THE CORPORATIONS LAW

CHAPTER 5 - EXTERNAL ADMINISTRATION

PART 5.1 - ARRANGEMENTS AND RECONSTRUCTIONS

SECTION 411   ADMINISTRATION OF COMPROMISES ETC.  

411(1)  [Court's power to order meeting]  

Where a compromise or arrangement is proposed between a Part 5.1 body and its creditors or any class of them or between a Part 5.1 body and its members or any class of them, the Court may, on the application in a summary way of the body or of any creditor or member of the body, or, in the case of a body being wound up, of the liquidator, order a meeting or meetings of the creditors or class of creditors or of the members of the body or class of members to be convened in such manner, and to be held in such place or places (in this jurisdiction or elsewhere), as the Court directs and, where the Court makes such an order, the Court may approve the explanatory statement required by paragraph 412(1)(a) to accompany notices of the meeting or meetings.

411(1A)  [Group arrangements - at least 30 subsidiaries]  

Where:

(a)  a compromise or arrangement is proposed:

(i) between 30 or more Part 5.1 bodies that are wholly-owned subsidiaries of a holding company and the creditors or a class of the creditors of each of those subsidiaries; and

(ii) between the holding company and the creditors or a class of the creditors of the holding company; and

(b)  the proposed compromise or arrangement in relation to each subsidiary includes a term that orders will be sought under section 413 transferring the whole of the undertaking and of the property and liabilities of the subsidiary to the holding company; and

(c)  the Court is satisfied, on the application in a summary way:

(i) of the holding company or of a creditor of the holding company; or

(ii) if the holding company is being wound up - of the liquidator;

that the number of meetings that would be required between creditors in order to consider the proposed compromises or arrangements would be so great as to result in a significant impediment to the timely and effective consideration by those creditors of the terms of the compromises or arrangements;

the Court may order a meeting or meetings, on a consolidated basis, of the creditors of the holding company and of each of the subsidiaries or of such class or classes of those creditors as the Court determines and, where the Court makes such an order, the Court may approve the explanatory statement required by paragraph 412(1)(a) to accompany notices of the meeting or meetings.

411(1B)  [Group arrangements - less than 30 subsidiaries]  

Where:

(a)  there are fewer than 30 wholly-owned subsidiaries of the holding company but the matters referred to in paragraphs (1A)(b) and (c) are satisfied; and

(b)  the Court considers that circumstances exist that would justify its doing so;

the Court may make an order under subsection (1A) in relation to the proposed compromise or arrangement.

411(1C)  [Effect of subsec (1A) order]  

Where an order is made under subsection (1A) in relation to a proposed compromise or arrangement, the succeeding provisions of this Part apply to the compromise or arrangement as if:

(a)  references in this Part to a company included references to all of the Part 5.1 bodies to which the order relates; and

(b)  references in this Part to creditors of a company included references to the creditors of all the Part 5.1 bodies to which the order relates; and

(c)  references in this Part to a class of the creditors of a company were references to the relevant class of creditors of all of the Part 5.1 bodies to which the order relates.

411(2)  [Notice to the Commission]  

The Court shall not make an order pursuant to an application under subsection (1) or (1A) unless:

(a)  14 days notice of the hearing of the application, or such lesser period of notice as the Court or the Commission permits, has been given to the Commission; and

(b)  the Court is satisfied that the Commission has had a reasonable opportunity:

(i) to examine the terms of the proposed compromise or arrangement to which the application relates and a draft explanatory statement relating to the proposed compromise or arrangement; and

(ii) to make submissions to the Court in relation to the proposed compromise or arrangement and the draft explanatory statement.

411(3)  [``Draft explanatory statement'']  

In subsection (2), `` draft explanatory statement '', in relation to a proposed compromise or arrangement between a body and its creditors or any class of them or between a body and its members or any class of them, means a statement:

(a)  explaining the effect of the proposed compromise or arrangement and, in particular, stating any material interests of the directors of the body, whether as directors, as members or creditors of the body or otherwise, and the effect on those interests of the proposed compromise or arrangement in so far as that effect is different from the effect on the like interests of other persons; and

(b)  setting out such information as is prescribed and any other information that is material to the making of a decision by a creditor or member of the body whether or not to agree to the proposed compromise or arrangement, being information that is within the knowledge of the directors of the body and has not previously been disclosed to the creditors or members of the body.

411(3A)  [Meetings in another jurisdiction]  

In considering whether to make an order under subsection (1) or (1A) for a meeting to be held in another jurisdiction, the Court must have regard to where the creditors or members, or the creditors or members included in the class concerned, as the case requires, reside.

411(4)  [Circumstances in which compromise or arrangement binding]  

A compromise or arrangement is binding on the creditors, or on a class of creditors, or on the members, or on a class of members, as the case may be, of the body and on the body or, if the body is in the course of being wound up, on the liquidator and contributories of the body, if, and only if:

(a)  at a meeting convened in accordance with an order of the Court under subsection (1) or (1A):

(i) in the case of a compromise or arrangement between a body and its creditors or a class of creditors - the compromise or arrangement is agreed to by a majority in number of the creditors, or of the creditors included in that class of creditors, present and voting, either in person or by proxy, being a majority whose debts or claims against the company amount in the aggregate to at least 75% of the total amount of the debts and claims of the creditors present and voting in person or by proxy, or of the creditors included in that class present and voting in person or by proxy, as the case may be; and

(ii) in the case of a compromise or arrangement between a body and its members or a class of members - a resolution in favour of the compromise or arrangement is:

(A) passed by a majority in number of the members, or members in that class, present and voting (either in person or by proxy); and

(B) if the body has a share capital - passed by 75% of the votes cast on the resolution; and

(b)  it is approved by order of the Court.

