(1) The Governor‑General may make regulations prescribing matters of a transitional nature (including prescribing any saving or application provisions) relating to the amendments and repeals made by Schedule 2 to the Insolvency Law Reform Act 2016.
(2) The regulations may provide that certain provisions of Schedule 2 to the Insolvency Law Reform Act 2016 are taken to be modified as set out in the regulations. Those provisions then have effect as if they were so modified.
(3) The provisions of Schedule 2 to the Insolvency Law Reform Act 2016 that provide for regulations to deal with matters do not limit each other.
Schedule 3—Other amendments
Part 1—Payments for property
1 Subsection 443B(3)
(3) Within 5 business days after the beginning of the administration, the administrator may give to the owner or lessor a notice that:
(a) specifies the property; and
(b) states that the company does not propose to exercise rights in relation to the property; and
(c) if the administrator:
(i) knows the location of the property; or
(ii) could, by the exercise of reasonable diligence, know the location of the property;
specifies the location of the property.
Part 2—Contravention of deed of company arrangement
2 After Division 11 of Part 5.3A
Division 11AA—Notification of contravention of deed
445HA Notification of contravention of deed of company arrangement
Director to notify administrator
(1) If a director of a company that is subject to a deed of company arrangement becomes aware that:
(a) there has been a material contravention of the deed by a person bound by the deed (who may be the director); or
(b) there is likely to be a material contravention of the deed by a person bound by the deed (who may be the director);
the director must, as soon as practicable after becoming aware of the contravention or likely contravention, give notice of the contravention or likely contravention to the administrator of the deed of company arrangement. The notice must be in the prescribed form.
Administrator to notify company’s creditors
(2) If the administrator of a deed of company arrangement becomes aware that:
(a) there has been a material contravention of the deed by a person bound by the deed (who may be the administrator); or
(b) there is likely to be a material contravention of the deed by a person bound by the deed (who may be the administrator);
the administrator must, as soon as practicable after becoming aware of the contravention or likely contravention, give notice of the contravention or likely contravention to as many of the company’s creditors as reasonably practicable. The notice must be in the prescribed form.
3 After paragraph 482(2A)(d)
(da) any notice that has been given to the administrator of the deed of company arrangement or the company’s creditors under section 445HA (notification of contravention of deed of company arrangement);
(6) The Court may only grant leave under subsection (3) on the application of:
(a) if subparagraph (1)(b)(ii) applies—the liquidator of the company; or
(b) if subparagraph (1)(b)(iii) applies—the administrator of the company; or
(c) if subparagraph (1)(b)(iv) applies—the administrator of the deed of company arrangement; or
(d) if subparagraph (1)(b)(v) applies—the managing controller; or
(e) if subparagraph (1)(b)(vi) applies—the receiver.
(6A) As soon as practicable after applying for leave under subsection (3), the applicant must lodge with ASIC a notice stating that the application has been made. The notice must be in the prescribed form.
(1) This section applies if a company has executed a deed of company arrangement and:
(a) the Court, at a particular time, makes an order under section 445D terminating the deed of company arrangement; or
(b) both:
(i) the deed of company arrangement specifies circumstances in which the deed is to terminate and the company is to be wound up; and
(ii) those circumstances exist at a particular time.
Resolution that company be wound up voluntarily
(2) The company is taken:
(a) to have passed, at the time referred to in paragraph (1)(a) or subparagraph (1)(b)(ii), as the case may be, a special resolution under section 491 that the company be wound up voluntarily; and
(b) to have done so without a declaration having been made and lodged under section 494.
Information about company’s affairs
(3) Section 497 is taken to have been complied with in relation to the winding up.
Notice of resolution
(4) The liquidator must:
(a) within 5 business days after the day on which the company is taken to have passed the resolution, lodge with ASIC a written notice in the prescribed form:
(i) stating that the company is taken because of this section to have passed such a resolution; and
(ii) specifying that day; and
(b) cause the notice to be published, within 5 business days after that day, in the prescribed manner.
Power to stay or terminate winding up
(5) Section 482 applies in relation to the winding up as if it were a winding up in insolvency or by the Court.
Note: Section 482 empowers the Court to stay or terminate a winding up and give consequential directions.
(6) An application under section 482 as applying because of subsection (5) may be made:
(a) despite section 198G (exercise of directors’ powers while company under external administration), by the company pursuant to a resolution of the board; or
(b) by the liquidator; or
(c) by a creditor; or
(d) by a contributory.
Note: See also section 499 (appointment of liquidator).
10 Subsection 446B(3)
After “(7)”, insert “and 446AA(2) to (6)”.
11 Subsection 499(2)
(2) However, subsection (1) does not apply to the company if:
(a) section 446A or 446AA applies in relation to the company; or
(b) regulations made for the purposes of section 446B have the effect that the company is taken to have passed a special resolution under section 491 that the company be wound up voluntarily.
