Commonwealth Numbered Acts Commonwealth Numbered ActsPart 1 -- Main amendments of the Corporations Act 2001
1 Section 9
Insert:
"creditor-defeating disposition " has the meaning given by section 588FDB.
2 Subsection 111Q(1)
Omit "Paragraph 588E(4)(a)", substitute "Paragraphs 588E(4)(a) and (4A)(a)".
3 Subsection 111Q(2)
Omit "Paragraph 588E(4)(b)", substitute "Paragraphs 588E(4)(b) and (4A)(b)".
4 Paragraph 415D(6)(c)
Repeal the paragraph, substitute:
(c) a right of a kind:
(i) prescribed by the regulations for the purposes of this subparagraph; or
(ii) declared under paragraph (7)(b); or
5 Paragraph 434J(5)(c)
Repeal the paragraph, substitute:
(c) a right of a kind:
(i) prescribed by the regulations for the purposes of this subparagraph; or
(ii) declared under paragraph (6)(b); or
6 Paragraph 451E(5)(c)
Repeal the paragraph, substitute:
(c) a right of a kind:
(i) prescribed by the regulations for the purposes of this subparagraph; or
(ii) declared under paragraph (6)(b); or
7 Subsection 588E(1) (after paragraph (a) of the definition of recovery proceeding )
Insert:
(aa) action by ASIC under section 588FGAA; or
(ab) proceedings under section 588FGAE; or
8 Subsection 588E(1) (after paragraph (e) of the definition of recovery proceeding )
Insert:
(ea) proceedings for a contravention of subsection 588GAB(2) or 588GAC(2) in relation to a disposition of property of the company (including proceedings under section 588M in relation to the disposition but not including proceedings for an offence); or
9 After subsection 588E(4)
Insert:
(4A) In determining for the purposes of the recovery proceeding whether a disposition of property of the company is a creditor-defeating disposition, the consideration payable to the company for the disposition is to be presumed to be less than both the market value of the property and the best price reasonably obtainable for the property, if it is proved that the company:
(a) has failed to keep financial records relating to the disposition as required by subsection 286(1); or
(b) has failed to retain financial records relating to the disposition for 7 years after the disposition as required by subsection 286(2).
This subsection is subject to subsections (5) and (6).
10 Subsection 588E(5)
Omit "Paragraph (4)(a) does", substitute "Paragraphs (4)(a) and (4A)(a) do".
11 Subsection 588E(6)
Omit "Subsection (4) does not have effect, in so far as it would prejudice a right or interest of a person for the company to be presumed insolvent because of a contravention of subsection 286(2)", substitute "A presumption under subsection (4) or (4A) of this section, applying because of a contravention of subsection 286(2), does not have effect so far as it would prejudice a right or interest of a person".
12 Paragraph 588E(8)(a)
After "subsection 588FG(2)", insert "or in subsection 588FG(9)".
13 After paragraph 588E(8)(a)
Insert:
(aa) if the other proceeding is of the kind referred to in paragraph (1)(ab) of this section--a matter of the kind referred to in a paragraph of subsection 588FG(2), 588GAB(2) or 588GAC(2), or a defence under subsection 588GAB(3) or 588GAC(3) or section 588H; or
14 Paragraph 588E(8)(b)
After "588FH(1)", insert "or in subsection 588FG(9)".
15 After paragraph 588E(8)(d)
Insert:
(da) if the other proceeding is of the kind referred to in paragraph (1)(ea) of this section--a matter of the kind referred to in a paragraph of subsection 588GAB(2) or 588GAC(2), or a defence under subsection 588GAB(3) or 588GAC(3) or section 588H; or
16 Paragraph 588E(8A)(a)
Omit "a debt", substitute "either a debt or a disposition".
17 Before section 588FA
Insert:
Subdivision A -- Kinds of transactions that may be voidable
18 After section 588FDA
Insert:
588FDB Creditor-defeating disposition
(1) A disposition of property of a company is a creditor-defeating disposition if:
(a) the consideration payable to the company for the disposition was less than the lesser of the following at the time the relevant agreement (as defined in section 9) for the disposition was made or, if there was no such agreement, at the time of the disposition:
(i) the market value of the property;
(ii) the best price that was reasonably obtainable for the property, having regard to the circumstances existing at that time; and
(b) the disposition has the effect of:
(i) preventing the property from becoming available for the benefit of the company's creditors in the winding-up of the company; or
(ii) hindering, or significantly delaying, the process of making the property available for the benefit of the company's creditors in the winding-up of the company.
