| Title | Corporations Amendment (Phoenixing and Other Measures) Bill 2012 |
| Database | Bills & Legislation |
| Long Title | a Bill for an Act to amend the [itals]Corporations Act 2001[eitals], and for other purposes |
| Date | 09-05-2012 11:51 AM |
| Source | House of Reps |
| Parl No. | 43 |
| Bill Number | 7/12 |
| Bill Type | Government |
| Portfolio | Treasury |
| Reps Bill Code | O |
| Status | Act |
| System Id | legislation/bills/r4753_aspassed/0001 |
1 After Part 5.4B
Insert:
Part 5.4CâWinding up by ASIC
489EA ASIC may order the winding up of a company
(1) ASIC may order the winding up of a company if:
(a) the response to a return of particulars given to the company is at least 6 months late; and
(b) the company has not lodged any other documents under this Act in the last 18 months; and
(c) ASIC has reason to believe that the company is not carrying on business; and
(d) ASIC has reason to believe that making the order is in the public interest.
(2) ASIC may order the winding up of a company if the companyâs review fee in respect of a review date has not been paid in full at least 12 months after the due date for payment.
(3) ASIC may order the winding up of a company if:
(a) ASIC has reinstated the registration of the company under subsection 601AH(1) in the last 6 months; and
(b) ASIC has reason to believe that making the order is in the public interest.
(4) ASIC may order the winding up of a company if:
(a) ASIC has reason to believe that the company is not carrying on business; and
(b) at least 20 business days before making the order, ASIC gives to:
(i) the company; and
(ii) each director of the company;
a notice:
(iii) stating ASICâs intention to make the order; and
(iv) informing the company or the director, as the case may be, that the company or the director may, within 10 business days after the receipt of the notice, give ASIC a written objection to the making of the order; and
(c) neither the company, nor any of its directors, has given ASIC such an objection within the time limit specified in the notice.
(5) Paragraphs (4)(b) and (c) do not apply to a person if ASIC does not have the necessary information about the personâs identity or address.
(6) Before making an order under subsection (1), (2), (3) or (4), ASIC must:
(a) give notice of its intention to make the order on ASIC database; and
(b) both:
(i) publish notice of its intention to make the order; and
(ii) do so in the prescribed manner.
(7) ASIC must not order the winding up of a company under subsection (1), (2), (3) or (4) if an application is before the Court for the winding up of the company.
(8) Paragraph (b) of the definition of director in section 9 does not apply to subsection (4) of this section.
(9) To avoid doubt, subsections (1), (2), (3) and (4):
(a) have effect independently of each other; and
(b) do not limit each other.
489EB Deemed resolution that company be wound up voluntarily
If ASIC orders under section 489EA that a company be wound up:
(a) the company is taken to have passed a special resolution under section 491 that the company be wound up voluntarily; and
(b) the company is taken to have passed the special resolution:
(i) at the time when ASIC made the order under section 489EA; and
(ii) without a declaration having been made and lodged under section 494; and
(c) section 496 has effect as if:
(i) a declaration had been made under section 494; and
(ii) the reference in subsection 496(1) to the period stated in the declaration were a reference to the 12âmonth period beginning when ASIC made the order under section 489EA; and
(d) section 497 is taken to have been complied with in relation to the winding up.
489EC Appointment of liquidator
(1) If ASIC orders under section 489EA that a company be wound up, ASIC may:
(a) appoint a liquidator for the purpose of winding up the affairs and distributing the property of the company; and
(b) determine the remuneration to be paid to the liquidator.
(2) An appointment of a liquidator by ASIC must not be made without the written consent of the liquidator.
(3) A vacancy in the office of a liquidator appointed by ASIC is to be filled by the appointment of a liquidator by ASIC.
2 At the end of section 601AA
Add:
(6) ASIC may refuse to deregister a company under this section if ASIC decides to order under section 489EA that the company be wound up.
(7) Subsection (6) does not limit ASICâs power to refuse to deregister the company.
3 At the end of section 601AB
Add:
(6) ASIC may refuse to deregister a company under this section if ASIC decides to order under section 489EA that the company be wound up.
(7) Subsection (6) does not limit ASICâs power to refuse to deregister the company.
4 After paragraph 1317C(c)
Insert:
(ca) a decision of ASIC to order the winding up of a company under section 489EA; or
Part 2âPublication requirements
5 Paragraph 412(1)(b)
After âgiven by advertisementâ, insert âor that is published in the prescribed mannerâ.
6 Subsection 412(4)
After âgiven by advertisementâ, insert â, or published in the prescribed manner,â.
7 Paragraph 436E(3)(b)
Repeal the paragraph, substitute:
(b) causing a notice setting out the prescribed information about the meeting to be published in the prescribed manner;
8 Paragraph 439A(3)(b)
Repeal the paragraph, substitute:
(b) causing a notice setting out the prescribed information about the meeting to be published in the prescribed manner;
9 Paragraph 446A(5)(b)
Repeal the paragraph, substitute:
(b) cause the notice to be published, within the period ascertained in accordance with the regulations, in the prescribed manner.
10 Paragraph 449C(5)(b)
Repeal the paragraph, substitute:
(b) causing a notice setting out the prescribed information about the meeting to be published in the prescribed manner;
11 Paragraph 450A(1)(b)
Repeal the paragraph, substitute:
(b) cause a notice setting out the prescribed information about the appointment to be published, within the period ascertained in accordance with the regulations, in the prescribed manner.
