Voluntary Liquidation
The information set out below applies only to a members' voluntary winding up and not to a creditors' voluntary winding up.
- Before any meeting of members of the company is called to consider a voluntary winding up, the Directors need to meet and make a statutory declaration to the effect that they "have made a full inquiry into the affairs of the company, and that, having so done, they have formed the opinion that the company will be able to pay its debts in full within a period not exceeding 12 months from the commencement of the winding up" (section 235[1]).
- The statutory declaration [Form 59] must be witnessed by an authorised person and filed with the Registrar before any notice of a general meeting called to consider the proposed winding up is sent out to members.
- The resolution to wind up must be made by Special Resolution. A special resolution is defined by section 119 as one being passed by a majority of at least 75% of those members entitled to vote, in person or by proxy if proxies are allowed in the articles, at a general meeting of members. Generally, there is a need for a minimum of 14 days' notice of the meeting. The Notice of Meeting must specify that a Special Resolution to wind up the company is to be proposed at the meeting.
- The Notice of Special Resolution, signed by the Chairperson of the meeting, must be filed with the Registrar within 14 days of its being passed. [Form 58] The company must also arrange for the notice to be published in the Government Gazette (section 232[1]).
- The winding up is deemed to commence from the time the resolution is passed, and the company must cease to carry on its business from that time, except to the extent that any continuing business would benefit the winding up (section 234). A liquidator must be appointed by the general meeting (section 238), and any such liquidator must already be registered with Commerce.
- The department maintains a Register of approved liquidators. (For information on how to register as a liquidator with the department please refer to our Auditors and/or Liquidators page.)
Section 284[2] of the Act requires that:
- A liquidator first consent to being appointed, and must file with the Registrar written notice of that consent within 14 days of his/her appointment [Form 63].
- The liquidator is also required to lodge written notice of appointment within 14 days [Form 61], and
- to advise the Registrar of any address changes (section 256) [Form 62].
Forms 61 and 63 are usually lodged together, and at the same time as the Notice of Special Resolution.
- Once the appointment is formally made, the affairs of the company are essentially in the hands of the liquidator. The Act provides for several ongoing obligations of the liquidator which include:
- calling a general meeting of the company each 12 months following the commencement of the winding up, where the winding up continues for more than one year (section 241)
when the winding up is complete, calling a meeting of the company and submitting to it an account of the winding up (section 242[1]) - filing a copy of that account and a return detailing the meeting with the Registrar within 14 days after the meeting (section 242[3]) [Form 60 may be downloaded for the purpose of the required return]
- depositing the books and records of the company with the Registrar as soon as the liquidator has no further use for them (section 288[1]). (These records may be destroyed by the Registrar only after the expiration of 3 years from the date of dissolution of the company.)
- calling a general meeting of the company each 12 months following the commencement of the winding up, where the winding up continues for more than one year (section 241)
- The company will be deemed dissolved 3 months after the account referred to in 6 above (section 242[3]) is filed with the Registrar (unless for whatever reason, the Supreme Court orders otherwise). At that time, the company will be struck off the department's Register of Co-operative Companies.