Requesting eligible applicant authorisation

This is Information Sheet 293 (INFO 293).

This information sheet explains the process for individuals or entities who want to be authorised as eligible applicants by ASIC under the Corporations Act 2001 (Corporations Act), which enables them to apply to a court to conduct or take part in public examinations related to the affairs of a company in external administration. See sections 596A, 596B and 597 of the Corporations Act.

Note: For the definition of ‘court’ in this information sheet, see the Glossary.

It explains:

• who can be an eligible applicant
• how to become an eligible applicant, and
• the matters and principles ASIC considers when deciding whether to grant a request for eligible applicant authorisation.

Who can be an eligible applicant?

Eligible applicants are persons who meet the definition of ‘eligible applicant’ in section 9 of the Corporations Act, including a person who is authorised in writing by ASIC to be an eligible applicant.

People who are included in the definition of eligible applicants, and who therefore do not need to request authorisation from ASIC, are any of the following:

• liquidators or provisional liquidators of a corporation
• administrators of a corporation
• administrators of a deed of company arrangement (DOCA) executed by a corporation
• restructuring practitioners for a corporation, and
• restructuring practitioners for a restructuring plan made by a corporation.

If you are not one of these people, then you need to apply to ASIC for authorisation to become an eligible applicant before you can apply to the court to conduct or take part in a public examination about a corporation in external administration.

Requirements to qualify for authorisation

If you are applying to ASIC for authorisation to become an eligible applicant, all of the requirements in Table 1 must be satisfied.

Table 1: Requirements for authorisation as an eligible applicant

Requirement	Explanation
The relevant corporation must be in external administration	The company related to your request must be in external administration within the meaning of Chapter 5 of theCorporations Act. Note: See Highstoke Pty Ltd v Hayes Knight GTO Pty Ltd (2007) [2007] FCA 13 at [89] and Walton v ACN 004 410 833 Limited (formerly Arrium Limited) (in liquidation) [2022] HCA 3 at [119]–[120].
You must have an appropriate connection with that corporation	Contributories (such as shareholders) and creditors would normally have the appropriate connection with the corporations. Receivers and managers usually have the appropriate connection with the corporation to be authorised by ASIC as eligible applicants. Note: See Re Excel Finance Corporation Ltd v England [1994] FCA 1251 at [47]. An applicant may have the appropriate connection with the company if the applicant has entered a deed of assignment with the liquidator in which the liquidator has assigned their rights to a claim.
You must have a proper purpose for your application	Your purpose in requesting the examination must align with legitimate interests, such as (but not limited to): gathering information to assist in the external administration of the corporation identifying assets or liabilities of the corporation protecting the interests of creditors or contributories obtaining evidence for potential legal action related to the corporation’s affairs, and supporting the public interest in regulating corporate conduct. Note: See Walton v ACN 004 410 883 Limited (formerly Arrium Limited) (in liquidation) [2022] HCA 3.

How do I become an eligible applicant?

1. Prepare your application to ASIC

You must make your application for eligible applicant authorisation in writing. It must clearly state:

• that it is an application for authorisation as an eligible applicant under Division 1 of Part 5.9 of the Corporations Act
• the name of the applicant, and
• the corporation to which the application relates.

You should follow the process described in this information sheet when applying for eligible applicant authorisation. Your application should contain a full and frank disclosure of information set out in Table 2.

Table 2: Information to provide ASIC

Topic	Information you should provide
You (the applicant)	Material showing your relationship to the corporation. For example, if you are a: creditor – provide a proof of debt receiver or receiver and manager – provide the deed of appointment and details of any disputes regarding the validity of your appointment contributory – provide a share certificate or ownership evidence, or assignee of a debt – provide a copy of the deed of assignment, a copy of the proof of debt lodged with the liquidator and documents to show that the proof of debt was accepted by the liquidator. You can apply for eligible applicant authorisation as an individual on behalf of a body corporate, depending on your relationship with the corporation.
The proposed public examination	The reasons for the proposed public examination. Explanation of how the proposed public examination will benefit the corporation, its creditors or contributories. Why the proposed public examination will not be an abuse of process. Confirmation that you do not have a conflict of interest in conducting the proposed public examination. Note: An example of when we consider the applicant has a conflict of interest is a creditor seeking authorisation to conduct an examination to forestall some other anticipated examination. A schedule of proposed examinees (if applying for authorisation for more than one corporation). Please include: if the examinee is called under a mandatory examination (see section 596A) – for each corporation, the name, title or role, and resignation date, or if the examinee is called under a discretionary examination (see section 596B) – for each corporation, the name, title or role, nature of connection to the corporation, and why you think the proposed examinee can provide information about the corporation’s examinable affairs.
Other relevant information	Where relevant, details of any current or anticipated court proceedings against any officers or related entities of the corporation. Note: See section 9 of the Corporations Act for the meaning of ‘related entity’. How the matters you propose to address in examination fare within the definition of ‘examinable affairs’ of the company. If the request is in relation to a group of companies, how the matters you propose to address in examination fall within the definition of ‘examinable affairs’ of each of the companies in the group. If you are a restructuring practitioner, details of any disputes regarding the validity of your appointment.
Invoice details (see Pay the fee)	To assist ASIC to prepare the invoice, please provide the following information as part of your application: customer name (include the entity or individual who is financially responsible for the liability) contact name address city post code email address phone number, and reference (the company name you are applying to be authorised to conduct examinations for).

