CHAPTER 5
-
EXTERNAL ADMINISTRATION
PART 5.4C
-
WINDING UP BY ASIC
Note: This Part does not apply to a CCIV or a sub-fund of a CCIV: see Division
5
of Part
8B.6
.
History
Pt 5.4C amended by No 8 of 2022, s 3, Sch 2[149] (effective 1 July 2022).
Pt 5.4C inserted by No 48 of 2012, s 3, Sch 1, Pt 1
[
1].
SECTION 489EA
ASIC MAY ORDER THE WINDING UP OF A COMPANY
489EA(1)
ASIC may order the winding up of a company if:
(a)
the response to a return of particulars given to the company is at least 6 months late; and
(b)
the company has not lodged any other documents under this Act in the last 18 months; and
(c)
ASIC has reason to believe that the company is not carrying on business; and
(d)
ASIC has reason to believe that making the order is in the public interest.
[
CCH Note:
S 489EA(1) will be amended by No 69 of 2020, s 3, Sch 1[751], by inserting
"
with ASIC or the Registrar
"
after
"
documents
"
in para (b) (effective 1 July 2026 or a day or days to be fixed by Proclamation).]
489EA(2)
ASIC may order the winding up of a company if the company
'
s review fee in respect of a review date has not been paid in full at least 12 months after the due date for payment.
489EA(3)
ASIC may order the winding up of a company if:
(a)
ASIC has reinstated the registration of the company under subsection
601AH(1)
in the last 6 months; and
(b)
ASIC has reason to believe that making the order is in the public interest.
[
CCH Note:
S 489EA(3) will be amended by No 69 of 2020, s 3, Sch 1[752], by substituting
"
the Registrar
"
for
"
ASIC
"
in para (a) (effective 1 July 2026 or a day or days to be fixed by Proclamation).]
489EA(4)
ASIC may order the winding up of a company if:
(a)
ASIC has reason to believe that the company is not carrying on business; and
(b)
at least 20 business days before making the order, ASIC gives to:
(i)
the company; and
(ii)
each director of the company;
a notice:
(iii)
stating ASIC
'
s intention to make the order; and
(iv)
informing the company or the director, as the case may be, that the company or the director may, within 10 business days after the receipt of the notice, give ASIC a written objection to the making of the order; and
(c)
neither the company, nor any of its directors, has given ASIC such an objection within the time limit specified in the notice.
489EA(5)
Paragraphs
(4)(b)
and
(c)
do not apply to a person if ASIC does not have the necessary information about the person
'
s identity or address.
489EA(6)
Before making an order under subsection
(1)
,
(2)
,
(3)
or
(4)
, ASIC must:
(a)
give notice of its intention to make the order on ASIC database; and
(b)
both:
(i)
publish notice of its intention to make the order; and
(ii)
do so in the prescribed manner.
[
CCH Note:
S 489EA(6) will be amended by No 69 of 2020, s 3, Sch 1[753], by substituting
"
to the Registrar
"
for
"
on ASIC database
"
in para (a) (effective 1 July 2026 or a day or days to be fixed by Proclamation).]
489EA(7)
ASIC must not order the winding up of a company under subsection
(1)
,
(2)
,
(3)
or
(4)
if an application is before the Court for the winding up of the company.
489EA(8)
Paragraph (b) of the definition of
director
in section
9
does not apply to subsection
(4)
of this section.
489EA(9)
To avoid doubt, subsections
(1)
,
(2)
,
(3)
and
(4)
:
(a)
have effect independently of each other; and
(b)
do not limit each other.
History
S 489EA inserted by No 48 of 2012, s 3, Sch 1, Pt 1
[
1].
SECTION 489EB
489EB
DEEMED RESOLUTION THAT COMPANY BE WOUND UP VOLUNTARILY
If ASIC orders under section
489EA
that a company be wound up:
(a)
the company is taken to have passed a special resolution under section
491
that the company be wound up voluntarily; and
(b)
the company is taken to have passed the special resolution:
(i)
at the time when ASIC made the order under section
489EA
; and
(ii)
without a declaration having been made and lodged under section
494
; and
(c)
section
496
has effect as if:
(i)
a declaration had been made under section
494
; and
(ii)
the reference in subsection
496(1)
to the period stated in the declaration were a reference to the 12-month period beginning when ASIC made the order under section
489EA
; and
(d)
section
497
is taken to have been complied with in relation to the winding up.
History
S 489EB inserted by No 48 of 2012, s 3, Sch 1, Pt 1
[
1] (effective 1 July 2012).
SECTION 489EC
APPOINTMENT OF LIQUIDATOR
489EC(1)
If ASIC orders under section
489EA
that a company be wound up, ASIC may appoint a liquidator for the purpose of winding up the affairs and distributing the property of the company.
Note: For the remuneration of liquidators appointed under this section, see Subdivision
D
of Division
60
of Schedule
2
.
[
CCH Note:
Regulation 10.25.02(3)(h) (which was effective 1 March 2017) provides that the amendments made by No 11 of 2016, s 3, Sch 2[157] apply in relation to external administrations on and after 1 September 2017.]
History
S 489EC(1) substituted by No 11 of 2016, s 3, Sch 2[157] (effective 1 March 2017).
489EC(2)
An appointment of a liquidator by ASIC must not be made without the written consent of the liquidator.
489EC(3)
A vacancy in the office of a liquidator appointed by ASIC is to be filled by the appointment of a liquidator by ASIC.
History
S 489EC inserted by No 48 of 2012, s 3, Sch 1, Pt 1
[
1] (effective 1 July 2012).