Corporations Act 2001

CHAPTER 5 - EXTERNAL ADMINISTRATION  

PART 5.6 - WINDING UP GENERALLY  

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

Division 3 - Liquidators  

SECTION 532   DISQUALIFICATION OF LIQUIDATOR  

532(1A)    
In this section:

liquidator
includes a provisional liquidator.

532(1)    
Subject to this section, a person must not consent to be appointed, and must not act, as liquidator of a company unless he or she is a registered liquidator.

532(2)    
Subject to this section, a person must not, except with the leave of the Court, seek to be appointed, or act, as liquidator of a company:

(a) if the person, or a body corporate in which the person has a substantial holding, is indebted in an amount exceeding $5,000 to the company or a body corporate related to the company; or

(b) if the person is, otherwise than in his or her capacity as liquidator, a creditor of the company or of a related body corporate in an amount exceeding $5,000; or

(c) if:

(i) the person is an officer or employee of the company (otherwise than by reason of being a liquidator of the company or of a related body corporate); or

(ii) the person is an officer or employee of any body corporate that is a secured party in relation to property of the company; or

(iii) the person is an auditor of the company; or

(iv) the person is a partner or employee of an auditor of the company; or

(v) the person is a partner, employer or employee of an officer of the company; or

(vi) the person is a partner or employee of an employee of an officer of the company.

532(3)    
For the purposes of paragraph (2)(a), disregard a debt owed by a natural person to a body corporate if:

(a) the body corporate is:

(i) an Australian ADI; or

(ii) a body corporate registered under section 21 of the Life Insurance Act 1995 ; and

(b) the debt arose because of a loan that the body corporate or entity made to the person in the ordinary course of its ordinary business; and

(c) the person used the amount of the loan to pay the whole or part of the purchase price of premises that the person uses as their principal place of residence.

532(4)    
Subsection (1) and paragraph (2)(c) do not apply to a members ' voluntary winding up of a proprietary company.

532(5)    
Paragraph (2)(c) does not apply to a creditors ' voluntary winding up if, by a resolution of the creditors passed at a meeting of the creditors of which 7 days notice has been given to every creditor stating the purpose of the meeting, it is determined that that paragraph does not so apply.

532(6)    

For the purposes of subsection (2), a person is taken to be an officer, employee or auditor of a company if:

(a) the person is an officer, employee or auditor of a related body corporate; or

(b) except where ASIC, if it thinks fit in the circumstances of the case, directs that this paragraph does not apply in relation to the person - the person has, at any time within the immediately preceding period of 2 years, been an officer, employee, auditor or promoter of the company or of a related body corporate.

532(7)    
(Repealed by No 11 of 2016, s 3, Sch 2[174] (effective 1 March 2017).)

532(8)    
A person must not consent to be appointed, and must not act, as liquidator of a company that is being wound up by order of the Court if the person is not entitled to act as such a liquidator in accordance with the current conditions (if any) imposed on the person.

532(9)    
A person must not be appointed as liquidator of a company unless the person has, before his or her appointment, consented in writing to act as liquidator of the company.

532(10)    

An offence based on subsection (1), (2), (8) or (9) is an offence of strict liability.

Note: For strict liability , see section 6.1 of the Criminal Code .