Commonwealth Numbered Acts

CORPORATIONS ACT 1989 No. 109 of 1989 - SECT 439

439. (1) At a meeting of creditors of a company convened under section 436,
the creditors may, by special resolution:

   (a)  resolve that the company be placed under official management for a
        period, beginning on the date of the passing of the resolution and
        ending not more than 3 years from that date, specified in the
        resolution;

   (b)  appoint a person named in the resolution who:

        (i)    has consented in writing to act as official manager of the
               company;

        (ii)   is not the auditor of the company;

        (iii)  is not an officer of a body corporate that is a mortgagee of
               property of the company; and

        (iv)   has furnished to the company a certificate under his or her
               hand stating that he or she is not an insolvent under
               administration;
to be the official manager of the company during the period of the official
management; and

   (c)  fix the amount of the salary or other remuneration of the official
        manager or delegate the fixing of the amount to a committee of
        management appointed under this Part.

(2) The company shall:

   (a)  within 7 days after the passing of the special resolution referred to
        in subsection (1):

        (i)    cause a notice in the prescribed form of the passing of the
               resolution to be lodged with the Commission; and

        (ii)   send by post to each of the creditors and members of the
               company a notice in the prescribed form of the passing of the
               special resolution and the provisions of section 454; and

   (b)  within 21 days after the passing of the special resolution, cause
        notice that the company has been placed under official management and
        of the full name of the official manager to be published in the
        Gazette.

(3) If the company fails to comply with subsection (2), the company is,
notwithstanding section 1311, not guilty of an offence but any officer of the
company who is in default is guilty of an offence.

(4) A creditor to whom the company owes, or a representative of a group of
creditors to whom the company owes in the aggregate, more than 5% of the total
unsecured debts of the company may, within 14 days after the appointment of a
person as official manager of the company under subsection (1) of this section
or subsection 456 (3), apply to the Court for an order terminating the
appointment.

(5) Where, on an application under subsection (4), the Court is of the view
that the person is not suitable to be the official manager of the company, the
Court may make an order:

   (a)  terminating the person's appointment; and

   (b)  appointing as official manager a registered company auditor (other
        than the auditor of the company) who has consented in writing to act
        as official manager.

(6) Where under subsection (5) the Court has made an order appointing a person
to be the official manager of a company, this Part applies to that person as
if the person had been appointed official manager of the company at a meeting
of creditors under subsection (1) on the date of the order.

(7) Where the Court makes an order under subsection (5), the person obtaining
the order shall:

   (a)  within 7 days after the making of the order, lodge with the Commission
        notice in the prescribed form of the making of the order and its date;
        and

   (b)  within 7 days after the passing and entering of the order, lodge with
        the Commission an office copy of the order.