Extensions of concept of disposition
(2) For the purposes of this section and provisions of this Act that refer to a creditor-defeating disposition, if a company does something that results in another person becoming the owner of property that did not previously exist, the company is taken to have made a disposition of the property.
(3) For the purposes of this section and provisions of this Act that refer to a creditor-defeating disposition, if:
(a) a company makes a disposition of property to another person; and
(b) the other person gives some or all of the consideration for the disposition to a person (the third party ) other than the company;
the company is taken to have made a disposition of the property constituting so much of the consideration as was given to the third party.
Subdivision B -- Voidable transactions
19 At the end of subsection 588FE(1)
Add:
; and (c) a transaction of the company may be voidable because of subsection (6B) if the transaction was entered into on or after the commencement of that subsection.
20 After subsection 588FE(6A)
Insert:
(6B) The transaction is voidable if:
(a) it is a creditor-defeating disposition of property of the company; and
(b) at least one of the following applies:
(i) the transaction was entered into, or an act was done for the purposes of giving effect to it, when the company was insolvent, during the 12 months ending on the relation-back day or both after that day and on or before the day when the winding up began;
(ii) the company became insolvent because of the transaction or an act done for the purposes of giving effect to the transaction during the 12 months ending on the relation-back day or both after that day and on or before the day when the winding up began;
(iii) less than 12 months after the transaction or an act done for the purposes of giving effect to the transaction, the start of an external administration (as defined in Schedule 2) of the company occurs as a direct or indirect result of the transaction or act; and
(c) the transaction, or the act done for the purpose of giving effect to it, was not entered into, or done:
(i) under a compromise or arrangement approved by a Court under section 411; or
(ii) under a deed of company arrangement executed by the company; or
(iii) by an administrator of the company; or
(iv) by a liquidator of the company; or
(v) by a provisional liquidator of the company.
21 Before section 588FF
Insert:
Subdivision C -- Court orders about voidable transactions
22 Before subsection 588FG(1)
Insert:
If no benefit or benefit received in good faith without grounds for suspecting insolvency
23 Before subsection 588FG(2)
Insert:
If transaction entered into for valuable consideration in good faith without grounds for suspecting insolvency
24 At the end of section 588FG
Add:
If transaction is creditor-defeating disposition
(7) Subsections (1) and (2) do not apply to an order made solely on the grounds of subsection 588FE(6B) applying solely because of subparagraph 588FE(6B)(b)(iii).
(8) A court is not to make under section 588FF an order solely on the grounds of subsection 588FE(6B) if it is proved that paragraphs 588GA(1)(a) and (b) apply in relation to a person and the disposition. For the purposes of determining whether it is proved that those paragraphs apply in that way:
(a) subsections 588GA(2) to (7) apply; and
(b) section 588GB applies as if the proceeding under section 588FF were a relevant proceeding.
(9) A court is not to make, solely on the grounds of subsection 588FE(6B) (about a creditor-defeating disposition of property), an order under section 588FF materially prejudicing a right or interest of a person other than a party to the creditor-defeating disposition if it is proved that the person later acquired the property in good faith.
25 After section 588FG
Insert:
Subdivision D -- ASIC orders about certain voidable transactions
Scope of this section
(1) This section applies if:
(a) a company for which a liquidator has been appointed has made a creditor-defeating disposition of property; and
(b) the disposition is voidable under subsection 588FE(6B); and
(c) a person has received any money or property as a direct or indirect result of:
(i) the disposition; or
(ii) the person's acquisition of the property after the disposition.
Note: The person may receive money or property as an indirect result of acquiring (by the creditor-defeating disposition or a later transaction) the property of the company that was the subject of the creditor-defeating disposition, and later disposing of that property and receiving money or property as consideration for the later disposal.
Liquidator may request order
(2) The company's liquidator may request ASIC to make an order under subsection (3). The request may be made only during the period beginning on the relation-back day and ending on the later of:
(a) 3 years after the relation-back day; and
(b) 12 months after the first appointment of a liquidator in relation to the winding up of the company.
ASIC must decide whether to grant the request.
