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 1AA - Preliminary  

SECTION 465  

465   MEANING OF PROPERTY  

In this Part:

property
of a company includes PPSA retention of title property, if the security interest in the property is vested in the company because of the operation of any of the following provisions:

(a) section 267 or 267A of the Personal Property Securities Act 2009 (property subject to unperfected security interests);

(b) section 588FL of this Act (collateral not registered within time).

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

Division 1 - General  

SECTION 465A   NOTICE OF APPLICATION  

465A(1)    
A person who applies under section 459P , 462 or 464 for a company to be wound up must:

(a)    lodge notice in the prescribed form that the application has been made; and

(b)    within 14 days after the application is made, serve a copy of it on the company; and

(c)    cause a notice setting out the prescribed information about the application to be published in the prescribed manner.

465A(2)    

If the Court orders the winding up of a company as a result of an application under section 459P , 462 or 464 , the liquidator (or provisional liquidator) must cause notice setting out prescribed information about the order to be published in the prescribed manner.

SECTION 465B   SUBSTITUTION OF APPLICANTS  

465B(1)   [ Substitution of person who could have applied]  

The Court may by order substitute, as applicant or applicants in an application under section 459P, 462 or 464 for a company to be wound up, a person or persons who might otherwise have so applied for the company to be wound up.

465B(2)   [ Grounds for substitution]  

The Court may only make an order if the Court thinks it appropriate to do so:

(a) because the application is not being proceeded with diligently enough; or

(b) for some other reason.

465B(3)   [ Substituted applicant may be original applicant]  

The substituted applicant may be, or the substituted applicants may be or include, the person who was the applicant, or any of the persons who were the applicants, before the substitution.

465B(4)   [ Substituted applicant to proceed as original applicant]  

After an order is made, the application may proceed as if the substituted applicant or applicants had been the original applicant or applicants.

SECTION 465C  

465C   APPLICANT TO BE GIVEN NOTICE OF GROUNDS FOR OPPOSING APPLICATION  

On the hearing of an application under section 459P , 462 or 464 , a person may not, without the leave of the Court, oppose the application unless, within the period prescribed by the rules of court, the person has filed, and served on the applicant:

(a)    notice of the grounds on which the person opposes the application; and

(b)    an affidavit verifying the matters stated in the notice.

SECTION 466   PAYMENT OF PRELIMINARY COSTS ETC.  

466(1)   [ Applicant to bear preliminary costs]  

The persons, other than the company itself or the liquidator of the company, on whose application any winding up order is made must, at their own cost, prosecute all proceedings in the winding up until a liquidator has been appointed under this Part.

466(2)   [ Reimbursement by liquidator]  

The liquidator must, unless the Court orders otherwise, reimburse the applicant out of the property of the company the taxed costs incurred by the applicant in any such proceedings.

466(3)   [ Reimbursement by ASIC]  

Where the company has no property or does not have sufficient property and, in the opinion of ASIC, a fraud has been committed by any person in the promotion or formation of the company or by any officer or employee of the company in relation to the company since its formation, the taxed costs or so much of them as is not reimbursed under subsection (2) may be reimbursed by ASIC to an amount not exceeding $1,000.

466(4)   [ Application by company or liquidator]  

Where any winding up order is made upon the application of the company or a liquidator of the company, the costs incurred must, subject to any order of the Court, be paid out of the property of the company in like manner as if they were the costs of any other applicant.

SECTION 467   COURT ' S POWERS ON HEARING APPLICATION  

467(1)    
Subject to subsection (2) and section 467A , on hearing a winding up application the Court may:

(a)    dismiss the application with or without costs, even if a ground has been proved on which the Court may order the company to be wound up on the application; or

(b)    adjourn the hearing conditionally or unconditionally; or

(c)    make any interim or other order that it thinks fit.

467(2)    
The Court must not refuse to make a winding up order merely because:

(a)    

the total amount secured by one or more security interests in the property of the company is equal to or greater than the value of the property subject to the interest (or interests); or

(b)    the company has no property.

467(3)    
The Court may, on the application coming on for hearing or at any time at the request of the applicant, the company or any person who has given notice of intention to appear on the hearing of the application:

(a)    direct that any notices be given or any steps be taken before or after the hearing of the application; and

(b)    

dispense with any notices being given or steps being taken that are required by this Act, or by the rules of court, or by any prior order of the Court; and

(c)    direct that oral evidence be taken on the application or any matter relating to the application; and

(d)    direct a speedy hearing or trial of the application or of any issue or matter; and

(e)    allow the application to be amended or withdrawn; and

(f)    give such directions as to the proceedings as the Court thinks fit.

467(4)    
Where the application is made by members as contributories on the ground that it is just and equitable that the company should be wound up or that the directors have acted in a manner that appears to be unfair or unjust to other members, the Court, if it is of the opinion that:

(a)    the applicants are entitled to relief either by winding up the company or by some other means; and

(b)    in the absence of any other remedy it wouldbe just and equitable that the company should be wound up;

must make a winding up order unless it is also of the opinion that some other remedy is available to the applicants and that they are acting unreasonably in seeking to have the company wound up instead of pursuing that other remedy.

467(5)    
Notwithstanding any rule of law to the contrary, the Court must not refuse to make an order for winding up on the application of a contributory on the ground that, if the order were made, no property of the company would be available for distribution among the contributories.

