Commonwealth Consolidated Acts Commonwealth Consolidated ActsPowers of officers while company under external administration
(1) While a company is under external administration, an officer of the company must not perform or exercise a function or power of that office.
Note: For a CCIV, section 1224Q applies instead of this section.
Offence
(2) A person commits an offence if:
(a) the person is an officer of a company; and
(b) the company is under external administration; and
(c) the person purports to perform or exercise a function or power of that office.
Exceptions
(3) Subsections (1) and (2) do not apply to the extent that the officer of the company is acting:
(a) as the external administrator of the company; or
(b) with the written approval of the external administrator of the company or the Court; or
(c) in circumstances in which, despite the fact that the company is under external administration, the officer is permitted by this Act to act.
Note: In proceedings to determine whether a person has committed an offence under subsection (2), a defendant bears an evidential burden in relation to the matters in subsection (3), see subsection 13.3(3) of the Criminal Code .
(4) Subsections (1) and (2) do not apply if the company has executed a deed of company arrangement and the deed has not yet terminated.
Note 1: Section 444G deals with the effect of a deed of company arrangement on various persons.
Note 2: In proceedings to determine whether a person has committed an offence under subsection (2), a defendant bears an evidential burden in relation to the matters in subsection (4), see subsection 13.3(3) of the Criminal Code .
(4A) Subsections (1) and (2) do not apply in relation to:
(a) a company under restructuring; or
(b) a company that has made a restructuring plan that has not yet terminated.
Functions and powers of liquidator or provisional liquidator prevail in case of conflict
(5) If subsection (3) applies and there is a conflict between a function or power of the external administrator of the company and a function or power of the officer in relation to the company, the external administrator's function or power prevails.
Effect of section
(6) This section does not remove an officer of a company from office.
(7) For the purposes of this section, a person is not an officer of a company merely because he or she is a managing controller, appointed under a power contained in an instrument, of property of the company.
(8) Nothing in this section affects a secured creditor's right to realise or otherwise deal with the security interest.
(9) In this section:
"external administration" of a company has the same meaning as in Schedule 2.
"external administrator" of a company has the same meaning as in Schedule 2.