# Associations Incorporation Act 1981 (Victoria)/Part VIII

PART VIII—WINDING UP AND CANCELLATION
    Division 1—Voluntary winding up

## 32 Definitions

In this Division—
assets in relation to an incorporated association, means the assets remaining after satisfaction of the debts and liabilities of the incorporated association and the costs, charges and expenses of the winding up;
winding up date in relation to an incorporated association, means the date on which that incorporated association resolves by special resolution to be wound up voluntarily.

## 33 Voluntary winding up

An incorporated association may be wound up voluntarily if the association so resolves by special resolution.

## 33A Distribution of assets on voluntary winding up in accordance with special resolution

(1) An incorporated association may, on or after the date on which it resolves by special resolution to be wound up voluntarily, pass a special resolution relating to the distribution of assets of the incorporated association on that winding up.
(2) Subject to subsection (3), if an incorporated association passes a special resolution under subsection (1), the assets of the incorporated association must be dealt with or disposed of in accordance with that special resolution.
(3) A special resolution referred to in subsection (1) that provides for the distribution of the assets of the incorporated association to any of the members of the association, or has the effect of distributing the assets of the incorporated association to any of the members of the incorporated association, is of no effect if—
(a) on the winding up date, or at any time in the period of 5 years immediately before that date, the rules of the incorporated association prohibited the distribution of the assets of the incorporated association to any of the members of the incorporated association on a voluntary winding up; or
(b) on the winding up date the rules of the incorporated association contained provisions referred to in section 51(4)(a)(ii).
(4) Subsection (3)(a) does not apply to a special resolution if—
(a) at any time in the period of 5 years immediately before the winding up date, the rules of the incorporated association were altered to provide for the distribution of the assets of the incorporated association to any of the members of the association; and
(b) the incorporated association had the consent of the Minister under section 51(6) to alter the rules of the association in that manner.
(5) Subsection (3)(a) does not apply to a special resolution if—
(a) that special resolution deals with or disposes of the assets of the association by distributing the assets to a specified member of the association that is a body corporate; and
(b) the rules or constitution of that body corporate prohibit the disposition or distribution of the assets or property of the body corporate to the members of the body corporate on a voluntary winding up.
(6) The public officer of an incorporated association must, within 28 days after the passing of a special resolution under subsection (1), lodge with the Registrar—
(a) notice in a form approved by the Registrar of the special resolution; and
(b) a statutory declaration signed by at least 2 members of the committee to the effect that—
    (i) the special resolution was passed in accordance with this Act; and
    (ii) all statements and documents required to be lodged with the Registrar under this Act have been lodged by the incorporated association or are lodged with the notice.

## 33B Distribution of assets on voluntary winding up without special resolution relating to assets

(1) Subject to subsection (2), if a special resolution under section 33A is not passed by the incorporated association, the assets must—
(a) if the rules of the incorporated association do not otherwise provide, be divided amongst the members of the association in equal shares; and
(b) if the rules otherwise provide, be dealt with in accordance with the rules.
(2) If on the winding up date, or at any time in the period of 5 years immediately before that date—
(a) the rules of the incorporated association prohibited the distribution of the assets of the incorporated association to any of the members of the incorporated association on a voluntary winding up; and
(b) the rules of the incorporated association were altered to provide for such a distribution— the assets of the incorporated association must be dealt with or disposed of in accordance with the rules of the association as if the rules had not been so altered.
(3) Despite subsection (2), the assets of an incorporated association may be dealt with or disposed of in accordance with the rules of the association if—
(a) the rules of the association provide that the assets be dealt with or disposed of in a manner that distributes the assets to a specified member of the incorporated association that is a body corporate; and
(b) the rules or constitution of that body corporate prohibit the disposition or distribution of the assets or property of the body corporate to the members of the body corporate on a voluntary winding up.

## 33C Certain assets not to be distributed on voluntary winding up

(1) Despite sections 33A and 33B, an asset or part of an asset of the incorporated association that consists of property supplied by a government department or public authority, including the unexpended portion of a grant must be returned to the department or authority that supplied it or to a body nominated by the department or authority.
(2) Subsection (2) does not apply if a contract or agreement between the incorporated association and the government department or public authority makes express provision to the contrary.

## 33D Application to Supreme Court by persons aggrieved under a voluntary winding up

Any person aggrieved by the operation of this Division in relation to the assets of an incorporated association may apply to the Supreme Court which may make any orders relating to the disposal of the assets that it thinks fit.

