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CORPORATIONS ACT 2001

CHAPTER 5 - EXTERNAL ADMINISTRATION  

PART 5.2 - RECEIVERS, AND OTHER CONTROLLERS, OF PROPERTY OF CORPORATIONS  

SECTION 422D  TRANSFER OF BOOKS TO ASIC ETC.  

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Transfer of books to ASIC

422D(1)  

If a person ceases to act as a controller of property of a corporation, ASIC may, by written notice given to the person, require the person to:


(a) if the person has possession or control of books relating to the control of that property of the corporation in his or her possession or control - transfer possession or control of those books to ASIC within the period specified in the notice; or


(b) otherwise - notify ASIC, within the period and in the manner specified in the notice, that the person does not have books relating to the control of that property of the corporation in the person's possession or control.

Offence

422D(2)  

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.

ASIC must transfer books to new controller

422D(3)  

If:


(a) possession or control of books relating to the control of property of a corporation is transferred to ASIC under this section; and


(b) the books are in ASIC's possession or control; and


(c) a person (the new controller) is or becomes:


(i) the controller of that property of the corporation; or

(ii) if the corporation is a company under external administration - the external administrator of the company;

ASIC must, as soon as practicable, transfer possession or control of those books to the new controller.

ASIC must transfer books to company

422D(4)  

If:


(a) possession or control of books relating to the control of property of a corporation is transferred to ASIC under this section; and


(b) the books are in ASIC's possession or control; and


(c) it is unlikely that another person will be appointed as:


(i) the controller of that property of the corporation; or

(ii) if the corporation is a company under external administration - the external administrator of the company;

ASIC must, as soon as practicable, transfer possession or control of those books to the relevant corporation.

Lien against books not prejudiced

422D(5)  

If ASIC is entitled to take possession or control of the books under this section:


(a) a person is not entitled, as against ASIC, to claim a lien on the books; and


(b) such a lien is not otherwise prejudiced.

422D(6)  

If ASIC is required to give possession or control of the books to the new controller under this section:


(a) a person is not entitled, as against the new controller, to claim a lien on the books; and


(b) such a lien is not otherwise prejudiced.

Notice is not a legislative instrument

422D(7)  

A notice under subsection (1) is not a legislative instrument.

Retention period for books

422D(8)  

ASIC must retain all books:


(a) that are relevant to the control of property of the corporation; and


(b) possession or control of which is transferred to ASIC under this section; and


(c) possession or control of which is not transferred to another entity under this section, or under any other law;

for a period (the retention period) of 2 years after the day on which ASIC takes possession or control of the books.

Destruction of books at end of retention period

422D(9)  

ASIC may destroy the books at the end of the retention period.

Relationship with other laws

422D(10)  

Subsections (8) and (9) do not apply to the extent that ASIC 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.

[CCH Note: Regulation 10.25.02(3)(g) (which was effective 1 March 2017) provides that the amendments made by No 11 of 2016, s 3, Sch 2[91] apply in relation to external administrations on and after 1 September 2017.]


 



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