Electronic recording and keeping of information
75-146 Electronic recording and keeping of information
This section applies to any information that is required or permitted to be recorded or kept under the Act, the regulations or these Rules, including but not limited to a record of the minutes of proceedings at a meeting.
The information may be recorded in electronic form if, at the time of the recording of the information, it was reasonable to expect that the information would be readily accessible so as to be useable for subsequent reference.
If the information is required to be kept at a place, the requirement is taken to be satisfied if:
an electronic form of the information is open for inspection at the place in accordance with the Act, the regulations or these Rules; and
having regard to all the relevant circumstances at the time of the generation of the electronic form of the information, the method of generating the electronic form of the information provided a reliable means of assuring the maintenance of the integrity of the information; and
at the time of the generation of the electronic form of the information, it was reasonable to expect that the electronic form of the information would be readily accessible so as to be useable for subsequent reference.
For the purposes of paragraph (3)(b), the integrity of information contained in an electronic form is maintained if, and only if, the information has remained complete and unaltered, apart from:
the addition of any endorsement; or
any immaterial change;
which arises in the normal course of communication, storage or display.
Subdivision D—Rules about proxies and attorneys
75‑150 Appointment of proxies
A person entitled to vote at a meeting may, in writing, appoint an individual as the person’s proxy to attend and vote at the meeting.
The appointment of a proxy must be in the approved form: see section 75‑25.
Subject to subsection (3) and to the instrument of appointment, a proxy appointed under this section has the same right to speak and vote at the meeting as the person who appointed the proxy.
A person is not entitled to speak or vote as proxy at the meeting unless the instrument of appointment (or a copy) has been given to:
the external administrator; or
the person named in the notice convening the meeting as the person who is to receive the instrument.
75‑152 External administrator holding a proxy may appoint deputy
If an external administrator holds a proxy and cannot attend the meeting for which the proxy is given, the external administrator may, in writing, appoint a person as a deputy.
The deputy must:
use the proxy:
if the proxy is a special proxy—in accordance with its terms; or
otherwise—on the external administrator’s behalf in the manner the external administrator directs; and
comply with section 75‑97.
75‑155 Person may attend and vote by attorney
A person entitled to attend and vote at a meeting may attend and vote at a meeting by the person’s attorney.
A person claiming to be the attorney of a person entitled to attend and vote at a meeting is not entitled to speak or vote as attorney at the meeting unless:
the instrument by which the person was appointed as attorney has been produced to the external administrator; or
the external administrator is otherwise satisfied that the person claiming to be the attorney of the person entitled to vote is the duly authorised attorney of that person.
Subdivision E—Additional rules about pooled groups
75‑180 Meetings of eligible unsecured creditors
This section is made for the purposes of subsection 80‑26(5) of the Insolvency Practice Schedule (Corporations).
A meeting of the eligible unsecured creditors of each of the companies in a pooled group required to be convened under subsection 577(1A) of the Act must be convened by giving written notice of the meeting to the creditors.
The notice must be given to the creditors at least 5 business days before the meeting and must be accompanied by:
a copy of the pooling determination or variation to the pooling determination (as the case may be); and
a written statement:
identifying each of the companies in the pooled group; and
setting out the opinion of the external administrator about each of the matters specified in subsection (4), and the reasons of the external administrator for those opinions; and
if the external administrator considers that any eligible unsecured creditors are likely to be disadvantaged by the coming into force of the determination or variation—the reasons (if any) why the external administrator considers that those disadvantaged eligible unsecured creditors should vote for a resolution approving the making of the determination or variation; and
setting out such other information known to the external administrator as will enable the eligible unsecured creditors to make an informed decision about whether to approve the making of the determination or variation.
For the purposes of subparagraph (3)(b)(ii), the matters are as follows:
whether it would be in the eligible unsecured creditors’ interests generally for the determination or variation to come into force;
the extent to which particular eligible unsecured creditors are likely to be disadvantaged by the coming into force of the determination or variation;
the extent to which particular companies in the group are likely to be disadvantaged by the coming into force of the determination or variation;
the likely return to eligible unsecured creditors if the determination or variation were to come into force;
the likely return to eligible unsecured creditors if the determination or variation were not to come into force.
