) applies in relation to meetings concerning companies under external administration.
(1) A meeting directed to be convened under section 75‑15 of the Insolvency Practice Schedule (Corporations) must be held as soon as reasonably practicable.
(2) Subsection (1) does not apply if, under the Act or these Rules, it is not reasonable for the external administrator to comply with the direction to convene the meeting.
75‑10
Persons to whom notice of meetings to be given The convenor of a meeting must give notice in writing of the meeting to as many of the persons appearing on the company’s books or otherwise to be:
(a) in the case of a meeting of members, creditors or contributories of the company—a member, creditor or contributory of the company; or
(b) in the case of a joint meeting of creditors and members of the company—a member or creditor of the company; or
(c) in the case of a meeting of a committee of inspection—a member of the committee of inspection; or
(d) in the case of a meeting of eligible employee creditors—an eligible employee creditor; or
(e) in the case of a meeting of creditors of companies in a pooled group—the creditors of a company in the group;
as reasonably practicable.
Note: Notice of the meeting must be lodged with ASIC—see section 75‑40.
(1) Notice of a meeting must:
(a) specify:
(i) if there is only one location at which the persons who are entitled to physically attend the meeting may do so—the date, time and place for the meeting; and
(ii) if there are 2 or more locations at which the persons who are entitled to physically attend the meeting may do so—the date and time for the meeting at each location, and the main location for the meeting for the purposes of subparagraph 75‑75(5)(a)(i); and
(iii) if virtual meeting technology is to be used in holding the meeting and none of the persons entitled to attend the meeting is entitled to physically attend—the physical address in this jurisdiction nominated by the convenor of the meeting for the purposes of paragraph 75‑75(6)(a) (the notional place for the meeting); and
(b) specify the purpose for which the meeting is being convened; and
(ba) if virtual meeting technology is to be used in holding the meeting—specify whether votes at the meeting must be taken on a poll; and
(c) state the effect of section 75‑85 (entitlement to vote as creditor at meetings of creditors); and
(d) be in the approved form.
(2) In the absence of evidence to the contrary, a statement in accordance with the approved form by the person convening a meeting (or a person acting on his or her behalf) is sufficient proof of the notice having been sent to a person at the address specified for that person in that notice.
(1) The convenor of a meeting must give notice of the meeting not less than 10 business days before the day of the meeting.
(2) Subsection (1) does not apply to the following meetings:
(a) a meeting of creditors under section 436E or 439A, or subsection 449C(4), of the Act;
(b) a meeting of eligible employee creditors under section 444DA of the Act;
(c) a meeting of the eligible unsecured creditors of each of the companies in a pooled group required to be convened under subsection 577(1A) of the Act;
(d) a meeting of a committee of inspection, if the external administrator thinks it appropriate in the circumstances.
(3) A notice of a joint meeting of the creditors and members of a company must be sent to the creditors of the company at the same time as it is sent to the members of the company.
75‑25
Notice about voting by proxy and appointment of attorney A person convening a meeting must:
(a) include, with the notice of the meeting, a form for use in appointing a proxy; and
(aa) include at least one of the following:
(i) a place for the purposes of receipt of proxy appointments;
(ii) sufficient information to allow a person to appoint a proxy by means of electronic communication; and
(b) ensure that neither the name nor the description of any proxy is printed or inserted in the body of the form before it is sent out; and
(c) include in the notice a statement that, if a creditor wishes to be represented at the meeting by an attorney, the creditor must arrange for the power of attorney to be produced to the external administrator at or before the meeting.
(1) The convenor of a meeting must convene the meeting at the time and place that the convenor thinks are most convenient for the majority of persons entitled to receive notice of the meeting.
(2) Subsection (1) does not prevent a meeting from taking place at separate venues, provided all persons attending the meeting have a reasonable opportunity to participate in the meeting.