Orders by ASIC
(3) ASIC may, on request under subsection (2) or on its own initiative, make one or more of the following orders in writing given to the person:
(a) an order directing the person to transfer to the company property that was the subject of the disposition;
(b) an order requiring the person to pay to the company an amount that, in ASIC's opinion, fairly represents some or all of the benefits that the person has received (directly or indirectly) because of the disposition;
(c) an order requiring the person to transfer to the company property that, in ASIC's opinion, fairly represents the application of proceeds of property that was the subject of the disposition.
Note 1: Subsection (5) sets out matters ASIC must consider in deciding whether to make an order.
Note 2: Section 588FGAB provides further for the content of orders.
Limit on power to make orders
(4) However, ASIC must not make an order under subsection (3) if ASIC has reason to believe that, if it were a court, section 588FG would prevent it from making a corresponding order under section 588FF.
Considerations in deciding whether to make orders
(5) In deciding whether to make an order under subsection (3), ASIC must have regard to the following:
(a) the conduct of the company and its officers;
(b) the conduct of the person;
(c) the circumstances, nature and terms of the disposition;
(d) the relationship (if any) between the company and the person;
(e) any other matter ASIC considers relevant.
Revocation and amendment of orders
(6) At any time, ASIC may, in writing given to the person, revoke or amend an order under subsection (3).
Note: A court may also set aside an order made under subsection (3) of this section: see section 588FGAE.
588FGAB Content and copies of orders
Reasons
(1) An order under subsection 588FGAA(3) must include written reasons for the making of the order (including why ASIC is satisfied section 588FGAA applies).
Orders for payment
(2) An order under paragraph 588FGAA(3)(b) (requiring a person to pay a company an amount) may require the amount to be paid at a time or within a period set out in the order.
Liquidator to be given copies of orders etc.
(3) If ASIC makes an order under subsection 588FGAA(3) relating to a company, ASIC must give the company's liquidator a copy of the order, and of any revocation or amendment of the order.
588FGAC Compliance with orders generally
A person must not engage in conduct if the conduct contravenes an order under subsection 588FGAA(3).
Note: Failure to comply with this section is an offence: see subsection 1311(1).
588FGAD Compliance with orders for payment
Enforcement of order for payment generally
(1) An amount payable by a person to a company under an order made under paragraph 588FGAA(3)(b) is recoverable by the company as a debt by action against the person in a court of competent jurisdiction.
Court order for payment if person convicted of offence
(2) If a court convicts a person of an offence based on section 588FGAC relating to a contravention by the person or someone else of an order made under paragraph 588FGAA(3)(b), the court may (in addition to imposing a penalty on the person for the offence) order the person to pay the company an amount not exceeding the amount involved in the contravention.
Complying with order for payment by transferring property
(3) A person ordered under paragraph 588FGAA(3)(b) to pay a company the value of any property may comply with the order by transferring the property to the company.
588FGAE Court may set aside order by ASIC
(1) The person subject to an order under subsection 588FGAA(3) or any other person interested in such an order may apply to a Court within the period described in subsection (2) to have the order set aside.
(2) The period is 60 days after the day the applicant was given the order or otherwise became aware of it.
(3) The Court may set the order aside if satisfied, on the basis of the written reasons for the order, that section 588FGAA did not apply.
(4) If the order is set aside, it is taken never to have been made.
Subdivision E -- Various rules about voidable transactions
26 Subsection 588FGA(1)
After "section 588FF", insert ", or ASIC makes an order under section 588FGAA,".
27 After subsection 588FGB(4)
Insert:
(4A) Subsections (3) and (4) of this section do not apply if the order mentioned in subsection 588FGA(1) was made wholly or partly because the condition in 588FE(6B)(b)(iii) was met.
28 Subsection 588FH(3)
After "section 588FF", insert "or 588FGAA".
29 Subsection 588FH(3)
After "court", insert "or ASIC".
30 Paragraph 588FI(1)(b)
After "section 588FF", insert "or 588FGAA".
31 After subsection 588FI(2)
Insert:
(2A) ASIC must not make an order under section 588FGAA that relates to the transaction and prejudices a right or interest of the creditor.
32 Division 3 of Part 5.7B (heading)
Repeal the heading, substitute:
Division 3 -- Duties to prevent insolvent trading and creditor-defeating dispositions
Subdivision A -- Director's duty to prevent insolvent trading
33 After section 588G
Insert:
Subdivision B -- Duties to prevent creditor-defeating dispositions
588GAA Object of this Subdivision
The object of this Subdivision is to deter the practice (which may form part of the activity sometimes called phoenixing) of disposing of a company's assets to avoid the company's obligations to its creditors.
