Insolvency Law Reform Act 2016 (11 of 2016)
Schedule 2 Amendments relating to the Insolvency Practice Schedule (Corporations)
Part 2 Amendments consequential on the introduction of the Insolvency Practice Schedule (Corporations)
Corporations Act 2001
91 After section 422
Insert:
422A Annual return by controller
(1) This section applies if a person is the controller of property of a corporation during all or part of a control return year for the controller for the corporation.
(2) However, this section does not apply if:
(a) the control of the property ends during the control return year; and
(b) the person is the controller of the property when the control of the property ends.
Note: If a person is the controller of property of the corporation when the control of the property ends, the person must instead lodge a return under section 422B.
(3) The person must lodge a return in relation to the control of the property of the corporation.
(4) The return must:
(a) be in the approved form; and
(b) be lodged with ASIC within 3 months after the end of the control return year.
Note: Fees for lodging documents and late lodgement fees may be imposed under the Corporations (Fees) Act 2001.
(5) Each of the following is a control return year for a controller for a corporation:
(a) the period of 12 months beginning on the day on which the person first began to be a controller of the property of the corporation;
(b) each subsequent period of 12 months.
422B End of control return
Application of this section
(1) This section applies if the control of the property of a corporation ends.
End of receivership return to be lodged
(2) The person who is the controller of the property of the corporation when the control of the property of the corporation ends (the last controller ) must lodge a return in relation to the control of the property of the corporation.
(3) The return must:
(a) be in the approved form; and
(b) be lodged with ASIC within 1 month after the control of the property of the corporation ends.
Note: Fees for lodging documents and late lodgement fees may be imposed under the Corporations (Fees) Act 2001.
Notice of lodgement to be given
(4) The last controller must give notice that the return has been lodged to a person mentioned in subsection (5), if that person requests in writing that the last controller give the person such a notice.
Note: For notification, see section 600G.
(5) The persons who may request such a notice are:
(a) the members of the corporation; and
(b) the creditors; and
(c) the corporation; and
(d) if the corporation is a company under external administration - the external administrator of the company.
422C Transfer of books to new controller
Application of this section
(1) This section applies if:
(a) a person (the former controller ) ceases to act as a controller of property of a corporation; and
(b) ASIC has not issued a notice to the former controller under section 422D; and
(c) a registered liquidator (the new controller ) is appointed instead as:
(i) the controller of that property of the corporation; or
(ii) if the corporation is a company under external administration - the external administrator of the company.
Transfer of books to new controller
(2) The former controller must transfer to the new controller, within 5 business days after the new controller is appointed, possession or control of any books relating to the control of the property that are in the former controller's possession or control.
(3) The former controller may take a copy of any part of the books before transferring possession or control of them to the new controller.
New controller must allow inspection etc.
(4) After possession or control of the books is transferred, the new controller must allow the former controller to inspect them at any reasonable time and take a copy of any part of the books.
Offence
(5) A person commits an offence if:
(a) the person is subject to a requirement under subsection (2) or (4); and
(b) the person intentionally or recklessly fails to comply with the requirement.
Penalty: 50 penalty units.
Lien against books not prejudiced
(6) If the new controller is entitled to take possession or control of the books under this section:
(a) a person is not entitled, as against the new controller, to claim a lien on the books; and
(b) such a lien is not otherwise prejudiced.
422D Transfer of books to ASIC etc.
Transfer of books to ASIC
(1) If a person ceases to act as a controller of property of a corporation, ASIC may, by written notice given to the person, require the person to:
(a) if the person has possession or control of books relating to the control of that property of the corporation in his or her possession or control - transfer possession or control of those books to ASIC within the period specified in the notice; or
(b) otherwise - notify ASIC, within the period and in the manner specified in the notice, that the person does not have books relating to the control of that property of the corporation in the person's possession or control.
Offence
(2) A person commits an offence if:
(a) the person is subject to a requirement under subsection (1); and
(b) the person intentionally or recklessly fails to comply with the requirement.
Penalty: 50 penalty units.
ASIC must transfer books to new controller
(3) If:
(a) possession or control of books relating to the control of property of a corporation is transferred to ASIC under this section; and
(b) the books are in ASIC's possession or control; and
(c) a person (the new controller ) is or becomes:
(i) the controller of that property of the corporation; or
(ii) if the corporation is a company under external administration - the external administrator of the company;
ASIC must, as soon as practicable, transfer possession or control of those books to the new controller.
ASIC must transfer books to company
(4) If:
(a) possession or control of books relating to the control of property of a corporation is transferred to ASIC under this section; and
(b) the books are in ASIC's possession or control; and
(c) it is unlikely that another person will be appointed as:
(i) the controller of that property of the corporation; or
(ii) if the corporation is a company under external administration - the external administrator of the company;
ASIC must, as soon as practicable, transfer possession or control of those books to the relevant corporation.
Lien against books not prejudiced
(5) If asic is entitled to take possession or control of the books under this section:
(a) a person is not entitled, as against ASIC, to claim a lien on the books; and
(b) such a lien is not otherwise prejudiced.
(6) If ASIC is required to give possession or control of the books to the new controller under this section:
(a) a person is not entitled, as against the new controller, to claim a lien on the books; and
(b) such a lien is not otherwise prejudiced.
Notice is not a legislative instrument
(7) A notice under subsection (1) is not a legislative instrument.
Retention period for books
(8) ASIC must retain all books:
(a) that are relevant to the control of property of the corporation; and
(b) possession or control of which is transferred to ASIC under this section; and
(c) possession or control of which is not transferred to another entity under this section, or under any other law;
for a period (the retention period ) of 2 years after the day on which ASIC takes possession or control of the books.
Destruction of books at end of retention period
(9) ASIC may destroy the books at the end of the retention period.
Relationship with other laws
(10) Subsections (8) and (9) do not apply to the extent that ASIC is under an obligation to retain the books, or a part of the books, under another provision of this Act or under any other law.