(5) Despite paragraph (2)(b) or (c), a direction to the external administrator of a company to convene a meeting is also reasonable if:
(a) the person or body giving the direction agrees to bear the cost of complying with the direction; and
(b) if required to do so by the external administrator—security for the cost of complying with the direction is given to the external administrator before the meeting is convened.
75‑200
Notice requirements for unreasonable directions (1) This section is made for the purposes of section 80‑27(3) of the Insolvency Practice Schedule (Corporations) and applies instead of section 75‑250 in relation to directions to convene a meeting of the members of a pooled group if:
(a) a direction to convene a meeting of the members of a pooled group is given to the external administrator under Division 80 of the Insolvency Practice Schedule (Corporations); and
(b) under the Act or these Rules, it is not reasonable for the external administrator to comply with the direction.
(2) The external administrator must:
(a) notify the person or body giving the direction that it is not reasonable for the external administrator to comply with the direction, and of the reasons why it is not reasonable; and
(b) make a written record in the books required to be kept under section 70 10 of the Insolvency Practice Schedule (Corporations) of the fact that the direction was not complied with, and of the reasons.
Subdivision F—Additional rules for particular kinds of external administration
75‑225
Companies under administration—how certain meetings are convened (1) The administrator of a company under administration must convene a meeting under:
(a) section 439A of the Act (meeting to decide future of company under administration); or
(b) subsection 449C(4) of the Act (vacancy in office of administrator);
by written notice given to as many of the company’s creditors as reasonably practicable.
Note: Notice of the meeting must be lodged with ASIC—see section 75‑40.
(2) The notice must:
(a) be given at least 5 business days before the meeting; and
(b) contain the following information:
(i) the name of the company;
(ii) any business name of the company;
(iii) the ACN of the company;
(iv) the fact that notice is being given under this section;
(v) the time, date and place for the meeting;
(vi) the purpose for which the meeting is being convened;
(vii) the time and date by which proofs of debt, and proxies for the meeting, are to be submitted;
(viii) the name and contact details of the administrator.
(3) If the meeting is convened under section 439A of the Act, the notice must also be accompanied by:
(a) a report by the external administrator about the company’s business, property, affairs and financial circumstances; and
(b) a statement setting out the following:
(i) whether, in the administrator’s opinion, it would be in the creditors’ interests for the company to execute a deed of company arrangement;
(ii) whether, in the administrator’s opinion, it would be in the creditors’ interests for the administration to end;
(iii) whether, in the administrator’s opinion, it would be in the creditors’ interests for the company to be wound up;
(iv) the reasons for the opinions referred to in subparagraphs (i) to (iii);
(v) such other information known to the administrator as will enable the creditors to make an informed decision about each matter covered by subparagraph (i), (ii) or (iii);
(vi) 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 Act;
(vii) if a deed of company arrangement is proposed—details of the proposed deed.
(4) A copy of the following must be lodged with ASIC within 2 business days of the notice being sent to creditors:
(a) the notice;
(b) if subsection (3) applies—the report and the statement.
75‑250
Directions to external administrator to convene a meeting—when reasonable and not reasonable (1) This section is made for the purposes of section 75‑15 of the Insolvency Practice Schedule (Corporations).
Unreasonable directions
(2) A direction to the external administrator of a company to convene a meeting of the creditors is not reasonable if the external administrator, acting in good faith, is of the opinion that:
(a) complying with the direction would substantially prejudice the interests of one or more creditors or a third party and that prejudice outweighs the benefits of complying with the direction; or
(b) there is not sufficient available property to comply with the direction; or
(c) a meeting of the creditors dealing with the same matters covered by the direction has already been held, or would be held within 15 business days after the direction is made; or
(d) the direction for the meeting is vexatious.
(3) Without limiting paragraph (2)(d), a direction may be taken to be vexatious if it is given within 20 business days after a similar direction was given.
Reasonable directions
(4) A direction to the external administrator to convene a meeting of the creditors is reasonable if subsection (2) does not apply to the direction.