75‑185 Copy of notice etc. to be given to certain creditors of the company
This section:
is made for the purposes of subsection 80‑26(5) of the Insolvency Practice Schedule (Corporations); and
applies if the external administrator of the company convenes a meeting of the eligible unsecured creditors of the company under subsection 577(1A) of the Act.
The external administrator must, within 5 business days after convening the meeting, give a copy of the statement referred to in paragraph 75‑180(3)(b) to each creditor of the company, if the creditor is not a company in the group concerned.
75‑190 When is a resolution passed at a meeting—pooled groups
This section:
is made for the purposes of paragraph 80‑26(6)(c) of the Insolvency Practice Schedule (Corporations); and
applies instead of section 75‑115 in relation to resolutions at consolidated meetings of creditors of companies that are members of a pooled group.
A resolution is passed at a consolidated meeting of creditors of all the companies that are members of a pooled group if:
a majority of the creditors voting (whether in person, by proxy or by attorney) vote in favour of the resolution; and
a majority in value of the creditors voting (whether in person, by proxy or by attorney) vote in favour of the resolution.
A resolution is not passed at a consolidated meeting of creditors of all the companies that are members of a pooled group if:
a majority of the creditors voting (whether in person, by proxy or by attorney) vote against the resolution; and
a majority in value of the creditors voting (whether in person, by proxy or by attorney) vote against the resolution.
If no result is reached under subsection (2) or (3) and the resolution does not relate to the remuneration or the removal of an external administrator of a company that is a member of the pooled group:
the person presiding at the meeting may exercise a casting vote in favour of the resolution, in which case the resolution is passed; or
the person presiding at the meeting may exercise a casting vote against the resolution, in which case the resolution is not passed; or
if the person presiding at the meeting does not exercise a casting vote, the resolution is not passed.
If no result is reached under subsection (2) or (3) and the resolution relates to remuneration or the removal of an external administrator of a company that is a member of the pooled group, the resolution is not passed.
If no result is reached under subsection (2) or (3), the person presiding at the meeting must:
inform the meeting of the person’s reasons for exercising, or not exercising, as the case may be, a casting vote under subsection (4); and
include those reasons in the minutes of the meeting.
75‑195 Directions to external administrator to convene a meeting—when reasonable and not reasonable
This section:
is made for the purposes of subsection 80‑27(3) of the Insolvency Practice Schedule (Corporations); and
applies instead of section 75‑250 in relation to directions to convene a meeting of the members of a pooled group.
Unreasonable directions
A direction to the external administrator of a company to convene a meeting of the members of a pooled group under section 80‑26 of the Insolvency Practice Schedule (Corporations) is not reasonable if the external administrator, acting in good faith, is of the opinion that:
complying with the direction would substantially prejudice the interests of one or more creditors or a third party and that prejudice outweighs the benefits of complying with the direction; or
there is not sufficient available property to comply with the direction; or
a meeting of the members of the pooled group dealing with the same matters covered by the direction has already been held, or would be held within 15 business days after the direction is made; or
the direction for the meeting is vexatious.
Without limiting paragraph (2)(d), a direction may be taken to be vexatious if it is given within 20 business days after a similar direction was given.
Reasonable directions
A direction to the external administrator to convene a meeting of the members of a pooled group under section 80‑26 of the Insolvency Practice Schedule (Corporations) is reasonable if subsection (2) does not apply to the direction.
Despite paragraph (2)(b) or (c), a direction to the external administrator of a company to convene a meeting is also reasonable if:
the person or body giving the direction agrees to bear the cost of complying with the direction; and
if required to do so by the external administrator—security for the cost of complying with the direction is given to the external administrator before the meeting is convened.
75‑200 Notice requirements for unreasonable directions
This section is made for the purposes of section 80‑27(3) of the Insolvency Practice Schedule (Corporations) and applies instead of section 75‑250 in relation to directions to convene a meeting of the members of a pooled group if:
a direction to convene a meeting of the members of a pooled group is given to the external administrator under Division 80 of the Insolvency Practice Schedule (Corporations); and
under the Act or these Rules, it is not reasonable for the external administrator to comply with the direction.
