Corporations Act 2001

CHAPTER 5 - EXTERNAL ADMINISTRATION  

PART 5.8 - OFFENCES  

Note: This Part applies to a sub-fund of a CCIV in a modified form: see Division 7 of Part 8B.6 .

SECTION 589   INTERPRETATION AND APPLICATION  

589(1)    
Sections 590 to 593 (inclusive) apply to a company:

(a)    that has been wound up or is in the course of being wound up; or

(b)    that has been in the course of being wound up, where the winding up has been stayed or terminated by an order under section 482 ; or

(ba)    of which a provisional liquidator has been appointed; or

(c)    that is or has been under administration; or

(ca)    that has executed a deed of company arrangement, even if the deed has since terminated; or

(cb)    

that is or has been under restructuring; or

(cc)    

that has made a restructuring plan, even if the plan has since terminated; or

(d)    affairs of which are or have been under investigation; or

(e)    in respect of property of which a receiver, or a receiver and manager, has at any time been appointed, whether by the Court or under a power contained in an instrument, whether or not the appointment has been terminated; or

(f)    that has ceased to carry on business or is unable to pay its debts; or

(g)    that has entered into a compromise or arrangement with its creditors.

589(2)    
For the purposes of this Part, affairs of a company are or have been under investigation if, and only if:

(a)    ASIC is investigating, or has at any time investigated, under Division 1 of Part 3 of the ASIC Act:

(i) matters being, or connected with, affairs of the company; or

(ii) matters including such matters; or

(b)    affairs of the company have at any time been under investigation under:

(i) Part VII of the Companies Act 1981 ; or

(ii) the provisions of a previous law of a State or Territory that correspond to that Part.

589(3)    
For the purposes of this Part, a company is taken to have ceased to carry on business only if:

(a)    

ASIC has published in the prescribed manner a notice of the proposed deregistration of the company under subsection 601AA(4) or 601AB(3) ; and

(b)    if the notice was published under subsection 601AA(4) or under subsection 601AB(3) because of a decision under subsection 601AB(1) - 2 months have passed since the notice was published and ASIC has not been informed that the company is carrying on business.

589(4)    
For the purposes of this Part, a company is taken to be unable to pay its debts if, and only if, execution or other process issued on a judgment, decree or order of a court (whether or not an Australian court) in favour of a creditor of the company is returned unsatisfied in whole or in part.

Meaning of appropriate officer and property

589(5)    

In this Part:

appropriate officer
means:

(a) in relation to a company that has been, has been being or is being wound up - the liquidator; and

(aa) in relation to a company of which a provisional liquidator has been appointed - the provisional liquidator; and

(b) in relation to a company that is or has been under administration - the administrator; and

(ba) in relation to a company that has executed a deed of company arrangement - the deed ' s administrator; and

(bb) in relation to a company that is or has been under restructuring - the restructuring practitioner; and

(bc) in relation to a company that has made a restructuring plan - the plan ' s restructuring practitioner; and

(c) in relation to a company affairs of which are or have been under investigation - ASIC or the NCSC, as the case requires; and

(d) in relation to a company in respect of property of which a receiver, or a receiver and manager, has been appointed - the receiver or the receiver and manager; and

(e) in relation to a company that has ceased to carry on business or is unable to pay its debts - ASIC or the NCSC, as the case requires; and

(f) in relation to a company that has entered into a compromise or arrangement with its creditors - the person appointed by the Court to administer the compromise or arrangement.

property
of a company includes any PPSA retention of title property of the company.

Note: See sections 9 (definition of property ) and 51F (PPSA retention of title property).

relevant day
(Repealed by No 76 of 2023, s 3, Sch 2[135] (effective 20 October 2023).)

589(6)    
This Part applies in relation to a company that was first incorporated other than under this Act:

(a)    as if, in this Part (other than section 595 ) as so applying:

(i) a reference to the company included a reference to the company as it existed at a time before its registration day (including a time before the commencement of this Act); and

[ CCH Note: There is no subparagraph 589(6)(a)(ii).]

(iii) a reference, in relation to a provision of this Act, to ASIC included a reference to the NCSC (if relevant); and

(b)    with such other modifications as the circumstances require.