Commonwealth Consolidated Acts

CORPORATIONS ACT 2001 - SECT 443B

Scope

  (1)   This section applies if, under an agreement made before the administration of a company began, the company continues to use or occupy, or to be in possession of, property of which someone else is the owner or lessor, including property consisting of goods that is subject to a lease that gives rise to a PPSA security interest in the goods.

General rule

  (2)   Subject to this section, the administrator is liable for so much of the rent or other amounts payable by the company under the agreement as is attributable to a period:

  (a)   that begins more than 5 business days after the administration began; and

  (b)   throughout which:

  (i)   the company continues to use or occupy, or to be in possession of, the property; and

  (ii)   the administration continues.

  (3)   Within 5 business days after the beginning of the administration, the administrator may give to the owner or lessor a notice that:

  (a)   specifies the property; and

  (b)   states that the company does not propose to exercise rights in relation to the property; and

  (c)   if the administrator:

  (i)   knows the location of the property; or

  (ii)   could, by the exercise of reasonable diligence, know the location of the property;

    specifies the location of the property.

  (4)   Despite subsection   (2), the administrator is not liable for so much of the rent or other amounts payable by the company under the agreement as is attributable to a period during which a notice under subsection   (3) is in force, but such a notice does not affect a liability of the company.

  (5)   A notice under subsection   (3) ceases to have effect if:

  (a)   the administrator revokes it by writing given to the owner or lessor; or

  (b)   the company exercises, or purports to exercise, a right in relation to the property.

  (6)   For the purposes of subsection   (5), the company does not exercise, or purport to exercise, a right in relation to the property merely because the company continues to occupy, or to be in possession of, the property, unless the company:

  (a)   also uses the property; or

  (b)   asserts a right, as against the owner or lessor, so to continue.

Restrictions on general rule

  (7)   Subsection   (2) does not apply in relation to so much of a period as elapses after:

  (a)   a receiver of the property is appointed; or

  (b)   under an agreement or instrument under which a security interest in the property is created or arises:

  (i)   the secured party appoints an agent to enter into possession, or to assume control, of the property; or

  (ii)   the secured party takes possession, or assumes control, of the property;

but this subsection does not affect a liability of the company.

  (8)   Subsection   (2) does not apply in so far as a court, by order, excuses the administrator from liability, but an order does not affect a liability of the company.

  (9)   The administrator is not taken because of subsection   (2):

  (a)   to have adopted the agreement; or

  (b)   to be liable under the agreement otherwise than as mentioned in subsection   (2).