CORPORATIONS ACT 2001

SCHEDULE 2 - INSOLVENCY PRACTICE SCHEDULE (CORPORATIONS)  

Note: See section 600K .

PART 3 - GENERAL RULES RELATING TO EXTERNAL ADMINISTRATIONS  

Division 70 - Information  

Subdivision C - Record-keeping  

CLAUSE 70-35   RETENTION AND DESTRUCTION OF BOOKS  

Retention period for books

70-35(1)  
The last external administrator of a company must retain all books of the company, and of the external administration of the company, that:


(a) are relevant to affairs of the company; and


(b) are in the external administrator ' s possession or control at the end of the external administration;

for a period (the retention period ) of 5 years from the end of the external administration.

Exception - reasonable excuse

70-35(2)  
Subsection (1) does not apply if the external administrator has a reasonable excuse. Exception - consent of ASIC etc.

70-35(3)  
Despite subsection (1), the books may be destroyed within the retention period:


(a) in the case of a members ' voluntary winding up - as the company by resolution directs; and


(b) in the case of a creditor ' s voluntary winding up or a court-ordered winding up:


(i) if there is a committee of inspection - as the committee directs; and

(ii) otherwise - as the creditors by resolution direct; and


(c) if the external administrator is appointed as a provisional liquidator - as the Court directs;

if ASIC consents to the destruction.

Destruction of books at end of retention period

70-35(4)  
The external administrator may destroy the books at the end of the retention period. Offence

70-35(5)  
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.

Note: A defendant bears an evidential burden in relation to the matters in subsections (2) and (3) (see subsection 13.3(3) of the Criminal Code ).

Relationship with other laws

70-35(6)  
Subsections (3) and (4) do not apply to the extent that the external administrator 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.


 

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