Flowchart 15: Restructuring practitioner of a restructuring plan for a company

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).

Unless otherwise permitted by the Corporations Act 2001 (Corporations Act), a person must not act as a restructuring practitioner of a restructuring plan for a company unless they are a registered liquidator: section 456B(1) and (2).

Flowchart 15: Restructuring practitioner of a restructuring plan for a company

* ASIC PNW = ASIC published notices website.

Explanation of Flowchart 15: Restructuring practitioner of a restructuring plan for a company [1]

Step

Form or notice

Notes

1

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

Legislation: regulation 5.3B.54. Form 505 is an ASIC-approved form.

Requirement: Lodgement is mandatory.

Tick-a-box choice (Details of appointment): ‘Restructuring plan practitioner’ (and then for method of appointment select either ‘appointment by company under writing under its common seal’ or ‘other appointment’ or ‘appointed by Court’ on online form).

Lodgement: The restructuring plan practitioner must lodge no more than 2 business days after appointment. Online lodgement is preferred.

Company status:[2] If there is no other external administrator appointment to the company, after Form 505 is processed the company status will change from EXAD to REGD and a new appointment will be created for the restructuring plan practitioner whilst ceasing the restructuring practitioner role.

and …

ASIC published notices website[3]
Notice of appointment as restructuring practitioner

Legislation: regulation 5.3B.54 and 5.6.75(4).

Requirement: Publication is mandatory.

Publication: The restructuring plan practitioner must publish the notice on the ASIC published notices website no more than 2 business days after a restructuring plan practitioner is appointed.

2

Creditors approve the making of a restructuring plan

EX09 (Form 5612)
Notice of making of restructuring plan

Legislation: regulation 5.3B.55. Form 5612 is an ASIC approved form.

Requirement: Lodgement is mandatory, contingent on the majority in value of creditors providing a statement to the restructuring practitioner stating that the restructuring plan should be accepted.

Note: The statement referred to is a statement from a creditor given to the restructuring practitioner under regulation 5.3B.21(1)(b) of the Corporations Regulations 2001 (Corporations Regulations).

Lodgement: The restructuring practitioner for the plan must lodge no more than 2 business days after the day on which the restructuring plan is made. Online lodgement is required.

3
(contingent)

EX04 (Form 5616)
Notice of contravention or likely contravention of restructuring plan

Legislation: regulation 5.3B.56(2). Form 5616 is an ASIC-approved form.

Requirement: Lodgement is mandatory, contingent on the restructuring practitioner of a plan receiving a notice from a director under regulation 5.3B.56(1) or otherwise becoming aware of a contravention or likely contravention.

Tick-a-box choice (Type of notification): Select one of the following: ‘Notice of contravention of the restructuring plan’ or ‘Notice of likely contravention of the restructuring plan’.

Lodgement: The restructuring practitioner for the plan must lodge no more than 2 business days after receiving the notice or of becoming so aware. Online lodgement via Transaction EX04 is required.

If an external administrator has been appointed, go to Step 4.

If a restructuring plan has been effectuated, or if there is another reason for termination, you can skip Step 4 and go to Step 5.

4
(if external administrator has been appointed)

EX04 (Form 5615)
Notice from directors of appointment of external administrator

Legislation: regulation 5.3B.47. Form 5615 is an ASIC-approved form.

Requirement: Lodgement is mandatory, contingent on the restructuring practitioner of a plan receiving a notice from the directors that an administrator, liquidator or provisional liquidator is appointed.

Tick-a-box choice (Type of notification): Select one of the following: ‘Notice from directors of appointment of administrator’ or ‘Notice from directors of appointment of liquidator or provisional liquidator’.

Lodgement: The restructuring practitioner for the plan must lodge no more than 2 business days after receiving the notice from the directors. Online lodgement via Transaction EX04 is required.

5

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

Legislation: regulation 5.3B.58. Form 505 is an ASIC-approved form.

Requirement: Lodgement is mandatory.

Tick-a-box choice (Ceasing, resignation or removal): ‘Cessation of restructuring plan practitioner’.

Lodgement: The restructuring practitioner must lodge no more than 2 business days after the appointment as restructuring practitioner terminates. Online lodgement is preferred.

Note: If Form 5610 is lodged before Form 505 (for cessation), you will not be able to lodge Form 505; however, the role of restructuring practitioner of a restructuring plan will cease due to the lodgement of Form 5610.

6: Select one of Steps 6a, 6b or 6c, depending on the outcome of the restructuring plan. (Although these steps all involve EX06 (Form 5610), the tick-a-box choice(s) vary.)

6a
(if restructuring plan effectuated)

EX06 (Form 5610)
Notice of termination of restructuring plan

Legislation: regulation 5.3B.57(1). Form 5610 is an ASIC-approved form.

Requirement: Lodgement is mandatory.

Tick-a-box choice (Reason for termination of the restructuring plan): ‘The obligations of the company under the plan have been fulfilled, the obligations of any other party to the plan have been fulfilled and all admissible debts or claims have been dealt with in accordance with the plan’.

Lodgement: The restructuring practitioner for the plan must lodge no more than 2 business days after receiving the notice from the directors. Online lodgement is required.

Note: If Form 5610 is lodged before Form 505 (for cessation), you will not be able to lodge Form 505; however, the role of restructuring practitioner of a restructuring plan will cease due to the lodgement of Form 5610.

6b
(if external administrator has been appointed)

EX06 (Form 5610)
Notice of termination of restructuring plan

Legislation: regulation 5.3B.57(2). Form 5610 is an ASIC-approved form.

Requirement: Lodgement is mandatory, contingent on the restructuring practitioner for a plan receiving a notice from the directors that the restructuring plan terminates other than under regulation 5.3B.31(1)(a) [terms fulfilled].

Tick-a-box choice (Reason for termination of the restructuring plan): Select one of the following ‘An administrator of the company is appointed under section 436A, 436B or 436C of the Act’ or ‘A liquidator or provisional liquidator of the company is appointed’.

Lodgement: The restructuring practitioner for the plan must lodge no more than 2 business days after receiving the notice from the directors. Online lodgement is required.

6c
(if there is another reason for termination)

EX06 (Form 5610)
Notice of termination of restructuring plan

Legislation: regulation 5.3B.57(2). Form 5610 is an ASIC-approved form.

Requirement: Lodgement is mandatory, contingent on the restructuring practitioner for a plan receiving a notice from the directors that the restructuring plan terminates other than under regulation 5.3B.31(1)(a) [terms fulfilled].

Tick-a-box choice (Reason for termination of the restructuring plan): Select one of the following ‘The court has made an order under regulation 5.3B.63 terminating the plan’ or ‘The plan is expressed to be subject to the occurrence of a specified event and that event did not occur within the specified period’ or ‘There has been a contravention of the plan by a person bound by the plan, and it has not been rectified within 30 business days beginning on the day the contravention occurred’.

Lodgement: The restructuring practitioner for the plan must lodge within 2 business days after receiving the notice from the directors. Online lodgement is required.

7

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 restructuring practitioner of a plan must lodge no more than 1 month after the end of the external administration.

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

Online lodgement as structured data is required.

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 to the Corporations Act, 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] 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

[3] 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, 5.3B, 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: 20/07/2021 09:41