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CORPORATIONS ACT 2001

CHAPTER 5 - EXTERNAL ADMINISTRATION  

PART 5.6 - WINDING UP GENERALLY  

Division 8 - Pooling    View history reference

Subdivision A - Pooling determinations    View history reference

SECTION 579A  COURT MAY VARY OR TERMINATE POOLING DETERMINATION  

 View history reference

579A(1)  

If a pooling determination is in force in relation to a group of 2 or more companies, the Court may make an order varying or terminating the pooling determination if the Court is satisfied that:


(a) information that was about the business, property, affairs or financial circumstances of a company in the group, and that:


(i) was false or misleading; and

(ii) can reasonably be expected to have been material to eligible unsecured creditors of a company in the group in deciding whether to vote in favour of a resolution to approve the making of the pooling determination;
was given to:

(iii) the liquidator of a company in the group; or

(iv) eligible unsecured creditors of a company in the group; or


(b) information that was about the business, property, affairs or financial circumstances of a company in the group, and that:

(i) was false or misleading; and

(ii) can reasonably be expected to have been material to eligible unsecured creditors of a company in the group in deciding whether to vote in favour of a resolution to approve the making of the pooling determination;
was contained in a document that accompanied a notice of the meeting at which the resolution was passed; or
 View history reference

[CCH Note: Regulation 10.25.02(3)(i) (which was effective 1 March 2017) provides that the amendments made by No 11 of 2016, s 3, Sch 2[191] apply in relation to external administrations on and after 1 September 2017.]


(c) there was an omission from such a document, and the omission can reasonably be expected to have been material to any of those eligible unsecured creditors in deciding whether to vote in favour of a resolution to approve the making of the pooling determination; or
 View history reference

[CCH Note: Regulation 10.25.02(3)(i) (which was effective 1 March 2017) provides that the amendments made by No 11 of 2016, s 3, Sch 2[192] apply in relation to external administrations on and after 1 September 2017.]


(d) effect cannot be given to the pooling determination without injustice or undue delay; or


(e) the pooling determination would materially disadvantage an eligible unsecured creditor who is an applicant for the order; or


(f) the pooling determination would be oppressive or unfairly prejudicial to, or unfairly discriminatory against, an applicant for the order who is an eligible unsecured creditor of a company in the group; or


(g) the pooling determination would be contrary to the interests of the creditors of the companies in the group, considered as a whole; or


(h) in a case where a company in the group is being wound up under a members' voluntary winding up:


(i) the pooling determination would materially disadvantage a member of the company who is an applicant for the order; or

(ii) the pooling determination would be oppressive or unfairly prejudicial to, or unfairly discriminatory against, one or more such members; or

(iii) the pooling determination would be contrary to the interests of the members of the company as a whole; or


(i) the pooling determination should be varied or terminated for some other reason.

Note: For eligible unsecured creditor, see section 579Q.

579A(2)  

An order may only be made on the application of:


(a) a creditor of a company in the group; or


(b) in a case where a company in the group is being wound up under a members' voluntary winding up - a member of the company, so long as the member is not a company in the group; or


(c) any other interested person.

579A(3)  

 View history reference
If the Court makes an order under subsection (1), the applicant for the order must:


(a) lodge with ASIC a notice setting out the text of the order; and


(b) do so within 2 business days after the making of the order.

The notice must be in the prescribed form.


 



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