Corporations Act 2001

CHAPTER 5 - EXTERNAL ADMINISTRATION  

PART 5.3B - RESTRUCTURING OF A COMPANY  

Note: This Part does not apply to a CCIV or a sub-fund of a CCIV: see Division 4 of Part 8B.6 .

Division 2 - Restructuring  

Subdivision D - Conduct of company during restructuring  

SECTION 453L   CONDUCTING THE BUSINESS OF THE COMPANY DURING RESTRUCTURING  

Transactions and dealings affecting property

453L(1)    
A person contravenes this section if:

(a)    a company is under restructuring; and

(b)    the person is a director of the company; and

(c)    either:

(i) the company purports to enter into a transaction or dealing affecting the property of the company and the person approves of that action; or

(ii) the person purports to enter into a transaction or dealing affecting the property of the company on behalf of the company.

Note: Failure to comply with this subsection is an offence (see subsection 1311(1) ).

Circumstances in which transactions and dealings may occur

453L(2)    
Subsection (1) does not apply if:

(a)    entering into the transaction or dealing was in the ordinary course of the company ' s business; or

(b)    the restructuring practitioner has consented to the transaction or dealing and, if any conditions are imposed on that consent, those conditions are met; or

(c)    the transaction or dealing was entered into under an order of the Court.

453L(3)    
Subsection (1) does not apply to a payment made:

(a)    by an Australian ADI out of an account kept by the company with the ADI; and

(b)    in good faith and in the ordinary course of the ADI ' s banking business; and

(c)    after the restructuring began and on or before the day on which:

(i) the restructuring practitioner gives to the ADI written notice of the appointment that began the restructuring; or

(ii) publishes a notice of the appointment that began the restructuring in accordance with the regulations;

whichever happens first.

453L(4)    
The regulations may prescribe circumstances in which entering into a transaction or dealing is, or is not, to be treated as in the ordinary course of a company ' s business.

Transactions and dealings in contravention of subsection (1) void

453L(5)    
A transaction or dealing entered into in contravention of subsection (1) is void, unless the Court orders otherwise.

Restructuring practitioner ' s consent

453L(6)    
The restructuring practitioner for a company under restructuring may only give consent under paragraph (2)(b) if the restructuring practitioner believes on reasonable grounds that it would be in the interests of the creditors for the company to enter into the transaction or dealing.

453L(7)    
The restructuring practitioner may give consent subject to conditions.

Interpretive provisions

453L(8)    
For the purposes of this section, a director who votes in favour of a resolution approving, or who otherwise approves, the company entering into a transaction or dealing affecting the property of the company is taken to have approved the company purporting to take that action.