23Conduct of business during winding up period

#### 23 Conduct of business during winding up period 23 Conduct of business during winding up period > > (1) Subject to this Part, the powers of each liable entity must be exercised during the winding up period for the entity so as to— > > > > > (a) carry on the business of the entity so far as is necessary or convenient for the management of claims made against the entity to ensure that only payable liabilities of the entity are paid in accordance with the provisions of this Part, and > > > > > (b) pay payable liabilities in accordance with the provisions of this Part, and > > > > > (c) apply any funds provided from the SPF only in accordance with the conditions on which the funding is provided. > > > > Note— > > > > Part 2B.1 of the Corporations Act makes provision for the powers of companies and how they are to be exercised. In particular, section 124 of that Act provides that a company has the legal capacities and powers of an individual. However, section 124 (3) of that Act makes it clear that nothing in that section authorises a company to do an act that is prohibited by a law of a State or gives a right to a company that a law of a State denies to it. > > > (2) Without limiting subsection (1), a liable entity may also— > > > > > (a) make any compromise or arrangement with personal asbestos claimants or payable claimants or persons claiming to be such claimants or having or alleging that they have any personal asbestos claim or a claim for a payable liability (present or future, certain or contingent, ascertained or sounding only in damages) against the entity or by which the entity may be rendered liable, and > > > > > (b) enforce any calls, liabilities to calls, debts, liabilities capable of resulting in debts and any claims (present or future, certain or contingent, ascertained or sounding only in damages) subsisting or supposed to subsist between the entity and a contributory (including, without limitation, a concurrent wrongdoer) or other debtor or person apprehending liability to the entity, and > > > > > (c) act as a single claims manager in relation to the management of claims referred to in paragraph (a) or (b), and > > > > > (d) compromise any call, debt, liability or claim referred to in paragraph (b), and all questions in any way relating to or affecting the property of the entity or the winding up of the entity under this Part, on such terms as are agreed, and take any security for the discharge of, and give a complete discharge in respect of, any such call, debt, liability or claim, and > > > > > (d1) comply with the obligations of the entity under any relevant loan facility agreement (whether or not directed to do so by the SPF trustee), and > > > > > (d2) without limiting paragraph (d1) or (e), do such of the following as is directed by the SPF trustee from time to time— > > > > > > > (i) give guarantees with respect to obligations of the SPF trustee in connection with an authorised loan facility or proposed authorised loan facility, > > > > > > > (ii) grant interests in, or other entitlements to, any assets of the entity (or the proceeds of asset realisations of the entity) as security for any such guarantees or any other obligation under a relevant loan facility agreement or proposed relevant loan facility agreement, and > > > > > (e) do all such other things— > > > > > > > (i) as are necessary for the purposes of exercising a power under subsection (1) or paragraph (a), (b), (c), (d), (d1) or (d2) or of the winding up of the entity under this Part, or > > > > > > > (ii) that the entity is directed, required, authorised or permitted to do by or under this Part. > > > (3) An exercise of a power by a liable entity is not invalid merely because it is exercised in contravention of subsection (1) or (2). > > > (4) However, nothing in subsection (3) prevents— > > > > > (a) the making of an application to the Supreme Court under section 54 for an order to remedy or restrain a contravention of subsection (1) or (2), or > > > > > (b) the Supreme Court from granting any relief under section 54 on any such application. > > **s 23:** Am 2009 No 116, Sch 1 \[5\] \[6\].