(5) Despite paragraph (2)(b) or (c), a direction to the external administrator of a company to convene a meeting is also reasonable if:
(a) the creditors agree to bear the cost of complying with the direction; and
(b) if required to do so by the external administrator—security for the cost of complying with the direction is given to the external administrator before the meeting is convened.
75‑255
Notice requirements for unreasonable directions (1) This section is made for the purposes of section 75‑15 of the Insolvency Practice Schedule (Corporations) and applies if:
(a) a direction to convene a meeting of the creditors is given to the external administrator under Division 75 of the Insolvency Practice Schedule (Corporations); and
(b) under the Act or these Rules, it is not reasonable for the external administrator to comply with the direction.
(2) The external administrator must:
(a) notify the person or body giving the direction that it is not reasonable for the external administrator to comply with the direction, and of the reasons why it is not reasonable; and
(b) make a written record in the books required to be kept under section 70‑10 of the Insolvency Practice Schedule (Corporations) of the fact that the direction was not complied with, and of the reasons.
75‑265
Requirements relating to meetings to remove external administrator of a company
Application of this section
(1) This section applies if the creditors of a company under external administration propose, by resolution at a meeting, to:
(a) remove the external administrator (the
outgoing administrator ) of the company; and(b) appoint another person (the
incoming administrator ) as the external administrator of the company;under section 90‑35 of the Insolvency Practice Schedule (Corporations).
Information required before the meeting
(2) The incoming administrator must prepare a written declaration:
(a) stating whether any of the following:
(i) the incoming administrator;
(ii) if the incoming administrator’s firm (if any) is a partnership—a partner in that partnership;
(iii) if the incoming 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 external administrator of the company; or
(vii) the creditor who nominated the incoming administrator for appointment as the incoming administrator; or
(viii) a person who is entitled to enforce a security interest in the whole, or substantially the whole, of the company’s property (including any PPSA retention of title property); and
(b) if so, stating the incoming administrator’s reasons for believing that none of those relationships result in the administrator having a conflict of interest or duty.
(3) If the external administration is a voluntary administration, the incoming administrator must also prepare a written declaration:
(a) stating whether the administrator is or will be, to any extent, indemnified (otherwise than under section 443D of the Act), in relation to the administration, for:
(i) any debts for which the administrator is, or may become, liable under Subdivision A of Division 9 of Part 5.3A of the Act; or
(ii) any debts for which the administrator is, or may become, liable under a remittance provision as defined in section 443BA of the Act; or
(iii) the remuneration to which he or she is entitled under section 60‑5 of the Insolvency Practice Schedule (Corporations); and
(b) if so, stating:
(i) the identity of each indemnifier; and
(ii) the extent and nature of each indemnity.
(4) The declarations referred to in subsections (2) and (if applicable) (3) must be given to the creditors at the same time as notice of the meeting to appoint the incoming administrator is given.
Documents to be tabled at meeting and lodged with ASIC
(5) The following documents must be tabled at the meeting at which the incoming administrator is proposed to be appointed:
(a) the declarations referred to in subsections (2) and (if applicable) (3);
(b) a written consent to act as administrator signed by the incoming administrator.
(6) The registered liquidator who is the external administrator of the company following the meeting referred to in subsection (1) must lodge copies of the documents referred to in subsection (5) within 5 business days of the meeting.
Right to speak at meeting
(7) The outgoing administrator and the incoming administrator have a right to speak at the meeting at which the administrator is proposed to be removed or appointed, as the case may be.
75‑270
Substantial compliance with Division is sufficient A meeting, or anything done at a meeting, is not invalid because a requirement of this Division has not been strictly complied with, if the requirement has been substantially complied with.
(1) This section is made for the purposes of subsection 80‑30(2) of the Insolvency Practice Schedule (Corporations).