12 Paragraph 465A(c)
Repeal the paragraph, substitute:
(c) cause a notice setting out the prescribed information about the application to be published in the prescribed manner.
13 Paragraph 491(2)(b)
Repeal the paragraph, substitute:
(b) within the period ascertained in accordance with the regulations, cause a notice setting out the prescribed information about the resolution to be published in the prescribed manner.
14 Paragraph 497(2)(d)
Repeal the paragraph, substitute:
(d) both:
(i) publish in the prescribed manner a copy of the notice given or to be given under paragraph (a); and
(ii) do so within the period ascertained in accordance with the regulations.
15 Subsection 498(3)
Omit âto be published, in a daily newspaper circulating generally in the State or Territory in which the resumed meeting is to be held,â, substitute âto be published in the prescribed mannerâ.
16 Subsection 509(2)
Omit âan advertisement published in the Gazetteâ, substitute âa notice published in the prescribed mannerâ.
17 Subsection 568A(2)
Repeal the subsection, substitute:
(2) If paragraph (1)(c) applies, the liquidator must cause a notice setting out the prescribed information about the disclaimer to be published in the prescribed manner.
18 Paragraph 589(3)(a)
Omit âin the Gazetteâ, substitute âin the prescribed mannerâ.
19 Subsection 601AA(4)
Repeal the subsection, substitute:
Deregistration procedure
(4) If:
(a) ASIC decides to deregister the company under this section; and
(b) ASIC is not aware of any failure to comply with subsections (1) to (3);
ASIC must:
(c) give notice of the proposed deregistration on ASIC database; and
(d) publish notice of the proposed deregistration in the prescribed manner.
(4A) When 2 months have passed since the publication of the notice under paragraph (4)(d), ASIC may deregister the company.
20 Subsection 601AB(1) (heading)
Repeal the heading, substitute:
Circumstances in which ASIC may deregister
21 Subsection 601AB(3)
Repeal the subsection, substitute:
Deregistration procedure
(3) If ASIC decides to deregister a company under this section, it must:
(a) give notice of the proposed deregistration:
(i) to the company; and
(ii) to the companyâs liquidator (if any); and
(iii) to the companyâs directors; and
(iv) on ASIC database; and
(b) publish notice of the proposed deregistration in the prescribed manner.
(3A) When 2 months have passed since the publication of the notice under paragraph (3)(b), ASIC may deregister the company.
22 Subsection 601AB(4)
Omit âsubsection (3)â, substitute âparagraph (3)(a)â.
23 Subsection 601AB(5)
Omit âparagraph (3)(b) or (c)â, substitute âsubparagraph (3)(a)(ii) or (iii)â.
24 Subparagraph 1351(4)(a)(i)
Omit âsubsection 601AA(4)â, substitute âparagraph 601AA(4)(c), and published notice of the proposed deregistration of the company in accordance with paragraph 601AA(4)(d)â.
25 Subparagraph 1351(4)(a)(ii)
Omit ârelevant Gazette noticeâ, substitute ânotice published in accordance with paragraph 601AA(4)(d)â.
26 After section 1367
Insert:
1367A Publication in the prescribed manner
(1) If a particular provision of this Act requires a person (other than ASIC) to:
(a) publish a notice, or a copy of a notice, in the prescribed manner; or
(b) cause a notice, or a copy of a notice, to be published in the prescribed manner;
the regulations may provide that:
(c) the person is taken to have complied with that requirement if, and only if, the person lodges the notice or copy under subsection (2); and
(d) if the person lodges the notice or copy under subsection (2), ASIC must publish the notice or copy in the manner specified in the regulations.
(2) A person may lodge a notice, or a copy of a notice, under this subsection if the notice or copy is covered by regulations made for the purposes of subsection (1).
Part 3âMiscellaneous amendments
27 Section 9
Insert:
paid parental leave employer has the meaning given by subsection 600AA(2).
28 Before section 600A
Insert:
600AA Duty of receiver, administrator or liquidatorâparental leave pay
(1) A person who:
(a) is appointed (whether or not by a court), and acts, as a receiver and manager in respect of property of a body corporate; or
(b) is appointed as the administrator of a body corporate under Division 2 of Part 5.3A; or
(c) is appointed as the liquidator or provisional liquidator of a body corporate;
must, as soon as possible, notify the Secretary (within the meaning of the Paid Parental Leave Act 2010) of the personâs appointment, if the body corporate was a paid parental leave employer just before the appointment.
(2) A person is a paid parental leave employer at a particular time if:
(a) the person must pay an instalment under section 72 of the Paid Parental Leave Act 2010; and
(b) either:
(i) that time occurs during the instalment period (within the meaning of that Act) to which the instalment relates; or
(ii) that time occurs after the end of the instalment period to which the instalment relates, but the person has not paid the instalment by that time.
29 Subsection 601AH(3)
Repeal the subsection, substitute:
(3) If:
(a) ASIC reinstates the registration of a company under subsection (1); or
(b) the Court makes an order under subsection (2);
the Court may:
(c) validate anything done during the period:
(i) beginning when the company was deregistered; and
(ii) ending when the companyâs registration was reinstated; and
(d) make any other order it considers appropriate.
Note: For example, the Court may direct ASIC to transfer to another person property vested in ASIC under subsection 601AD(2).