Corporations Act 2001

CHAPTER 5A - DEREGISTRATION, AND TRANSFER OF REGISTRATION, OF COMPANIES  

PART 5A.1 - DEREGISTRATION  

Note 1: This Part applies to the deregistration of CCIVs with modifications: see Subdivision A of Division 9 of Part 8B.6 .

Note 2: For the deregistration of sub-funds of CCIVs, see Subdivision A of Division 9 of Part 8B.6 .

SECTION 601  

601   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).

SECTION 601AA   DEREGISTRATION - VOLUNTARY  
Who may apply for deregistration

601AA(1)    
An application to deregister a company may be lodged with ASIC by:

(a)    the company; or

(b)    a director or member of the company; or

(c)    a liquidator of the company.

If the company lodges the application, it must nominate a person to be given notice of the deregistration.

Circumstances in which application can be made

601AA(2)    
A person may apply only if:

(a)    all the members of the company agree to the deregistration; and

(b)    the company is not carrying on business; and

(c)    the company ' s assets are worth less than $1,000; and

(d)    the company has paid all fees and penalties payable under this Act; and

(e)    the company has no outstanding liabilities; and

(f)    the company is not a party to any legal proceedings.

ASIC may ask for information about officers

601AA(3)    
The applicant must give ASIC any information that ASIC requests about the current and former officers of the company.

Deregistration procedure

601AA(4)    

If:

(a)    ASIC decides to deregister the company under this section; and

(b)    ASIC is not aware of any failure to comply with subsections (1) to (3) ;

ASIC must:

(c)    give notice of the proposed deregistration on ASIC database; and

(d)    publish notice of the proposed deregistration in the prescribed manner.

601AA(4A)    

When 2 months have passed since the publication of the notice under paragraph (4)(d) , ASIC may deregister the company.

601AA(5)    
ASIC must give notice of the deregistration to:

(a)    the applicant; or

(b)    the person nominated in the application to be given the notice.

601AA(6)    

ASIC may refuse to deregister a company under this section if ASIC decides to order under section 489EA that the company be wound up.

601AA(7)    

Subsection (6) does not limit ASIC ' s power to refuse to deregister the company.

SECTION 601AB   DEREGISTRATION - ASIC INITIATED  

Circumstances in which ASIC may deregister

601AB(1)    
ASIC may decide to deregister 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 no reason to believe that the company is carrying on business.

601AB(1A)    

ASIC may also decide to deregister 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.

601AB(1B)    

ASIC may also decide to deregister a company if:

(a)    the company is liable to pay levy imposed by the ASIC Supervisory Cost Recovery Levy Act 2017 ; and

(b)    the company has not paid in full at least 12 months after the due date for payment:

(i)the amount of the levy; and

(ii) the amount of any late payment penalty payable in relation to the levy; and

(iii) the amount of any shortfall penalty payable in relation to the levy.

601AB(1C)    

ASIC may also decide to deregister a company if the company is liable to pay an instalment of levy (within the meaning of the Financial Services Compensation Scheme of Last Resort Levy (Collection) Act 2023 ) and the company has not paid in full at least 12 months after the due date for payment:

(a)    the amount of the instalment of levy; and

(b)    the amount of any late payment penalty payable in relation to the instalment of levy; and

(c)    the amount of any shortfall penalty payable in relation to the instalment of levy.

601AB(2)    
ASIC may also decide to deregister a company if the company is being wound up and ASIC has reason to believe that:

(a)    the liquidator is no longer acting; or

(b)    the company ' s affairs have been fully wound up and a return that the liquidator should have lodged is at least 6 months late; or

(c)    the company ' s affairs have been fully wound up under Part 5.4 and the company has no property or not enough property to cover the costs of obtaining a Court order for the company ' s deregistration.

Deregistration procedure

601AB(3)    

If ASIC decides to deregister a company under this section, it must:

(a)    give notice of the proposed deregistration:

(i) to the company; and

(ii) to the company ' s liquidator (if any); and

(iii) to the company ' s directors; and

(iv) on ASIC database; and

(b)    publish notice of the proposed deregistration in the prescribed manner.

601AB(3A)    

When 2 months have passed since the publication of the notice under paragraph (3)(b) , ASIC may deregister the company.

601AB(4)    

ASIC does not have to give a person notice under paragraph (3)(a) if ASIC does not have the necessary information about the person ' s identity or address.

601AB(5)    

ASIC must give notice of the deregistration to everyone who was notified of the proposed deregistration under subparagraph (3)(a)(ii) or (iii) .

601AB(6)    

ASIC may refuse to deregister a company under this section if ASIC decides to order under section 489EA that the company be wound up.

601AB(7)    

Subsection (6) does not limit ASIC ' s power to refuse to deregister the company.