The external administrator must:
notify the person or body giving the direction that it is not reasonable for the external administrator to comply with the direction, and of the reasons why it is not reasonable; and
make a written record in the books required to be kept under section 70 10 of the Insolvency Practice Schedule (Corporations) of the fact that the direction was not complied with, and of the reasons.
Subdivision F—Additional rules for particular kinds of external administration
75‑225 Companies under administration—how certain meetings are convened
The administrator of a company under administration must convene a meeting under:
section 439A of the Act (meeting to decide future of company under administration); or
subsection 449C(4) of the Act (vacancy in office of administrator);
by written notice given to as many of the company’s creditors as reasonably practicable.
Notice of the meeting must be lodged with ASIC—see section 75‑40.
The notice must:
be given at least 5 business days before the meeting; and
contain the following information:
the name of the company;
any business name of the company;
the ACN of the company;
the fact that notice is being given under this section;
the time, date and place for the meeting;
the purpose for which the meeting is being convened;
the time and date by which proofs of debt, and proxies for the meeting, are to be submitted;
the name and contact details of the administrator.
If the meeting is convened under section 439A of the Act, the notice must also be accompanied by:
a report by the external administrator about the company’s business, property, affairs and financial circumstances; and
a statement setting out the following:
whether, in the administrator’s opinion, it would be in the creditors’ interests for the company to execute a deed of company arrangement;
whether, in the administrator’s opinion, it would be in the creditors’ interests for the administration to end;
whether, in the administrator’s opinion, it would be in the creditors’ interests for the company to be wound up;
the reasons for the opinions referred to in subparagraphs (i) to (iii);
such other information known to the administrator as will enable the creditors to make an informed decision about each matter covered by subparagraph (i), (ii) or (iii);
whether there are any transactions that appear to the administrator to be voidable transactions in respect of which money, property or other benefits may be recoverable by a liquidator under Part 5.7B of the Act;
if a deed of company arrangement is proposed—details of the proposed deed.
A copy of the following must be lodged with ASIC within 2 business days of the notice being sent to creditors:
the notice;
if subsection (3) applies—the report and the statement.
Subdivision G—Other rules about meetings
75‑250 Directions to external administrator to convene a meeting—when reasonable and not reasonable
This section is made for the purposes of section 75‑15 of the Insolvency Practice Schedule (Corporations).
Unreasonable directions
A direction to the external administrator of a company to convene a meeting of the creditors is not reasonable if the external administrator, acting in good faith, is of the opinion that:
complying with the direction would substantially prejudice the interests of one or more creditors or a third party and that prejudice outweighs the benefits of complying with the direction; or
there is not sufficient available property to comply with the direction; or
a meeting of the creditors dealing with the same matters covered by the direction has already been held, or would be held within 15 business days after the direction is made; or
the direction for the meeting is vexatious.
Without limiting paragraph (2)(d), a direction may be taken to be vexatious if it is given within 20 business days after a similar direction was given.
Reasonable directions
A direction to the external administrator to convene a meeting of the creditors is reasonable if subsection (2) does not apply to the direction.
Despite paragraph (2)(b) or (c), a direction to the external administrator of a company to convene a meeting is also reasonable if:
the creditors agree to bear the cost of complying with the direction; and
if required to do so by the external administrator—security for the cost of complying with the direction is given to the external administrator before the meeting is convened.
75‑255 Notice requirements for unreasonable directions
This section is made for the purposes of section 75‑15 of the Insolvency Practice Schedule (Corporations) and applies if:
a direction to convene a meeting of the creditors is given to the external administrator under Division 75 of the Insolvency Practice Schedule (Corporations); and
under the Act or these Rules, it is not reasonable for the external administrator to comply with the direction.
The external administrator must:
notify the person or body giving the direction that it is not reasonable for the external administrator to comply with the direction, and of the reasons why it is not reasonable; and
make a written record in the books required to be kept under section 70‑10 of the Insolvency Practice Schedule (Corporations) of the fact that the direction was not complied with, and of the reasons.
75‑265 Requirements relating to meetings to remove external administrator of a company
Application of this section
This section applies if the creditors of a company under external administration propose, by resolution at a meeting, to:
remove the external administrator (the outgoing administrator) of the company; and
appoint another person (the incoming administrator) as the external administrator of the company;
under section 90‑35 of the Insolvency Practice Schedule (Corporations).