## 33E Distribution of assets of incorporated association subject to trusts

This Division applies subject to any trust affecting the assets or any of the assets of the incorporated association.
Division 2—Winding up by the court

## 34 Winding up by the court

(1) The Supreme Court may order the winding up of an incorporated association if—
(a) the incorporated association has by special resolution resolved that it be wound up by the court; or
(b) the incorporated association suspends its operations for a whole year; or
(c) the incorporated association is unable to pay its debts; or
(d) the incorporated association has traded (except in accordance with section 51) or secured pecuniary profit for its members; or
(e) the incorporated association has, as trustee, traded (except in accordance with section 51) or secured pecuniary profit for the members of the incorporated association; or
(f) the incorporated association has engaged in activities outside the scope of its statement of purpose; or
(g) the court is of the opinion that it is just and equitable that the incorporated association should be wound up.
(2) An application to the court for the winding up of an incorporated association must be made by—
(a) the incorporated association; or
(b) a member or creditor of the incorporated association; or
(c) the Registrar.
Division 3—Winding up on certificate of Registrar

## 35 Winding up on certificate of Registrar

(1) An incorporated association may be wound up on the certificate of the Registrar if the necessary grounds for the taking of that action exist, as referred to in subsection (2).
(2) The necessary grounds for taking that action exist if the Registrar certifies—
(a) that the number of members is reduced to less than 5; or
(b) that the incorporated association is not in operation; or
(c) that the incorporated association has traded (except in accordance with section 51) or secured pecuniary profit for its members; or
(d) that the incorporated association has, as trustee, traded (except in accordance with section 51) or secured pecuniary profit for the members of the incorporated association; or
(e) that the incorporated association has not given to the Registrar statements in accordance with section 30(4) in respect of each of the preceding 2 years; or
(f) that incorporation of the incorporated association has been obtained by mistake or fraud; or
(g) that the incorporated association exists for an illegal purpose; or
(h) that the incorporated association has, after notice from the Registrar of any breach of this Act or the regulations or of the rules of the incorporated association, failed to remedy the breach within the time specified in the notice; or
(i) that the incorporated association has failed to comply with a direction of the Registrar under section 31AB within the period specified in the notice under that section; or
(ia) that the incorporated association has failed to become registered or incorporated as a prescribed body corporate within 6 months after the period specified in a notice under section 31AB; or
(j) that in the opinion of the Registrar, circumstances exist which, in the public interest, justify the winding up of the incorporated association.
(3) The Registrar must not certify under this section as to any matter unless the matter has been proved to the Registrar's satisfaction.

## 36 Procedure before certification

(1) Before giving a certificate under section 35, the Registrar must—
(a) give a notice to the incorporated association stating—
    (i) the Registrar's intention to give that certificate; and
    (ii) the grounds for giving the certificate; and
    (iii) that the certificate will be given if an answer showing cause to the contrary is not received within 2 months after the date on which the notice is sent or published, whichever is the later; and
(b) give the incorporated association a reasonable opportunity to show cause why the certificate should not be given.
(2) A notice under subsection (1) must be given by—
(a) sending it by prepaid letter addressed to the registered address of the incorporated association; and
(b) publishing it in a newspaper circulating generally in the State.

## 36A Review of certificate

(1) An incorporated association may apply to the Supreme Court to review a decision of the Registrar to give a certificate under section 35.
(2) An application under subsection (1) must be made within 28 days after the certificate is given.

## 36B Procedure for winding up on certificate

(1) A winding up on a certificate of the Registrar commences—
(a) at the end of 28 days after the certificate is given unless an application is made under section 36A; or
(b) if an application is made under section 36A and the Supreme Court upholds the decision to give the certificate, on the determination of the application.
(2) On the commencement of the winding up, the Registrar may appoint a person to be the liquidator of the incorporated association.
(3) The liquidator need not be a registered liquidator under the Corporations Act.
(4) The liquidator must within 10 days give notice of his or her appointment in the Government Gazette.
(5) The liquidator must give such security as may be prescribed and is entitled to receive such fees as are fixed by the Registrar.
(6) Any vacancy occurring in the office of liquidator is to be filled by a person appointed by the Registrar.

## 36C Costs of winding up

The reasonable costs of a winding up under this Division are payable out of the property of the incorporated association.
Division 4—Application of Corporations legislation

