THE CORPORATIONS LAW

CHAPTER 5 - EXTERNAL ADMINISTRATION

PART 5.8 - OFFENCES

SECTION 589   INTERPRETATION AND APPLICATION  

589(1)  (Application of sec 590 to 593)  

Sections 590 to 593 (inclusive) apply to a company:

(a)  that has been wound up or is in the course of being wound up;

(b)  that has been in the course of being wound up, where the winding up has been stayed or terminated by an order under section 482;

(ba)  of which a provisional liquidator has been appointed;

(c)  that is or has been under administration;

(ca)  that has executed a deed of company arrangement, even if the deed has since terminated;

(d)  affairs of which are or have been under investigation;

(e)  in respect of property of which a receiver, or a receiver and manager, has at any time been appointed, whether by the Court or under a power contained in an instrument, whether or not the appointment has been terminated;

(f)  that has ceased to carry on business or is unable to pay its debts; or

(g)  that has entered into a compromise or arrangement with its creditors.

589(2)  (Affairs under investigation)  

For the purposes of this Part, affairs of a company are or have been under investigation if, and only if:

(a)  the Commission is investigating, or has at any time investigated, under Division 1 of Part 3 of the ASIC Law:

(i) matters being, or connected with, affairs of the company; or

(ii) matters including such matters; or

(b)  affairs of the company have at any time been under investigation under Part VII of the Companies Act 1981 or the provisions of a previous law of this or any other jurisdiction that correspond to that Part.

589(3)  [Company deemed to have ceased to carry on business]  

For the purposes of this Part, a company is taken to have ceased to carry on business only if:

(a)  ASIC has published in the Gazette a notice of the proposed deregistration of the company under subsection 601AA(4) or 601AB(3); and

(b)  if the notice was published under subsection 601AA(4) or under subsection 601AB(3) because of a decision under subsection 601AB(1) - 2 months have passed since the notice was published and ASIC has not been informed that the company is carrying on business.

589(4)  [Company deemed to be unable to pay debts]  

For the purposes of this Part, a company shall be deemed to be unable to pay its debts if, and only if, execution or other process issued on a judgment, decree or order of a court (whether or not an Australian court) in favour of a creditor of the company is returned unsatisfied in whole or in part.

589(5)  [Definitions]  

In this Part:

``appropriate officer'' means:

(a)  in relation to a company that has been, has been being or is being wound up - the liquidator;

(aa)  in relation to a company of which a provisional liquidator has been appointed - the provisional liquidator;

(b)  in relation to a company that is or has been under administration - the administrator;

(ba)  in relation to a company that has executed a deed of company arrangement - the deed's administrator;

(c)  in relation to a company affairs of which are or have been under investigation - the Commission or the NCSC, as the case requires;

(d)  in relation to a company in respect of property of which a receiver, or a receiver and manager, has been appointed - the receiver or the receiver and manager;

(e)  in relation to a company that has ceased to carry on business or is unable to pay its debts - the Commission or the NCSC, as the case requires; and

(f)  in relation to a company that has entered into a compromise or arrangement with its creditors - the person appointed by the Court to administer the compromise or arrangement;

``relevant day'' means the day on which:

(a)  in relation to a company that has been wound up, has been in the course of being wound up, or is being wound up:

(i) if, because of Division 1A of Part 5.6, the winding up is taken to have begun on the day when an order that the company be wound up was made - the application for the order was filed; or

(ii) otherwise - the winding up is taken because of Division 1A of Part 5.6 to have begun;

(aa)  in relation to a company of which a provisional liquidator has been appointed - the provisional liquidator was appointed;

(b)  in relation to a company that is or has been under administration - the administration began;

(ba)  in relation to a company that has executed a deed of company arrangement - the deed was executed;

(c)  in relation to a company affairs of which are or have been under investigation:

(i) if paragraph (2)(a) applies - the investigation began; or

(ii) if paragraph (2)(b) applies - a direction was given to the NCSC to arrange for the investigation;

(d)  in relation to a company in respect of property of which a receiver, or a receiver and manager, has been appointed - the receiver, or the receiver and manager, was appointed;

(e)  in relation to a company that is unable to pay its debts - the execution or other process was returned unsatisfied in whole or in part;

(f)  in relation to a company that has ceased to carry on business - a notice was first published in relation to the company under subsection 601AA(4) or 601AB(3);

(g)  in relation to a company that has entered into a compromise or arrangement with its creditors - the compromise or arrangement was approved by the Court.

589(6)  [Application to a Div 2, 3 or 4 company]  

This Part applies in relation to a Division 2, 3 or 4 company:

(a)  as if, in this Part (other than section 595) as so applying:

(i) a reference to the company included a reference to the company as it existed at a time before its registration day (including a time before the commencement of this subsection);

(ii) a reference to a provision of this Law included a reference to a previous law corresponding to that provision; and

(iii) a reference, in relation to a provision of this Law, to the Commission included a reference to the NCSC; and

(b)  with such other modifications as the circumstances require.