Eligibility
(2) A person is not eligible to be appointed as a member of a committee of inspection unless the person is:
(a) a creditor of the company; or
(b) the attorney of a creditor of the company by virtue of a general power of attorney given by the creditor; or
(c) a person authorised in writing by a creditor of the company to be a member of the committee of inspection; or
(d) a representative of the Commonwealth, if:
(i) a claim for financial assistance from the Commonwealth in relation to unpaid employment entitlements has been made; or
(ii) the Commonwealth considers that such a claim is likely to be made.
Procedures
(3) A committee of inspection must meet at such times and places as its members from time to time appoint.
(4) If a committee of inspection is appointed as a result of a determination of the creditors of the company under section 80‑10 of the Insolvency Practice Schedule (Corporations), the external administrator or a member of the committee may convene a meeting of the committee.
(5) If a committee of inspection is appointed as a result of a resolution under section 80‑26 of the Insolvency Practice Schedule (Corporations) (about pooled groups), either:
(a) the external administrator or external administrators of the companies in the group concerned; or
(b) a member of the committee;
may convene a meeting of the committee.
(6) A committee of inspection may act by a majority of its members present at a meeting, but must not act unless a majority of its members are present.
(7) If a member of the committee is a body corporate, the member may be represented at meetings of the committee by an individual authorised in writing by the member for the purposes of this subsection.
(1) This section is made for the purposes of subsection 80‑30(2) of the Insolvency Practice Schedule (Corporations).
(2) A member of a committee of inspection may resign by notice in writing signed by the member and delivered to the external administrator.
(3) The office of a member of a committee of inspection becomes vacant if the member:
(a) becomes an insolvent under administration; or
(b) is absent from 5 consecutive meetings of the committee without the leave of those members who together with himself or herself represent the creditors.
(4) A member of the committee who represents creditors may be removed by a resolution at a meeting of creditors of which 5 business days’ notice has been given stating the object of the meeting.
(5) A person may be appointed at the meeting referred to in subsection (4) to fill a vacancy caused by the removal of a member of the committee.
(6) A vacancy in the committee may be filled by the appointment of a person by a resolution at a meeting of the creditors of which 5 business days’ notice has been given.
(7) A vacancy in the committee that is not filled as provided by subsection (5) or (6) may be filled by the appointment of a person by the committee and a person so appointed represents the creditors.
(8) If:
(a) there is a vacancy in the membership of a committee of inspection; and
(b) there are at least 2 remaining members of the committee;
the remaining members may continue to act despite the vacancy.
(1) This section is made for the purposes of subsection 80‑40(3) of the Insolvency Practice Schedule (Corporations).
Unreasonable requests
(2) It is not reasonable for an external administrator of a company to comply with a request to give information, provide a report or produce a document to the committee of inspection if the external administrator, acting in good faith, is of the opinion that:
(a) complying with the request would substantially prejudice the interests of one or more creditors or a third party and that prejudice outweighs the benefits of complying with the request; or
(b) the information, report or document would be privileged from production in legal proceedings on the ground of legal professional privilege; or
(c) disclosure of the information, report or document would found an action by a person for breach of confidence; or
(d) there is not sufficient available property to comply with the request; or
(e) the information, report or document has already been provided; or
(f) the request is vexatious.
(3) Without limiting paragraph (2)(f), a request may be taken to be vexatious if it is made within 20 business days of a similar request being made by the committee of inspection.
Reasonable requests
(4) It is reasonable for an external administrator of a company to comply with a request to give information, provide a report or produce a document to the committee of inspection if subsection (2) does not apply to the request.
(5) Despite paragraph (2)(d) or (e), it is also reasonable for an external administrator of a company to comply with a request to give information, provide a report or produce a document to the committee of inspection if:
(a) the committee agrees to bear the cost of complying with the request; and
(b) if required to do so by the external administrator—security for the cost of complying with the request is given to the external administrator before the request is complied with.
(1) This section is made for the purposes of section 80‑45 of the Insolvency Practice Schedule (Corporations).