Proper purpose of examinations

When considering whether the proposed public examination will be for a proper purpose, ASIC will consider whether the proposed examination(s) will:

• enable an eligible applicant to gather information to assist them in the administration of the corporation
• assist the corporation’s external administrator to identify the corporation’s assets, both tangible and intangible, and liabilities
• protect the interests of the corporation, its creditors and/or contributories
• enable evidence and information to be obtained to support the bringing of proceedings against examinable officers and other persons in connection with the examinable affairs of the corporation, and
• assist in the regulation of corporations by providing a public forum for the examination of examinable officers of corporations.

Note: See Walton v ACN 004 410 883 Limited (formerly Arrium Limited) (in liquidation) [2022] HCA 3.

We may also consider whether there is a collateral or improper purpose for the proposed examination(s) that could result in an examination being an abuse of process.

Note: See Ryan v Australian Securities and Investments Commission; Re Allstate Explorations NL (Subject to DOCA) [2007] FCA 59 at [52].

2. Submit your application

Email your application and supporting documents to RL.legal@asic.gov.au

We will acknowledge receipt of your application.

3. Pay the fee

The application fee is listed in Schedule 1 (Item 91) on the Schedules of corporations fees webpage on the ASIC website. At the date of publication of this information sheet, the fee is $468.

After receiving your application, we will invoice you. We will not consider your application until the fee has been paid.

Processing time

There is no statutory time period for ASIC to process applications for eligible applicant authorisation. However, we will endeavour to process your application within one month of receiving all information at Table 2.

If your application is urgent, we may prioritise it in exceptional circumstances. Any exceptional circumstances must be clearly set out in your application.

Withdrawing an application

You may withdraw your application at any time before we make a decision. Withdrawal does not prevent you from making a new application in the future.

If you wish to withdraw, you should notify ASIC in writing. Fees are generally non-refundable.

Notifying you of our decision

Once we have reviewed your application, we will notify you in writing of our decision.

If your application is approved

If we grant your application, we will send you a letter setting out who has been authorised and, if relevant, any restrictions or conditions we have placed on the authorisation.

In most situations, the authorisation letter will provide that the eligible application authorisation is effective for the duration of the relevant corporation’s external administration.

In most situations, our authorisation will not restrict your ability to ask the court to summons only the potential examinees referred to in your application. Therefore, if you wish to examine additional persons, you do not need to submit a further application.

If your application is denied

If we refuse your application, we will inform you of the decision in writing. While we will generally provide reasons for our decision, we are not required to provide a detailed statement of reasons for the refusal of an eligible applicant authorisation.

Note: See Hayes Knight GTO Pty Ltd v Australian Securities and Investments Commission [2005] FCA 1509 at [24].

Rights of review and procedural fairness

If we refuse your application, and you are dissatisfied with our decision, you may seek judicial review of our decision.

Procedural fairness

We are not required to consult with any potential examinees to authorise an eligible applicant.

Note: See Saraceni v Australian Securities and Investments Commission [2013] FCAFC 42 at [7]-[10] J.

Information eligible applicant provide to ASIC is confidential under section 127(1) of the Australian Securities and Investments Commission Act 2001. Accordingly, we will not disclose information about an eligible applicant’s request to anyone, excepted as authorised or required by law.

Glossary

Term	Meaning in this document
ASIC	Australian Securities and Investments Commission
controller	A receiver or receiver and manager of property
court	Any of the following courts: the Federal Court the Supreme Court of a state or territory the Federal Circuit and Family Court of Australia (Division 1), and a court to which section 41 of the Family Law Act 1975 applies because of a proclamation made under section 41(2) that Act Note: This is the definition given in section 58AA(1)(a)–(d) of the Corporations Act.
Corporations Act	Corporations Act 2001, including regulations made for the purposes of that Act
DOCA	Deed of company arrangement
eligible applicant	A person who can: apply to a court to summon a person for examination about a corporation’s examinable affairs, and take part in a public examination
external administration	Where an external administrator is appointed
external administrator	An administrator, deed administrator, provisional liquidator or liquidator
you	The person requesting authorisation as an eligible applicant

Related information

Headnotes

abuse of process, eligible applicant, eligible applicant authorisation, corporation, examinable affairs, legitimate and proper purpose, public examination, request

Legislation

Administrative Decisions (Judicial Review) Act 1977

Australian Securities and Investments Commission Act 2001, section 127

Corporations Act 2001, Part 5.9; sections 9, 596A, 596B

Cases

Hayes Knight GTO Pty Ltd v Australian Securities and Investments Commission [2005] FCA 1509

Highstoke Pty Ltd v Hayes Knight GTO Pty Ltd (2007) 237 ALR 753

Re Excel Finance Corporation Ltd; Worthley v England [1994] FCA 1251

Re New Tel Ltd; Evans and Another v Wainter Pty Ltd (2005) 221 ALR 331

Saraceni v Australian Securities and Investments Commission [2013] FCAFC 42

Walton v ACN 004 410 883 Limited (formerly Arrium Limited)(in liquidation) [2022] HCA 3

Important notice

Please note that this information sheet is a summary giving you basic information about a particular topic. It does not cover the whole of the relevant law regarding that topic, and it is not a substitute for professional advice. We encourage you to seek your own professional advice to find out how the applicable laws apply to you, as it is your responsibility to determine your obligations.

You should also note that because this information sheet avoids legal language wherever possible, it might include some generalisations about the application of the law. Some provisions of the law referred to have exceptions or important qualifications. In most cases, your particular circumstances must be taken into account when determining how the law applies to you.