Companies Act 1993

245A Power of court where outcome of voting at meeting of creditors determined by related entity

• (1) This section applies if the court is satisfied that—

  • (a) a resolution at a meeting of creditors was passed, defeated, or required to be decided by a casting vote; and

  • (b) the resolution would not have been passed, defeated, or required to be decided by a casting vote if the vote or votes cast by a particular related creditor or particular related creditors were disregarded; and

  • (c) the passing of the resolution, or the failure to pass it,—

    • (i) is contrary to the interests of the creditors, or a class of creditors, as a whole; and

    • (ii) has prejudiced, or is reasonably likely to prejudice, the interest of the creditor who voted against the resolution, or for it, as the case may be, to an extent that is unreasonable having regard to—

      • (A) the benefits accruing to the related creditor, or to some or all of the related creditors, from the resolution, or from the failure to pass the resolution; and

      • (B) the nature of the relationship between the related creditor and the company, or between the related creditors and the company; and

      • (C) any other related matter.

  (2) The court may, on the application of the liquidator or a creditor,—

  • (a) order that the resolution be set aside:

  • (b) order that a new meeting be held to consider and vote on the resolution:

  • (c) order that a specified related creditor or creditors must not vote on the resolution or on a resolution to vary or amend it:

  • (d) make any other orders that the court thinks necessary.

  (3) In this section,—

  promoter has the same meaning as in section 2(1) of the Securities Act 1978

  related creditor means a creditor who is a related entity of the company in liquidation

  related entity means, in relation to the company in liquidation,—

  • (a) a promoter; or

  • (b) a relative or spouse of a promoter; or

  • (c) a relative of a spouse of a promoter; or

  • (d) a director or shareholder; or

  • (e) a relative or spouse of a director or shareholder; or

  • (f) a relative of a spouse of a director or shareholder; or

  • (g) a related company; or

  • (h) a beneficiary under a trust of which the company in liquidation is or has at any time been a trustee; or

  • (i) a relative or spouse of that beneficiary; or

  • (j) a relative of a spouse of that beneficiary; or

  • (k) a company one of whose directors is also a director of the company in liquidation; or

  • (l) a trustee of a trust under which a person (A) is a beneficiary, if A is a related entity of the company in liquidation under this subsection.

  Compare: Corporations Act 2001 s 600A (Aust)

  Section 245A: inserted, on 1 November 2007, by section 18 of the Companies Amendment Act 2006 (2006 No 56).