(2) Subject to subsections (3) and (5), if a request for information or a report or document is made by a committee of inspection under section 80‑40 of the Insolvency Practice Schedule (Corporations), the external administrator must give the information, report or document within:
(a) 5 business days after receiving the request; or
(b) such later period as agreed with the committee of inspection.
(3) If the external administrator is reasonably satisfied that, due to the nature of the request, an extension of time is required to comply with it, the external administrator may, by written notice, extend the period for compliance.
(4) The notice must:
(a) be given to the committee of inspection; and
(b) specify the period within which the request will be complied with; and
(c) specify the reasons for the extension.
(5) This section does not apply if, under the Act or these Rules, it is not reasonable for the external administrator to comply with the request.
80‑25
Notice requirements for unreasonable requests (1) This section applies if:
(a) a request for information or a report or document is made by a committee of inspection under section 80‑40 of the Insolvency Practice Schedule (Corporations); and
(b) under the Act or these Rules, it is not reasonable for the external administrator to comply with the request.
(2) The external administrator must:
(a) notify the committee of inspection that it is not reasonable for the external administrator to comply with the request, and of the reasons why it is not reasonable; and
(b) make a written record in the books required to be kept under section 70‑10 of the Insolvency Practice Schedule (Corporations) of the fact that the request was not complied with, and of the reasons.
Division 90—Review of the external administration of a company
Unless otherwise stated, a provision of this Division is made for the purposes of section 90‑29 of the Insolvency Practice Schedule (Corporations).
90‑4
Appointment of reviewing liquidator by creditors etc. (1) This section is made for the purposes of paragraph 90‑24(6)(a) of the Insolvency Practice Schedule (Corporations).
(2) An agreement to appoint a registered liquidator under subsection 90‑24(4) of the Insolvency Practice Schedule (Corporations) must be in writing.
90‑7
Limits on reviewing remuneration, costs and expenses (1) This section is made for the purposes of subsection 90‑26(4) of the Insolvency Practice Schedule (Corporations).
(2) A reviewing liquidator must not review remuneration of an external administrator unless the remuneration relates to a remuneration determination made in the 6‑month period before the reviewing liquidator was appointed.
(3) A reviewing liquidator must not review a cost or expense incurred by an external administrator unless the cost or expense was incurred during the 12‑month period ending on the day of the appointment of the reviewing liquidator, unless the external administrator agrees to a longer period.
90‑12
Notice to be given if ASIC appoints a reviewing liquidator If ASIC appoints a reviewing liquidator under Subdivision C of Division 90 of the Insolvency Practice Schedule (Corporations), ASIC must notify the external administrator of the appointment at least 15 business days before the appointment commences.
90‑18
Declaration of relevant relationships of proposed reviewing liquidator
Declaration to be given before consenting to appointment
(1) Before consenting to an appointment as a reviewing liquidator under Division 90 of the Insolvency Practice Schedule (Corporations), registered liquidator must make a written declaration:
(a) stating whether any of the following:
(i) the registered liquidator;
(ii) if the registered liquidator’s firm (if any) is a partnership—a partner in that partnership;
(iii) if the registered 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 in relation to which the review will be conducted; or
(v) an associate of the company; or
(vi) the current external administrator of the company; or
(vii) the person or body (other than the Court) making the appointment; or
(viii) a former external administrator of the company; or
(ix) a person who is entitled to enforce a security interest in the whole, or substantially the whole, of the company’s property (including any PPSA retention of title property); and
(b) if so, stating the registered liquidator’s reasons for believing that none of those relationships result in the registered liquidator having a conflict of interest or duty.
(2) The declaration must be:
(a) given to the person or body who will make the appointment; and
(b) lodged with ASIC within 5 business days of the registered liquidator’s appointment as a reviewing liquidator.
Copy of declaration to be given to as many creditors as reasonably practicable
(3) As soon as practicable after being appointed, a reviewing liquidator must give a copy of the declaration to as many of the company’s creditors as reasonably practicable.