467(7)    
At any time after the filing of a winding up application and before a winding up order has been made, the company or any creditor or contributory may, where any action or other civil proceeding against the company is pending, apply to the Court to stay or restrain further proceedings in the action or proceeding, and the Court may stay or restrain the proceedings accordingly on such terms as it thinks fit.

SECTION 467A  

467A   EFFECT OF DEFECT OR IRREGULARITY ON APPLICATION UNDER PART 5.4 OR 5.4A  
An application under Part 5.4 or 5.4A must not be dismissed merely because of one or more of the following:

(a) in any case - a defect or irregularity in connection with the application;

(b) in the case of an application for a company to be wound up in insolvency - a defect in a statutory demand;

unless the Court is satisfied that substantial injustice has been caused that cannot otherwise be remedied (for example, by an adjournment or an order for costs).

SECTION 467B  

467B   COURT MAY ORDER WINDING UP OF COMPANY THAT IS BEING WOUND UP VOLUNTARILY  
The Court may make an order under section 233, 459A, 459B or 461 even if the company is already being wound up voluntarily.

SECTION 468   AVOIDANCE OF DISPOSITIONS OF PROPERTY, ATTACHMENTS ETC.  

468(1)    

Any disposition of property of the company, other than an exempt disposition, made after the commencement of the winding up by the Court is, unless the Court otherwise orders, void.

468(2)    
In subsection (1), exempt disposition , in relation to a company that has commenced to be wound up by the Court, means:

(a)    a disposition made by the liquidator, or by a provisional liquidator, of the company pursuant to a power conferred on him or her by:

(i) this Act; or

(ii) rules of the Court that appointed him or her; or

(iii) an order of the Court; or

(aa)    a disposition made in good faith by, or with the consent of, an administrator of the company; or

(ab)    a disposition under a deed of company arrangement executed by the company; or

(ac)    

a disposition made in good faith by, or with the consent of, a restructuring practitioner for the company; or

(ad)    

a disposition under a restructuring plan made by the company; or

(b)    a payment of money by an Australian ADI out of an account maintained by the company with the Australian ADI, being a payment made by the Australian ADI:

(i) on or before the day on which the Court makes the order for the winding up of the company; and

(ii) in good faith and in the ordinary course of the banking business of the Australian ADI.

468(3)    
Notwithstanding subsection (1), the Court may, where an application for winding up has been filed but a winding up order has not been made, by order:

(a)    validate the making, after the filing of the application, of a disposition of property of the company; or

(b)    permit the business of the company or a portion of the business of the company to be carried on, and such acts as are incidental to the carrying on of the business or portion of the business to be done, during the period before a winding up order (if any) is made;

on such terms as it thinks fit.

468(4)    
Any attachment, sequestration, distress or execution put in force against the property of the company after the commencement of the winding up by the Court is void.

SECTION 468A   EFFECT OF WINDING UP ON COMPANY ' S MEMBERS  

468A(1)   Transfer of shares.  

A transfer of shares in a company that is made after the commencement of the winding up by the Court is void except if:

(a) both:

(i) the liquidator gives written consent to the transfer; and

(ii) that consent is unconditional; or

(b) all of the following subparagraphs apply:

(i) the liquidator gives written consent to the transfer;

(ii) that consent is subject to one or more specified conditions;

(iii) those conditions have been satisfied; or

(c) the Court makes an order under subsection (4) authorising the transfer.

468A(2)    
The liquidator may only give consent under paragraph (1)(a) or (b) if he or she is satisfied that the transfer is in the best interests of the company ' s creditors as a whole.

468A(3)    
If the liquidator refuses to give consent under paragraph (1)(a) or (b) to a transfer of shares in the company:

(a) the prospective transferor; or

(b) the prospective transferee; or

(c) a creditor of the company;

may apply to the Court for an order authorising the transfer.

468A(4)    
If the Court is satisfied, on an application under subsection (3), that the transfer is in the best interests of the company ' s creditors as a whole, the Court may, by order, authorise the transfer.

468A(5)    
If the liquidator gives consent under paragraph (1)(b) to a transfer of shares in the company:

(a) the prospective transferor; or

(b) the prospective transferee; or

(c) a creditor of the company;

may apply to the Court for an order setting aside any or all of the conditions to which the consent is subject.

468A(6)    
If the Court is satisfied, on an application under subsection (5), that any or all of the conditions covered by the application are not in the best interests of the company ' s creditors as a whole, the Court may, by order, set aside any or all of the conditions.

468A(7)    
The liquidator is entitled to be heard in a proceeding before the Court in relation to an application under subsection (3) or (5).

468A(8)   Alteration in the status of members.  

An alteration in the status of members of a company that is made after the commencement of the winding up by the Court is void except if:

(a) both:

(i) the liquidator gives written consent to the alteration; and

(ii) that consent is unconditional; or

(b) all of the following subparagraphs apply:

(i) the liquidator gives written consent to the alteration;

(ii) that consent is subject to one or more specified conditions;

(iii) those conditions have been satisfied; or

(c) the Court makes an order under subsection (12) authorising the alteration.

