Directors to help administrator

Offence title:

Directors to help administrator

Act:

475 Corporations Act

Offence:

(1A) Liquidator includes a provisional liquidator.

(1)   A verified statement in writing and as prescribed is to be submitted to the liquidator by persons who were, at the date of the winding up order, or earlier if required by the liquidator, directors and secretary of the company as to the affairs of the company.

(2)   The liquidator may serve a notice in writing personally, or at the last known address, on specified classes of person, requirement for a report, verified in writing, and submitted to the liquidator, information about the affairs of the company, or such affairs of the company specified in the notice, at the date specified in the notice:

(a)   Officers or past officers of the company;

(b)   Where the company is less than one year old at date of winding up order– those who took part in the formation of the company;

(c)    Employees or former employees within one year of the winding up order who could, in the opinion of the administrator provide information;

(d)   Person who were officers of the company or employed, within one year of the winding up order, who could, in the opinion of the administrator provide information;

(e)   A person who was a provisional liquidator of the company.

(3)   The liquidator’s notice under ss. (2) may specify the information required as to the affairs of the company, by reference to this Act or regulations.

(4)   A report under ss. (1), subject to ss. (6), be submitted to the liquidator within 10 business days of the winding up order.

(5)   A person required to submit a report under ss. (2) must, subject to ss. (6), submit it to the liquidator within 10 business days of being served with the notice.

(6)   A liquidator may grant an extension of time to prepare report under ss. (1) or (2), if there are special reasons, providing the request is made in writing before the conclusion of the required time in ss. (4) and (5).

(7)   A liquidator must:

(a)   Within 5 days of receiving a report under ss. (1) or (2) cause a copy to be filed with the court and a copy be lodged; and

(b)   Where a notice is given under ss. (6), as soon as practicable lodge a copy of the notice.

(8)   A person making or concurring in making a report required by this section and verifying it as required must, subject to the rules, be allowed and must be paid by the liquidator out of the property of the company, costs and expenses incurred in and about the preparation and making and verification of the report as the liquidator considers reasonable.

Penalty:

(1), (2) and (3) - 50 penalty units.

(4) - 60 penalty units.

(5), (6), (7) and (8) - 50 penalty units.

Summary/Indictable/mixed:

Summary

Jurisdiction:

Local Court

How committed:

This section sets out 8 separate sets of circumstances where, in the prescribed manner, reports or assistance in preparing reports, for the liquidator are failed to be provided, and thereby offences are committed.

Each set of circumstances leading to alleged failures are factually based.

Important note:

Defence: reasonable excuse