Corporations Act 2001

CHAPTER 10 - TRANSITIONAL PROVISIONS  

PART 10.1 - TRANSITION FROM THE OLD CORPORATIONS LEGISLATION  

Division 4 - Court proceedings and orders  

SECTION 1383   TREATMENT OF COURT PROCEEDINGS UNDER OR RELATED TO THE OLD CORPORATIONS LEGISLATION - PROCEEDINGS OTHER THAN FEDERAL CORPORATIONS PROCEEDINGS  

1383(1)   [ Application]  

This section applies to a proceeding, other than a federal corporations proceeding, in relation to which the following paragraphs are satisfied:

(a) the proceeding was started in a court before the commencement; and

(b) the proceeding was:

(i) under a provision of the old corporations legislation of a State or Territory in this jurisdiction; or

(ii) brought as, or connected with, a prosecution for an offence against a provision of the old corporations legislation of a State or Territory in this jurisdiction; and

(c) the proceeding was not an enforcement proceeding, or an appeal or review proceeding, in relation to an order of a court; and

(d) the proceeding had not been concluded or terminated before the commencement; and

(e) either:

(i) if the proceeding is a primary proceeding - no final determination of any of the existing rights or liabilities at issue in the proceeding had been made before the commencement; or

(ii) if the proceeding is an interlocutory proceeding - this section applies to the primary proceeding to which the interlocutory proceeding relates.

1383(2)   [ ``old proceeding''; ``relevant old provision'']  

In this section:

(a) the proceeding to which this section applies is called the old proceeding ; and

(b) the provision of the old corporations legislation referred to in whichever of subparagraphs (1)(b)(i) and (ii) applies is called the relevant old provision .

1383(3)   [ Equivalent proceedings]  

A proceeding (the new proceeding ) equivalent to the old proceeding is, on the commencement, taken to have been brought in the same court, exercising federal jurisdiction:

(a) if subparagraph (1)(b)(i) applies - under the provision of the new corporations legislation that corresponds to the relevant old provision; or

(b) if subparagraph (1)(b)(ii) applies - as, or connected with, a prosecution for an offence against the provision of the new corporations legislation that corresponds to the relevant old provision.

To the extent that the old proceeding, before the commencement, related to pre-commencement rights or liabilities, the new proceeding relates to the substituted rights and liabilities in relation to those pre-commencement rights or liabilities.

Note 1: See sections 1400 and 1401 for the creation of substituted rights and liabilities.

Note 2: In all cases, there will be a provision of the new corporations legislation that corresponds to the relevant old provision, either because:

(a) the new corporations legislation actually contains a provision that corresponds to the relevant old provision; or

(b) the new corporations legislation, because of section 1401 or 1408, is taken to include the relevant old provision (whether with or without modifications), in which case the provision so taken to be included will be the corresponding provision.

1383(4)   [ New proceeding]  

The following provisions apply in relation to the new proceeding:

(a) the parties to the new proceeding are the same as the parties to the old proceeding;

(b) subject to subsections (5) and (6), and to any order to the contrary made by the court, the court must deal with the new proceeding as if the steps that had been taken for the purposes of the old proceeding before the commencement had been taken for the purposes of the new proceeding.

1383(5)   [ Interlocutory orders before commencement]  

If:

(a) an interlocutory order was made before the commencement for the purpose of, or in relation to, the old proceeding; and

(b) that interlocutory order was in force immediately before the commencement;

the rights and liabilities of all persons (including rights and liabilities arising wholly or partly because of conduct occurring before the commencement) are declared to be, for all purposes, the same as if the interlocutory order had instead been made by the same court, in the exercise of federal jurisdiction, for the purpose of, or in relation to, the new proceeding.

1383(6)   [ Court may make orders]  

The court may make orders doing all or any of the following:

(a) cancelling or varying rights or liabilities that a person has because of subsection (5);

(b) substituting other rights or liabilities for rights or liabilities a person has because of subsection (5);

(c) adding rights or liabilities to the rights or liabilities a person has because of subsection (5);

(d) enforcing, or otherwise dealing with conduct contrary to, a right or liability a person has because of subsection (5) in the same way as it could enforce, or deal with, the right, liability or conduct if the right or liability had arisen under or because of an order made by the court in the exercise of federal jurisdiction under the new corporations legislation.