Declaration must be correct and kept up to date
(4) If, after the registered liquidator has given a declaration under this section:
(a) the declaration becomes out of date; or
(b) the registered liquidator becomes aware of an error in the declaration;
the registered liquidator must, as soon as practicable:
(c) give a replacement declaration to as many of the company’s creditors as soon as reasonably practicable; and
(d) lodge a replacement declaration with ASIC as soon as reasonably practicable.
(1) In carrying out a review under Subdivision C of Division 90 of the Insolvency Practice Schedule (Corporations), a reviewing liquidator has the following powers:
(a) if the review relates to the remuneration of the external administrator of the company or a cost or expense incurred by the external administrator of the company:
(i) to engage one or more industry or other relevant experts to assist with assessing the remuneration or costs incurred; and
(ii) to direct the external administrator to provide itemised invoices for work undertaken by the external administrator in the form, and within the period, specified by the reviewing liquidator;
(b) to interview any of the parties to the review;
(c) to direct any of the parties to the review to give a written statement about a specified matter in the form, and within the period, specified by the reviewing liquidator;
(d) to direct the external administrator to produce specified books relating to the external administration;
(e) any other power necessary for, or reasonably incidental to, carrying out a review.
(2) A period specified for the purposes of paragraph (1)(c) must be reasonable.
(3) In carrying out a review, a reviewing liquidator has the following duties:
(a) if a person is given a direction under subsection (1) but fails to comply with it—to carry out the review on the basis of the information available to the reviewing liquidator;
(b) to act independently and in the interests of creditors;
(c) to avoid actual and apparent conflicts of interest.
(4) For the purposes of subsection (1), the
parties to the review are the following:
(a) the external administrator;
(b) any employees or other persons providing services to or for the administrator in relation to the external administration;
(c) any third parties in relation to whom an expense relating to the external administration has been incurred.
(1) The report on a review must be prepared in the manner, and with the content, as agreed between the reviewing liquidator and the person or body who made the appointment. Notice that the report has been prepared must be given to the creditors by the reviewing liquidator as soon as practicable.
(2) Subject to subsections (3) and (4), copies of the report must be:
(a) provided to the external administrator, the committee of inspection (if any) and ASIC; and
(b) tabled at the next meeting of creditors (if any).
(3) If the reviewing liquidator was appointed by ASIC, the report must not be provided to a committee of inspection without the approval of ASIC.
(4) If the reviewing liquidator was appointed by the Court, the report is to be provided to the persons or bodies, and in the manner, as ordered by the Court.
The amendments of sections 75‑95 and 75‑110 made by Schedule 1 to the
Insolvency Practice Rules (Corporations) Amendment (Restricting Related Creditor Voting Rights) Rules 2018 apply in relation to meetings convened on or after the commencement of that Schedule.
The amendment of section 75‑130 made by Schedule 1 to the
Treasury Laws Amendment (Miscellaneous Amendments) Instrument 2020 applies in relation to proposals put to the creditors of a company by giving notice under section 75‑40 of the Insolvency Practice Schedule (Corporations) on or after the commencement of the first‑mentioned Schedule.
The amendment of section 20‑5 of the
Insolvency Practice Rules (Corporations) 2016 made by Schedule 1 to theInsolvency Practice Rules (Corporations) Amendment (Corporate Insolvency Reforms) Rules 2020 applies in relation to a person who is a registered liquidator regardless of whether the person’s registration began, or was renewed, before, on or after the commencement of that Schedule.
In this Division:
amending Rules means theInsolvency Practice Rules (Corporations) Amendment (Corporate Insolvency Reforms) Rules 2020 .
commencement day means the day on which Schedule 2to theamending Rules commences.
The amendments made by Schedule 2 to the amending Rules apply in relation to a meeting if:
(a) the meeting is held on or after the commencement day; and
(b) each document that relates to the meeting that is required or permitted to be given to a person under this Act (as defined in section 9 of the Act) is given on or after the commencement day.