588GAB Officer's duty to prevent creditor-defeating disposition
(1) An officer of a company must not engage in conduct that results in the company making a creditor-defeating disposition of property of the company, if:
(a) the company is insolvent; or
(b) the company becomes insolvent because of the disposition or a number of dispositions made at the time of the disposition; or
(c) less than 12 months after the disposition, the start of an external administration (as defined in Schedule 2) of the company occurs as a direct or indirect result of the disposition; or
(d) less than 12 months after the disposition, the company ceases to carry on business altogether as a direct or indirect result of the disposition.
Note 1: Failure to comply with this subsection is an offence: see subsection 1311(1).
Note 2: Recklessness is the fault element for the result of the company making the creditor-defeating disposition and for paragraphs (1)(a), (b), (c) and (d): see section 5.6 of the Criminal Code .
(2) An officer of a company must not engage in conduct that results in the company making a disposition of property of the company, if:
(a) one or more of the following applies:
(i) the company is insolvent;
(ii) the company becomes insolvent because of the disposition or a number of dispositions made at the time of the disposition;
(iii) less than 12 months after the disposition, the start of an external administration (as defined in Schedule 2) of the company occurs as a direct or indirect result of the disposition;
(iv) less than 12 months after the disposition, the company ceases to carry on business altogether as a direct or indirect result of the disposition; and
(b) the officer knows, or a reasonable person in the position of the officer would know, that the disposition is a creditor-defeating disposition.
Note 1: This subsection is a civil penalty provision (see section 1317E).
Note 2: Section 588E provides for presumptions about when a company is insolvent and about matters relevant to whether a disposition is a creditor-defeating disposition.
Exceptions
(3) Subsections (1) and (2) do not apply if the disposition was made:
(a) under a compromise or arrangement approved by a Court under section 411; or
(b) under a deed of company arrangement executed by the company; or
(c) by the company's liquidator; or
(d) by a provisional liquidator of the company.
Note: Section 588GA also provides for subsections (1) and (2) of this section not to apply if the disposition was connected with a course of action likely to lead to a better outcome for the company.
588GAC Procuring creditor-defeating disposition
(1) A person must not engage in conduct of procuring, inciting, inducing or encouraging the making by a company of a disposition of property that results in the company making the disposition of the property, if:
(a) one or more of the following applies:
(i) the company is insolvent;
(ii) the company becomes insolvent because of the disposition or a number of dispositions made at the time of the disposition;
(iii) less than 12 months after the disposition, the start of an external administration (as defined in Schedule 2) of the company occurs as a direct or indirect result of the disposition;
(iv) less than 12 months after the disposition, the company ceases to carry on business altogether as a direct or indirect result of the disposition; and
(b) the disposition is a creditor-defeating disposition.
Note 1: Failure to comply with this subsection is an offence: see subsection 1311(1).
Note 2: Recklessness is the fault element for the result of the company making the disposition and for subparagraphs (1)(a)(i), (ii), (iii) and (iv) and paragraph (1)(b): see section 5.6 of the Criminal Code .
(2) A person must not engage in conduct of procuring, inciting, inducing or encouraging the making by a company of a disposition of property that results in the company making the disposition of the property, if:
(a) one or more of the following applies:
(i) the company is insolvent;
(ii) the company becomes insolvent because of the disposition or a number of dispositions made at the time of the disposition;
(iii) less than 12 months after the disposition, the start of an external administration (as defined in Schedule 2) of the company occurs as a direct or indirect result of the disposition;
(iv) less than 12 months after the disposition, the company ceases to carry on business altogether as a direct or indirect result of the disposition; and
(b) the person knows, or a reasonable person in the position of the person would know, that the disposition is a creditor-defeating disposition.
Note 1: This subsection is a civil penalty provision (see section 1317E).
Note 2: Section 588E provides for presumptions about when a company is insolvent and about matters relevant to whether a disposition is a creditor-defeating disposition.
Exceptions
(3) Subsections (1) and (2) do not apply if the disposition was made:
(a) under a compromise or arrangement approved by a Court under section 411; or
(b) under a deed of company arrangement executed by the company; or
(c) by the company's liquidator; or
(d) by a provisional liquidator of the company.
