CHAPTER 5
-
EXTERNAL ADMINISTRATION
PART 5.4A
-
WINDING UP BY THE COURT ON OTHER GROUNDS
Note: This Part applies to a sub-fund of a CCIV in a modified form: see Division
5
of Part
8B.6
.
History
Pt 5.4A amended by No 8 of 2022, s 3, Sch 2[147] (effective 1 July 2022).
SECTION 461
GENERAL GROUNDS ON WHICH COMPANY MAY BE WOUND UP BY COURT
461(1)
The Court may order the winding up of a company if:
(a)
the company has by special resolution resolved that it be wound up by the Court; or
[
CCH Note:
There is no paragraph 461(1)(b).]
(c)
the company does not commence business within one year from its incorporation or suspends its business for a whole year; or
(d)
the company has no members; or
(e)
directors have acted in affairs of the company in their own interests rather than in the interests of the members as a whole, or in any other manner whatsoever that appears to be unfair or unjust to other members; or
(f)
affairs of the company are being conducted in a manner that is oppressive or unfairly prejudicial to, or unfairly discriminatory against, a member or members or in a manner that is contrary to the interests of the members as a whole; or
(g)
an act or omission, or a proposed act or omission, by or on behalf of the company, or a resolution, or a proposed resolution, of a class of members of the company, was or would be oppressive or unfairly prejudicial to, or unfairly discriminatory against, a member or members or was or would be contrary to the interests of the members as a whole; or
(h)
ASIC has stated in a report prepared under Division
1
of Part
3
of the ASIC Act that, in its opinion:
(i)
the company cannot pay its debts and should be wound up; or
(ii)
it is in the interests of the public, of the members, or of the creditors, that the company should be wound up; or
[
CCH Note:
There is no paragraph 461(1)(i).]
(j)
(Repealed)
(k)
the Court is of opinion that it is just and equitable that the company be wound up.
History
S 461(1) amended by No 105 of 2008, s 3, Sch 3, Pt 2
[
28-29].
[
CCH Note
: Act No 105 of 2008, s 3, Sch 3, Pt 2
[
31] contained the following saving provision (which was effective 18 October 2008):
Saving
The amendments of sections 461 and 462 of the
Corporations Act 2001
made by this Part do not apply in relation to applications made before the commencement of the amendments for orders that companies be wound up.]
461(2)
A company must lodge a copy of a special resolution referred to in paragraph
(1)(a)
with ASIC within 14 days after the resolution is passed.
[
CCH Note:
S 461(2) will be amended by No 69 of 2020, s 3, Sch 1[735] and
[
736], by substituting
"
the Registrar
"
for
"
ASIC
"
and inserting
"
The lodgement must meet any requirements of the data standards.
"
at the end, (effective 1 July 2026 or a day or days to be fixed by Proclamation).]
SECTION 462
STANDING TO APPLY FOR WINDING UP
462(1)
[
Interpretation]
A reference in this section to an order to wind up a company is a reference to an order to wind up the company on a ground provided for by section
461
.
462(2)
[
Who may apply]
Subject to this section, any one or more of the following may apply for an order to wind up a company:
(a)
the company; or
(b)
a creditor (including a contingent or prospective creditor) of the company; or
(c)
a contributory; or
(d)
the liquidator of the company; or
(e)
ASIC pursuant to section 464; or
(f)
ASIC (in the circumstances set out in subsection (2A)); or
[
CCH Note:
There is no paragraph 462(2)(g).]
(h)
APRA.
462(2A)
[
When ASIC may apply]
ASIC may apply for an order to wind up a company under paragraph (2)(f) only if:
(a)
the company has no members; and
(b)
ASIC has given the company at least 1 month's written notice of its intention to apply for the order.
462(3)
(Repealed by No 105 of 2008, s 3, Sch 3, Pt 2
[
30] (effective 18 October 2008).)
[
CCH Note
: Act No 105 of 2008, s 3, Sch 3, Pt 2
[
31] contained the following saving provision (which was effective 18 October 2008):
Saving
The amendments of sections 461 and 462 of the
Corporations Act 2001
made by this Part do not apply in relation to applications made before the commencement of the amendments for orders that companies be wound up.
]
462(4)
[
When contingent or prospective creditor may apply]
The Court must not hear an application by a person being, or persons including, a contingent or prospective creditor of a company for an order to wind up the company unless and until:
(a)
such security for costs has been given as the Court thinks reasonable; and
(b)
a prima facie case for winding up the company has been established to the Court's satisfaction.
462(5)
[
Entitlement to apply otherwise]
Except as permitted by this section, a person is not entitled to apply for an order to wind up a company.
[
CCH Note:
There is no section 463.]
SECTION 464
APPLICATION FOR WINDING UP IN CONNECTION WITH INVESTIGATION UNDER ASIC ACT
464(1)
[
When ASIC may apply]
Where ASIC is investigating, or has investigated, under Division 1 of Part 3 of the ASIC Act:
(a)
matters being, or connected with, affairs of a company; or
(b)
matters including such matters;
ASIC may apply to the Court for the winding up of the company.
464(2)
[
Application of Act]
For the purposes of an application under subsection (1), this Act applies, with such modifications as the circumstances require, as if a winding up application had been made by the company.
464(3)
[
Duty to give copy of application to company]
ASIC must give a copy of an application made under subsection (1) to the company.