Contents (2009 - 7)
Associations Incorporation Act 2009 No 7
Division 3 Winding up
61A Winding up on Secretary’s certificate
(cf Co-operatives National Law (NSW), section 443)
(1) An association may be wound up on a certificate of the Secretary if:(a) the association ceases operations, or(b) the association ceases to have 5 or more members, or(c) the association’s committee has not been able to form a quorum for 2 months, or(d) the Secretary is satisfied that there is a significant public interest in winding up the association or that not winding up the association may place public funds at risk.(2) Before giving a certificate, the Secretary:(a) must give notice of the proposed certificate to be given to the association stating the ground or grounds referred to in subsection (1) that the Secretary believes exist, and(b) must give the association and its members at least 28 days within which to make submissions to the Secretary with respect to the proposed certificate, and(c) must give due consideration to any submissions that are made within that period.(3) A notice to be given to an association under subsection (2) must be sent:(a) by post addressed to the association at the association’s official address, or(b) if the Secretary suspects that the association’s official address is no longer in use:(i) by post addressed to the association at another address that appears to the Secretary to be an address that is used by the association, or(ii) by email addressed to the association at an email address that appears to the Secretary to be an email address that is used by the association.(4) A winding up on a certificate of the Secretary starts when the certificate is given.(5) On the giving of a certificate, the Secretary may appoint a person to be the liquidator of the association.(6) The liquidator must, within 10 days after appointment, give notice of his or her appointment in the manner prescribed by the regulations (if any).(7) A vacancy occurring in the office of liquidator is to be filled by a person appointed by the Secretary.(8) The Secretary may fix:(a) the security to be given by a liquidator, and(b) the fees payable to a liquidator.
62 Voluntary winding up
An association may be wound up voluntarily if the association so resolves by special resolution.
63 Winding up by Supreme Court
(1) The Supreme Court may order the winding up of an association if:(a) the association has by special resolution resolved that it be wound up by the Court, or(b) the association does not commence its operations within one year after the date of its registration under this Act or suspends its operations for a whole year, or(c) the association is insolvent, or(d) the association has conducted its affairs (including its affairs as trustee of any trust) so as to provide pecuniary gain for its members, or(e) the association has engaged in activities inconsistent with its objects, or(f) the committee of the association has acted in affairs of the association in the interests of the committee or the committee members rather than in accordance with its objects, or in any other manner whatever that appears to the Court to be unfair or unjust to the association’s members, or(g) the association would, if not registered under this Act, not be eligible to be so registered, or(h) the Secretary has, pursuant to section 73, directed the association to apply for cancellation of its registration and the association has failed to do so within the time fixed by the direction, or(i) the Court is of the opinion that it is just and equitable that the association be wound up.(2) An application to the Supreme Court for the winding up of an association may be made by the association, by a member or creditor of the association or by the Secretary.
64 Modifications to text of applied Corporations Act 2001 of the Commonwealth
(1) The winding up of an association 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 Parts 5.5 and 5.6 of the Corporations Act 2001 of the Commonwealth, subject to:(a) the modifications referred to in subsection (2), and(b) such other modifications (within the meaning of Part 3 of the Corporations (Ancillary Provisions) Act 2001) as may be prescribed by the regulations.(2) The following modifications to the text of the Corporations Act 2001 of the Commonwealth apply for the purposes of subsection (1):(a) a reference to a company or body is to be read as a reference to an association,(b) a reference to the directors of a company is to be read as a reference to the committee members of an association,(c) a reference to ASIC is to be read as a reference to the Secretary,(d) a reference to a company’s principal place of business is to be read as a reference to an association’s official address,(e) the reference to 5 years in section 1316 of that Act is taken to be a reference to 3 years,(f) for the purposes of the application of the provisions to a winding up on the certificate of the Secretary, the winding up is to be considered to be a voluntary winding up (but section 490 of the Corporations Act 2001 of the Commonwealth does not apply).
65 Distribution of surplus property
(1) In this section, a reference to the surplus property of an association is a reference to that property of the association remaining after satisfaction of the debts and liabilities of the association and the costs, charges and expenses of the winding up of the association.(2) In a winding up of an association, the surplus property of the association is to be distributed in accordance with a special resolution of the association.(3) Any such distribution of surplus property:(a) must be approved by the Secretary, and(b) is not to be made to or for the benefit of:(i) any member or former member of the association, orunless the member or former member is an association (whether incorporated or unincorporated) whose constitution, at the time of the distribution, prohibits the distribution of property to its members, and(ii) any person to be held on trust for any member or former member of the association,(c) is subject to any trust affecting that property or any part of it.(4) Surplus property or any part of it that consists of property supplied by a government department or public authority, including any unexpended portion of a grant, must be returned to the department or authority that supplied it or to a body nominated by the department or authority.(5) A person aggrieved by the operation of this section in relation to an association’s surplus property may apply to the Supreme Court for an order as to its disposal.(6) The Supreme Court may deal with such an application by making such orders as it thinks fit with respect to the disposal of the association’s surplus property.
(1) A person aggrieved by any act, omission or decision of an association’s liquidator or provisional liquidator may appeal to the Supreme Court in respect of the act, omission or decision.(2) The Supreme Court may deal with such an appeal by confirming, reversing or modifying the act or decision, or remedying the omission, as the case may be, and by making such other orders as it thinks fit.