Note: Section 588GA also provides for subsections (1) and (2) of this section not to apply if the disposition was connected with a course of action likely to lead to a better outcome for the company.
Subdivision C -- Safe harbour from breach of duties
34 Subsection 588GA(1)
After "a debt", insert ", and subsections 588GAB(1) and (2) and 588GAC(1) and (2) do not apply in relation to a person and a disposition,".
35 Paragraph 588GA(1)(b)
After "the debt is incurred", insert ", or the disposition is made,".
36 Subsection 588GA(3)
After "subsection 588G(2)", insert ", 588GAB(1) or (2) or 588GAC(1) or (2)".
37 Subsection 588GA(4)
Omit "a debt", substitute "either a debt or a disposition".
38 Paragraph 588GA(4)(a)
After "when the debt is incurred,", insert "or the disposition is made,".
39 Subsection 588GA(5)
Omit "a debt", substitute "either a debt or a disposition".
40 Paragraph 588GA(5)(a)
After "after the debt is incurred,", insert "or after the disposition is made,".
41 Paragraph 588GA(5)(a)
After "subsection", insert "438B(2),".
42 Paragraph 588GB(2)(b)
Omit "or (c)".
43 Subsection 588GB(5)
Omit "or (c)".
44 Subsection 588GB(7) (paragraph (a) of the definition of relevant proceeding )
After "subsection 588G(2)", insert "or 588GAB(1) or (2) or 588GAC(1) or (2)".
45 Subsection 588H(1)
Repeal the subsection, substitute:
Application
(1) This section has effect for the purposes of:
(a) proceedings for a contravention of subsection 588G(2) relating to the incurring of a debt at a time (the key time ); and
(b) proceedings for a contravention of subsection 588GAB(2) or 588GAC(2) relating to the disposition of a company's property at a time (the key time ); and
(c) proceedings under section 588M relating to the incurring of the debt or the disposition of the property.
Expectations and belief about company's solvency
46 Subsection 588H(2)
Omit "time when the debt was incurred", substitute "key time".
47 Subsection 588H(2)
Omit "even if it incurred that debt and any other debts that it incurred at that time", substitute "despite all its debts incurred, and dispositions of its property made, at that time".
48 Subsection 588H(3)
Omit "time when the debt was incurred", substitute "key time".
49 Paragraph 588H(3)(b)
Omit "even if it incurred that debt and any other debts that it incurred at that time", substitute "despite all its debts incurred, and dispositions of its property made, at that time".
50 After subsection 588H(3)
Insert:
(3A) Subsections (2) and (3) do not apply for the purposes of proceedings relating to the disposition of the company's property if the key time was less than 12 months before:
(a) the start of an external administration (as defined in Schedule 2) of the company that occurred as a direct or indirect result of the disposition; or
(b) the company ceased to carry on business altogether as a direct or indirect result of the disposition.
Director who did not take part in management
51 Subsection 588H(4)
Omit "time when the debt was incurred", substitute "key time".
52 Before subsection 588H(5)
Insert:
Reasonable steps taken to prevent debt or disposition
53 At the end of subsection 588H(5)
Add "or making the disposition of its property".
54 At the end of subsection 588H(6)
Add "This subsection does not apply to a defence in proceedings relating to a disposition of the company's property.".
55 After subsection 588J(1)
Insert:
(1A) If, on an application for a civil penalty order against a person for a contravention of subsection 588GAB(2) or 588GAC(2) relating to a disposition of property of a company, the Court is satisfied that:
(a) the person contravened the subsection; and
(b) one or more creditors of the company suffered loss or damage because of the disposition and the company's insolvency;
the Court may order the person to pay the company compensation equal to the loss or damage (whether or not the Court makes a pecuniary penalty order under section 1317G or an order under section 206C disqualifying the person from managing corporations).
56 At the end of subsection 588J(2)
Add ", 588GAB(2) or 588GAC(2) relating to the company".
57 Paragraph 588J(3)(a)
Omit "in relation to the incurring of a debt by that company".
58 Section 588K
Before "If:", insert "(1)".
59 At the end of section 588K
Add:
(2) If:
(a) a court finds a person guilty of an offence based on subsection 588GAB(1) or 588GAC(1) relating to disposition of property by a company; and
(b) the court is satisfied that one or more creditors of the company suffered loss or damage because of the disposition and the company's insolvency;
the court may order the person to pay the company compensation equal to the loss or damage (whether or not the court imposes a penalty for the offence).