Note: An alteration in the status of members of a company that is made after the commencement of the winding up by the Court may not be void if it is made for the purposes of the conversion and write-off provisions (see Subdivision B of Division 1A of Part II of the Banking Act 1959 , Division 2 of Part IIIA of the Insurance Act 1973 and Division 1A of Part 10A of the Life Insurance Act 1995 ).

468A(9)    
The liquidator may only give consent under paragraph (8)(a) or (b) if he or she is satisfied that the alteration is in the best interests of the company ' s creditors as a whole.

468A(10)    
The liquidator must refuse to give consent under paragraph (8)(a) or (b) if the alteration would contravene Part 2F.2 .

468A(11)    
If the liquidator refuses to give consent under paragraph (8)(a) or (b) to an alteration in the status of members of a company:

(a) a member of the company; or

(b) a creditor of the company;

may apply to the Court for an order authorising the alteration.

468A(12)    
If the Court is satisfied, on an application under subsection (11), that:

(a) the alteration is in the best interests of the company ' s creditors as a whole; and

(b) the alteration does not contravene Part 2F.2 ;

the Court may, by order, authorise the alteration.

468A(13)    
If the liquidator gives consent under paragraph (8)(b) to an alteration in the status of members of a company:

(a) a member of the company; or

(b) a creditor of the company;

may apply to the Court for an order setting aside any or all of the conditions to which the consent is subject.

468A(14)    
If the Court is satisfied, on an application under subsection (13), that any or all of the conditions covered by the application are not in the best interests of the company ' s creditors as a whole, the Court may, by order, set aside any or all of the conditions.

468A(15)    
The liquidator is entitled to be heard in a proceeding before the Court in relation to an application under subsection (11) or (13).

SECTION 469  

469   APPLICATION TO BE LIS PENDENS  
An application for winding up a company constitutes a lis pendens for the purposes of any law relating to the effect of a lis pendens upon purchasers or mortgagees.

SECTION 470   CERTAIN NOTICES TO BE LODGED  

470(1)    
An applicant (other than ASIC) for the winding up of a company must:

(a)    lodge, not later than 10.30 am on the next business day after the filing of the application, notice of the filing of the application and of the date on which the application was filed; and

(b)    after an order for winding up is made - lodge, within 2 business days after the making of the order, notice of the making of the order, of the date on which the order was made and of the name and address of the liquidator; and

(c)    if the application is withdrawn or dismissed - lodge, within 2 business days after the withdrawal or dismissal of the application, notice of the withdrawal or dismissal of the application and of the date on which the application was withdrawn or dismissed.

470(2)    
The applicant must, within 7 days after the passing and entering of a winding up order:

(a)    except where the applicant is ASIC - lodge an office copy of the order; and

(b)    serve an office copy of the order on the company or such other person as the Court directs; and

(c)    deliver to the liquidator an office copy of the order together with a statement that the order has been served as mentioned in paragraph (b).

470(3)    
Where ASIC applies for the winding up of a company, ASIC must enter in its records particulars of the application and, after the passing and entering of a winding up order, an office copy of the order, and subsection 1274(2) applies in relation to the document containing those particulars and to the office copy as if they were documents lodged with ASIC.

Division 1A - Effect of winding up order  

SECTION 471  

471   EFFECT ON CREDITORS AND CONTRIBUTORIES  
An order for winding up a company operates in favour of all the creditors and contributories of the company as if it had been made on the joint application of all the creditors and contributories.

SECTION 471A  

471A   POWERS OF OTHER OFFICERS SUSPENDED DURING WINDING UP  
(Repealed by No 11 of 2016, s 3, Sch 2 [ 139] (effective 1 March 2017).)

SECTION 471B  

471B   STAY OF PROCEEDINGS AND SUSPENSION OF ENFORCEMENT PROCESS  
While a company is being wound up in insolvency or by the Court, or a provisional liquidator of a company is acting, a person cannot begin or proceed with:

(a) a proceeding in a court against the company or in relation to property of the company; or

(b) enforcement process in relation to such property;

except with the leave of the Court and in accordance with such terms (if any) as the Court imposes.

SECTION 471C  

471C   SECURED CREDITOR ' S RIGHTS NOT AFFECTED  

Nothing in section 471B affects a secured creditor ' s right to realise or otherwise deal with the security interest.

Division 2 - Court-appointed liquidators  

SECTION 472   COURT TO APPOINT REGISTERED LIQUIDATOR  

472(1)    

On an order being made for the winding up of a company, the Court may appoint a registered liquidator to be liquidator of the company.

472(2)    

The Court may appoint a registered liquidator provisionally at any time after the filing of a winding up application and before the making of a winding up order or, if there is an appeal against a winding up order, before a decision in the appeal is made.

472(3)    
A liquidator appointed provisionally has or may exercise such functions and powers:

(a) as are conferred on him or her by this Act or by rules of the Court that appointed him or her; or

(b) as the Court specifies in the order appointing him or her.

472(4)    
A liquidator of a company appointed provisionally also has:

(a) power to carry on the company's business; and

(b) the powers that a liquidator of the company would have under paragraph 477(1)(d), subsection 477(2) (except paragraph 477(2)(m)) and subsection 477(3) if the company were being wound up in insolvency or by the Court.

