Document ID: chunk:federal_register_of_legislation:C2004A04501:schedule:3:p30
Version: federal_register_of_legislation:C2004A04501
Segment Type: schedule
Provision Reference: sch 3 (pt 30/110)
Character Range: 229602–232375

exist

"440H.(1) This section has effect only for the purposes of a law about the effect of a lis pendens on purchasers or mortgagees.

"(2) During the administration of a company, an application to wind up the company is taken to be pending.

"(3) An application that is taken because of subsection (2) to be pending constitutes a lis pendens.

Administration not to trigger liability of director or relative under guarantee of company's liability

   "440J.(1) During the administration of a company:

     (a) a guarantee of a liability of the company cannot be enforced, as against:

       (i) a director of the company who is a natural person; or

       (ii) a spouse, de facto spouse or relative of such a director; and

    (b) without limiting paragraph (a), a proceeding in relation to such a guarantee cannot be begun against such a director, spouse, de facto spouse or relative;

except with the leave of the Court and in accordance with such terms (if any) as the Court imposes.

  "(2) While subsection (1) prevents a person ('the creditor') from:

     (a)     enforcing as against another person ('the guarantor') a guarantee of a liability of a company; or

     (b)     beginning a proceeding against another person ('the guarantor') in relation to such a guarantee;

section 1323 applies in relation to the creditor and the guarantor as if:

     (c)     a civil proceeding against the guarantor had begun under this Law; and

     (d)     the creditor were the only person of a kind referred to in that section as an aggrieved person.

   Note: Under section 1323 the Court can make a range of orders to ensure that a person can meet the person's liabilities.

"(3) The effect that section 1323 has because of a particular application of subsection (2) is additional to, and does not prejudice, the effect the section otherwise has.

  "(4) In this section:

'guarantee', in relation to a liability of a company, includes a relevant agreement (as defined in section 9) because of which a person other than the company has incurred, or may incur, whether jointly with the company or otherwise, a liability in respect of the liability of the company;

'liability' means a debt, liability or other obligation.

"Division 7—Rights of chargee, owner or lessor

Where chargee acts before or during decision period

  "441A.(1) This section applies where:

    (a)     the whole, or substantially the whole, of the property of a company under administration is subject to a charge; and

    (b)     before or during the decision period, the chargee enforced the charge in relation to all property of the company subject to the charge, whether or not the charge was enforced in the same way in relation to all that property.

  "(2) This section also applies