(1) Sections 590 to 593 (inclusive) apply to a company:
- (a)
- that has
been wound up or is in the course of being wound up; or
- (b)
- that has been in the course of being wound up, where the winding up has
been stayed or terminated by an order under section 482; or
- (ba)
- of which a provisional liquidator has been appointed; or
- (c)
- that is or has been under administration; or
- (ca)
- that has executed a deed of company arrangement, even if the deed has
since terminated; or
- (d)
- affairs of which are or have been under investigation; or
- (e)
- in respect of property of which a receiver, or a receiver and manager, has
at any time been appointed, whether by the Court or under a power contained in
an instrument, whether or not the appointment has been terminated; or
- (f)
- that has ceased to carry on business or is unable to pay its debts; or
- (g)
- that has entered into a compromise or arrangement with its creditors.
(2) For the purposes of this Part, affairs of a company are or have been under
investigation if, and only if:
- (a)
- ASIC is investigating, or has at any time
investigated, under Division 1 of Part 3 of the ASIC Act:
- (i)
- matters being, or connected with, affairs of the company; or
- (ii)
- matters including such matters; or
- (b)
- affairs of the company have at any time been under investigation under:
- (i)
- Part VII of the Companies Act 1981 ; or
- (ii)
- the provisions of a previous law of a State or Territory that correspond
to that Part.
(3) For the purposes of this Part, a company is taken to have ceased to
carry on business only if:
(a) ASIC has published in the Gazette a notice of
the proposed deregistration of the company under subsection 601AA(4) or
601AB(3); and
(b) if the notice was published under subsection 601AA(4) or under subsection
601AB(3) because of a decision under subsection 601AB(1)—2 months have
passed since the notice was published and ASIC has not been informed that the
company is carrying on business.
(4) For the purposes of this Part, a company is taken to be unable to pay its
debts if, and only if, execution or other process issued on a judgment, decree
or order of a court (whether or not an Australian court) in favour of a
creditor of the company is returned unsatisfied in whole or in part.
(5) In this Part:
"appropriate officer" means:
- (a)
- in relation to a company that has been, has been being or is being wound
up—the liquidator; and
- (aa)
- in relation to a company of which a provisional liquidator has been
appointed—the provisional liquidator; and
- (b)
- in relation to a company that is or has been under administration—the
administrator; and
- (ba)
- in relation to a company that has executed a deed of company
arrangement—the deed's administrator; and
- (c)
- in relation to a company affairs of which are or have been under
investigation—ASIC or the NCSC, as the case requires; and
- (d)
- in relation to a company in respect of property of which a receiver, or a
receiver and manager, has been appointed—the receiver or the receiver and
manager; and
- (e)
- in relation to a company that has ceased to carry on business or is unable
to pay its debts—ASIC or the NCSC, as the case requires; and
- (f)
- in relation to a company that has entered into a compromise or arrangement
with its creditors—the person appointed by the Court to administer the
compromise or arrangement.
"relevant day" means the day on which:
- (a)
- in relation to a company that has been wound up, has been in the course of
being wound up, or is being wound up:
- (i)
- if, 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 be wound up was
made—the application for the order was filed; or
- (ii)
- otherwise—the winding up is taken because of Division 1A of
Part 5.6 to have begun;
- (aa)
- in relation to a company of which a provisional liquidator has been
appointed—the provisional liquidator was appointed;
- (b)
- in relation to a company that is or has been under administration—the
administration began;
- (ba)
- in relation to a company that has executed a deed of company
arrangement—the deed was executed;
- (c)
- in relation to a company affairs of which are or have been under
investigation:
- (i)
- if paragraph (2)(a) applies—the investigation began; or
- (ii)
- if paragraph (2)(b) applies—a direction was given to the NCSC
to arrange for the investigation;
- (d)
- in relation to a company in respect of property of which a receiver, or a
receiver and manager, has been appointed—the receiver, or the
receiver and manager, was appointed;
- (e)
- in relation to a company that is unable to pay its debts—the
execution or other process was returned unsatisfied in whole or in part;
(f) in relation to a company that has ceased to carry on business—a
notice was first published in relation to the company under subsection
601AA(4) or 601AB(3);
- (g)
- in relation to a company that has entered into a compromise or arrangement
with its creditors—the compromise or arrangement was approved by
the Court.
(6) This Part applies in relation to a company that was first incorporated
other than under this Act:
- (a)
- as if, in this Part (other than
section 595) as so applying:
- (i)
- a reference to the company included a reference to the company as it
existed at a time before its registration day (including a time before the
commencement of this Act); and
- (iii)
- a reference, in relation to a provision of this Act, to ASIC included a
reference to the NCSC (if relevant); and
- (b)
- with such other modifications as the circumstances require.
Commonwealth Numbered Acts