Information required before the meeting
The incoming administrator must prepare a written declaration:
stating whether any of the following:
the incoming administrator;
if the incoming administrator’s firm (if any) is a partnership—a partner in that partnership;
if the incoming administrator’s firm (if any) is a body corporate—that body corporate or an associate of that body corporate;
has, or has had within the preceding 24 months, a relationship with:
the company; or
an associate of the company; or
a former external administrator of the company; or
the creditor who nominated the incoming administrator for appointment as the incoming administrator; or
a person who is entitled to enforce a security interest in the whole, or substantially the whole, of the company’s property (including any PPSA retention of title property); and
if so, stating the incoming administrator’s reasons for believing that none of those relationships result in the administrator having a conflict of interest or duty.
If the external administration is a voluntary administration, the incoming administrator must also prepare a written declaration:
stating whether the administrator is or will be, to any extent, indemnified (otherwise than under section 443D of the Act), in relation to the administration, for:
any debts for which the administrator is, or may become, liable under Subdivision A of Division 9 of Part 5.3A of the Act; or
any debts for which the administrator is, or may become, liable under a remittance provision as defined in section 443BA of the Act; or
the remuneration to which he or she is entitled under section 60‑5 of the Insolvency Practice Schedule (Corporations); and
if so, stating:
the identity of each indemnifier; and
the extent and nature of each indemnity.
The declarations referred to in subsections (2) and (if applicable) (3) must be given to the creditors at the same time as notice of the meeting to appoint the incoming administrator is given.
Documents to be tabled at meeting and lodged with ASIC
The following documents must be tabled at the meeting at which the incoming administrator is proposed to be appointed:
the declarations referred to in subsections (2) and (if applicable) (3);
a written consent to act as administrator signed by the incoming administrator.
The registered liquidator who is the external administrator of the company following the meeting referred to in subsection (1) must lodge copies of the documents referred to in subsection (5) within 5 business days of the meeting.
Right to speak at meeting
The outgoing administrator and the incoming administrator have a right to speak at the meeting at which the administrator is proposed to be removed or appointed, as the case may be.
75‑270 Substantial compliance with Division is sufficient
A meeting, or anything done at a meeting, is not invalid because a requirement of this Division has not been strictly complied with, if the requirement has been substantially complied with.
Division 80—Committees of inspection etc.
80‑5 Eligibility and procedures
This section is made for the purposes of subsection 80‑30(2) of the Insolvency Practice Schedule (Corporations).
Eligibility
A person is not eligible to be appointed as a member of a committee of inspection unless the person is:
a creditor of the company; or
the attorney of a creditor of the company by virtue of a general power of attorney given by the creditor; or
a person authorised in writing by a creditor of the company to be a member of the committee of inspection; or
a representative of the Commonwealth, if:
a claim for financial assistance from the Commonwealth in relation to unpaid employment entitlements has been made; or
the Commonwealth considers that such a claim is likely to be made.
Procedures
A committee of inspection must meet at such times and places as its members from time to time appoint.
If a committee of inspection is appointed as a result of a determination of the creditors of the company under section 80‑10 of the Insolvency Practice Schedule (Corporations), the external administrator or a member of the committee may convene a meeting of the committee.
If a committee of inspection is appointed as a result of a resolution under section 80‑26 of the Insolvency Practice Schedule (Corporations) (about pooled groups), either:
the external administrator or external administrators of the companies in the group concerned; or
a member of the committee;
may convene a meeting of the committee.
A committee of inspection may act by a majority of its members present at a meeting, but must not act unless a majority of its members are present.
If a member of the committee is a body corporate, the member may be represented at meetings of the committee by an individual authorised in writing by the member for the purposes of this subsection.
80‑10 Resignation, removal and vacancies
This section is made for the purposes of subsection 80‑30(2) of the Insolvency Practice Schedule (Corporations).
A member of a committee of inspection may resign by notice in writing signed by the member and delivered to the external administrator.
The office of a member of a committee of inspection becomes vacant if the member:
becomes an insolvent under administration; or
is absent from 5 consecutive meetings of the committee without the leave of those members who together with himself or herself represent the creditors.
