Corporations Act 2001

CHAPTER 5 - EXTERNAL ADMINISTRATION  

PART 5.4C - WINDING UP BY ASIC  

Note: This Part does not apply to a CCIV or a sub-fund of a CCIV: see Division 5 of Part 8B.6 .

SECTION 489EA   ASIC MAY ORDER THE WINDING UP OF A COMPANY  

489EA(1)    
ASIC may order the winding up of a company if:

(a)    the response to a return of particulars given to the company is at least 6 months late; and

(b)    the company has not lodged any other documents under this Act in the last 18 months; and

(c)    ASIC has reason to believe that the company is not carrying on business; and

(d)    ASIC has reason to believe that making the order is in the public interest.

489EA(2)    
ASIC may order the winding up of a company if the company ' s review fee in respect of a review date has not been paid in full at least 12 months after the due date for payment.

489EA(3)    
ASIC may order the winding up of a company if:

(a)    ASIC has reinstated the registration of the company under subsection 601AH(1) in the last 6 months; and

(b)    ASIC has reason to believe that making the order is in the public interest.

489EA(4)    
ASIC may order the winding up of a company if:

(a)    ASIC has reason to believe that the company is not carrying on business; and

(b)    at least 20 business days before making the order, ASIC gives to:

(i) the company; and

(ii) each director of the company;

a notice:

(iii) stating ASIC ' s intention to make the order; and

(iv) informing the company or the director, as the case may be, that the company or the director may, within 10 business days after the receipt of the notice, give ASIC a written objection to the making of the order; and

(c)    neither the company, nor any of its directors, has given ASIC such an objection within the time limit specified in the notice.

489EA(5)    
Paragraphs (4)(b) and (c) do not apply to a person if ASIC does not have the necessary information about the person ' s identity or address.

489EA(6)    
Before making an order under subsection (1) , (2) , (3) or (4) , ASIC must:

(a)    give notice of its intention to make the order on ASIC database; and

(b)    both:

(i) publish notice of its intention to make the order; and

(ii) do so in the prescribed manner.

489EA(7)    
ASIC must not order the winding up of a company under subsection (1) , (2) , (3) or (4) if an application is before the Court for the winding up of the company.

489EA(8)    
Paragraph (b) of the definition of director in section 9 does not apply to subsection (4) of this section.

489EA(9)    
To avoid doubt, subsections (1) , (2) , (3) and (4) :

(a)    have effect independently of each other; and

(b)    do not limit each other.

SECTION 489EB  

489EB   DEEMED RESOLUTION THAT COMPANY BE WOUND UP VOLUNTARILY  

If ASIC orders under section 489EA that a company be wound up:

(a) the company is taken to have passed a special resolution under section 491 that the company be wound up voluntarily; and

(b) the company is taken to have passed the special resolution:

(i) at the time when ASIC made the order under section 489EA ; and

(ii) without a declaration having been made and lodged under section 494 ; and

(c) section 496 has effect as if:

(i) a declaration had been made under section 494 ; and

(ii) the reference in subsection 496(1) to the period stated in the declaration were a reference to the 12-month period beginning when ASIC made the order under section 489EA ; and

(d) section 497 is taken to have been complied with in relation to the winding up.

SECTION 489EC   APPOINTMENT OF LIQUIDATOR  

489EC(1)    
If ASIC orders under section 489EA that a company be wound up, ASIC may appoint a liquidator for the purpose of winding up the affairs and distributing the property of the company.

Note: For the remuneration of liquidators appointed under this section, see Subdivision D of Division 60 of Schedule 2 .

489EC(2)    
An appointment of a liquidator by ASIC must not be made without the written consent of the liquidator.

489EC(3)    
A vacancy in the office of a liquidator appointed by ASIC is to be filled by the appointment of a liquidator by ASIC.