THE CORPORATIONS LAW

CHAPTER 5 - EXTERNAL ADMINISTRATION

PART 5.3A - ADMINISTRATION OF A COMPANY'S AFFAIRS WITH A VIEW TO EXECUTING A DEED OF COMPANY ARRANGEMENT

Division 9 - Administrator's liability and indemnity for debts of administration

Subdivision A - Liability

SECTION 443B   PAYMENTS FOR PROPERTY USED OR OCCUPIED BY, OR IN THE POSSESSION OF, THE COMPANY  

443B(1)  [Property owned by someone else]  

This section applies if, under an agreement made before the administration of a company began, the company continues touse or occupy, or to be in possession of, property of which someone else is the owner or lessor.

443B(2)  [Administrator liable for rent, etc]  

Subject to this section, the administrator is liable for so much of the rent or other amounts payable by the company under the agreement as is attributable to a period:

(a)  that begins more than 7 days after the administration began; and

(b)  throughout which:

(i) the company continues to use or occupy, or to be in possession of, the property; and

(ii) the administration continues.

443B(3)  [Notice to owner or lessor]  

Within 7 days after the beginning of the administration, the administrator may give to the owner or lessor a notice that specifies the property and states that the company does not propose to exercise rights in relation to the property.

443B(4)  [Administrator's liability where notice given]  

Despite subsection (2), the administrator is not liable for so much of the rent or other amounts payable by the company under the agreement as is attributable to a period during which a notice under subsection (3) is in force, but such a notice does not affect a liability of the company.

443B(5)  [Notice ceasing to have effect]  

A notice under subsection (3) ceases to have effect if:

(a)  the administrator revokes it by writing given to the owner or lessor; or

(b)  the company exercises, or purports to exercise, a right in relation to the property.

443B(6)  [Occupation or possession without use]  

For the purposes of subsection (5), the company does not exercise, or purport to exercise, a right in relation to the property merely because the company continues to occupy, or to be in possession of, the property, unless the company:

(a)  also uses the property; or

(b)  asserts a right, as against the owner or lessor, so to continue.

443B(7)  [Appointment of receiver, etc]  

Subsection (2) does not apply in relation to so much of a period as elapses after:

(a)  a receiver of the property is appointed; or

(b)  a chargee appoints an agent, under the provisions of a charge on the property, to enter into possession, or to assume control, of the property; or

(c)  a chargee takes possession, or assumes control, of the property under the provisions of a charge on the property;

but this subsection does not affect a liability of the company.

443B(8)  [Court order]  

Subsection (2) does not apply in so far as a court, by order, excuses the administrator from liability, but an order does not affect a liability of the company.

443B(9)  [Administrator not to be taken to have adopted agreement]  

The administrator is not taken because of subsection (2):

(a)  to have adopted the agreement; or

(b)  to be liable under the agreement otherwise than as mentioned in subsection (2).