Document ID: chunk:federal_register_of_legislation:C2004A04501:schedule:3:p86
Version: federal_register_of_legislation:C2004A04501
Segment Type: schedule
Provision Reference: sch 3 (pt 86/110)
Character Range: 370500–373210

a contravention of subsection 289(1) that is only minor or technical.

"(6) 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 289(2), if it is proved that:

    (a)     the contravention was due solely to someone destroying, concealing or removing accounting records of the company; and

    (b)     none of those accounting records was destroyed, concealed or removed by the first-mentioned person; and

    (c)     the person was not in any way, by act or omission, directly or indirectly, knowingly or recklessly, concerned in, or party to, destroying, concealing or removing any of those accounting records.

"(7) If the recovery proceeding is an application under section 588FF, subsection (4) of this section does not have effect for the purposes of proving, for the purposes of the application, that an unfair preference given by the company to a creditor of the company is an insolvent transaction, unless it is proved, for the purposes of the application, that a related entity of the company was a party to the unfair preference.

"(8) If, for the purposes of another recovery proceeding in relation to the company, there has been proved:

    (a)     if the other proceeding is of the kind referred to in paragraph (1)(a) of this section—a matter of the kind referred to in a paragraph of section 588FC or of subsection 588FG(2); or

    (b)     if the other proceeding is of the kind referred to in paragraph (1)(b) of this section—a matter of the kind referred to in a paragraph of section 588FC or of subsection 588FG(2) or 588FH(1), or a defence under subsection 588FH(3); or

    (c)     if the other proceeding is of the kind referred to in paragraph (1)(c) or (d) of this section—a matter of the kind referred to in subsection 588FJ(3); or

    (d)     if the other proceeding is of the kind referred to in paragraph (1)(e) of this section—a matter of the kind referred to in a paragraph of section 588G, or a defence under section 588H; or

    (e)     if the other proceeding is of the kind referred to in paragraph (1)(f) of this section—a matter of the kind referred to in a paragraph of subsection 588V(1), or a defence under section 588X;

it must be presumed that that matter was the case, or that the matters constituting that defence were the case.

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

"Division 2—Voidable transactions

Unfair preferences

"588FA.(1) A transaction is an unfair preference given by a company to a creditor of the company