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 6 - Proof and ranking of claims  

Subdivision A - Admission to proof of debts and claims  

SECTION 553   DEBTS OR CLAIMS THAT ARE PROVABLE IN WINDING UP  

553(1)    

Subject to this Division and Division 8, in every winding up, all debts payable by, and all claims against, the company (present or future, certain or contingent, ascertained or sounding only in damages), being debts or claims the circumstances giving rise to which occurred before the relevant date, are admissible to proof against the company.

553(1A)    
Even though the circumstances giving rise to a debt payable by the company, or a claim against the company, occur on or after the relevant date, the debt or claim is admissible to proof against the company in the winding up if:

(a)    

both of the following are satisfied:

(i) the circumstances occur at a time when the company is under a deed of company arrangement;

(ii) the company is under the deed immediately before the resolution or court order that the company be wound up; or

(b)    

both of the following are satisfied:

(i) the circumstances occur at a time when the company is under restructuring;

(ii) the company is under restructuring immediately before the resolution or court order that the company be wound up; or

(c)    

both of the following are satisfied:

(i) the circumstances occur at a time when the company is under a restructuring plan;

(ii) the company is under the plan immediately before the resolution or court order that the company be wound up.

This subsection has effect subject to the other sections in this Division.

Note 1: See Division 10 of Part 5.3A for provisions dealing with deeds of company arrangement and regulations made under Division 3 of Part 5.3B for provisions dealing with restructuring plans.

Note 2: See paragraph 513A(d) for deeds that are followed immediately by court ordered winding up. See paragraphs 513B(c) , (d) and (da) for deeds that are followed immediately by voluntary winding up. Subsections 446A(2) and 446AA(2) and section 446B provide that companies are taken in certain circumstances to have passed resolutions that they be wound up.

Note 3: A debt or claim admissible to proof under paragraph (1A)(a) will only be covered by paragraph 556(1)(a) if the administrator of the deed is personally liable for the debt or claim (see subsection 556(1AA) ).

Note 4: A debt or claim admissible to proof under paragraph (1A)(b) will only be covered by paragraph 556(1)(a) if the restructuring practitioner for the company is personally liable for the debt or claim (see subsection 556(1AAA) ).

Note 5: A debt or claim admissible to proof under subsection (1A)(c) will only be covered by paragraph 556(1)(a) if the restructuring practitioner for the plan is personally liable for the debt or claim (see subsection 556(1AAB) ).

553(1B)    

For the purposes of applying the other sections of this Division, the relevant date for the debt or claim is:

(a)    if it is a debt or claim that is admissible to proof under paragraph (1A)(a) - the date on which the deed terminates; and

(b)    if it is a debt or claim that is admissible to proof under paragraph (1A)(b) - the date on which the restructuring ends; and

(c)    if it is a debt or claim that is admissible to proof under paragraph (1A)(c) - the date on which the plan terminates.

553(2)    
Where, after the relevant date, an order is made under section 91 of the ASIC Act against a company that is being wound up, the amount that, pursuant to the order, the company is liable to pay is admissible to proof against the company.