A member of the committee who represents creditors may be removed by a resolution at a meeting of creditors of which 5 business days’ notice has been given stating the object of the meeting.
A person may be appointed at the meeting referred to in subsection (4) to fill a vacancy caused by the removal of a member of the committee.
A vacancy in the committee may be filled by the appointment of a person by a resolution at a meeting of the creditors of which 5 business days’ notice has been given.
A vacancy in the committee that is not filled as provided by subsection (5) or (6) may be filled by the appointment of a person by the committee and a person so appointed represents the creditors.
If:
there is a vacancy in the membership of a committee of inspection; and
there are at least 2 remaining members of the committee;
the remaining members may continue to act despite the vacancy.
80‑15 Reasonable requests for information etc.
This section is made for the purposes of subsection 80‑40(3) of the Insolvency Practice Schedule (Corporations).
Unreasonable requests
It is not reasonable for an external administrator of a company to comply with a request to give information, provide a report or produce a document to the committee of inspection if the external administrator, acting in good faith, is of the opinion that:
complying with the request would substantially prejudice the interests of one or more creditors or a third party and that prejudice outweighs the benefits of complying with the request; or
the information, report or document would be privileged from production in legal proceedings on the ground of legal professional privilege; or
disclosure of the information, report or document would found an action by a person for breach of confidence; or
there is not sufficient available property to comply with the request; or
the information, report or document has already been provided; or
the request is vexatious.
Without limiting paragraph (2)(f), a request may be taken to be vexatious if it is made within 20 business days of a similar request being made by the committee of inspection.
Reasonable requests
It is reasonable for an external administrator of a company to comply with a request to give information, provide a report or produce a document to the committee of inspection if subsection (2) does not apply to the request.
Despite paragraph (2)(d) or (e), it is also reasonable for an external administrator of a company to comply with a request to give information, provide a report or produce a document to the committee of inspection if:
the committee agrees to bear the cost of complying with the request; and
if required to do so by the external administrator—security for the cost of complying with the request is given to the external administrator before the request is complied with.
80‑20 Time for complying with reasonable requests
This section is made for the purposes of section 80‑45 of the Insolvency Practice Schedule (Corporations).
Subject to subsections (3) and (5), if a request for information or a report or document is made by a committee of inspection under section 80‑40 of the Insolvency Practice Schedule (Corporations), the external administrator must give the information, report or document within:
5 business days after receiving the request; or
such later period as agreed with the committee of inspection.
If the external administrator is reasonably satisfied that, due to the nature of the request, an extension of time is required to comply with it, the external administrator may, by written notice, extend the period for compliance.
The notice must:
be given to the committee of inspection; and
specify the period within which the request will be complied with; and
specify the reasons for the extension.
This section does not apply if, under the Act or these Rules, it is not reasonable for the external administrator to comply with the request.
80‑25 Notice requirements for unreasonable requests
This section applies if:
a request for information or a report or document is made by a committee of inspection under section 80‑40 of the Insolvency Practice Schedule (Corporations); and
under the Act or these Rules, it is not reasonable for the external administrator to comply with the request.
The external administrator must:
notify the committee of inspection that it is not reasonable for the external administrator to comply with the request, and of the reasons why it is not reasonable; and
make a written record in the books required to be kept under section 70‑10 of the Insolvency Practice Schedule (Corporations) of the fact that the request was not complied with, and of the reasons.
Division 90—Review of the external administration of a company
90‑1 Authority
Unless otherwise stated, a provision of this Division is made for the purposes of section 90‑29 of the Insolvency Practice Schedule (Corporations).
90‑4 Appointment of reviewing liquidator by creditors etc.
This section is made for the purposes of paragraph 90‑24(6)(a) of the Insolvency Practice Schedule (Corporations).
An agreement to appoint a registered liquidator under subsection 90‑24(4) of the Insolvency Practice Schedule (Corporations) must be in writing.
90‑7 Limits on reviewing remuneration, costs and expenses
This section is made for the purposes of subsection 90‑26(4) of the Insolvency Practice Schedule (Corporations).
A reviewing liquidator must not review remuneration of an external administrator unless the remuneration relates to a remuneration determination made in the 6‑month period before the reviewing liquidator was appointed.
