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CORPORATIONS ACT 2001 - SECT 441A

Secured party acts before or during decision period

Scope

             (1)  This section applies if:

                     (a)  the whole, or substantially the whole, of the property of a company under administration is subject to a security interest; and

                     (b)  before or during the decision period, the secured party enforced the security interest in relation to all property (including any PPSA retention of title property) of the company subject to the security interest, whether or not the security interest was enforced in the same way in relation to all that property.

             (2)  This section also applies if:

                     (a)  a company is under administration; and

                     (b)  the same person is the secured party in relation to each of 2 or more security interests in property (including PPSA retention of title property) of the company; and

                     (c)  the property of the company (the secured property ) subject to the respective security interests together constitutes the whole, or substantially the whole, of the company's property; and

                     (d)  before or during the decision period, the secured party enforced the security interests in relation to all the secured property:

                              (i)  whether or not the security interests were enforced in the same way in relation to all the secured property; and

                             (ii)  whether or not any of the security interests was enforced in the same way in relation to all the property of the company subject to that security interest; and

                            (iii)  in so far as the security interests were enforced in relation to property of the company by a receiver or controller appointed for the purposes of Part 5.2 (whether under an instrument relating to the security interest or a court order)--whether or not the same person was appointed in respect of all of the last-mentioned property.

Power of enforcement by secured party, receiver or controller

             (3)  Nothing in section 198G, 440B, 440F, 440G or 451E, or in an order under subsection 444F(2) or 451G(1), prevents any of the following from enforcing the security interest, or any of the security interests:

                     (a)  the secured party;

                     (b)  a receiver or controller appointed for the purposes of Part 5.2 (whether under an instrument relating to the security interest or a court order, and even if appointed after the decision period).

             (4)  Section 437D does not apply in relation to a transaction or dealing that affects property of the company and is entered into by:

                     (a)  the secured party in the performance or exercise of a function or power as secured party; or

                     (b)  a receiver or controller mentioned in paragraph (3)(b) of this section, in the performance or exercise of a function or power as such a receiver or controller.



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