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CORPORATIONS ACT 2001

CHAPTER 5 - EXTERNAL ADMINISTRATION  

PART 5.3A - ADMINISTRATION OF A COMPANY'S AFFAIRS WITH A VIEW TO EXECUTING A DEED OF COMPANY ARRANGEMENT  

Division 4 - Administrator investigates company's affairs  

SECTION 438C  ADMINISTRATOR'S RIGHTS TO COMPANY'S BOOKS  

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438C(1)  [ Books, etc, may not be retained]  


A person is not entitled, as against the administrator of a company under administration:


(a) to retain possession of books of the company; or


(b) to claim or enforce a lien on such books;

but such a lien is not otherwise prejudiced.

438C(2)  [ Secured creditors]  


Paragraph (1)(a) does not apply in relation to books of which a secured creditor of the company is entitled to possession otherwise than because of a lien, but the administrator is entitled to inspect, and make copies of, such books at any reasonable time.

438C(3)  [ Books to be delivered to administrator]  


The administrator of a company under administration may give to a person a written notice requiring the person to deliver to the administrator, as specified in the notice, books so specified that are in the person's possession.

438C(4)  [ Time for compliance]  


A notice under subsection (3) must specify a period of at least 3 business days as the period within which the notice must be complied with.

438C(5)  [ Entitlement to retain possession of books]  


A person must comply with a notice under subsection (3).

438C(6)  [ Limitation]  

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Subsection (5) does not apply to the extent that the person is entitled, as against the company and the administrator, to retain possession of the books.

Note: A defendant bears an evidential burden in relation to the matter in subsection (6), see subsection 13.3(3) of the Criminal Code .

438C(7)  [ Strict liability offence]  

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An offence based on subsection (5) is an offence of strict liability.

Note: For strict liability , see section 6.1 of the Criminal Code .


 



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