Corporations Act 2001

CHAPTER 5 - EXTERNAL ADMINISTRATION  

PART 5.4B - WINDING UP IN INSOLVENCY OR BY THE COURT  

Note: This Part applies to a sub-fund of a CCIV in a modified form: see Division 5 of Part 8B.6 .

Division 1 - General  

SECTION 467   COURT ' S POWERS ON HEARING APPLICATION  

467(1)    
Subject to subsection (2) and section 467A , on hearing a winding up application the Court may:

(a)    dismiss the application with or without costs, even if a ground has been proved on which the Court may order the company to be wound up on the application; or

(b)    adjourn the hearing conditionally or unconditionally; or

(c)    make any interim or other order that it thinks fit.

467(2)    
The Court must not refuse to make a winding up order merely because:

(a)    

the total amount secured by one or more security interests in the property of the company is equal to or greater than the value of the property subject to the interest (or interests); or

(b)    the company has no property.

467(3)    
The Court may, on the application coming on for hearing or at any time at the request of the applicant, the company or any person who has given notice of intention to appear on the hearing of the application:

(a)    direct that any notices be given or any steps be taken before or after the hearing of the application; and

(b)    

dispense with any notices being given or steps being taken that are required by this Act, or by the rules of court, or by any prior order of the Court; and

(c)    direct that oral evidence be taken on the application or any matter relating to the application; and

(d)    direct a speedy hearing or trial of the application or of any issue or matter; and

(e)    allow the application to be amended or withdrawn; and

(f)    give such directions as to the proceedings as the Court thinks fit.

467(4)    
Where the application is made by members as contributories on the ground that it is just and equitable that the company should be wound up or that the directors have acted in a manner that appears to be unfair or unjust to other members, the Court, if it is of the opinion that:

(a)    the applicants are entitled to relief either by winding up the company or by some other means; and

(b)    in the absence of any other remedy it would be just and equitable that the company should be wound up;

must make a winding up order unless it is also of the opinion that some other remedy is available to the applicants and that they are acting unreasonably in seeking to have the company wound up instead of pursuing that other remedy.

467(5)    
Notwithstanding any rule of law to the contrary, the Court must not refuse to make an order for winding up on the application of a contributory on the ground that, if the order were made, no property of the company would be available for distribution among the contributories.

467(7)    
At any time after the filing of a winding up application and before a winding up order has been made, the company or any creditor or contributory may, where any action or other civil proceeding against the company is pending, apply to the Court to stay or restrain further proceedings in the action or proceeding, and the Court may stay or restrain the proceedings accordingly on such terms as it thinks fit.