Division 4(1) A co-operative may be wound up voluntarily or by the Court or on a certificate of the Registrar.(2) In the case of a winding up voluntarily or by the Court, the co-operative may be wound up in the same manner and in the same circumstances as a company under the Corporations Act may be so wound up.
324 Winding up on Registrar’s certificate
(1) A co-operative may be wound up on a certificate of the Registrar only if the necessary grounds for the taking of that action exist, as referred to in section 343.(2) Such a winding up commences when the certificate is given.(3) The Registrar may then appoint a person to be the liquidator of the co-operative (who need not be a registered liquidator under the Corporations Act) and the liquidator must within 10 days after appointment give notice of his or her appointment by advertisement in the Gazette.(4) The liquidator is to give such security as may be prescribed and is entitled to receive such fees as are fixed by the Council.(4A) The Registrar may exempt the liquidator from the requirement to provide the security required by subsection (4), either unconditionally or subject to conditions. A liquidator who contravenes a condition of an exemption is taken not to be exempt from the requirement.(5) Any vacancy occurring in the office of liquidator is to be filled by a person appointed by the Registrar.
325 Application of Corporations Act to winding up
(cf Vic Act s 316)
The winding up or deregistration of a co-operative is declared to be an applied Corporations legislation matter for the purposes of Part 3 of the Corporations (Ancillary Provisions) Act 2001 in relation to the provisions of Parts 5.4–5.7 and Part 5A.1 of the Corporations Act, subject to the following modifications:(a) a reference in those provisions to a special resolution or an extraordinary resolution is to be read as a reference to a special resolution within the meaning of this Act,(b) a reference in those provisions to ASIC is to be read as a reference to the Registrar,(c) section 461 (1) (h) is to be read as if “ASIC has stated in a report prepared under Division 1 of Part 3 of the ASIC Act that, in its opinion:” were omitted and “the Registrar has, as a result of an inquiry conducted under Division 2 or Division 4 of Part 14 of the Co-operatives Act 1992, stated that:” were inserted instead,(d) section 464 (1) is to be read as if “Where ASIC is investigating, or has investigated, under Division 1 of Part 3 of the ASIC Act:” were omitted and “Where the Registrar is holding or has held an inquiry under Division 2 or Division 4 of Part 14 of the Co-operatives Act 1992 in relation to:” were inserted instead,(e) section 513B (Voluntary winding up) is to be read as if it were amended by inserting after paragraph (d):“(da) if the winding up is on the certificate of the Registrar—on the date that the certificate is given, or”,(f) section 516 is to be read as if “together with any charges payable by him or her to the co-operative in accordance with the rules” were inserted after “past member”,(g) section 542 (3) is to be read as if the following paragraph were inserted after paragraph (c):“, and
(d) in the case of a winding up on a certificate of the Registrar under section 323 of the Co-operatives Act 1992—with the consent of the Registrar.”(h) a reference in those provisions to a registered liquidator includes a reference to a person approved by the Registrar as a liquidator of a co-operative,(i) a reference in those provisions to section 233 (Orders the Court can make) of the Corporations Act is to be read as a reference to Division 5 (Oppressive conduct of affairs) of Part 4 of this Act,(j) for the purposes of the application of those provisions to a winding up on the certificate of the Registrar, the winding up is to be considered to be a voluntary winding up (but section 490 of the Corporations Act does not apply),(k) those provisions are to be read subject to sections 76 (Liability of members to co-operative) and 331 (Liability of member to contribute in a winding up where shares forfeited etc) of this Act for the purposes of determining the liability of members and past members to contribute on a winding up of a co-operative,(l) such other modifications (within the meaning of Part 3 of the Corporations (Ancillary Provisions) Act 2001) as may be prescribed by the regulations.Note. See the note to section 10 (1).
326 Restrictions on voluntary winding up
(1) A co-operative may be wound up voluntarily only by a creditors’ voluntary winding up or if a special resolution is passed by means of a special postal ballot in favour of voluntary winding up.(2) The Council may by order in writing exempt a co-operative from compliance with all or specified provisions of this section or section 194 (Special postal ballots) and may grant such an exemption either unconditionally or subject to conditions.(3) When such a special postal ballot is held, the members may, by means of the same ballot, by simple majority:(a) appoint one or more liquidators for the purpose of winding up the affairs and distributing the assets of the co-operative, and(b) fix the remuneration to be paid to the liquidator.
327 Commencement of members’ voluntary winding up
A members’ voluntary winding up of a co-operative commences when the result of the special postal ballot is noted in the minute book by the secretary of the co-operative.
328 Distribution of surplus—non-trading co-operatives
(cf Vic Act s 319)
(1) On a winding up of a non-trading co-operative, the surplus property of the co-operative must be distributed as required by the rules of the co-operative.(2) The rules of such a co-operative must make provision for the manner in which the surplus property of the co-operative is to be distributed in a winding up.(3) In this section:surplus property means that property of the co-operative that remains after satisfaction of the debts and liabilities of the co-operative and the costs, charges and expenses of the winding up.
329 Liquidator—vacancy may be filled by Registrar
If a co-operative is being wound up voluntarily and a vacancy occurs in the office of liquidator which in the opinion of the Registrar is unlikely to be filled in the manner provided by the Corporations Act (as applied by this Division), the Registrar may appoint a person to be liquidator.
330 Review of liquidator’s remuneration
(cf Vic Act s 321)
Any member or creditor of a co-operative or the liquidator may at any time before the completion of the winding up of the co-operative apply to the Court to review the amount of the remuneration of the liquidator.
331 Liability of member to contribute in a winding up where shares forfeited etc
(1) If a person’s membership of a co-operative is cancelled under Part 6 (Active membership requirements) within 2 years before the commencement of the winding up of the co-operative, the person is liable on the winding up to contribute to the property of the co-operative the nominal value of any shares forfeited in connection with that cancellation (being their nominal value immediately before cancellation).(2) If under section 172 (Purchase and repayment of shares) a co-operative:(a) purchases any share of a member in the co-operative, or(b) repays to a member the whole or any part of the amount paid up on any share held by a member,within 2 years before the commencement of the winding up of the co-operative, the member or former member is liable on the winding up to contribute to the property of the co-operative the amount which was paid by the co-operative to the member or former member in respect of the purchase or repayment together with any amount unpaid on those shares immediately before the purchase or repayment.(3) If a person contributes to the property of a co-operative pursuant to a liability under this section, the amount contributed is, for the purposes of the winding up concerned, to be treated as having been paid up by the person on shares of the co-operative.(4) The liability of a member or former member of a co-operative under this section is in addition to any other liability of the member or former member to contribute to the property of the co-operative on a winding up of the co-operative.