## 36D Declaration of applied Corporations legislation matter

(1) The winding up of an incorporated association under Division 1 or 3 is declared to be an applied Corporations legislation matter for the purposes of Part 3 of the Corporations (Ancillary Provisions) Act 2001 in relation to the provisions of Parts 5.5 (Voluntary winding up) and 5.6 (Winding up generally) of the Corporations Act, subject to the following modifications—
(a) the modifications referred to in subsection (3); and
(b) in the case of a winding up under Division 3, the provisions of Part 5.6 of the Corporations Act apply as if—
    (i) section 513B were omitted;
    (ii) after paragraph (b) of section 532(1) there were inserted—
"or
(c) a person appointed by the Registrar as a liquidator of an incorporated association.";
    (iii) paragraph (c) of section 532(2) were omitted;
    (iv) in section 542(3), for paragraphs (b) and (c) there were substituted—
"(b) in the case of a winding up on the certificate of the Registrar—as the Registrar directs."; and
(ba) in the case of a winding up under Division 1, the provisions of Part 5.6 of the Corporations Act apply as if, after section 532(1)(b), there were inserted—
"; or
(c) in the case of an incorporated association with gross assets of $10 000 or less or any higher amount that is prescribed, a person appointed by the incorporated association who is—
(i) a member of CPA Australia; or
(ii) a member of the Institute of Chartered Accountants in Australia; or
(iii) a person, or a member of a class of persons, approved by the Registrar whom the Registrar is satisfied has the requisite skills and experience to act as a liquidator of incorporated associations generally or for a specified incorporated association or class of incorporated associations."; and
(c) any other modifications (within the meaning of Part 3 of the Corporations (Ancillary Provisions) Act 2001) that are prescribed by the regulations.
    Note
    Part 3 of the Corporations (Ancillary Provisions) Act 2001 provides for the application of provisions of the Corporations Act and Part 3 of the ASIC Act as laws of the State in respect of any matter declared by a law of the State (whether with or without modification) to be an applied Corporations legislation matter for the purposes of that Part in relation to those Commonwealth provisions.
(2) The winding up of an incorporated association (other than by a voluntary winding up) by the Court under Division 2 is declared to be an applied Corporations legislation matter for the purposes of Part 3 of the Corporations (Ancillary Provisions) Act 2001 in relation to the provisions of Part 5.7 (Winding up bodies other than companies) of the Corporations Act, subject to the following modifications—
(a) the modifications referred to in subsection (3); and
(b) any other modifications (within the meaning of Part 3 of the Corporations (Ancillary Provisions) Act 2001) that are prescribed by the regulations.
    Note
    Part 3 of the Corporations (Ancillary Provisions) Act 2001 provides for the application of provisions of the Corporations Act and Part 3 of the ASIC Act as laws of the State in respect of any matter declared by a law of the State (whether with or without modification) to be an applied Corporations legislation matter for the purposes of that Part in relation to those Commonwealth provisions.
(3) The following modifications to the text of the Corporations Act apply for the purposes of subsections (1) and (2)—
(a) a reference to a company or body is to be read as a reference to an incorporated association;
(b) a reference to the directors of a company is to be read as a reference to the members of the committee of an incorporated association;
(c) a reference to the secretary of a company is to be read as a reference to the public officer of an incorporated association;
(d) a reference to the principal place of business of a company is to be read as a reference to the registered address of an incorporated association;
(e) a reference to a company carrying on business or having a place of business is to be read as a reference to an incorporated association pursuing its objects;
(f) a reference to ASIC is to be read as a reference to the Registrar;
(g) a reference to a document in the prescribed form is to be read as a reference to a document in the corresponding form prescribed under the Corporations Act with all necessary modifications;
(h) a reference to the Court is to be read as a reference to the Supreme Court;
(i) a reference to the lodgement of a document is to be read as a reference to lodgement of that document with the Registrar;
(j) a reference to a company's constitution is to be read as a reference to an incorporated association's rules;
(k) a reference to a special resolution is to be read as a reference to a special resolution within the meaning of this Act;
(l) a reference to an officer of a company is to be read as a reference to a member of the committee of an incorporated association and, where applicable, a reference to a past officer is a reference to a past member of the committee of an incorporated association;
(m) a reference in sections 495, 542(1), 547 and 548 to a contributory of a company is to be read as a reference to a member of an incorporated association.
Division 5—Cancellation of incorporation

## 36E Cancellation of incorporation

(1) The Registrar may, by notice published in the Government Gazette, cancel the incorporation of an incorporated association which has been wound up or has commenced to be wound up.
(2) The cancellation of incorporation does not affect the winding up of the association.
(3) If the Registrar is of the opinion that any other incorporated association is not in operation he or she may, by notice, require the incorporated association to show good cause why its incorporation should not be cancelled.
(4) A notice under subsection (3) must—
(a) be served on the incorporated association at its registered address; or
(b) if service cannot reasonably be effected, be published in a newspaper circulating generally in the State.
(5) If, on the expiration of 28 days after the notice is given under subsection (3), the Registrar is satisfied that the incorporation of the association should be cancelled, the Registrar may, by notice published in the Government Gazette, cancel that incorporation.
(6) The Registrar must send notice of the cancellation of incorporation to the registered address of the incorporated association.
(7) Despite the cancellation of incorporation, the liability (if any) of the public officer, any member of the committee or any member of the incorporated association continues and may be enforced as if the incorporation had not been cancelled.

