Document ID: chunk:federal_register_of_legislation:C2004A04501:schedule:3:p52
Version: federal_register_of_legislation:C2004A04501
Segment Type: schedule
Provision Reference: sch 3 (pt 52/110)
Character Range: 285120–287843

headings to Part 5.4 of the Corporations Law, and to Division 1 of that Part, are repealed and the following Part and heading are substituted:

"PART 5.4—WINDING UP IN INSOLVENCY

    "Division 1—When company to be wound up in insolvency

Order that insolvent company be wound up in insolvency

"459A. On an application under section 459P, the Court may order that an insolvent company be wound up in insolvency.

Order made on application under section 260, 462 or 464

"459B. Where, on an application under section 260, 462 or 464, the Court is satisfied that the company is insolvent, the Court may order that the company be wound up in insolvency.

Presumptions to be made in certain proceedings

  "459C.(1) This section has effect for the purposes of:

  (a)     an application under section 260, 459P, 462 or 464; or

    (b)     an application for leave to make an application under section 459P.

"(2) The Court must presume that the company is insolvent if, during or after the 3 months ending on the day when the application was made:

    (a)     the company failed (as defined by section 459F) to comply with a statutory demand; or

    (b)     execution or other process issued on a judgment, decree or order of an Australian court in favour of a creditor of the company was returned wholly or partly unsatisfied; or

    (c)     a receiver, or receiver and manager, of property of the company was appointed under a power contained in an instrument relating to a floating charge on such property; or

    (d)     an order was made for the appointment of such a receiver, or receiver and manager, for the purpose of enforcing such a charge; or

    (e)     a person entered into possession, or assumed control, of such property for such a purpose; or

     (f) a person was appointed so to enter into possession or assume control (whether as agent for the chargee or for the company).

"(3) A presumption for which this section provides operates except so far as the contrary is proved for the purposes of the application.

Contingent or prospective liability relevant to whether company solvent

"459D.(1) In determining, for the purposes of an application of a kind referred to in subsection 459C(1), whether or not the company is solvent, the Court may take into account a contingent or prospective liability of the company.

"(2) Subsection (1) does not limit the matters that may be taken into account in determining, for a particular purpose, whether or not a company is solvent.

"Division 2—Statutory demand

Creditor may serve statutory demand on company

  "459E.(1) A person may serve on a company a demand relating to:

    (a)     a single debt that the company owes to the person, that is due