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Corporations Bill 2001

Part 5.4A Winding up by the Court on other grounds

   

461   General grounds on which company may be wound up by Court

             (1)  The Court may order the winding up of a company if:

                     (a)  the company has by special resolution resolved that it be wound up by the Court; or

                     (c)  the company does not commence business within one year from its incorporation or suspends its business for a whole year; or

                     (d)  the company has no members; or

                     (e)  directors have acted in affairs of the company in their own interests rather than in the interests of the members as a whole, or in any other manner whatsoever that appears to be unfair or unjust to other members; or

                      (f)  affairs of the company are being conducted in a manner that is oppressive or unfairly prejudicial to, or unfairly discriminatory against, a member or members or in a manner that is contrary to the interests of the members as a whole; or

                     (g)  an act or omission, or a proposed act or omission, by or on behalf of the company, or a resolution, or a proposed resolution, of a class of members of the company, was or would be oppressive or unfairly prejudicial to, or unfairly discriminatory against, a member or members or was or would be contrary to the interests of the members as a whole; or

                     (h)  ASIC has stated in a report prepared under Division 1 of Part 3 of the ASIC Act that, in its opinion:

                              (i)  the company cannot pay its debts and should be wound up; or

                             (ii)  it is in the interests of the public, of the members, or of the creditors, that the company should be wound up;

                      (j)  if the application was made by APRA—the Court is of opinion that it is in the interests of the public, of the members or of the creditors that the company should be wound up; or

                     (k)  the Court is of opinion that it is just and equitable that the company be wound up.

             (2)  A company must lodge a copy of a special resolution referred to in paragraph (1)(a) with ASIC within 14 days after the resolution is passed.

462   Standing to apply for winding up

             (1)  A reference in this section to an order to wind up a company is a reference to an order to wind up the company on a ground provided for by section 461.

             (2)  Subject to this section, any one or more of the following may apply for an order to wind up a company:

                     (a)  the company; or

                     (b)  a creditor (including a contingent or prospective creditor) of the company; or

                     (c)  a contributory; or

                     (d)  the liquidator of the company; or

                     (e)  ASIC pursuant to section 464; or

                      (f)  ASIC (in the circumstances set out in subsection (2A)); or

                     (h)  APRA.

          (2A)  ASIC may apply for an order to wind up a company under paragraph (2)(f) only if:

                     (a)  the company has no members; and

                     (b)  ASIC has given the company at least 1 month’s written notice of its intention to apply for the order.

             (3)  A person being, or persons including, APRA may only apply for an order to wind up a company if:

                     (a)  an inspector has been appointed to make an investigation in respect of the company under section 52 of the Insurance Act 1973 ; and

                     (b)  the company’s liabilities within the meaning of Part III of that Act exceed the company’s assets within the meaning of that Part.

             (4)  The Court must not hear an application by a person being, or persons including, a contingent or prospective creditor of a company for an order to wind up the company unless and until:

                     (a)  such security for costs has been given as the Court thinks reasonable; and

                     (b)  a prima facie case for winding up the company has been established to the Court’s satisfaction.

             (5)  Except as permitted by this section, a person is not entitled to apply for an order to wind up a company.

464   Application for winding up in connection with investigation under ASIC Act

             (1)  Where ASIC is investigating, or has investigated, under Division 1 of Part 3 of the ASIC Act:

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

                     (b)  matters including such matters;

ASIC may apply to the Court for the winding up of the company.

             (2)  For the purposes of an application under subsection (1), this Act applies, with such modifications as the circumstances require, as if a winding up application had been made by the company.

             (3)  ASIC must give a copy of an application made under subsection (1) to the company.