Corporations Act 2001

CHAPTER 5 - EXTERNAL ADMINISTRATION  

PART 5.4A - WINDING UP BY THE COURT ON OTHER GROUNDS  

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

SECTION 461   GENERAL GROUNDS ON WHICH COMPANY MAY BE WOUND UP BY COURT  

461(1)    
The Court may order the winding up of a company if:

(a)    the company has by special resolution resolved that it be wound up by the Court; or

(c)    the company does not commence business within one year from its incorporation or suspends its business for a whole year; or

(d)    the company has no members; or

(e)    directors have acted in affairs of the company in their own interests rather than in the interests of the members as a whole, or in any other manner whatsoever that appears to be unfair or unjust to other members; or

(f)    affairs of the company are being conducted in a manner that is oppressive or unfairly prejudicial to, or unfairly discriminatory against, a member or members or in a manner that is contrary to the interests of the members as a whole; or

(g)    an act or omission, or a proposed act or omission, by or on behalf of the company, or a resolution, or a proposed resolution, of a class of members of the company, was or would be oppressive or unfairly prejudicial to, or unfairly discriminatory against, a member or members or was or would be contrary to the interests of the members as a whole; or

(h)    

ASIC has stated in a report prepared under Division 1 of Part 3 of the ASIC Act that, in its opinion:

(i) the company cannot pay its debts and should be wound up; or

(ii) it is in the interests of the public, of the members, or of the creditors, that the company should be wound up; or

(j) (Repealed)

(k)    the Court is of opinion that it is just and equitable that the company be wound up.

461(2)    
A company must lodge a copy of a special resolution referred to in paragraph (1)(a) with ASIC within 14 days after the resolution is passed.

SECTION 462   STANDING TO APPLY FOR WINDING UP  

462(1)   [ Interpretation]  

A reference in this section to an order to wind up a company is a reference to an order to wind up the company on a ground provided for by section 461 .

462(2)   [ Who may apply]  

Subject to this section, any one or more of the following may apply for an order to wind up a company:

(a) the company; or

(b) a creditor (including a contingent or prospective creditor) of the company; or

(c) a contributory; or

(d) the liquidator of the company; or

(e) ASIC pursuant to section 464; or

(f) ASIC (in the circumstances set out in subsection (2A)); or

(h) APRA.

462(2A)   [ When ASIC may apply]  

ASIC may apply for an order to wind up a company under paragraph (2)(f) only if:

(a) the company has no members; and

(b) ASIC has given the company at least 1 month's written notice of its intention to apply for the order.

462(3)    
(Repealed by No 105 of 2008, s 3, Sch 3, Pt 2 [ 30] (effective 18 October 2008).)

462(4)   [ When contingent or prospective creditor may apply]  

The Court must not hear an application by a person being, or persons including, a contingent or prospective creditor of a company for an order to wind up the company unless and until:

(a) such security for costs has been given as the Court thinks reasonable; and

(b) a prima facie case for winding up the company has been established to the Court's satisfaction.

462(5)   [ Entitlement to apply otherwise]  

Except as permitted by this section, a person is not entitled to apply for an order to wind up a company.

SECTION 464   APPLICATION FOR WINDING UP IN CONNECTION WITH INVESTIGATION UNDER ASIC ACT  

464(1)   [ When ASIC may apply]  

Where ASIC is investigating, or has investigated, under Division 1 of Part 3 of the ASIC Act:

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

(b) matters including such matters;

ASIC may apply to the Court for the winding up of the company.

464(2)   [ Application of Act]  

For the purposes of an application under subsection (1), this Act applies, with such modifications as the circumstances require, as if a winding up application had been made by the company.

464(3)   [ Duty to give copy of application to company]  

ASIC must give a copy of an application made under subsection (1) to the company.