A reviewing liquidator must not review a cost or expense incurred by an external administrator unless the cost or expense was incurred during the 12‑month period ending on the day of the appointment of the reviewing liquidator, unless the external administrator agrees to a longer period.
90‑12 Notice to be given if ASIC appoints a reviewing liquidator
If ASIC appoints a reviewing liquidator under Subdivision C of Division 90 of the Insolvency Practice Schedule (Corporations), ASIC must notify the external administrator of the appointment at least 15 business days before the appointment commences.
90‑18 Declaration of relevant relationships of proposed reviewing liquidator
Declaration to be given before consenting to appointment
Before consenting to an appointment as a reviewing liquidator under Division 90 of the Insolvency Practice Schedule (Corporations), registered liquidator must make a written declaration:
stating whether any of the following:
the registered liquidator;
if the registered liquidator’s firm (if any) is a partnership—a partner in that partnership;
if the registered liquidator’s firm (if any) is a body corporate—that body corporate or an associate of that body corporate;
has, or has had within the preceding 24 months, a relationship with:
the company in relation to which the review will be conducted; or
an associate of the company; or
the current external administrator of the company; or
the person or body (other than the Court) making the appointment; or
a former external administrator of the company; or
a person who is entitled to enforce a security interest in the whole, or substantially the whole, of the company’s property (including any PPSA retention of title property); and
if so, stating the registered liquidator’s reasons for believing that none of those relationships result in the registered liquidator having a conflict of interest or duty.
The declaration must be:
given to the person or body who will make the appointment; and
lodged with ASIC within 5 business days of the registered liquidator’s appointment as a reviewing liquidator.
Copy of declaration to be given to as many creditors as reasonably practicable
As soon as practicable after being appointed, a reviewing liquidator must give a copy of the declaration to as many of the company’s creditors as reasonably practicable.
Declaration must be correct and kept up to date
If, after the registered liquidator has given a declaration under this section:
the declaration becomes out of date; or
the registered liquidator becomes aware of an error in the declaration;
the registered liquidator must, as soon as practicable:
give a replacement declaration to as many of the company’s creditors as soon as reasonably practicable; and
lodge a replacement declaration with ASIC as soon as reasonably practicable.
90‑22 Powers and duties of reviewing liquidators
In carrying out a review under Subdivision C of Division 90 of the Insolvency Practice Schedule (Corporations), a reviewing liquidator has the following powers:
if the review relates to the remuneration of the external administrator of the company or a cost or expense incurred by the external administrator of the company:
to engage one or more industry or other relevant experts to assist with assessing the remuneration or costs incurred; and
to direct the external administrator to provide itemised invoices for work undertaken by the external administrator in the form, and within the period, specified by the reviewing liquidator;
to interview any of the parties to the review;
to direct any of the parties to the review to give a written statement about a specified matter in the form, and within the period, specified by the reviewing liquidator;
to direct the external administrator to produce specified books relating to the external administration;
any other power necessary for, or reasonably incidental to, carrying out a review.
A period specified for the purposes of paragraph (1)(c) must be reasonable.
In carrying out a review, a reviewing liquidator has the following duties:
if a person is given a direction under subsection (1) but fails to comply with it—to carry out the review on the basis of the information available to the reviewing liquidator;
to act independently and in the interests of creditors;
to avoid actual and apparent conflicts of interest.
For the purposes of subsection (1), the parties to the review are the following:
the external administrator;
any employees or other persons providing services to or for the administrator in relation to the external administration;
any third parties in relation to whom an expense relating to the external administration has been incurred.
90‑24 Reporting by reviewing liquidators
The report on a review must be prepared in the manner, and with the content, as agreed between the reviewing liquidator and the person or body who made the appointment. Notice that the report has been prepared must be given to the creditors by the reviewing liquidator as soon as practicable.
Subject to subsections (3) and (4), copies of the report must be:
provided to the external administrator, the committee of inspection (if any) and ASIC; and
tabled at the next meeting of creditors (if any).
If the reviewing liquidator was appointed by ASIC, the report must not be provided to a committee of inspection without the approval of ASIC.
If the reviewing liquidator was appointed by the Court, the report is to be provided to the persons or bodies, and in the manner, as ordered by the Court.
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