The Court has the power to dispense with the head count test....

The Court has the power to dispense with the head count test. (72)

72. This power was conferred by the addition of the words “unless the Court orders otherwise” at the introduction of s411(4)(a)(ii)(A). These words were added by the Corporations Amendment (Insolvency) Act 2007 (Cth).

Although there are no express limitations in the legislation on what a Court may take into account in deciding whether to exercise its dispensation power, Parliament made it clear that it expected that this power would, absent other extraordinary circumstances, only be exercised in the event of “share splitting”. (73)

73. Explanatory Memorandum to the Corporations Amendment (Insolvency) Bill 2007 (Cth), at 57 [4.179]-[4.181].