SECTION 601AC   DEREGISTRATION - FOLLOWING AMALGAMATION OR WINDING UP  

601AC(1)    
ASIC must deregister a company if the Court orders the deregistration of the company under:

(a)    paragraph 413(1)(d) (reconstruction and amalgamation of Part 5.1 bodies); or

(b)    paragraph 481(5)(b) (release of liquidator); or

(c)    

subsection 509(2) (deregistration after end of administration return is lodged).

601AC(2)    
(Repealed by No 11 of 2016, s 3, Sch 2 [ 205].)

SECTION 601AD   EFFECT OF DEREGISTRATION  
Company ceases to exist

601AD(1)    
A company ceases to exist on deregistration.

Note: Despite the deregistration, officers of the company may still be liable for things done before the company was deregistered.

Trust property vests in the Commonwealth

601AD(1A)    

On deregistration, all property that the company held on trust immediately before deregistration vests in the Commonwealth. If property is vested in a liquidator on trust immediately before deregistration, that property vests in the Commonwealth. This subsection extends to property situated outside this jurisdiction.

Other company property vests in ASIC

601AD(2)    

On deregistration, all the company ' s property (other than any property held by the company on trust) vests in ASIC. If company property is vested in a liquidator (other than any company property vested in a liquidator on trust) immediately before deregistration, that property vests in ASIC. This subsection extends to property situated outside this jurisdiction.

Rights and powers in respect of property

601AD(3)    

Under subsection (1A) or (2), the Commonwealth or ASIC takes only the same property rights that the company itself held. If the company held particular property subject to a security or other interest or claim, the Commonwealth or ASIC takes the property subject to that interest or claim.

Note: See also subsection 601AE(3) - which deals with liabilities that a law imposes on the property (particularly liabilities such as rates, taxes and other charges).

601AD(3A)    
The Commonwealth has, subject to its obligations as trustee of the trust, all the powers of an owner over property vested in it under subsection (1A).

Note: Section 601AF confers additional powers on the Commonwealth to fulfil outstanding obligations of the deregistered company.

601AD(4)    
ASIC has all the powers of an owner over property vested in it under subsection (2).

Note: Section 601AF confers additional powers on ASIC to fulfil outstanding obligations of the deregistered company.

Company books to be kept by former directors

601AD(5)    

The directors of the company immediately before deregistration must keep the company's books for 3 years after the deregistration.

601AD(6)    

Subsection (5) does not apply to books that a liquidator has to keep under subsection 542(2) , or subsection 70-35(1) of Schedule 2 (retention and return or destruction of books).

Note: A defendant bears an evidential burden in relation to the matter in subsection (6), see subsection 13.3(3) of the Criminal Code .

Strict liability offences

601AD(7)    

An offence based on subsection (5) is an offence of strict liability.

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

SECTION 601AE   WHAT THE COMMONWEALTH OR ASIC DOES WITH THE PROPERTY  

601AE(1)   Trust property vested in the Commonwealth.  

If property vests in the Commonwealth under subsection 601AD(1A) , the Commonwealth may:

(a) continue to act as trustee; or

(b) apply to a court for the appointment of a new trustee.

Note: Under paragraph (1)(a), the Commonwealth may be able to transfer the property to a new trustee chosen in accordance with the trust instrument.

601AE(1A)    

If the Commonwealth continues to act as trustee in respect of the property, subject to its obligations as trustee, the Commonwealth:

(a) in the case of money - must credit the amount of the money to a special account (within the meaning of the Public Governance, Performance and Accountability Act 2013 ); or

(b) otherwise:

(i) may sell or dispose of the property as it thinks fit; and

(ii) if the Commonwealth does so - must credit the amount of the proceeds to a special account (within the meaning of the Public Governance, Performance and Accountability Act 2013 ).

Note: ASIC may, for and on behalf of the Commonwealth, perform all the duties and exercise all the powers of the Commonwealth as trustee in relation to property held on trust by the Commonwealth (see subsection 8(6) of the ASIC Act).

601AE(2)   Property vested in ASIC.  

If property vests in ASIC under subsection 601AD(2) , ASIC may:

(a) dispose of or deal with the property as it sees fit; and

(b) apply any money it receives to:

(i) defray expenses incurred by ASIC in exercising its powers in relation to the company under this Chapter; and

(ii) make payments authorised by subsection (3).

ASIC must deal with the rest (if any) under Part 9.7.

601AE(2A)   Obligations attaching to property vested in the Commonwealth.  

For the purposes of subsection (3), if any liability is imposed on property under a law of the Commonwealth immediately before the property vests in the Commonwealth under subsection 601AD(1A) , then:

(a) immediately after that time, the liability applies to the Commonwealth as if the Commonwealth were a body corporate; and

(b) the Commonwealth is liable to make notional payments to discharge that liability.

601AE(3)   Obligations attaching to property.  

