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 12 - Transition to creditors' voluntary winding up

SECTION 446A   ADMINISTRATOR BECOMES LIQUIDATOR IN CERTAIN CASES  

446A(1)  [Creditors resolve to wind up, etc]  

This section applies if:

(a)  the creditors of a company under administration resolve at a particular time under paragraph 439C(c) that the company be wound up; or

(b)  a company under administration contravenes subsection 444B(2) at a particular time; or

(c)  at a meeting convened under section 445F, a company's creditors:

(i) pass a resolution terminating a deed of company arrangement executed by the company; and

(ii) also resolve at a particular time under section 445E that the company be wound up.

446A(2)  [Deemed passing of winding up resolution]  

The company is taken:

(a)  to have passed, at the time referred to in paragraph (1)(a) or (b) or subparagraph (1)(c)(ii), as the case may be, a special resolution under section 491 that the company be wound up voluntarily; and

(b)  to have done so without a declaration having been made and lodged under section 494.

446A(3)  [Deemed compliance with sec 497]  

Section 497 is taken to have been complied with in relation to the winding up.

446A(4)  [Administrator deemed to be nominated as liquidator]  

For the purposes of subsection 499(1):

(a)  the company is taken to have nominated:

(i) if paragraph (1)(a) or (b) of this section applies - the administrator of the company; or

(ii) if paragraph (1)(c) of this section applies - the administrator of the deed;

to be liquidator for the purposes of the winding up;

(b)  the creditors are taken not to have so nominated anyone.

446A(5)  [Notice of deemed resolution]  

The liquidator must:

(a)  within 7 days after the day on which the company is taken to have passed the resolution, lodge a written notice stating that the company is taken because of this section to have passed such a resolution and specifying that day; and

(b)  cause a notice of that kind to be published, within 21 days after that day:

(i) in a national newspaper; or

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

446A(6)  [Sec 482]  

Section 482 applies in relation to the winding up as if it were a winding up in insolvency or by the Court.

Note:

Section 482 empowers the Court to stay or terminate a winding up and give consequential directions.

446A(7)  [Application under sec 482]  

An application under section 482 as applying because of subsection (6) may be made:

(a)  despite subsection 499(4), by the company pursuant to a resolution of the board; or

(b)  by the liquidator; or

(c)  by a creditor; or

(d)  by a contributory.