Flowchart 1: Liquidator in a members’ voluntary winding up

This flowchart and the explanatory text should be read with Information Sheet 29 External administration, controller appointments and schemes of arrangement: Most commonly lodged forms (INFO 29).

A members’ voluntary liquidator is not required to be a registered liquidator if winding up a proprietary company: section 532(4).

If at any time during a members’ voluntary winding up the liquidator forms the opinion that the company will be unable to pay its debts in full within the period stated in the declaration of solvency under s494(1), the liquidator must (as soon as practicable):

  • apply to the court for the company to be wound up in insolvency
  • appoint an administrator, or
  • convene a meeting of creditors (section 496).

A person must not act as a subsequent court liquidator, voluntary administrator or liquidator in a creditors' voluntary winding up unless they are a registered liquidator.

Flowchart 1: Liquidator in a members’ voluntary winding up
Info 29 Flowchart 1 Published March 2020

* ASIC PNW = ASIC published notices website.

Explanation of Flowchart 1: Liquidator in a members’ voluntary winding up[1]

Step Form or notice Notes

1
(contingent)

Extension needed to lodge Form 520

Form 568
Application for extension of time to lodge declaration of solvency

Legislation: section 494(3)(b). ASIC has applied the number ‘568’ to lodgement of the required information for administrative purposes (i.e. there is no actual Form 568).

Requirement: Lodgement is mandatory, contingent on the circumstances arising (if extension of time required to lodge Form 520 (Step 2)). The letter must:

  • be accompanied by the application fee
  • clearly state all reasons for the delay in lodgement
  • be signed by the officeholders who signed the declaration
  • contain a statement that the company is still solvent at the time of signing the application.

Lodgement: The directors must lodge.

Note 1: The declaration of solvency can be lodged after the notification of resolution if ASIC grants an extension of time to lodge a declaration of solvency. If an application is not lodged, the liquidation will proceed as a creditors’ voluntary winding up: see Flowchart 2. A person must not act as a creditors’ voluntary liquidator unless they are a registered liquidator: section 532(1).

Note 2: Find out more about fees for lodgement.

2

Form 520
Declaration of solvency

Legislation: sections 494(1), (2) and (3)(b). Form 520 is prescribed by the Corporations Regulations.

Requirement: Lodgement is mandatory.

Lodgement: The directors must lodge before issuing the notices for the meeting of members. Online lodgement is preferred.[2]

Note: The form must be lodged with ASIC at least one day before the members' resolution to place the company into liquidation is passed.

3
(contingent)

Extension needed to pass resolution

Form 569
Application for extension of time to pass resolution for members' voluntary winding up

Legislation: section 494(3)(c). ASIC has applied the number ‘569’ to lodgement of the required information for administrative purposes (i.e. there is no actual Form 569).

Requirement: Lodgement is mandatory, contingent on the circumstances arising (if an extension of time is required to pass the resolution). The letter must:

  • be accompanied by the application fee
  • clearly state all reasons for the delay in lodgement
  • be signed by the officeholders who signed the declaration
  • contain a statement that the company is still solvent at the time of signing the application.

Lodgement: The directors must lodge.

Note 1: Where the resolution will be passed outside the period of 5 weeks since the declaration of solvency was made, an application should be made under section 494(3)(c) for an extension of time to hold the meeting and pass the resolution.

Note 2: Find out more about fees for lodgement.

4

Form 205
Notification of resolution (of voluntary winding up by members)

Legislation: section 491(2)(a). Form 205 is an ASIC-approved form.

Requirement: Lodgement is mandatory.

Tick-a-box choice (Subject(s) of the resolution): Members’ voluntary winding up (or ‘Voluntary winding up by members/shareholders’ on paper form).

Lodgement: The company must lodge within 7 days after passing the resolution for voluntary winding up. Online lodgement is preferred.

Note: Under section 198G the powers of the directors are suspended, and the liquidator has the power to lodge under sections 198G, 506(1) and 477(2)(m).

Company status:[3] The company status will change from REGD to EXAD after processing of the first of either Form 205 or Form 505 (Step 5), and create a new appointment for the liquidator.

Note: If the declaration was made, the meeting was not held within the required time (5 weeks), and applications for extension were not applied for and granted, the declaration of solvency would have no effect and the liquidation would proceed as a creditors' voluntary winding up: see section 494(3) and Flowchart 2. A person must not act as a creditors’ voluntary liquidator unless they are a registered liquidator: section 532(1).

and…

ASIC published notices website[4]
Notice of appointment as liquidator

Legislation: section 491(2)(b) and regulation 5.5.01.