472(5)    
Subsections 477(2A) and (2B) apply in relation to a company's provisional liquidator, with such modifications (if any) as the circumstances require, as if he or she were a liquidator appointed for the purposes of a winding up in insolvency or by the Court.

472(6)    

If more than one liquidator is appointed by the Court, the Court must declare whether anything that is required or authorised by this Act to be done by the liquidator is to be done by all or any one or more of the persons appointed.

SECTION 473  

473   RESIGNATION OF LIQUIDATORS  

A liquidator appointed by the Court may resign.

SECTION 473A   VACANCIES IN OFFICE OF COURT-APPOINTED LIQUIDATOR  

473A(1)    
A vacancy in the office of a liquidator appointed by the Court may be filled by:

(a) the Court; or

(b) ASIC.

473A(2)    
If ASIC fills a vacancy in the office of a liquidator under subsection (1), ASIC must:

(a) publish notice of the filling of the vacancy; and

(b) publish the notice in the prescribed manner.

473A(3)    
If ASIC fills a vacancy in the office of a liquidator under subsection (1), the liquidator is taken, for the purposes of this Act, to be appointed by the Court.

473A(4)    
If more than one liquidator is appointed under this section, the Court or ASIC (as the case may be) must declare whether anything that is required or authorised by this Act to be done by the liquidator is to be done by all or any one or more of the persons appointed.

473A(5)    
If a declaration made by ASIC under subsection (4) is inconsistent with a declaration of the Court made under that subsection, the declaration of the Court prevails to the extent of any inconsistency.

SECTION 474   CUSTODY AND VESTING OF COMPANY ' S PROPERTY  

474(1)    

If a company is being wound up in insolvency or by the Court, or a provisional liquidator of a company has been appointed:

(a)    in a case in which a liquidator or provisional liquidator has been appointed - the liquidator or provisional liquidator must take into his or her custody,or under his or her control, all the property which is, or which appears to be, property of the company; or

(b)    in a case in which there is no liquidator - all the property of the company is to be in the custody of the Court.

Note: Section 465 extends the meaning of the property of the company to include PPSA retention of title property, if the security interest in the property has vested in the company in certain situations.

474(2)    
The Court may, on the application of the liquidator, by order direct that all or any part of the property of the company vests in the liquidator and thereupon the property to which the order relates vests accordingly and the liquidator may, after giving such indemnity (if any) as the Court directs, bring, or may defend, any action or other legal proceeding that relates to that property or that it is necessary to bring or defend for the purpose of effectually winding up the company and recovering its property.

474(3)    
Where an order is made under this section, the liquidator of the company to which the order relates must, within 14 days after the making of the order, lodge with ASIC an office copy of the order.

SECTION 475   REPORT AS TO COMPANY'S AFFAIRS TO BE SUBMITTED TO LIQUIDATOR  

475(1A)    
In this section:

liquidator
includes a provisional liquidator.

475(1)    
There must be made out and verified by a statement in writing in the prescribed form, and submitted to the liquidator, by the persons who were, at the date of the winding up order or, if the liquidator specifies an earlier date, that earlier date, the directors and secretary of the company a report in the prescribed form as to the affairs of the company as at the date concerned.

475(2)    
The liquidator may, by notice in writing served personally or by post addressed to the last known address of the person, require one or more persons included in one or more of the following classes of persons to make out as required by the notice, verify by a statement in writing in the prescribed form, and submit to him or her, a report, containing such information as is specified in the notice as to the affairs of the company or as to such of those affairs as are specified in the notice, as at a date specified in the notice:

(a)    persons who are or have been officers of the company;

(b)    where the company was formed within one year before the date of the winding up order - persons who have taken part in the formation of the company;

(c)    persons who are employed by the company or have been employed by the company within one year before the date of the winding up order and are, in the opinion of the liquidator, capable of giving the information required;

(d)    persons who are, or have been within one year before the date of the winding up order, officers of, or employed by, a body corporate that is, or within that year was, an officer of the company to the affairs of which the report relates;

(e)    a person who was a provisional liquidator of the company.

475(3)    
The liquidator may, in a notice under subsection (2) , specify the information that he or she requires as to affairs of the company by reference to information required by this Act or the regulations to be included in any other report, statement or notice under this Act.

475(4)    

A report referred to in subsection (1) must, subject to subsection (6) , be submitted to the liquidator not later than 10 business days after the making of the winding up order.

475(5)    

A person required to submit a report referred to in subsection (2) must, subject to subsection (6) , submit it not later than 10 business days after the liquidator serves notice of the requirement.

475(6)    
Where the liquidator believes there are special reasons for so doing, he or she may, on an application in writing made to him or her before the end of the time limited by subsection (4) or (5) for the submission by the applicant of a report under subsection (1) or (2) , grant, by notice in writing, an extension of that time.

475(7)    

A liquidator:

(a)    must, within 5 business days after receiving a report under subsection (1) or (2) , cause a copy of the report to be filed with the Court and a copy to be lodged; and

(b)    must, where he or she gives a notice under subsection (6) , as soon as practicable lodge a copy of the notice.

475(8)    

A person making or concurring in making a report required by this section and verifying it as required by this section must, subject to the rules of court, be allowed, and must be paid by the liquidator out of the property of the company, such costs and expenses incurred in and about the preparation and making of the report and the verification of that report as the liquidator considers reasonable.

