Section 438C — Corporations Act 2001 (Cth)

(1) A person is not entitled, as against the administrator of a company under administration:

(a) to retain possession of books of the company; or

(b) to claim or enforce a lien on such books;

but such a lien is not otherwise prejudiced.

(2) Paragraph (1)(a) does not apply in relation to books of which a secured creditor of the company is entitled to possession otherwise than because of a lien, but the administrator is entitled to inspect, and make copies of, such books at any reasonable time.

(3) The administrator of a company under administration may give to a person a written notice requiring the person to deliver to the administrator, as specified in the notice, books so specified that are in the person’s possession.

(4) A notice under subsection (3) must specify a period of at least 3 business days as the period within which the notice must be complied with.

(5) A person must comply with a notice under subsection (3).

(6) Subsection (5) does not apply to the extent that the person is entitled, as against the company and the administrator, to retain possession of the books.

Note: A defendant bears an evidential burden in relation to the matter in subsection (6), see subsection 13.3(3) of the Criminal Code.

(7) An offence based on subsection (5) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

Related sections

• s 437F — Effect of administration on company’s members
• s 438A — Administrator to investigate affairs and consider possible courses of action
• s 438B — Directors to help administrator
• s 438D — Reports by administrator
• s 439A — Administrator to convene meeting and inform creditors
• s 439C — What creditors may decide

Research how courts apply s 438C

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