Corporations Amendment (Insolvency) Act 2007 (132 of 2007)

Schedule 4   Fine-tuning voluntary administration

Part 3   Liquidation following administration

Corporations Act 2001

63   At the end of Division 12 of Part 5.3A

Add:

446C Liquidator may require submission of a report about the company's affairs

Scope

(1) This section applies if:

(a) at a particular time (the liquidation time ), a company resolves by special resolution that it be wound up voluntarily; and

(b) immediately before the liquidation time:

(i) the company was under administration; or

(ii) the company was subject to a deed of company arrangement.

Report

(2) The liquidator may, by written notice given to a person who is or has been an officer of the company, require the person to:

(a) give the liquidator a report containing such information as is specified in the notice about:

(i) the affairs of the company, as at a date specified in the notice; or

(ii) if one or more of the affairs of the company are specified in the notice - those affairs, as at a date specified in the notice; and

(b) verify the report by a statement in writing in the prescribed form.

(3) The following provisions have effect:

(a) if subparagraph (1)(b)(i) applies - the date specified in the subsection (2) notice must not be earlier than the beginning of the administration;

(b) if subparagraph (1)(b)(ii) applies - the date specified in the subsection (2) notice must not be earlier than the beginning of the administration that ended when the deed was executed.

Deadline for giving report to liquidator

(4) If a person is given a notice under subsection (2), the person must give the liquidator the report required by the notice:

(a) within 14 days after the notice was given; or

(b) if the liquidator, by written notice given to the person, allows a longer period - within that longer period.

(5) The liquidator may allow a longer period under paragraph (4)(b) only on written application made within the period of 14 days mentioned in paragraph (4)(a).

(6) The liquidator may allow a longer period under paragraph (4)(b) only if the liquidator believes there are special reasons for doing so.

Report to be lodged with ASIC

(7) The liquidator must, within 7 days after receiving a report under subsection (2), lodge a copy of the report with ASIC.

Cost of preparation of report

(8) If:

(a) a person is required to give a report under subsection (2); and

(b) the person incurs costs or expenses in relation to the preparation or giving of the report;

the person is entitled to be paid by the liquidator out of the property of the company, so much of those costs and expenses as the liquidator considers reasonable.

Reasonable excuse

(9) Subsection (4) does not apply to the extent that the person has a reasonable excuse.

Note: A defendant bears an evidential burden in relation to the matter in subsection (9), see subsection 13.3(3) of the Criminal Code.

Strict liability

(10) An offence against subsection 1311(1) that relates to subsection (4) of this section is an offence of strict liability.

Note: For strict liability , see section 6.1 of the Criminal Code.