Corporations Act 2001

CHAPTER 5 - EXTERNAL ADMINISTRATION  

PART 5.4B - WINDING UP IN INSOLVENCY OR BY THE COURT  

Note: This Part applies to a sub-fund of a CCIV in a modified form: see Division 5 of Part 8B.6 .

Division 2 - Court-appointed liquidators  

SECTION 477   POWERS OF LIQUIDATOR  

477(1)    
Subject to this section, a liquidator of a company may:

(a) carry on the business of the company so far as is, in the opinion of the liquidator, required for the beneficial disposal or winding up of that business; and

(b) subject to the provisions of section 556 , pay any class of creditors in full; and

(c) make any compromise or arrangement with creditors or persons claiming to be creditors or having or alleging that they have any claim (present or future, certain or contingent, ascertained or sounding only in damages) against the company or whereby the company may be rendered liable; and

(d) compromise any calls, liabilities to calls, debts, liabilities capable of resulting in debts and any claims (present or future, certain or contingent, ascertained or sounding only in damages) subsisting or supposed to subsist between the company and a contributory or other debtor or person apprehending liability to the company, and all questions in any way relating to or affecting the property or the winding up of the company, on such terms as are agreed, and take any security for the discharge of, and give a complete discharge in respect of, any such call, debt, liability or claim.

477(2)    
Subject to this section, a liquidator of a company may:

(a) bring or defend any legal proceeding in the name and on behalf of the company; and

(b) appoint a solicitor to assist him or her in his or her duties; and

(c) sell or otherwise dispose of, in any manner, all or any part of the property of the company; and

(ca) exercise the Court ' s powers under subsection 483(3) (except paragraph 483(3)(b) ) in relation to calls on contributories; and

(d) do all acts and execute in the name and on behalf of the company all deeds, receipts and other documents and for that purpose use when necessary a seal of the company; and

(e) subject to the Bankruptcy Act 1966 , prove in the bankruptcy of any contributory or debtor of the company or under any deed executed under that Act; and

(f) draw, accept, make and indorse any bill of exchange or promissory note in the name and on behalf of the company; and

(g) obtain credit, whether on the security of the property of the company or otherwise; and

(h) take out letters of administration of the estate of a deceased contributory or debtor, and do any other act necessary for obtaining payment of any money due from a contributory or debtor, or his or her estate, that cannot be conveniently done in the name of the company; and

(k) appoint an agent to do any business that the liquidator is unable to do, or that it is unreasonable to expect the liquidator to do, in person; and

(m) do all such other things as are necessary for winding up the affairs of the company and distributing its property.

477(2A)    
Except with the approval of the Court, of the committee of inspection or of a resolution of the creditors, a liquidator of a company must not compromise a debt to the company if the amount claimed by the company is more than:

(a) if an amount greater than $20,000 is prescribed - the prescribed amount; or

(b) otherwise - $20,000.

477(2B)    

Except with the approval of the Court, of the committee of inspection or of a resolution of the creditors, a liquidator of a company must not enter into an agreement on the company ' s behalf (for example, but without limitation, a lease or an agreement under which a security interest arises or is created) if:

(a) without limiting paragraph (b), the term of the agreement may end; or

(b) obligations of a party to the agreement may, according to the terms of the agreement, be discharged by performance;

more than 3 months after the agreement is entered into, even if the term may end, or the obligations may be discharged, within those 3 months.

477(2C)    
Subsection (2B) does not apply to an agreement if the costs and expenses of the company under the agreement are to be paid out of money paid to the liquidator:

(a) by ASIC on behalf of the Commonwealth; and

(b) for the purpose of paying the costs and expenses.

477(3)    
A liquidator of a company is entitled to inspect at any reasonable time any books of the company and a person who refuses or fails to allow the liquidator to inspect such books at such a time is guilty of an offence.

477(4)    
(Repealed by No 11 of 2016, s 3, Sch 2 [ 149] (effective 1 March 2017).)

477(5)    
For the purpose of enabling the liquidator to take out letters of administration or recover money as mentioned in paragraph (2)(h), the money due is taken to be due to the liquidator.

477(6)    

Subject to this Part, the liquidator must use his or her own discretion in the management of affairs and property of the company and the distribution of its property.

477(7)    
This section does not apply to calls on shares in a no liability company.