475(9)    

A person must not contravene a provision of this section.

475(10)    

An offence based on subsection (9) is an offence of strict liability.

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

475(11)    

Subsection (9) does not apply to the extent that the person has a reasonable excuse.

Note: A defendant bears an evidential burden in relation to the matter in subsection (11) , see subsection 13.3(3) of the Criminal Code .

SECTION 476  

476   PRELIMINARY REPORT BY LIQUIDATOR  
(Repealed by No 11 of 2016, s 3, Sch 2 [ 147] (effective 1 March 2017).)

SECTION 477   POWERS OF LIQUIDATOR  

477(1)    
Subject to this section, a liquidator of a company may:

(a) carry on the business of the company so far as is, in the opinion of the liquidator, required for the beneficial disposal or winding up of that business; and

(b) subject to the provisions of section 556 , pay any class of creditors in full; and

(c) make any compromise or arrangement with creditors or persons claiming to be creditors or having or alleging that they have any claim (present or future, certain or contingent, ascertained or sounding only in damages) against the company or whereby the company may be rendered liable; and

(d) compromise any calls, liabilities to calls, debts, liabilities capable of resulting in debts and any claims (present or future, certain or contingent, ascertained or sounding only in damages) subsisting or supposed to subsist between the company and a contributory or other debtor or person apprehending liability to the company, and all questions in any way relating to or affecting the property or the winding up of the company, on such terms as are agreed, and take any security for the discharge of, and give a complete discharge in respect of, any such call, debt, liability or claim.

477(2)    
Subject to this section, a liquidator of a company may:

(a) bring or defend any legal proceeding in the name and on behalf of the company; and

(b) appoint a solicitor to assist him or her in his or her duties; and

(c) sell or otherwise dispose of, in any manner, all or any part of the property of the company; and

(ca) exercise the Court ' s powers under subsection 483(3) (except paragraph 483(3)(b) ) in relation to calls on contributories; and

(d) do all acts and execute in the name and on behalf of the company all deeds, receipts and other documents and for that purpose use when necessary a seal of the company; and

(e) subject to the Bankruptcy Act 1966 , prove in the bankruptcy of any contributory or debtor of the company or under any deed executed under that Act; and

(f) draw, accept, make and indorse any bill of exchange or promissory note in the name and on behalf of the company; and

(g) obtain credit, whether on the security of the property of the company or otherwise; and

(h) take out letters of administration of the estate of a deceased contributory or debtor, and do any other act necessary for obtaining payment of any money due from a contributory or debtor, or his or her estate, that cannot be conveniently done in the name of the company; and

(k) appoint an agent to do any business that the liquidator is unable to do, or that it is unreasonable to expect the liquidator to do, in person; and

(m) do all such other things as are necessary for winding up the affairs of the company and distributing its property.

477(2A)    
Except with the approval of the Court, of the committee of inspection or of a resolution of the creditors, a liquidator of a company must not compromise a debt to the company if the amount claimed by the company is more than:

(a) if an amount greater than $20,000 is prescribed - the prescribed amount; or

(b) otherwise - $20,000.

477(2B)    

Except with the approval of the Court, of the committee of inspection or of a resolution of the creditors, a liquidator of a company must not enter into an agreement on the company ' s behalf (for example, but without limitation, a lease or an agreement under which a security interest arises or is created) if:

(a) without limiting paragraph (b), the term of the agreement may end; or

(b) obligations of a party to the agreement may, according to the terms of the agreement, be discharged by performance;

more than 3 months after the agreement is entered into, even if the term may end, or the obligations may be discharged, within those 3 months.

477(2C)    
Subsection (2B) does not apply to an agreement if the costs and expenses of the company under the agreement are to be paid out of money paid to the liquidator:

(a) by ASIC on behalf of the Commonwealth; and

(b) for the purpose of paying the costs and expenses.

477(3)    
A liquidator of a company is entitled to inspect at any reasonable time any books of the company and a person who refuses or fails to allow the liquidator to inspect such books at such a time is guilty of an offence.

477(4)    
(Repealed by No 11 of 2016, s 3, Sch 2 [ 149] (effective 1 March 2017).)

477(5)    
For the purpose of enabling the liquidator to take out letters of administration or recover money as mentioned in paragraph (2)(h), the money due is taken to be due to the liquidator.

477(6)    

Subject to this Part, the liquidator must use his or her own discretion in the management of affairs and property of the company and the distribution of its property.

477(7)    
This section does not apply to calls on shares in a no liability company.

SECTION 478   APPLICATION OF PROPERTY; LIST OF CONTRIBUTORIES  

478(1)   [ Collection of property, etc]  

As soon as practicable after the Court orders that a company be wound up, the liquidator must:

(a) cause the company's property to be collected and applied in discharging the company's liabilities; and

(b) consider whether subsection (1A) requires him or her to settle a list of contributories.

478(1A)   [ Settlement of list of contributories]  

A liquidator of a company that is being wound up in insolvency or by the Court must settle a list of contributories if it appears to him or her likely that:

(a) either:

(i) there are persons liable as members or past members to contribute to the company's property on the winding up; or

(ii) there will be a surplus available for distribution; and

(b) it will be necessary:

(i) to make calls on contributories; or

(ii) to adjust the rights of the contributories among themselves.

