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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 7 - Rights of secured party, owner or lessor    View history reference

Subdivision B - Property subject to security interests    View history reference

SECTION 441A  SECURED PARTY ACTS BEFORE OR DURING DECISION PERIOD  

Scope

441A(1)  

This section applies if:


(a) the whole, or substantially the whole, of the property of a company under administration is subject to a security interest; and


(b) before or during the decision period, the secured party enforced the security interest in relation to all property (including any PPSA retention of title property) of the company subject to the security interest, whether or not the security interest was enforced in the same way in relation to all that property.

441A(2)  

This section also applies if:


(a) a company is under administration; and


(b) the same person is the secured party in relation to each of 2 or more security interests in property (including PPSA retention of title property) of the company; and


(c) the property of the company (the secured property) subject to the respective security interests together constitutes the whole, or substantially the whole, of the company's property; and


(d) before or during the decision period, the secured party enforced the security interests in relation to all the secured property:


(i) whether or not the security interests were enforced in the same way in relation to all the secured property; and

(ii) whether or not any of the security interests was enforced in the same way in relation to all the property of the company subject to that security interest; and

(iii) in so far as the security interests were enforced in relation to property of the company by a receiver or controller appointed for the purposes of Part 5.2 (whether under an instrument relating to the security interest or a court order) - whether or not the same person was appointed in respect of all of the last-mentioned property.

Power of enforcement by secured party, receiver or controller

441A(3)  

 View history reference
Nothing in section 198G, 440B, 440F or 440G, or in an order under subsection 444F(2), prevents any of the following from enforcing the security interest, or any of the security interests:


(a) the secured party;


(b) a receiver or controller appointed for the purposes of Part 5.2 (whether under an instrument relating to the security interest or a court order, and even if appointed after the decision period).

[CCH Note 1: 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[112] apply in relation to external administrations on and after 1 September 2017.]

[CCH Note 2: S 441A(3) will be amended by No 112 of 2017, s 3, Sch 1[9] and [10], by substituting ", 440G or 451E" for "or 440G" and inserting "or 451G(1)" after "444F(2)" (effective 1 July 2018).]

441A(4)  

Section 437D does not apply in relation to a transaction or dealing that affects property of the company and is entered into by:


(a) the secured party in the performance or exercise of a function or power as secured party; or


(b) a receiver or controller mentioned in paragraph (3)(b) of this section, in the performance or exercise of a function or power as such a receiver or controller.


 



This information is provided by CCH Australia Limited. View the disclaimer and notice of copyright.
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