The amendments made by Schedule 2 to the amending Rules apply in relation to information kept before, on or after the commencement day.
In this Division:
amending Rules means theInsolvency Practice Rules (Corporations) Amendment (Virtual Meetings and Electronic Communication) Rules 2022 .
commencement day means the day on which Schedule 1 to the amending Rules commences.
The amendments made by Schedule 1 to the amending Rules apply in relation to a meeting if:
(a) the meeting is held on or after the commencement day; and
(b) each document that relates to the meeting that is required or permitted to be given to a person under this Act (as defined in section 9 of the Act) is given on or after the commencement day.
The amendments made by Schedule 1 to the amending Rules apply in relation to information kept before, on or after the commencement day.
The endnotes provide information about this compilation and the compiled law.
The following endnotes are included in every compilation:
Endnote 1—About the endnotes
Endnote 2—Abbreviation key
Endnote 3—Legislation history
Endnote 4—Amendment history
The abbreviation key sets out abbreviations that may be used in the endnotes.
Amending laws are annotated in the legislation history and amendment history.
The legislation history in endnote 3 provides information about each law that has amended (or will amend) the compiled law. The information includes commencement details for amending laws and details of any application, saving or transitional provisions that are not included in this compilation.
The amendment history in endnote 4 provides information about amendments at the provision (generally section or equivalent) level. It also includes information about any provision of the compiled law that has been repealed in accordance with a provision of the law.
The
If the compilation includes editorial changes, the endnotes include a brief outline of the changes in general terms. Full details of any changes can be obtained from the Office of Parliamentary Counsel.
A misdescribed amendment is an amendment that does not accurately describe the amendment to be made. If, despite the misdescription, the amendment can be given effect as intended, the amendment is incorporated into the compiled law and the abbreviation “(md)” added to the details of the amendment included in the amendment history.
If a misdescribed amendment cannot be given effect as intended, the abbreviation “(md not incorp)” is added to the details of the amendment included in the amendment history.
ad = added or inserted | o = order(s) |
am = amended | Ord = Ordinance |
amdt = amendment | orig = original |
c = clause(s) | par = paragraph(s)/subparagraph(s) |
C[x] = Compilation No. x | /sub‑subparagraph(s) |
Ch = Chapter(s) | pres = present |
def = definition(s) | prev = previous |
Dict = Dictionary | (prev…) = previously |
disallowed = disallowed by Parliament | Pt = Part(s) |
Div = Division(s) | r = regulation(s)/rule(s) |
ed = editorial change | reloc = relocated |
exp = expires/expired or ceases/ceased to have | renum = renumbered |
effect | rep = repealed |
F = Federal Register of Legislation | rs = repealed and substituted |
gaz = gazette | s = section(s)/subsection(s) |
LA = | Sch = Schedule(s) |
LIA = | Sdiv = Subdivision(s) |
(md) = misdescribed amendment can be given | SLI = Select Legislative Instrument |
effect | SR = Statutory Rules |
(md not incorp) = misdescribed amendment | Sub‑Ch = Sub‑Chapter(s) |
cannot be given effect | SubPt = Subpart(s) |
mod = modified/modification | |
No. = Number(s) | commenced or to be commenced |
Insolvency Practice Rules (Corporations) 2016 | 19 Dec 2016 (F2016L01989) | s 60 Remainder: 1 Mar 2017 (s 1-5(1) item 1) | |
Insolvency Practice Rules (Corporations) Amendment 2017 (No. 1) | 25 Aug 2017 (F2017L01088) | 1 Sept 2017 (s 2) | — |
Insolvency Practice Rules (Corporations) Amendment (Restricting Related Creditor Voting Rights) Rules 2018 | 6 Dec 2018 (F2018L01669) | 7 Dec 2018 (s 2(1) item 1) | — |