478(1B)   [ Rectification of register]  

A liquidator of such a company may rectify the register of members so far as required under this Part.

478(3)   [ Different classes of contributories]  

In settling the list of contributories the liquidator must distinguish between persons who are contributories in their own right and persons who are contributories by virtue of representing, or being liable for the debts of, other persons.

478(4)   [ List prima facie evidence]  

The list of contributories, when settled in accordance with the regulations, is prima facie evidence of the liabilities of the persons named in the list as contributories.

478(5)   [ No liability company]  

Paragraph (1)(b) and subsections (1A), (1B), (3) and (4) do not apply to a no liability company.

SECTION 479  

479   EXERCISE AND CONTROL OF LIQUIDATOR ' S POWERS  
(Repealed by No 11 of 2016, s 3, Sch 2 [ 151] (effective 1 March 2017).)

SECTION 480  

480   RELEASE OF LIQUIDATOR AND DEREGISTRATION OF COMPANY  
When the liquidator:

(a) has realised all the property of the company or so much of that property as can in his or her opinion be realised without needlessly protracting the winding up, and has distributed a final dividend (if any) to the creditors and adjusted the rights of the contributories among themselves and made a final return (if any) to the contributories; or

(b) has resigned or has been removed from office;

he or she may apply to the Court:

(c) for an order that he or she be released; or

(d) for an order that he or she be released and that ASIC deregister the company.

SECTION 481   ORDERS FOR RELEASE OR DEREGISTRATION  

481(1)    
The Court:

(a)    

may cause a report on the accounts of the liquidator to be prepared by the auditor appointed by ASIC under section 70-15 of Schedule 2 (audit of administration books) or by some other registered company auditor appointed by the Court; and

(b)    on the liquidator complying with all the requirements of the Court - must take into consideration the report and any objection against the release of the liquidator that is made by the auditor or by any creditor, contributory or other person interested; and

(c)    must either grant or withhold the release accordingly.

481(2)    
Where the release of a liquidator is withheld and the Court is satisfied that the liquidator has been guilty of default, negligence, breach of trust or breach of duty, the Court may order the liquidator to make good any loss that the company has sustained by reason of the default, negligence, breach of trust or breach of duty and may make such other order as it thinks fit.

481(3)    
An order of the Court releasing the liquidator discharges him or her from all liability in respect of any act done or default made by him or her in the administration of the affairs of the company or otherwise in relation to his or her conduct as liquidator, but any such order may be revoked on proof that it was obtained by fraud or by suppression or concealment of any material fact.

481(4)    
Where the liquidator has not previously resigned or been removed, his or her release operates as a removal from office.

481(5)    
Where the Court has made:

(a)    an order that the liquidator be released; or

(b)    an order that the liquidator be released and that ASIC deregister the company;

the liquidator must, within 14 days after the making of the order, lodge an office copy of the order.

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.

SECTION 483   DELIVERY OF PROPERTY TO LIQUIDATOR  

483(1)    

The Court may require a person who is a contributory, trustee, receiver, banker, agent, officer or employee of the company to pay, deliver, convey, surrender or transfer to the liquidator or provisional liquidator, as soon as practicable or within a specified period, any money, property of the company or books in the person ' s hands to which the company is prima facie entitled.

483(2)    
The Court may make an order directing any contributory for the time being on the list of contributories to pay to the company in the manner directed by the order any money due from the contributory or from the estate of the person whom the contributory represents, exclusive of any money payable by the contributory or the estate by virtue of any call pursuant to this Act, and may:

(a) in the case of an unlimited company - allow to the contributory by way of set-off any money due to the contributory or to the estate that the contributory represents from the company on any independent dealing or contract but not any money due to the contributory as a member of the company in respect of any dividend or profit; and

(b) in the case of a limited company - make to any director whose liability is unlimited or to such a director ' s estate the like allowance;

and, in the case of any company whether limited or unlimited, when all the creditors are paid in full, any money due on any account whatever to a contributory from the company may be allowed to him, her or it by way of set-off against any subsequent call.

483(3)    
The Court may, either before or after it has ascertained the sufficiency of the property of the company:

(a) make calls on all or any of the contributories for the time being on the list of contributories, to the extent of their liability, for payment of any money that the Court considers necessary to satisfy the debts and liabilities of the company and the costs, charges and expenses of winding up and for the adjustment of the rights of the contributories among themselves; and

(b) make an order for payment of any calls made by the Court or the company ' s liquidator;

and, in making a call, may take into consideration the probability that some of the contributories may partly or wholly fail to pay the call.

483(3A)    
Subsection (3) does not apply to a no liability company.

483(4)    
The Court may order any contributory, purchaser or other person from whom money is due to the company to pay the amount due into a bank named in the order to the account of the liquidator instead of to the liquidator, and any such order may be enforced in the same manner as if it had directed payment to the liquidator.

483(5)    
All money and securities paid or delivered into any bank under this Division are subject in all respects to orders of the Court.

483(6)    
An order made by the Court under this section is, subject to any right of appeal, conclusive evidence that the money (if any) thereby appearing to be due or ordered to be paid is due, and all other pertinent matters stated in the order are taken to be truly stated as against all persons and in all proceedings.