12 After subsection 499(2C)
(2D) If section 446AA applies in relation to the company because of paragraph 446AA(1)(a):
(a) the Court may, immediately after it makes the order referred to in that paragraph, appoint a person to be the liquidator for the purpose of winding up the affairs and distributing the property of the company; and
(b) if no appointment is made under paragraph (a) of this subsection:
(i) the company is taken to have appointed the administrator of the deed of company arrangement referred to in section 446AA to be the liquidator for the purpose of winding up the affairs and distributing the property of the company; and
(ii) the appointment takes effect at the time referred to in paragraph 446AA(1)(a).
(2E) If section 446AA applies in relation to the company because of paragraph 446AA(1)(b):
(a) the company is taken to have appointed the administrator of the deed of company arrangement referred to in section 446AA to be the liquidator for the purpose of winding up the affairs and distributing the property of the company; and
(b) the appointment takes effect at the time referred to in subparagraph 446AA(1)(b)(ii).
(2F) If regulations made for the purposes of section 446B have the effect that a company under administration is taken to have passed a special resolution under section 491 that the company be wound up voluntarily:
(a) the company is taken to have appointed the administrator of the company to be the liquidator for the purpose of winding up the affairs and distributing the property of the company; and
(b) the appointment takes effect when the resolution is taken to have been passed.
(2G) If regulations made for the purposes of section 446B have the effect that a company subject to a deed of company arrangement is taken to have passed a special resolution under section 491 that the company be wound up voluntarily:
(a) the company is taken to have appointed the administrator of the deed to be the liquidator for the purpose of winding up the affairs and distributing the property of the company; and
(b) the appointment takes effect when the resolution is taken to have been passed.
13 At the end of paragraph 513B(d)
14 After paragraph 513B(d)
(da) if the resolution is taken to have been passed under section 446AA because of:
(i) the making of an order under section 445D by the Court terminating a deed of company arrangement executed by the company; or
(ii) the existence of circumstances that are specified in a deed of company arrangement executed by the company to be circumstances in which the deed is to terminate and the company is to be wound up;
on the section 513C day in relation to the administration that ended when the deed was executed; or
15 Subsection 553(1A) (note 2)
Omit “513B(c) and (d)”, substitute “513B(c), (d) and (da)”.
16 Subsection 553(1A) (note 2)
Omit “Subsection 446A(2)”, substitute “Subsections 446A(2) and 446AA(2)”.
Part 5—Relation‑back day
17 Section 9 (definition of relation‑back day)
relation‑back day has the meaning given by section 91.
18 After section 90
91 Relation‑back day
For the purposes of this Act, the following table sets out the meaning of relation‑back day in relation to a winding up of a company or Part 5.7 body.
Relation‑back day
Item If: the relation‑back day is:
1 in the case of a company:(a) the Court orders under section 233, 459A, 459B or 461 that the company be wound up; and(b) immediately before the order was made, the company was under administration; and(c) the order was made in response to an application filed at or after the beginning of the administration; the section 513C day in relation to the administration.
2 in the case of a company:(a) the Court orders under section 233, 459A, 459B or 461 that the company be wound up; and(b) immediately before the order was made, the company was under administration; and(c) the order was made in response to an application filed before the beginning of the administration; the day on which that application was filed.
3 in the case of a company:(a) the Court orders under section 233, 459A, 459B or 461 that the company be wound up; and(b) immediately before the order was made, a deed of company arrangement had been executed by the company and had not yet terminated; and(c) the order was made in response to an application filed at or after the beginning of the administration that ended when the deed was executed; the section 513C day in relation to that administration.
4 in the case of a company:(a) the Court orders under section 233, 459A, 459B or 461 that the company be wound up; and(b) immediately before the order was made, a deed of company arrangement had been executed by the company and had not yet terminated; and(c) the order was made in response to an application filed before the beginning of the administration that ended when the deed was executed; the day on which that application was filed.
5 in the case of a company:(a) the company resolves by special resolution that it be wound up voluntarily; and(b) immediately before the resolution was passed, the company was under administration; and(c) no application for an order under section 233, 459A, 459B or 461 that the company be wound up was filed before the beginning of the administration; the section 513C day in relation to the administration.
6 in the case of a company:(a) the company resolves by special resolution that it be wound up voluntarily; and(b) immediately before the resolution was passed, the company was under administration; and(c) an application for an order under section 233, 459A, 459B or 461 that the company be wound up was filed before the beginning of the administration, but that application was dismissed or withdrawn before the administration commenced; the section 513C day in relation to the administration.