Requirement: Publication is mandatory.

Publication: The company must publish the notice on the ASIC published notices website by the end of the next business day after a liquidator is appointed.

Note: The liquidator has the power to lodge under sections 198G, 506(1) and 477(2)(m).

5

Form 505
Notification of appointment or cessation of an external administrator (appointment)

Legislation: section 537(1). Form 505 is an ASIC-approved form.

Requirement: Lodgement is mandatory.

Tick-a-box choice (Details of appointment): Liquidator of members’ voluntary liquidation.

Lodgement: The liquidator must lodge within 14 days after appointment. Online lodgement is preferred.

Company status: The company status will change from REGD to EXAD after processing of the first of either Form 205 (Step 4) or Form 505, and create a new appointment for the liquidator.

6
(contingent)

Report to creditors

Form 5601
Statutory report by a liquidator to creditors

 

 

Legislation: section 70-50 of Schedule 2 and Rule 70-40 of the Practice Rules. Form 5601 is an ASIC-approved form.

Requirement: Lodgement is mandatory, contingent on there being creditors in the liquidation and whether a report is provided to those creditors.

Lodgement: The liquidator must lodge at the same time as the report is provided to creditors. Online lodgement is required.

A report to creditors under Rule 70-40 must be provided within 3 months after the liquidator is appointed (including where a replacement liquidator is appointed).

7
(contingent)

Proposal made for a resolution without a meeting

Form 5022
Outcome of proposal to creditors or contributories

Legislation: section 75-40 of Schedule 2 and Rule 75-130 (creditors) and 75-135 (contributories) of the Practice Rules. Form 5022 is an ASIC-approved form.

Requirement: Lodgement is mandatory, contingent on whether a resolution is proposed without a meeting of creditors or contributories.

Lodgement: The liquidator must lodge within 5 business days of the outcome being known. Online lodgement is required.

8
(contingent)

Section 533 report required for possible misconduct

Submit insolvency initial statutory report (under sections 533(1), 438D(1) or 422(1) of the Corporations Act 2001)

Legislation: section 533.

Requirement: Lodgement is mandatory, contingent on the circumstances arising (if it appears to the liquidator that a relevant person may have committed an offence in relation to the company, been negligent, or otherwise engaged in misconduct).

Tick-a-box choice (Under what provision are you lodging this report): Section 533 (liquidator reports).

Lodgement: The liquidator must lodge as soon as practicable, and in any event within 6 months, after forming an opinion. Online lodgement via the ASIC Regulatory Portal is preferred.

Note 1: A freeform written report can be lodged to comply with section 533, but submitting an insolvency initial statutory report is preferred.

Note 2: See Regulatory Guide 16 External administrators: Reporting and lodging (RG 16) for more details.

9

Form 5602
Annual administration return

Legislation: section 70-5(3). Form 5602 is an ASIC-approved form.

Requirement: Lodgement is mandatory.

Lodgement: The liquidator must lodge within 3 months after the end of the 'administration return year', which is the period of 12 months beginning on the day of appointment and each subsequent period of 12 months.

The liquidator must also give notice to the members that a return has been lodged when next forwarding a report, notice of meeting, notice of call or dividend: section 70-5(6)(a).

Online lodgement as structured data is required.

Note: See the additional guidance to INFO 29 for information on lodging Form 5602 where a replacement registered liquidator is appointed.

10
(contingent)

Meeting convened

ASIC published notices website
Notice of meeting of members, creditors or contributories

Legislation: section 75-10 of Schedule 2 and Rule 75-40 of the Practice Rules.

Requirement: Publication is mandatory, contingent on a meeting being convened.

Publication: The convenor must publish the notice of meeting on the ASIC published notices website at least 10 business days before the meeting is held.

and …

Form 5011
Copy of minutes of meeting

Legislation: Rule 75-145(1)(c) of the Practice Rules. Form 5011 is an ASIC administrative form.

Requirement: Lodgement is mandatory, contingent on a meeting being convened.

Tick-a-box choice (Details of minutes of meeting): ‘No’, the minutes are not being lodged for a meeting convened under s436E, or s439A of the Corporations Act 2001.

Lodgement: The person presiding at the meeting must lodge minutes of the meeting within 1 month after the meeting. Online lodgement is preferred.