SECTION 484   APPOINTMENT OF SPECIAL MANAGER  

484(1)   [ Application by liquidator]  

The liquidator may, if satisfied that the nature of the property or business of the company, or the interests of the creditors or contributories generally, requires or require the appointment of a special manager of the property or business of the company other than himself or herself, apply to the Court, and the Court may appoint a special manager of the property or business to act during such time as the Court directs with such powers, including any of the powers of a receiver or manager, as are entrusted to him or her by the Court.

484(2)   [ Security, remuneration, resignation or removal]  

The special manager:

(a) must give such security and account in such manner as the Court directs; and

(b) must receive such remuneration as is fixed by the Court; and

(c) may at any time resign by notice in writing addressed to the liquidator or may, on cause shown, be removed by the Court.

SECTION 485   CLAIMS OF CREDITORS AND DISTRIBUTION OF PROPERTY  

485(1)   [ Day for proof of debts]  

The Court may fix a day on or before which creditors are to prove their debts or claims or after which they will be excluded from the benefit of any distribution made before those debts are proved.

485(2)   [ Rights of contributories inter se]  

The Court must adjust the rights of the contributories among themselves and distribute any surplus among the persons entitled to it.

485(3)   [ Priority of costs of winding up]  

The Court may, in the event of the property being insufficient to satisfy theliabilities, make an order as to the payment out of the property of the costs, charges and expenses incurred in the winding up in such order of priority as the Court thinks just.

SECTION 486  

486   INSPECTION OF BOOKS BY CREDITORS AND CONTRIBUTORIES  
The Court may make such order for inspection of the books of the company by creditors and contributories as the Court thinks just, and any books in the possession of the company may be inspected by creditors or contributories accordingly, but not further or otherwise.

SECTION 486A   COURT MAY MAKE ORDER TO PREVENT OFFICER OR RELATED ENTITY FROM AVOIDING LIABILITY TO COMPANY  

486A(1)   [ Orders]  

The Court may make one or more of the following:

(a) an order prohibiting, either absolutely or subject to conditions, an officer, employee or related entity of a company from taking or sending out of this jurisdiction, or out of Australia, money or other property of the company or of the officer, employee or related entity;

(b) an order appointing:

(i) a receiver or trustee, with specified powers, of property of an officer or employee of a company, or of property of a related entity of a company that is a natural person; or

(ii) a receiver, or a receiver and manager, with specified powers, of property of a related entity of a company that is not a natural person;

(c) an order requiring an officer or employee of a company, or a related entity of a company that is a natural person, to surrender to the Court his or her passport and any other specified documents;

(d) an order prohibiting an officer or employee of a company, or a related entity of a company that is a natural person, from leaving this jurisdiction, or Australia, without the Court's consent.

486A(2)   [ Grounds for order]  

The Court may only make an order under subsection (1) if:

(a) the company is being wound up in insolvency or by the Court, or an application has been made for the company to be so wound up; and

(b) the Court is satisfied that there is at least a prima facie case that the officer, employee or related entity is or will become liable:

(i) to pay money to the company, whether in respect of a debt, by way of damages or compensation or otherwise; or

(ii) to account for property of the company; and

(c) the Court is also satisfied that there is substantial evidence that the officer, employee or related entity:

(i) has concealed or removed money or other property, has tried to do so, or intends to do so; or

(ii) has tried to leave this jurisdiction or Australia, or intends to do so;

in order to avoid that liability or its consequences; and

(d) the Court thinks it necessary or desirable to make the order in order to protect the company's rights against the officer, employee or related entity.

486A(2A)   [ Standing]  

An order under subsection (1) may only be made on the application of:

(a) a liquidator or provisional liquidator of the company; or

(b) ASIC.

486A(3)   [ Applications under s 1323]  

On hearing an application for an order under subsection (1), the Court must have regard to any relevant application under section 1323 .

486A(4)   [ Interim orders]  

Before considering an application for an order under subsection (1), the Court may, if in the Court's opinion it is desirable to do so, grant an interim order of the kind applied for that is expressed to have effect until the application is determined.

486A(5)   [ No undertaking as to damages]  

The Court must not require an applicant for an order under subsection (1) or any other person, as a condition of granting an interim order under subsection (4), to give an undertaking as to damages.

486A(6)   [ Variation or discharge of order]  

On the application of a person who applied for, or is affected by, an order under this section, the Court may make a further order discharging or varying the first-mentioned order.

486A(7)   [ Time limit on order]  

An order under subsection (1) may be expressed to operate for a specified period or until it is discharged by a further order.

486A(8)   [ Intentional or reckless contravention of order]  

A person must not intentionally or recklessly contravene an order under this section that is applicable to the person.

486A(9)   [ Bankruptcy Act 1966]  

This section has effect subject to the Bankruptcy Act 1966 .

486A(10)   [ Other powers of Court unaffected]  

Nothing in this section affects any other powers of the Court.