7 in the case of a company:(a) the company resolves by special resolution that it be wound up voluntarily; and(b) immediately before the resolution was passed, the company was under administration; and(c) an application for an order under section 233, 459A, 459B or 461 that the company be wound up was filed before the beginning of the administration; and(d) that application had not been dismissed or withdrawn before the administration commenced; the day on which that application was filed.
8 in the case of a company, the company is taken to have passed a special resolution that it be wound up voluntarily because, at a meeting convened by the administrator of a deed of company arrangement executed by the company, the company’s creditors:(a) passed a resolution terminating the deed of company arrangement; and(b) also resolved under section 445E that the company be wound up;and either:(c) no application for an order under section 233, 459A, 459B or 461 that the company be wound up was filed before the beginning of the administration that ended when the deed was executed; or(d) an application for an order under section 233, 459A, 459B or 461 that the company be wound up was filed before the beginning of the administration that ended when the deed was executed, but that application was dismissed or withdrawn before the administration commenced; the section 513C day in relation to the administration that ended when the deed was executed.
9 in the case of a company, the company is taken to have passed a special resolution that it be wound up voluntarily because, at a meeting convened by the administrator of a deed of company arrangement executed by the company, the company’s creditors:(a) passed a resolution terminating the deed of company arrangement; and(b) also resolved under section 445E that the company be wound up;and both:(c) an application for an order under section 233, 459A, 459B or 461 that the company be wound up was filed before the beginning of the administration that ended when the deed was executed; and(d) that application has not been dismissed or withdrawn before the first‑mentioned resolution is taken to have been passed; the day on which that application was filed.
10 in the case of a company, the company is taken to have passed a special resolution that it be wound up voluntarily because the Court made an order under section 445D terminating a deed of company arrangement executed by the company, and either:(a) no application for an order under section 233, 459A, 459B or 461 that the company be wound up was filed before the beginning of the administration that ended when the deed was executed; or(b) an application for an order under section 233, 459A, 459B or 461 that the company be wound up was filed before the beginning of the administration that ended when the deed was executed, but that application was dismissed or withdrawn before the administration commenced; the section 513C day in relation to the administration that ended when the deed was executed.
11 in the case of a company:(a) the company is taken to have passed a special resolution that it be wound up voluntarily because the Court made an order under section 445D terminating a deed of company arrangement executed by the company; and(b) an application for an order under section 233, 459A, 459B or 461 that the company be wound up was filed before the beginning of the administration that ended when the deed was executed; and(c) that application has not been dismissed or withdrawn before the resolution is taken to have been passed; the day on which that application was filed.
12 in the case of a company, the company is taken to have passed a special resolution that it be wound up voluntarily because:(a) a deed of company arrangement executed by the company specifies particular circumstances in which the deed is to terminate and the company is to be wound up; and(b) those circumstances exist at a particular time;and either:(c) no application for an order under section 233, 459A, 459B or 461 that the company be wound up was filed before the beginning of the administration that ended when the deed was executed; or(d) an application for an order under section 233, 459A, 459B or 461 that the company be wound up was filed before the beginning of the administration that ended when the deed was executed, but that application was dismissed or withdrawn before the administration commenced; the section 513C day in relation to the administration that ended when the deed was executed.
13 in the case of a company, the company is taken to have passed a special resolution that it be wound up voluntarily because:(a) a deed of company arrangement executed by the company specifies particular circumstances in which the deed is to terminate and the company is to be wound up; and(b) those circumstances exist at a particular time;and both:(c) an application for an order under section 233, 459A, 459B or 461 that the company be wound up was filed before the beginning of the administration that ended when the deed was executed; and(d) that application had not been dismissed or withdrawn before the resolution is taken to have been passed; the day on which that application was filed.
14 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 or body be wound up was made; the day on which the application for the order was filed.
15 any other case applies; the day on which the winding up is taken, because of Division 1A of Part 5.6, to have begun.
Part 6—Miscellaneous amendments
19 Section 9 (definition of civil penalty disqualification)
20 At the end of section 418
Add:
senior manager does not include a receiver and manager.
21 Paragraph 435C(3)(h)
(h) if the company is a general insurer (within the meaning of the Insurance Act 1973)—management of the general insurer vests in a judicial manager of the company appointed by the Federal Court under Part VB of the Insurance Act 1973; or
(i) if the company is a life company (within the meaning of the Life Insurance Act 1995)—management of the life company vests in a judicial manager of the life company appointed by the Federal Court under Part 8 of the Life Insurance Act 1995.
22 After subsection 436DA(4)
(4A) As soon as practicable after making a declaration under subsection (2), the administrator must lodge a copy of the declaration with ASIC.
23 After subsection 436DA(6)
(6A) As soon as practicable after making a replacement declaration under subsection (5), the administrator must lodge a copy of the replacement declaration with ASIC.