Corporations Act 2001

CHAPTER 5 - EXTERNAL ADMINISTRATION  

PART 5.7 - WINDING UP BODIES OTHER THAN COMPANIES  

SECTION 582   APPLICATION OF PART  

582(1)   [ Application]  

This Part has effect in addition to, and not in derogation of, sections 601CC and 601CL and any provisions contained in this Act or any other law with respect to the winding up of bodies, and the liquidator or Court may exercise any powers or do any act in the case of Part 5.7 bodies that might be exercised or done by him, her or it in the winding up of companies.

582(2)   [ Saving as to Bankruptcy Act]  

Nothing in this Part affects the operation of the Bankruptcy Act 1966 .

582(3)   [ Part 5.7 bodies]  

A Part 5.7 body may be wound up under this Part notwithstanding that it is being wound up or has been dissolved, deregistered or has otherwise ceased to exist as a body corporate under or by virtue of the laws of the place under which it was incorporated.

SECTION 583  

583   WINDING UP PART 5.7 BODIES  
Subject to this Part, a Part 5.7 body may be wound up under this Chapter and this Chapter applies accordingly to a Part 5.7 body with such adaptations as are necessary, including the following adaptations:

(a) the principal place of business of a Part 5.7 body in this jurisdiction is taken, for all the purposes of the winding up, to be the registered office of the Part 5.7 body;

(b) a Part 5.7 body is not to be wound up voluntarily under this Chapter;

(c) the circumstances in which a Part 5.7 body may be wound up are as follows:

(i) if the Part 5.7 body is unable to pay its debts, has been dissolved or deregistered, has ceased to carry on business in this jurisdiction or has a place of business in this jurisdiction only for the purpose of winding up its affairs;

(ii) if the Court is of opinion that it is just and equitable that the Part 5.7 body should be wound up;

(iii) if ASIC has stated in a report prepared under Division 1 of Part 3 of the ASIC Act that, in its opinion:

(A) the Part 5.7 body cannot pay its debts and should be wound up; or

(B) it is in the interests of the public, of the members, or of the creditors, that the Part 5.7 body should be wound up;

(d) if the Part 5.7 body is a registrable Australian body - the winding up must deal only with the affairs of the body outside its place of origin.

SECTION 585  

585   INSOLVENCY OF PART 5.7 BODY  
For the purposes of this Part, a Part 5.7 body is taken to be unable to pay its debts if:

(a) a creditor, by assignment or otherwise, to whom the Part 5.7 body is indebted in a sum exceeding the statutory minimum then due has served on the Part 5.7 body, by leaving at its principal place of business in this jurisdiction or by delivering to the secretary or a director or senior manager of the Part 5.7 body or by otherwise serving in such manner as the Court approves or directs, a demand, signed by or on behalf of the creditor, requiring the body to pay the sum so due and the body has, for 3 weeks after the service of the demand, failed to pay the sum or to secure or compound for it to the satisfaction of the creditor; or

(b) an action or other proceeding has been instituted against any member for any debt or demand due or claimed to be due from the Part 5.7 body or from the member as such and, notice in writing of the institution of the action or proceeding having been served on the body by leaving it at its principal place of business in this jurisdiction or by delivering it to the secretary or a director or senior manager of the Part 5.7 body or by otherwise serving it in such manner as the Court approves or directs, the Part 5.7 body has not, within 10 days after service of the notice, paid, secured or compounded for the debt or demand or procured the action or proceeding to be stayed or indemnified the defendant to his, her or its reasonable satisfaction against the action or proceeding and against all costs, damages and expenses to be incurred by him, her or it by reason of the action or proceeding; or

(c) execution or other process issued on a judgment, decree or order obtained in a court (whether an Australian court or not) in favour of a creditor against the Part 5.7 body or a member of the Part 5.7 body as such, or a person authorised to be sued as nominal defendant on behalf of the Part 5.7 body, is returned unsatisfied; or

(d) it is otherwise proved to the satisfaction of the Court that the Part 5.7 body is unable to pay its debts.

SECTION 586   CONTRIBUTORIES IN WINDING UP OF PART 5.7 BODY  

586(1)   [ Liability of contributory]  

On a Part 5.7 body being wound up, every person who:

(a) in any case - is liable to pay or contribute to the payment of:

(i) a debt or liability of the Part 5.7 body; or

(ii) any sum for the adjustment of the rights of the members among themselves; or

(iii) the costs and expenses of winding up; or

(b) if the Part 5.7 body has been dissolved or deregistered in its place of origin - was so liable immediately before the dissolution or deregistration;

is a contributory and every contributory is liable to contribute to the property of the Part 5.7 body all sums due from the contributory in respect of any such liability.

586(2)   [ Death or bankruptcy of contributory]  

On the death or bankruptcy of a contributory, the provisions of this Act with respect to the personal representatives of deceased contributories or the assignees and trustees of bankrupt contributories, as the case may be, apply.

SECTION 587   POWER OF COURT TO STAY OR RESTRAIN PROCEEDINGS  

587(1)   [ Before winding up order]  

The provisions of this Act with respect to staying and restraining actions and other civil proceedings against a company at any time after the filing of an application for winding up and before the making of a winding up order extend, in the case of a Part 5.7 body where the application to stay or restrain is by a creditor, to actions and other civil proceedings against a contributory of the Part 5.7 body.

587(2)   [ After winding up order]  

Where an order has been made for winding up a Part 5.7 body, no action or other civil proceeding is to be proceeded with or commenced against a contributory of the Part 5.7 body in respect of a debt of the Part 5.7 body except by leave of the Court and subject to such terms as the Court imposes.

SECTION 588   OUTSTANDING PROPERTY OF DEFUNCT REGISTRABLE BODY  

588(1)    
This section applies if, after the dissolution or deregistration of a registrable body, outstanding property of the body remains:

(a) in this jurisdiction; and

(b) outside the body ' s place of origin.

588(2)    
The estate and interest in the property, at law or in equity, of the body or its liquidator at that time, together with all claims, rights and remedies that the body or its liquidator then had in respect of the property, vests by force of this section in:

(a) if the body was incorporated in Australia or an external Territory - the person entitled to the property under the law of the body ' s place of origin; or

(b) if paragraph (a) does not apply and the property was held by the body or liquidator on trust - the Commonwealth; or

(c) otherwise - ASIC.

588(3)    

Where any claim, right or remedy of a liquidator may under this Act be made, exercised or availed of only with the approval or concurrence of the Court or some other person, the Commonwealth or ASIC may, for the purposes of this section, make, exercise or avail itself of the claim, right or remedy without such approval or concurrence.

588(4)    

Section 601AE applies to:

(a) property that vests in the Commonwealth under paragraph (2)(b) of this section as if the property were vested in the Commonwealth under subsection 601AD(1A) ; and

(b) property that vests in ASIC under paragraph (2)(c) of this section as if the property were vested in ASIC under subsection 601AD(2) .

588(5)    

In this section:

property
of a body includes PPSA retention of title property, if the security interest in the property is vested in the body because of the operation of any of the following provisions:

(a) section 267 or 267A of the Personal Property Securities Act 2009 (property subject to unperfected security interests);

(b) section 588FL of this Act (collateral not registered within time).

Note: See sections 9 (definition of property ) and 51F (PPSA retention of title property).