411(5)  [Two or more meetings]  

Where the Court orders 2 or more meetings of creditors or of a class of creditors, or 2 or more meetings of members or of a class of members, to be held in relation to the proposed compromise or arrangement:

(a)  in the case of meetings of creditors - the meetings shall, for the purposes of subsection (4), be deemed together to constitute a single meeting and the votes in favour of the proposed compromise or arrangement cast at each of the meetings shall be aggregated, and the votes against the proposed compromise or arrangement cast at each of the meetings shall be aggregated, accordingly; or

(b)  in the case of meetings of members - the meetings shall, for the purposes of subsection (4), be deemed together to constitute a single meeting and the votes in favour of the proposed compromise or arrangement cast at each of the meetings shall be aggregated, and the votes against the proposed compromise or arrangement cast at each of the meetings shall be aggregated, accordingly.

411(6)  [Court's approval]  

The Court may grant its approval to a compromise or arrangement subject to such alterations or conditions as it thinks just.

411(7)  [Persons disqualified from administering compromise etc]  

Except with the leave of the Court, a person shall not be appointed to administer, and shall not administer, a compromise or arrangement approved under this Law between a body and its creditors or any class of them or between a body and its members or any class of them, whether by the terms of that compromise or arrangement or pursuant to a power given by the terms of a compromise or arrangement, if the person:

(a)  is a mortgagee of any property of the body;

(b)  is an auditor or an officer of the body;

(c)  is an officer of a body corporate that is a mortgagee of property of the body;

(d)  is not a registered liquidator;

(e)  is an officer of a body corporate related to the body; or

(f)  unless the Commission directs in writing that this paragraph does not apply in relation to the person in relation to the body - has at any time within the last 12 months been an officer or promoter of the body or of a related body corporate.

411(8)  [Authorised body corporate]  

Paragraph (7)(d) does not apply in relation to a body corporate authorised by or under a law of this jurisdiction to administer the compromise or arrangement concerned.

411(8A)  [Transitional]  

Subsection (7) does not disqualify a person from administering a compromise or arrangement under an appointment validly made before the commencement of this section.

411(9)  [Application of other provisions]  

Where a person is or persons are appointed by, or under a power given by, the terms of a compromise or arrangement, to administer the compromise or arrangement:

(a)  section 425, subsections 427(2) and (4) and sections 428, 432 and 434 apply in relation to that person or those persons as if:

(i) the appointment of the person or persons to administer the compromise or arrangement were an appointment of the person or persons as a receiver and manager, or as receivers and managers, of property of the body; and

(ii) a reference in any of those sections or subsections to a receiver, or to a receiver of property, of a corporation were a reference to that person or to those persons; and

(b)  section 536 applies in relation to that person or those persons as if:

(i) the appointment of the person or persons to administer the compromise or arrangement were an appointment of the person or persons as a liquidator of the body; and

(ii) a reference in that section to a liquidator were a reference to that person or to those persons.

411(10)  [Effect of Court order]  

An order of the Court made for the purposes of paragraph (4)(b) does not have any effect until an office copy of the order is lodged with the Commission, and upon being so lodged the order takes effect, or shall be deemed to have taken effect, on and from the date of lodgment or such earlier date as the Court determines and specifies in the order.

411(11)  [Annexure of copies to constituent documents]  

Subject to subsection (12), a copy of every order of the Court made for the purposes of paragraph (4)(b) shall be annexed to every copy of the constitution of the body issued after the order has been made.

411(12)  [Exemption from compliance]  

The Court may, by order, exempt a body from compliance with subsection (11) or determine the period during which the body shall comply with that subsection.

411(13)  [Directors to arrange for reports]  

Where a compromise or arrangement referred to in subsection (1) or (1A) (whether or not for the purposes of or in connection with a scheme for the reconstruction of a body or bodies or the amalgamation of any 2 or more bodies) has been proposed, the directors of the body shall:

(a)  if a meeting of the members of the body by resolution so directs - instruct such accountants or solicitors or both as are named in the resolution to report on the proposals and send their report or reports to the directors as soon as practicable; and

(b)  if a report or reports is or are obtained pursuant to paragraph (a) - make the report or reports available at the registered office of the body for inspection by the shareholders and creditors of the body at least 7 days before the day of the meeting ordered by the Court to be convened as provided in subsection (1) or (1A), as the case may be.

411(14)  [Contravention by body]  

If default is made in complying with subsection (11), the body contravenes this subsection.

411(15)  [Contravention by directors]  

If default is made in complying with subsection (13), each director of the body contravenes this subsection.

411(16)  [Power of Court to restrain further proceedings]  

Where no order has been made or resolution passed for the winding up of a Part 5.1 body and a compromise or arrangement has been proposed between the body and its creditors or any class of them, the Court may, in addition to exercising any of its other powers, on the application in a summary way of the body or of any member or creditor of the body, restrain further proceedings in any action or other civil proceeding against the body except by leave of the Court and subject to such terms as the Court imposes.

411(17)  [Takeovers legislation]  

The Court shall not approve a compromise or arrangement under this section unless:

(a)  it is satisfied that the compromise or arrangement has not been proposed for the purpose of enabling any person to avoid the operation of any of the provisions of Chapter 6; or

(b)  there is produced to the Court a statement in writing by the Commission stating that the Commission has no objection to the compromise or arrangement;

but the Court need not approve a compromise or arrangement merely because a statement by the Commission stating that the Commission has no objection to the compromise or arrangement has been produced to the Court as mentioned in paragraph (b).