60 After subsection 588M(1)
Insert:
(1A) This section also applies if:
(a) a person (the director ) has contravened subsection 588GAB(1) or (2) or 588GAC(1) or (2) relating to disposition of property by a company; and
(b) one or more creditors of the company have suffered loss or damage because of the disposition and the company's insolvency; and
(c) the company is being wound up.
This section applies whether or not the director has been convicted of an offence relating to the contravention or a civil penalty order has been made against the director for the contravention.
61 Section 588N
After "the incurring of a debt", insert ", or the disposition of property,".
62 Paragraph 588N(a)
After "the incurring of the debt", insert "or the disposition of the property".
63 At the end of paragraph 588N(b)
Add "or the disposition of the property".
64 After subparagraph 588Q(b)(iii)
Insert:
or (iv) that that court has declared that a specified person has contravened subsection 588GAB(2) or subsection 588GAC(2) in relation to a specified disposition of property by a specified company; or
(v) that a specified person was convicted by that court for an offence constituted by a contravention of subsection 588GAB(1) or 588GAC(1) in relation to a specified disposition of property by a specified company; or
(vi) that a specified person charged before that court with an offence described in subparagraph (v) was found in that court to have committed the offence but that the court did not proceed to convict the person of the offence;
65 After subsection 588R(1)
Insert:
(1A) If section 588M applies in relation to a company because of subsection 588M(1A), a creditor described in that subsection may begin proceedings under that section with the written consent of the company's liquidator.
66 Subsection 588R(2)
Omit "Subsection (1) has", substitute "Subsections (1) and (1A) have".
67 Paragraph 588S(a)
Repeal the paragraph, substitute:
(a) stating that the creditor intends to begin proceedings under section 588M relating to:
(i) the incurring by the company of a specified debt that is owed to the creditor; or
(ii) a specified disposition by the company of property, because of which (and the company's insolvency) the creditor has suffered loss or damage; and
68 Subparagraph 588S(b)(ii)
After "the incurring of that debt", insert ", or the making of that disposition,".
69 Subsection 588T(2)
After "the incurring by the company of the debt", insert ", or the making by the company of the disposition,".
70 Subsection 588U(1)
After "the incurring of a debt", insert ", or the making of a disposition,".
71 Paragraph 588U(1)(a)
After "in relation to the debt", insert "or disposition".
72 Paragraph 588U(1)(b)
After "the debt", insert "or the making of the disposition".
73 Paragraph 588U(1)(c)
Repeal the paragraph, substitute:
(c) the company's liquidator has intervened in an application for a civil penalty order against a person relating to:
(i) a contravention of subsection 588G(2) relating to the incurring of the debt; or
(ii) a contravention of subsection 588GAB(2) or 588GAC(2) relating to the disposition; or
(d) the company's liquidator has requested ASIC to make an order under subsection 588FGAA(3) relating to the disposition; or
(e) ASIC has made an order under subsection 588FGAA(3) relating to the disposition.
74 Paragraph 596AD(b)
After "the incurring of a debt", insert ", or the making of a disposition,".
Part 2 -- Consequential amendments of other Acts
Aged Care (Accommodation Payment Security) Act 2006
75 Subparagraph 12(3)(b)(i)
Omit "or (2B)", substitute ", (2B) or (6B)".
76 Subparagraph 12(3)(b)(ii)
After "section 588FF of that Act", insert "or a request under subsection 588FGAA(2) of that Act".
77 Subparagraph 13A(1)(d)(i)
Omit "or (2B)", substitute ", (2B) or (6B)".
78 Subparagraph 13A(1)(d)(ii)
After "section 588FF of that Act", insert "or a request under subsection 588FGAA(2) of that Act".
79 Subsection 14C(3)
After "588G", insert ", 588GAB or 588GAC".
80 At the end of paragraph 14CA(b)
Add:
; or (iv) a creditor-defeating disposition (within the meaning of that Act) by the body corporate.
Corporations (Aboriginal and Torres Strait Islander) Act 2006
81 Paragraph 386-1(d)
Repeal the paragraph, substitute:
(d) subsections 588G(2), 588GAB(2) and 588GAC(2) of the Corporations Act (as applied by section 531-1 of this Act) (insolvent trading and creditor-defeating dispositions).
