THE CORPORATIONS LAW

CHAPTER 5 - EXTERNAL ADMINISTRATION

PART 5.3A - ADMINISTRATION OF A COMPANY'S AFFAIRS WITH A VIEW TO EXECUTING A DEED OF COMPANY ARRANGEMENT

Division 9 - Administrator's liability and indemnity for debts of administration

Subdivision B - Indemnity

SECTION 443E   RIGHT OF INDEMNITY HAS PRIORITY OVER OTHER DEBTS  

443E(1)  (Priority of right of indemnity)  

Subject to section 556, a right of indemnity under section 443D has priority over:

(a)  all the company's unsecured debts; and

(b)  subject to subsections (2) and (3) of this section, debts of the company secured by a floating charge on property of the company.

443E(2)  (Receiver etc appointed before administration)  

Where:

(a)  debts of a company under administration are secured by a floating charge on property of the company; and

(b)  before the beginning of the administration, the chargee:

(i) appointed a receiver of property of the company under a power contained in an instrument relating to the charge; or

(ii) obtained an order for the appointment of a receiver of property of the company for the purpose of enforcing the charge; or

(iii) entered into possession, or assumed control, of property of the company for that purpose; or

(iv) appointed a person so to enter into possession or assume control (whether as agent for the chargee or for the company); and

(c)  the receiver or person is still in office, or the chargee is still in possession or control of the property;

the right of indemnity of the administrator under section 443D does not have priority over those debts, except so far as the chargee agrees.

443E(3)  (Receiver etc appointed during administration)  

Where:

(a)  debts of a company under administration are secured by a floating charge on property of the company; and

(b)  during the administration, the chargee, consistently with this Part:

(i) appoints a receiver of property of the company under a power contained in an instrument relating to the charge; or

(ii) obtains an order for the appointment of a receiver of property of the company for the purpose of enforcing the charge; or

(iii) enters into possession, or assumes control, of property of the company for that purpose; or

(iv) appoints a person so to enter into possession or assume control (whether as agent for the chargee or for the company);

the right of indemnity of the administrator under section 443D has priority over those debts only in so far as it is a right of indemnity for debts incurred, or remuneration accruing, before written notice of the appointment, or of the entering into possession or assuming of control, as the case may be, was given to the administrator.