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.

Note: This subsection does not apply for a winding up of a sub-fund of a CCIV: see section 1237P .

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.

Note: This subsection does not apply for a winding up of a sub-fund of a CCIV: see section 1237P .

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.