## 36F Vesting of property after cancellation

(1) If the incorporation of an association is cancelled under this Division—
(a) the property of the incorporated association vests in the Registrar; and
(b) the Registrar may—
(i) give any directions as he or she thinks just for or with respect to the payment of the debts and liabilities of the incorporated association, the distribution of its assets and the winding up of its affairs; and
(ii) appoint a person for the purpose of investigating the affairs of the incorporated association with a view to the realisation of its assets, payment of debts, discharge of its liabilities, distribution of its assets and winding up of its affairs; and
(iii) if the Registrar is not able to arrange for the distribution of any property vested in him or her under this section, sell or otherwise dispose of or deal with that property; and
(iv) deduct any costs incurred by the Registrar under this section in relation to the incorporated association from the sale or disposal of the property vested in him or her; and
(v) do all such other acts and things as are reasonably necessary to be done for the purpose of the exercise of his or her powers under this section.
(2) This section does not apply to an incorporated association which had been wound up or commenced to be wound up before the cancellation.
(3) The Registrar must pay into the Consolidated Fund any amount received from the sale or disposition of property under subsection (1)(b)(iii), after deduction of costs.
(4) Any person who claims an entitlement to any money paid into the Consolidated Fund under this section may apply to the Supreme Court for an order for payment of that amount to the person.
(5) Any amount ordered to be paid to a person under subsection (4) shall be paid out of the Consolidated Fund (which is hereby to the necessary extent appropriated accordingly).

## 37 Reinstatement of cancelled association

(1) If the Registrar is satisfied that the incorporation of an association should not have been cancelled, the Registrar may reinstate the association as an incorporated association.
(2) If a person is aggrieved by the cancellation of the incorporation of an association, the Supreme Court, on an application made by the person at any time within 15 years after the cancellation, may if satisfied that it is just that the incorporation of the association be reinstated, order the Registrar to reinstate the incorporation of the association.
(3) The order may be subject to any directions and conditions the Supreme Court thinks fit (including directions in relation to the retransfer of property vested in the Registrar under section 36F).
(4) On the reinstatement of the incorporation of an association under this section, the incorporated association is to be taken to have continued in existence as if its incorporation had not been cancelled.
(5) On the reinstatement of the incorporated association under subsection (1), any property which may have vested in the Registrar under section 36F is revested in the incorporated association.

## Footnotes

* ↑ Pt 8 (Heading and ss 32–37) amended by Nos 9761 s. 3, 10236 ss 7(2)(c)–(f), 8(2)(i)–(m), 110/1986 s. 140(2), 14/1995 s. 4, substituted as Pt 8 (Headings and ss 32–37) by No. 57/1997 s. 25.
* ↑ Pt 8 Div. 1 (Heading and ss 32, 33) substituted as Pt 8 Div. 1 (Heading and ss 32–33E) by No. 57/2000 s. 3.
* ↑ S. 32 substituted by No. 57/2000 s. 3.
* ↑ S. 33 substituted by No. 57/2000 s. 3.
* ↑ S. 33A inserted by No. 57/2000 s. 3.
* ↑ S. 33B inserted by No. 57/2000 s. 3.
* ↑ S. 33C inserted by No. 57/2000 s. 3.
* ↑ S. 33D inserted by No. 57/2000 s. 3.
* ↑ S. 33E inserted by No. 57/2000 s. 3.
* ↑ S. 34 substituted by No. 57/1997 s. 25.
* ↑ S. 35 substituted by No. 57/1997 s. 25.
* ↑ S. 35(2)(ia) inserted by No. 35/2000 s. 5.
* ↑ S. 36 substituted by No. 57/1997 s. 25.
* ↑ S. 36(1)(b) amended by No. 35/2000 s. 12.
* ↑ S. 36A inserted by No. 57/1997 s. 25.
* ↑ S. 36B inserted by No. 57/1997 s. 25.
* ↑ S. 36B(3) amended by No. 44/2001 s. 3(Sch. item 7.4).
* ↑ S. 36C inserted by No. 57/1997 s. 25.
* ↑ Pt 8 Div. 4 (Heading and s. 36D) inserted by No. 57/1997 s. 25, substituted by No. 44/2001 s. 3(Sch. item 7.5).
* ↑ S. 36D substituted by No. 44/2001 s. 3(Sch. item 7.5).
* ↑ S. 36D(1)(ba) inserted by No. 8/2003 s. 13.
* ↑ S. 36E inserted by No. 57/1997 s. 25.
* ↑ S. 36F inserted by No. 57/1997 s. 25.
* ↑ S. 37 substituted by No. 57/1997 s. 25.
* ↑ S. 37(1) substituted by No. 8/2003 s. 14.