THE CORPORATIONS LAW

CHAPTER 5 - EXTERNAL ADMINISTRATION

PART 5.7B - RECOVERING PROPERTY OR COMPENSATION FOR THE BENEFIT OF CREDITORS OF INSOLVENT COMPANY

Division 1 - Preliminary

SECTION 588E   PRESUMPTIONS TO BE MADE IN RECOVERY PROCEEDINGS  

588E(1)  [``recovery proceeding'']  

In this section:

``recovery proceeding'' , in relation to a company, means:

(a)  an application under section 588FF by the company's liquidator; or

(b)  proceedings begun under subsection 588FH(2) by the company's liquidator; or

(c)  proceedings, in so far as they relate to the question whether a charge created by the company is void to any extent, as against the company's liquidator, because of subsection 588FJ(2); or

(d)  proceedings begun under subsection 588FJ(6) by the company's liquidator; or

(e)  proceedings for a contravention of subsection 588G(2) in relation to the incurring of a debt by the company (including proceedings under section 588M in relation to the incurring of the debt but not including proceedings for an offence); or

(f)  proceedings under section 588W in relation to the incurring of a debt by the company.

588E(2)  [Application to recovery proceeding]  

Subsections (3) to (9), inclusive, have effect for the purposes of a recovery proceeding in relation to a company.

588E(3)  [Presumption of insolvency]  

If:

(a)  the company is being wound up; and

(b)  it is proved, or because of subsection (4) or (8) it must be presumed, that the company was insolvent at a particular time during the 12 months ending on the relation-back day;

it must be presumed that the company was insolvent throughout the period beginning at that time and ending on that day.

588E(4)  [Contravention of sec 286]  

Subject to subsections (5) to (7), if it is proved that the company:

(a)  has failed to keep financial records in relation to a period as required by subsection 286(1); or

(b)  has failed to retain financial records in relation to a period for the 7 years required by subsection 286(2);

the company is to be presumed to have been insolvent throughout the period.

588E(5)  [Minor or technical contravention]  

Paragraph (4)(a) does not apply in relation to a contravention of subsection 286(1) that is only minor or technical.

588E(6)  [Concealment or removal of financial records]  

Subsection (4) does not have effect, in so far as it would prejudice a right or interest of a person for the company to be presumed insolvent because of a contravention of subsection 286(2), if it is proved that:

(a)  the contravention was due solely to someone destroying, concealing or removing financial records of the company; and

(b)  none of those financial records was destroyed, concealed or removed by the first-mentioned person; and

(c)  the person was not in any way, by act or omission, directly or indirectly, knowingly or recklessly, concerned in, or party to, destroying, concealing or removing any of those financial records.

588E(7)  [Application under sec 588FF]  

If the recovery proceeding is an application under section 588FF, subsection (4) of this section does not have effect for the purposes of proving, for the purposes of the application, that an unfair preference given by the company to a creditor of the company is an insolvent transaction, unless it is proved, for the purposes of the application, that a related entity of the company was a party to the unfair preference.

588E(8)  [Proof in other recovery proceeding]  

If, for the purposes of another recovery proceeding in relation to the company, there has been proved:

(a)  if the other proceeding is of the kind referred to in paragraph (1)(a) of this section - a matter of the kind referred to in a paragraph of section 588FC or of subsection 588FG(2); or

(b)  if the other proceeding is of the kind referred to in paragraph (1)(b) of this section - a matter of the kind referred to in a paragraph of section 588FC or of subsection 588FG(2) or 588FH(1), or a defence under subsection 588FH(3); or

(c)  if the other proceeding is of the kind referred to in paragraph (1)(c) or (d) of this section - a matter of the kind referred to in subsection 588FJ(3); or

(d)  if the other proceeding is of the kind referred to in paragraph (1)(e) of this section - a matter of the kind referred to in a paragraph of section 588G, or a defence under section 588H; or

(e)  if the other proceeding is of the kind referred to in paragraph (1)(f) of this section - a matter of the kind referred to in a paragraph of subsection 588V(1), or a defence under section 588X;

it must be presumed that that matter was the case, or that the matters constituting that defence were the case.

588E(9)  [Prima facie presumption]  

A presumption for which this section provides operates except so far as the contrary is proved for the purposes of the proceeding concerned.