Clause 42

Where the simplified winding up programme has commenced for a company, and the liquidator is subsequently of the view that the company is unsuitable to enter or to remain in the simplified winding up programme in view of the occurrence of any of the circumstances in section 250F(3) in relation to the company, the liquidator may apply under section 124 to the Court for an order that the company be wound up.(2) For the purpose of subsection (1) —

section 124 applies as if the liquidator of the company were entitled to make an application for the winding up of the company under that section; and

section 125(1) applies as if the circumstances for the Court to order the winding up of a company included the circumstance mentioned in subsection (1).(3) Despite section 126, where the Court has made an order to wind up the company, the winding up of the company is deemed to have commenced from the date of commencement of the simplified winding up programme for the company under section 250K.(4) The company is deemed to have been discharged from the simplified winding up programme on the date it is wound up pursuant to the order of the Court.Duty of liquidator to inform creditors of potential claims250OB.—

If the liquidator has reasonable cause to believe that —

the company is likely to have a claim against any party; and

the realisable assets of the company are insufficient to cover the expenses of an investigation into such claim,the liquidator must publish a notice to all the creditors, on the designated website, that the liquidator will conduct an investigation with a view to augmenting the assets of the company, but only if the creditors are able to provide the necessary funding to cover the costs and expenses of the investigation within 14 days of the notice, failing which the liquidator will take no further action on the investigation and proceed with the simplified winding up and dissolve the company.(2) In the event that the liquidator conducts the investigation under subsection (1) and finds that no claim against a third party is warranted, the liquidator must —

publish a notice of this to all the creditors and members of the company on the designated website;

state in the notice specified in paragraph (a) that any creditor or member of the company may make a written request to the liquidator for further information relating to the investigations within 14 days of the publication of the notice; and

within 14 days after the receipt of such request, respond to the creditor or member of the company by providing some or all of the information requested, or declining to provide the information requested or any of it, and provide the reasons for not doing so.(3) Upon the completion of the actions in subsection (2), the liquidator may proceed to effect the dissolution pursuant to section 210 as modified by section 250L.(4) If, in the course of an investigation under subsection (1), the liquidator finds that that there is a reasonable basis for the company to make a claim against the party concerned —

the liquidator must summon a meeting of the creditors not later than 30 days after the day on which he or she makes the finding and lay before the meeting a statement of assets and liabilities of the company; and

subject to paragraph (a), section 165(2), (3) and (4) applies to the summoning of the meeting of creditors and the statement of assets and liabilities mentioned in paragraph (a).(5) At the meeting summoned under subsection (4), the creditors may convert the proceedings from a simplified winding up to a creditors’ voluntary winding up and may appoint a new liquidator for the purpose of winding up the affairs and distributing the assets of the company in place of the liquidator appointed by the company to administer the simplified winding up programme.(6) Upon the conversion of the proceedings to a creditors’ voluntary winding up, the winding up is to proceed as if it were a creditors’ voluntary winding up under this Act, except that any assets realised in the simplified winding up programme are to be transferred to the liquidator who is appointed for the purpose of winding up the affairs and distributing the assets of the company under subsection (5).(7) Within 7 days after the meeting summoned under subsection (4) converting the proceedings to a creditors’ voluntary winding up —

the liquidator under the simplified winding up programme; or

if some other person has been appointed by the creditors to be the new liquidator under subsection (5), the person so appointed,must lodge with the Registrar of Companies and with the Official Receiver a notice under section 191, and if default is made in complying with this subsection, the liquidator or the person so appointed (as the case may be) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $1,000 and also to a default penalty.(8) Where at a meeting summoned under subsection (4), the creditors do not pass a resolution to convert the winding up in accordance with subsection (5), the liquidator under the simplified winding up programme must proceed to effect the dissolution pursuant to section 210 as modified by section 250L.(9) Nothing in this section absolves any liquidator from an obligation to make any report to the Official Receiver or other public authorities pursuant to a provision of this Act, concerning matters giving rise to his or her belief under subsection (1)(b) or which he or she discovers during an investigation.”.