Any property that vests in the Commonwealth or ASIC under subsection 601AD(1A) or (2) remains subject to all liabilities imposed on the property under a law and does not have the benefit of any exemption that the property might otherwise have because it is vested in the Commonwealth or ASIC. These liabilities include a liability that:

(a) is a security interest in or claim on the property; and

(b) arises under a law that imposes rates, taxes or other charges.

601AE(4)   Extent of Commonwealth ' s and ASIC ' s obligation.  

The Commonwealth ' s or ASIC ' s obligation under subsection (2A) or (3) is limited to satisfying the liabilities out of the company ' s property to the extent that the property is properly available to satisfy those liabilities.

601AE(5)   Accounts.  

The Commonwealth or ASIC (as the case requires) must keep:

(a) a record of property that it knows is vested in it under this Chapter; and

(b) a record of its dealings with that property; and

(c) accounts of all money received from those dealings; and

(d) all accounts, vouchers, receipts and papers relating to the property and that money.

SECTION 601AF  

601AF   THE COMMONWEALTH ' S AND ASIC ' S POWER TO FULFIL OUTSTANDING OBLIGATIONS OF DEREGISTERED COMPANY  

The Commonwealth or ASIC may do an act on behalf of the company or its liquidator if the Commonwealth or ASIC is satisfied that the company or liquidator would be bound to do the act if the company still existed.

Note: This power is a general one and is not limited to acts in relation to property vested in the Commonwealth under subsection 601AD(1A) , or ASIC under subsection 601AD(2) . The Commonwealth or ASIC has all the powers that automatically flow from the vesting of property under that subsection (see subsections 601AD(3A) and (4) ) and may exercise those powers whether or not the company was bound to do so.

SECTION 601AG  

601AG   CLAIMS AGAINST INSURERS OF DEREGISTERED COMPANY  
A person may recover from the insurer of a company that is deregistered an amount that was payable to the company under the insurance contract if:

(a) the company had a liability to the person; and

(b) the insurance contract covered that liability immediately before deregistration.

SECTION 601AH   REINSTATEMENT  
Reinstatement by ASIC

601AH(1)    
ASIC may reinstate the registration of a company if ASIC is satisfied that the company should not have been deregistered.

601AH(1A)    

ASIC may reinstate the registration of a company deregistered under subsection 601AB(1B) if:

(a)    ASIC receives an application in relation to the reinstatement of the company ' s registration; and

(b)    the levy imposed on the company by the ASIC Supervisory Cost Recovery Levy Act 2017 is paid in full; and

(c)    the amount of any late payment penalty payable in relation to the levy is paid in full; and

(d)    the amount of any shortfall penalty payable in relation to the levy is paid in full.

601AH(1B)    

ASIC may reinstate the registration of a company deregistered under subsection 601AB(1C) if:

(a)    ASIC receives an application in relation to the reinstatement of the company ' s registration; and

(b)    the instalments of levy (within the meaning of the Financial Services Compensation Scheme of Last Resort Levy (Collection) Act 2023 ) imposed on the company are paid in full; and

(c)    the amount of any late payment penalty payable in relation to the instalments of levy is paid in full; and

(d)    the amount of any shortfall penalty payable in relation to the instalments of levy is paid in full.

Reinstatement by Court

601AH(2)    
The Court may make an order that ASIC reinstate the registration of a company if:

(a)    an application for reinstatement is made to the Court by:

(i) a person aggrieved by the deregistration; or

(ii) a former liquidator of the company; and

(b)    the Court is satisfied that it is just that the company ' s registration be reinstated.

601AH(3)    

If:

(a)    

ASIC reinstates the registration of a company under subsection (1) or (1A) ; or

(b)    the Court makes an order under subsection (2) ;

the Court may:

(c)    validate anything done during the period:

(i) beginning when the company was deregistered; and

(ii) ending when the company ' s registration was reinstated; and

(d)    make any other order it considers appropriate.

Note: For example, the Court may direct ASIC to transfer to another person property vested in ASIC under subsection 601AD(2) .

ASIC to give notice of reinstatement

601AH(4)    
ASIC must give notice of a reinstatement in the Gazette .

601AH(4A)    
If an application was made to ASIC for the reinstatement of a company ' s registration, ASIC must give notice of the reinstatement to the applicant.

Effect of reinstatement

601AH(5)   

If a company is reinstated, the company is taken to have continued in existence as if it had not been deregistered. A person who was a director of the company immediately before deregistration becomes a director again as from the time when ASIC or the Court reinstates the company. Any property of the company that is still vested in the Commonwealth or ASIC revests in the company. If the company held particular property subject to a security or other interest or claim, the company takes the property subject to that interest or claim.

601AH(6)    

Subsection 601AH(5) does not affect the cancellation of an Australian financial services licence held by the company if the cancellation occurs because the company was deregistered.