Corporations Act 2001

CHAPTER 5 - EXTERNAL ADMINISTRATION  

PART 5.6 - WINDING UP GENERALLY  

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

Division 7B - Effect on enforcement process against company's property  

SECTION 570   DUTIES OF SHERIFF AFTER RECEIVING NOTICE OF APPLICATION  

570(1)   [ Sheriff with notice not competent to sell, etc]  

Subject to this section, where a sheriff:

(a) receives notice in writing of an application to the Court for the winding up of a company; or

(b) receives notice in writing of the convening of a meeting of a company to consider a resolution that the company be wound up voluntarily;

it is not competent for the sheriff to:

(c) take any action to sell property of the company pursuant to any process of execution issued by or on behalf of a creditor; or

(d) pay to the creditor by whom or on whose behalf the process of execution was issued or to any person on the creditor's behalf the proceeds of the sale of property of the company that has been sold pursuant to such a process or any money seized, or paid to avoid seizure or sale of property of the company, under such a process.

570(2)   [ Exceptions]  

Subsection (1) does not affect the power of the sheriff to take any action or make any payment if:

(a) in a case to which paragraph (1)(a) applies - the application has been withdrawn or dismissed; or

(b) in a case to which paragraph (1)(b) applies - the meeting of the company has refused to pass the resolution.

570(3)   [ Court officer with notice]  

Subject to this section, where the registrar or other appropriate officer of a court to which proceeds of the sale of property of a company or other money has been paid by a sheriff pursuant to a process of execution issued by or on behalf of a creditor of the company:

(a) receives notice in writing of an application to the Court for the winding up of the company; or

(b) receives notice in writing of the convening of a meeting of the company to consider a resolution that the company be wound up voluntarily;

any of those proceeds or money not paid out of court must not be paid to the creditor or to any person on behalf of the creditor.

570(4)   [ Exceptions]  

Subsection (3) does not prevent the making of a payment if:

(a) in a case to which paragraph (3)(a) applies - the application has been withdrawn or dismissed; or

(b) in a case to which paragraph (3)(b) applies - the meeting of the company has refused to pass the resolution.

570(5)   [ Notice to sheriff or court officer]  

Where a company is being wound up, the liquidator may serve notice in writing of that fact on a sheriff or the registrar or other appropriate officer of a court.

570(6)   [ Duties on receipt of notice]  

Upon such a notice being so served:

(a) the sheriff must deliver or pay to the liquidator:

(i) any property of the company in the sheriff's possession under a process of execution issued by or on behalf of a creditor; and

(ii) any proceeds of the sale of property of the company or other money in the sheriff's possession, being proceeds of the sale of property sold, whether before or after the commencement of the winding up, pursuant to such a process or money seized, or paid to avoid seizure or sale of property of the company, whether before or after the commencement of the winding up, under such a process; or

(b) the registrar or other officer of the court must pay to the liquidator any proceeds of the sale of property of the company or other money in court, being proceeds of sale or other money paid into court, whether before or after the commencement of the winding up, by a sheriff pursuant to a process of execution issued by or on behalf of a creditor;

as the case requires.

570(7)   [ Costs of execution a first charge]  

Where:

(a) property is, or proceeds of the sale of property or other money are, required by subsection (6) to be delivered or paid to a liquidator; or

(b) a sheriff has, pursuant to subsection (1), refrained from taking action to sell property of a company, being land, and that company is being wound up under an order made on the application referred to in that subsection;

the costs of the execution are a first charge on that property or on those proceeds of sale or other money.

570(8)   [ Sheriff may retain costs for creditor]  

For the purpose of giving effect to the charge referred to in subsection (7), the sheriff, registrar or other officer may retain, on behalf of the creditor entitled to the benefit of the charge, such amount from the proceeds of sale or other money referred to in that subsection as he or she thinks necessary for the purpose.

570(9)   [ Court's powers to permit execution]  

The Court may, if in a particular case it considers it is proper to do so:

(a) permit a sheriff to take action to sell property or make a payment that the sheriff could not, by reason of subsection (1), otherwise validly take; or

(b) permit the making of a payment the making of which would, by reason of subsection (3), otherwise be prohibited.