Treasury Laws Amendment (Miscellaneous Amendments) Instrument 2020 | 27 Nov 2020 (F2020L01485) | Sch 1 (items 4, 5): 28 Nov 2020 (s 2(1) item 1) | — |
Insolvency Practice Rules (Corporations) Amendment (Corporate Insolvency Reforms) Rules 2020 | 22 Dec 2020 (F2020L01678) | Sch 1: 1 Jan 2021 (s 2(1) item 2) Remainder: 23 Dec 2020 (s 2(1) items 1, 3) | — |
Insolvency Practice Rules (Corporations) Amendment (Virtual Meetings and Electronic Communication) Rules 2022 | 10 Feb 2022 (F2022L00125) | 11 Feb 2022 (s 2(1) item 1) | — |
Treasury Laws Amendment (Miscellaneous Amendments No. 1) Instrument 2022 | 25 Nov 2022 (F2022L01520) | 26 Nov 2022 | — |
s 1‑5................................... | rep LA s 48D |
s 5‑5................................... | am F2022L00125 |
s 20‑1.................................. | am F2020L01678 |
s 20‑2.................................. | ad F2020L01678 |
s 20‑5.................................. | am F2020L01678 |
s 50‑6.................................. | ad F2020L01678 |
am F2022L00125 | |
s 50‑7.................................. | ad F2020L01678 |
am F2022L00125 | |
s 50‑60................................ | am F2020L01678 |
s 50‑70................................ | am F2020L01678 |
s 50‑80................................ | am F2020L01678 |
s 50‑85................................ | am F2020L01678; F2022L00125 |
Subdivision A of Division 60. | ad F2020L01678 |
s 60‑1A............................... | ad F2020L01678 |
s 60‑1B............................... | ad F2020L01678 |
s 60‑1C............................... | ad F2020L01678 |
Heading to Subdivision B of Division 60.......................... | ad F2020L01678 |
s 70‑30................................ | am F2017L01088; F2020L01678 |
s 70‑40................................ | am F2017L01088 |
rs F2020L01678 | |
s 70‑60................................ | am F2020L01678 |
s 75‑15................................ | am F2020L01678; F2022L00125 |
s 75‑25................................ | am F2020L01678 |
s 75‑30................................ | am F2020L01678 |
s 75‑35................................ | rs F2020L01678 |
s 75‑40................................ | am F2017L01088, F2020L01678; F2022L00125 |
s 75‑75................................ | rs F2020L01678 |
am F2022L00125 | |
s 75‑88................................ | rep F2017L01088 |
s 75‑95................................ | am F2018L01669 |
s 75‑97................................ | am F2017L01088 |
s 75‑100.............................. | am F2017L01088 |
s 75‑105.............................. | am F2020L01678 |
s 75‑110.............................. | am F2018L01669; F2020L01678, F2022L00125 |
s 75‑115.............................. | am F2020L01678 |
s 75‑120.............................. | am F2017L01088; F2020L01678 |
s 75‑130.............................. | am F2017L01088; F2020L01485; F2020L01678 |
s 75‑135.............................. | am F2017L01088; F2020L01678 |
s 75‑140.............................. | am F2020L01678; am F2022L01520 |
S75-145.............................. s 75‑146.............................. | am F2022L01520 ad F2020L01678 |
s 75‑195.............................. | am F2017L01088 |
s 75‑200.............................. | ad F2017L01088 |
s 75‑225.............................. | am F2017L01088 |
s 75‑265.............................. | am F2017L01088; am F2022L01520 |
s 90‑18................................ | am F2017L01088 |
s 110‑1................................ | ad F2018L01669 |
s 110‑2................................ | ad F2020L01485 |
s 115‑1................................ | ad F2020L01678 |
s 120‑1................................ | ad F2020L01678 |
s 120‑5................................ | ad F2020L01678 |
am F2022L00125 | |
s 120‑10.............................. | ad F2020L01678 |
Division 125........................ | ad F2022L00125 |
s 125‑1................................ | ad F2022L00125 |
s 125‑5................................ | ad F2022L00125 |
s 125‑10.............................. | ad F2022L00125 |
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