Commonwealth Consolidated Acts

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Order for rights to be enforceable only with leave of the Court


             (1)  The Court may order that one or more rights under a contract, agreement or arrangement are enforceable against a company only:

                     (a)  with the leave of the Court; and

                     (b)  in accordance with such terms (if any) as the Court imposes.

Example:    The order could be sought for a right to terminate for convenience.

             (2)  The Court may make the order if:

                     (a)  the company is under restructuring; and

                     (b)  the Court is satisfied that:

                              (i)  the rights are being exercised; or

                             (ii)  the rights are likely to be exercised; or

                            (iii)  there is a threat to exercise the rights;

                            because of one or more reasons referred to in paragraphs 454N(1)(a) to (d); and

                     (c)  an application for the order is made by the restructuring practitioner for the company.

             (3)  An order under subsection (1) must specify the period for which it applies. In working out the period, the Court must have regard to:

                     (a)  subsections 454N(2), (3) and (4); and

                     (b)  the interests of justice.

             (4)  Subsection (1) does not apply to a right referred to in subsection 454N(5) or (7).

Note:          An order under subsection (1) also does not restrict certain secured creditors (see sections 454C to 454H).

Interim orders

             (5)  Before deciding an application for an order under subsection (1), the Court may grant an interim order for one or more rights under a contract, agreement or arrangement not to be enforced against a company.

             (6)  The Court must not require an applicant for an order under subsection (1) to give an undertaking as to damages as a condition of granting an interim order.

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