SECTION 486B   WARRANT TO ARREST PERSON WHO IS ABSCONDING, OR WHO HAS DEALT WITH PROPERTY OR BOOKS, IN ORDER TO AVOID OBLIGATIONS IN CONNECTION WITH WINDING UP  

486B(1)   [ Warrant for arrest]  

The Court may issue a warrant for a person to be arrested and brought before the Court if:

(a) a company is being wound up in insolvency or by the Court, or an application has been made for a company to be so wound up; and

(b) the Court is satisfied that the person:

(i) is about to leave this jurisdiction, or Australia, in order to avoid:

(A) paying money payable to the company; or

(B) being examined about the company's affairs; or

(C) complying with an order of the Court, or some other obligation, under this Chapter in connection with the winding up; or

(ii) has concealed or removed property of the company in order to prevent or delay the taking of the property into the liquidator's custody or control; or

(iii) has destroyed, concealed or removed books of the company or is about to do so.

Note: For procedures relating to such a warrant, see Subdivision B.

486B(2)   [ Seizure of property and books]  

A warrant under subsection (1) may also provide for property or books of the company in the person's possession to be seized and delivered into the custody of a specified person.

486B(3)   [ Who may apply]  

A warrant under subsection (1) may only be issued on the application of:

(a) a liquidator or provisional liquidator of the company; or

(b) ASIC.

SECTION 487  

487   POWER TO ARREST ABSCONDING CONTRIBUTORY  
The Court, at any time before or after making a winding up order, on proof of probable cause for believing that a contributory is about to leave this jurisdiction, or Australia, or otherwise to abscond or to remove or conceal any of his or her property for the purpose of evading payment of calls or of avoiding examination respecting affairs of the company, may cause the contributory to be arrested and held in custody and the books and movable personal property of the contributory to be seized and safely kept until such time as the Court orders.

SECTION 488   DELEGATION TO LIQUIDATOR OF CERTAIN POWERS OF COURT  

488(1)    

Provision may be made by rules of court or regulations for enabling or requiring all or any of the powers and duties conferred and imposed on the Court by this Part or Schedule 2 in respect of:

(a)    the holding and conducting of meetings to ascertain the wishes of creditors and contributories; and

(b)    the paying, delivery, conveyance, surrender or transfer of money, property or books to the liquidator; and

(c)    the adjusting of the rights of contributories among themselves and the distribution of any surplus among the persons entitled to it; and

(d)    the fixing of a time within which debts and claims must be proved;

to be exercised or performed by the liquidator as an officer of the Court and subject to the control of the Court.

488(2)    

Despite anything in rules of court or regulations madefor the purposes of subsection (1) , a liquidator may distribute a surplus only with the Court ' s special leave.

SECTION 489  

489   POWERS OF COURT CUMULATIVE  
Any powers conferred on the Court by this Act are in addition to, and not in derogation of, any existing powers of instituting proceedings against any contributory or debtor of the company or the property of any contributory or debtor for the recovery of any call or other sums.

Subdivision B - Procedures relating to section 486B warrants  

SECTION 489A  

489A   ARREST OF PERSON SUBJECT TO WARRANT  

If:

(a) the Court issues a section 486B warrant for a person to be arrested and brought before the Court; and

(b) the person is not in prison;

the person named in the section 486B warrant may be arrested by:

(c) an officer of the police force of the State or Territory in which the person is found; or

(d) the Sheriff of that State or Territory, or any of the Sheriff ' s officers; or

(e) a member or special member of the Australian Federal Police.

SECTION 489B   PROCEDURE AFTER ARREST  

489B(1)   [ Arrested person to be taken before Court]  

As soon as practicable after being arrested, the person is to be taken before the Court that issued the section 486B warrant.

489B(2)   [ Orders the Court must make]  

The Court must order:

(a) that the person be remanded on bail on condition that the person appear at the Court at such time and place as the Court specifies; or

(b) that the person be remanded in such custody or otherwise as the Court specifies, pending the person ' s appearance at the Court at such time and place as the Court specifies; or

(c) that the person be released.

489B(3)   [ Conditions of order]  

An order under this section may be subject to other specified conditions.

SECTION 489C   PROCEDURE ON REMAND ON BAIL  

489C(1)   [ Court must set bail conditions]  

If the Court has made an order under section 489B remanding the person (the warrant person ) on bail, the Court must prepare, or cause to be prepared, an instrument setting out the conditions to which the grant of bail is subject.

489C(2)   [ Instrument must be signed]  

The instrument must be signed by:

(a) a judge of the Court, or the person who prepared the instrument; and

(b) the warrant person.

489C(3)   [ Warrant person to be given copy]  

The warrant person must be given a copy of the instrument.

489C(4)   [ Revocation]  

The Court must revoke the order, and make an order remanding the warrant person in custody, if that person:

(a) refuses to sign the instrument; or

(b) does not comply with a condition to which the grant of bail is subject and that condition is a condition precedent to that person ' s release on bail.

SECTION 489D   COURT ' S POWER TO MAKE ORDERS UNDER OTHER PROVISIONS  

489D(1)    

To avoid doubt, the Court may make an order under section 486A , 598 or 1323 , or section 45-1 or 90-15 of Schedule 2 in relation to a person appearing before the Court under:

(a) a section 486B warrant; or

(b) section 489B .

489D(2)    

Subsection (1) does not limit section 486A , 598 or 1323 , or section 45-1 or 90-15 of Schedule 2 .

SECTION 489E  

489E   JURISDICTION UNDER THIS SUBDIVISION  

To avoid doubt, a matter arising under this Subdivision is a civil matter for the purposes of Part 9.6A .