Note 1: The meeting is to be adjourned and reconvened if there is no quorum after 30 minutes: Rule 75-105(4). Minutes of the meeting with no quorum must be lodged: Rule 75-145.

Note 2: Under Rule 75-145(4), a record of persons present at a meeting must be kept as part of the minutes. Form 5011 provides further guidance about this requirement.

11

Form 505
Notification of appointment or cessation of an external
administrator (cessation)

Legislation: section 537(2). Form 505 is an ASIC-approved form.

Requirement: Unless the liquidator resigns or is removed, there is no statutory requirement to lodge Form 505 at the finalisation of a liquidation; however, the liquidator may choose to lodge this form to avoid their role as liquidator becoming current again if the company registration is reinstated under section 601AH(2) and the liquidator is not required to act.

Tick-a-box choice (Ceasing, resignation or removal): Cease (or ‘Resignation or removal of liquidator (including court-appointed liquidator)’ on paper form).

Lodgement: The liquidator must lodge within 14 days after cessation. Online lodgement is preferred.

12
(contingent)

Deregistration by court order

Form 571
Office copy of court order varying the time to deregister a company

 

 

 

Legislation: section 509(3) and regulation 1.0.21. ASIC has applied the number ‘571’ to lodgement of the required information for administrative purposes (i.e. there is no actual Form 571).

Requirement: Lodgement is mandatory, contingent on the circumstances arising (if a court varies the time to deregister the company).

Lodgement: The applicant must lodge an office copy of the court order within 10 business days after the court makes the order. An office copy of a court order must bear an originally stamped seal or an electronic seal of the registry of the court.

Company status: The company status will change from EXAD to DRGD on the day specified by the court. The court must make the order before the end of the original deregistration period (i.e. within 3 months after lodgement of Form 5603).

with ...

Form 105
Cover page for office copy of a court order

Legislation: regulation 1.0.21. Form 105 is prescribed by the Corporations Regulations.

Requirement: Lodgement is mandatory, contingent on the circumstances arising (if a court varies the time to deregister the company).

Tick-a-box choice (Type of court order – external administration): s509(3) varying the time to deregister a company.

Lodgement: The applicant must lodge Form 105 with the office copy of the court order. An office copy of a court order must bear an originally stamped seal or an electronic seal of the registry of the court.

13

Form 5603
End of administration return

Legislation: section 70-6(2) of Schedule 2. Form 5603 is an ASIC-approved form.

Requirement: Lodgement is mandatory.

Lodgement: The liquidator must lodge the form within 1 month after the end of the external administration.

The liquidator must also give notice to the members that a return has been lodged, if requested to do so in writing: section 70-6(4).

Online lodgement as structured data is required.

Company status: The company status will change from EXAD to DRGD 3 months after lodgement of Form 5603: section 509(1).

More information

For more information on external administration, visit www.asic.gov.au/insolvency or contact ASIC on 1300 300 630 or online at www.asic.gov.au/question.

 



[1] Types of forms: Information is lodged with, and received by, ASIC for recording on the company register as ‘forms’. Forms fall into one of the following categories:

  • a prescribed form, which is a form prescribed in Schedule 2 to the Corporations Regulations, or
  • an ASIC-approved form, which is a form that is not prescribed, but is one that ASIC may approve under section 350 of the Corporations Act and section 100-6 of Schedule 2, or
  • an ASIC administrative form, which is a form that is neither prescribed nor approved, but is one that has been given an administrative form number by ASIC for the purpose of identifying the type of information being lodged (e.g. Form 5011).

[2] Online lodgement: Members’ voluntary liquidators who are not registered liquidators cannot access the registered liquidator portal for online lodgement and must lodge most forms in paper format. Form 5602 and Form 5603 can be lodged online via the registered agent portal.

[3] Company status: Certain form lodgements cause company status changes. These may not apply if a company is subject to another external administration. The status of a company is recorded on ASIC’s database as:

  • REGD – registered
  • EXAD – under external administration and/or controller appointed
  • SOFF – strike-off action in progress
  • DRGD – deregistered

[4] ASIC published notices website: An ASIC-hosted website for the publication of notices, including insolvency and external administration-related notices, required to be published in the prescribed manner under Part 5.1, 5.3A, 5.4, 5.4B, 5.4C, 5.5, 5.6, 5.8 or 5A.1 of the Corporations Act, Schedule 2, the Practice Rules or lodged in accordance with regulation 5.6.75 of the Corporations Regulations.

Last updated: 30/03/2020 08:28