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 3 - General powers of Court  

Subdivision A - General powers  

SECTION 482   POWER TO STAY OR TERMINATE WINDING UP  

482(1)    
At any time during the winding up of a company, the Court may, on application, make an order staying the winding up either indefinitely or for a limited time or terminating the winding up on a day specified in the order.

482(1A)    
An application may be made by:

(a)    in any case - the liquidator, or a creditor or contributory, of the company; or

(b)    

in the case of a company registered under section 21 of the Life Insurance Act 1995 - APRA; or

(c)    

in the case of a company subject to a deed of company arrangement - the administrator of the deed; or

(d)    

in the case of a company subject to a restructuring plan - the restructuring practitioner for the plan.

482(2)    
On such an application, the Court may, before making an order, direct the liquidator to give a report with respect to a relevant fact or matter.

482(2A)    

If such an application is made in relation to a company subject to a deed of company arrangement, then, in determining the application, the Court must have regard to all of the following matters:

(a)    any report that has been given to the Court by:

(i) the administrator, or a former administrator, of the company; or

(ii) the liquidator, or a former liquidator, of the company; or

(iii) ASIC;

and that contains an allegation that an officer of the company has engaged in misconduct;

(b)    any report that has been lodged with ASIC by:

(i) the administrator, or a former administrator, of the company; or

(ii) the liquidator, or a former liquidator, of the company;

and that contains an allegation that an officer of the company has engaged in misconduct;

(c)    the decision of the company ' s creditors to resolve that the company execute a deed of company arrangement;

(d)    any document that accompanied a notice of the meeting under section 439A when the company was under administration;

(da)    

any notice that has been given to the administrator of the deed of company arrangement or the company ' s creditors under section 445HA (notification of contravention of deed of company arrangement);

(e)    whether the deed of company arrangement is likely to result in the company becoming or remaining insolvent;

(f)    any other relevant matters.

482(2B)    

If such an application is made in relation to a company subject to a restructuring plan, then, in determining the application, the Court must have regard to all of the following matters:

(a)    any report that has been given to the Court by:

(i) the restructuring practitioner, or a former restructuring practitioner, for the company; or

(ii) the liquidator, or a former liquidator, of the company; or

(iii) ASIC;

and that contains an allegation that an officer of the company has engaged in misconduct;

(b)    any report that has been lodged with ASIC by:

(i) the restructuring practitioner, or a former restructuring practitioner, for the company; or

(ii) the liquidator, or a former liquidator, of the company;

and that contains an allegation that an officer of the company has engaged in misconduct;

(c)    the decision of the company ' s creditors that the company make a restructuring plan;

(d)    any notice that has been given to the restructuring practitioner for the restructuring plan or the company ' s creditors in relation to a contravention of the restructuring plan;

(e)    whether the restructuring plan is likely to result in the company becoming or remaining insolvent;

(f)    any other relevant matters.

482(3)    
Where the Court has made an order terminating the winding up, the Court may give such directions as it thinks fit for the resumption of the management and control of the company by its officers, including directions for the convening of a general meeting of members of the company to elect directors of the company to take office upon the termination of the winding up.

482(4)    
The costs of proceedings before the Court under this section and the costs incurred in convening a meeting of members of the company in accordance with an order of the Court under this section, if the Court so directs, forms part of the costs, charges and expenses of the winding up.

482(5)    
Where an order is made under this section, the company must lodge an office copy of the order within 14 days after the making of the order.