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CORPORATIONS ACT 2001

CHAPTER 5 - EXTERNAL ADMINISTRATION  

PART 5.8 - OFFENCES  

SECTION 589  INTERPRETATION AND APPLICATION  

589(1)  

Sections 590 to 593 (inclusive) apply to a company:


(a) that has been wound up or is in the course of being wound up; or


(b) that has been in the course of being wound up, where the winding up has been stayed or terminated by an order under section 482; or


(ba) of which a provisional liquidator has been appointed; or


(c) that is or has been under administration; or


(ca) that has executed a deed of company arrangement, even if the deed has since terminated; or


(d) affairs of which are or have been under investigation; or


(e) in respect of property of which a receiver, or a receiver and manager, has at any time been appointed, whether by the Court or under a power contained in an instrument, whether or not the appointment has been terminated; or


(f) that has ceased to carry on business or is unable to pay its debts; or


(g) that has entered into a compromise or arrangement with its creditors.

589(2)  

For the purposes of this Part, affairs of a company are or have been under investigation if, and only if:


(a) ASIC is investigating, or has at any time investigated, under Division 1 of Part 3 of the ASIC Act:


(i) matters being, or connected with, affairs of the company; or

(ii) matters including such matters; or


(b) affairs of the company have at any time been under investigation under:


(i) Part VII of the Companies Act 1981; or

(ii) the provisions of a previous law of a State or Territory that correspond to that Part.

589(3)  

For the purposes of this Part, a company is taken to have ceased to carry on business only if:


(a) ASIC has published in the prescribed manner a notice of the proposed deregistration of the company under subsection 601AA(4) or 601AB(3); and
 View history reference


(b) if the notice was published under subsection 601AA(4) or under subsection 601AB(3) because of a decision under subsection 601AB(1) - 2 months have passed since the notice was published and ASIC has not been informed that the company is carrying on business.

589(4)  

For the purposes of this Part, a company is taken to be unable to pay its debts if, and only if, execution or other process issued on a judgment, decree or order of a court (whether or not an Australian court) in favour of a creditor of the company is returned unsatisfied in whole or in part.

589(5)  

 View history reference
In this Part:

appropriate officer means:


(a) in relation to a company that has been, has been being or is being wound up - the liquidator; and


(aa) in relation to a company of which a provisional liquidator has been appointed - the provisional liquidator; and


(b) in relation to a company that is or has been under administration - the administrator; and


(ba) in relation to a company that has executed a deed of company arrangement - the deed's administrator; and


(c) in relation to a company affairs of which are or have been under investigation - ASIC or the NCSC, as the case requires; and


(d) in relation to a company in respect of property of which a receiver, or a receiver and manager, has been appointed - the receiver or the receiver and manager; and


(e) in relation to a company that has ceased to carry on business or is unable to pay its debts - ASIC or the NCSC, as the case requires; and


(f) in relation to a company that has entered into a compromise or arrangement with its creditors - the person appointed by the Court to administer the compromise or arrangement.

property of a company includes any PPSA retention of title property of the company.

Note: See sections 9 (definition of property) and 51F (PPSA retention of title property).

relevant day means the day on which:


(a) in relation to a company that has been wound up, has been in the course of being wound up, or is being wound up:


(i) if, because of Division 1A of Part 5.6, the winding up is taken to have begun on the day when an order that the company be wound up was made - the application for the order was filed; or

(ii) otherwise - the winding up is taken because of Division 1A of Part 5.6 to have begun;


(aa) in relation to a company of which a provisional liquidator has been appointed - the provisional liquidator was appointed;


(b) in relation to a company that is or has been under administration - the administration began;


(ba) in relation to a company that has executed a deed of company arrangement - the deed was executed;


(c) in relation to a company affairs of which are or have been under investigation:


(i) if paragraph (2)(a) applies - the investigation began; or

(ii) if paragraph (2)(b) applies - a direction was given to the NCSC to arrange for the investigation;


(d) in relation to a company in respect of property of which a receiver, or a receiver and manager, has been appointed - the receiver, or the receiver and manager, was appointed;


(e) in relation to a company that is unable to pay its debts - the execution or other process was returned unsatisfied in whole or in part;


(f) in relation to a company that has ceased to carry on business - a notice was first published in relation to the company under subsection 601AA(4) or 601AB(3);


(g) in relation to a company that has entered into a compromise or arrangement with its creditors - the compromise or arrangement was approved by the Court.

589(6)  

This Part applies in relation to a company that was first incorporated other than under this Act:


(a) as if, in this Part (other than section 595) as so applying:


(i) a reference to the company included a reference to the company as it existed at a time before its registration day (including a time before the commencement of this Act); and

[CCH Note: There is no subparagraph 589(6)(a)(ii).]


(iii) a reference, in relation to a provision of this Act, to ASIC included a reference to the NCSC (if relevant); and


(b) with such other modifications as the circumstances require.

 



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