82 Section 482-1
After "insolvent trading", insert "and creditor-defeating dispositions".
83 Part 11-6 (at the end of the heading)
Add " and creditor-defeating dispositions ".
84 Division 531 (at the end of the heading)
Add " and creditor-defeating dispositions ".
85 Section 531-1 (heading)
After " insolvent trading ", insert " and creditor-defeating disposition ".
86 Subsection 531-1(1)
After "insolvent trading", insert "and creditor-defeating disposition".
87 Subsection 531-1(1) (note)
After "insolvent trading", insert "and creditor-defeating disposition".
88 Subsection 531-1(3)
Repeal the subsection, substitute:
(3) In this Act:
" Corporations Act insolvent trading and creditor-defeating disposition provisions " means:
(a) Divisions 3, 4, 5 and 6 of Part 5.7B of the Corporations Act; and
(b) the other provisions of that Act (including Parts 1.2 and 9.4 and Schedule 3 but not including Parts 1.1, 1.1A and 9.4A) to the extent to which they relate to the operation of the Divisions referred to in paragraph (a); and
(c) the regulations made under that Act for the purposes of the Divisions of that Act referred to in paragraph (a) and the provisions referred to in paragraph (b).
89 Section 531-5 (heading)
Omit " Section 588G of Corporations Act prevails ", substitute " Sections 588G, 588GAB and 588GAC of Corporations Act prevail ".
90 Subsections 531-5(1) and (2)
After "588G" (wherever occurring), insert ", 588GAB or 588GAC".
91 Section 700-1
Insert:
" Corporations Act insolvent trading and creditor-defeating disposition provisions " has the meaning given by subsection 531-1(3).
92 Section 700-1 (definition of Corporations Act insolvent trading provisions )
Repeal the definition.
93 Subsections 62ZM(3) and 62ZOK(3)
After "588G", insert ", 588GAB or 588GAC".
94 At the end of paragraph 62ZOL(b)
Add:
; or (iv) a creditor-defeating disposition (within the meaning of that Act) by the body corporate.
95 Subsections 179(3) and 179AK(3)
After "588G", insert ", 588GAB or 588GAC".
96 At the end of paragraph 179AL(b)
Add:
; or (iv) a creditor-defeating disposition (within the meaning of that Act) by the body corporate.
97 Section 9 (definition of linked )
Repeal the definition, substitute:
"linked " :
(a) the incurring of a debt and a contravention of subsection 596AC(1), (2), (3) or (4) are linked if they are linked under subsection 596AC(10); and
(b) the disposition of a company's property and a contravention of subsection 596AC(1), (2), (3) or (4) are linked if they are linked under subsection 596AC(10A).
98 After subsection 596AC(10)
Insert:
Linked dispositions
(10A) If there is a contravention of this section involving a disposition of property of a company that is voidable under subsection 588FE(6B), the disposition and the contravention are linked for the purposes of this Act.
99 Subparagraphs 596AF(3)(c)(iii), (iv) and (v)
Repeal the subparagraphs, substitute:
(iii) in the case of a contravention of subsection 596AC(1), (2), (3) or (4) linked to a disposition of the company's property--whether the liquidator has requested ASIC to make an order under subsection 588FGAA(3) relating to the disposition and whether ASIC has made such an order;
(iv) whether the liquidator has intervened in an application for a civil penalty order against a person for a contravention of section 588G or subsection 588GAB(2) or 588GAC(2) relating to the incurring of a debt, or the disposition of the company's property, that is linked to the contravention of subsection 596AC(1), (2), (3) or (4);
(v) whether the liquidator has begun proceedings under section 588M relating to the incurring of a debt, or the disposition of the company's property, that is linked to the contravention of subsection 596AC(1), (2), (3) or (4);
(vi) any other matter that the Court considers relevant.
100 In the appropriate position in subsection 1317E(3)
Insert:
|
Subsection 588GAB(2) | preventing creditor-defeating dispositions |
corporation/scheme |
| Subsection 588GAC(2) | procuring creditor-defeating dispositions | corporation/scheme |
101 In the appropriate position in Schedule 3
Insert:
| Section 588FGAC |
60 penalty units |
102 In the appropriate position in Schedule 3
Insert:
| Subsection 588GAB(1) | 10 years imprisonment |
|
Subsection 588GAC(1) | 10 years imprisonment |