These rules are made by the Supreme Court Rule Committee on 20 December 1999. For Gazettal on 24 December 1999
Division 1 Preliminary
1.1 Citation
These Rules may be cited as the Corporations Law Rules.
1.2 Commencement
These Rules commence on 1 March 2000.
1.3 Application of these Rules and other rules of the Court
(1) Unless the Court otherwise orders, these Rules apply to a proceeding in the Court under the Corporations Law, or the ASC Law, that is commenced on or after the commencement of these Rules.
(2) The other rules of the Court apply, so far as they are relevant and not inconsistent with these Rules, to a proceeding in the Court under the Corporations Law, or the ASC Law, that is commenced on or after the commencement of these Rules.
(3) Unless the Court otherwise orders, the rules applying to a proceeding in the Court under the Corporations Law, or the ASC Law, as in force immediately before the commencement of these Rules, continue to apply to a proceeding under the Corporations Law, or the ASC Law, that was commenced before the commencement of these Rules.
Note Under section 8A of the Law, a reference to the Law includes a reference to the Corporations Regulations.
1.4 Expressions used in the Corporations Law
Unless the contrary intention appears, an expression used in these Rules and in the Corporations Law has the same meaning in these Rules as it has in the Corporations Law.
Note Expressions used in these Rules (including the notes to these Rules) that are defined in the Corporations Law include:
ACN (short for ‘Australian Company Number’) — see section 9
ARBN (short for ‘Australian Registered Body Number’) — see section 9
body — see section 9
body corporate — see section 9
books — see section 9
Commission — see section 9
company — see section 9
corporation — see section 57A
daily newspaper — see section 9
foreign country — see section 9
futures broker — see section 9
Gazette — see section 9
officer, in relation to a body corporate — see section 82A
official liquidator — see section 9
Part 5.1 body — see section 9
Part 5.7 body — see section 9
register — see section 9
registered liquidator — see section 9
registered office — see section 9
statutory demand — see section 9.
1.5 Definitions for these Rules
In these Rules, unless the contrary intention appears:
applicant means a person claiming interlocutory relief in a proceeding.
defendant means a person against whom relief (except interlocutory relief) is claimed under the Law or the ASC Law, whether in the originating process or not.
interlocutory process means an interlocutory process in accordance with Form 3.
originating process means an originating process in accordance with Form 2.
plaintiff means a person claiming relief (except interlocutory relief) under the Law or the ASC Law, whether in the originating process or not.
respondent means a person against whom interlocutory relief is claimed in a proceeding.
the Law means the Corporations Law.
1.6 References to rules and forms
In these Rules, unless the contrary intention appears:
(a) a reference to a rule is a reference to a rule in these Rules; and
(b) a reference to a form followed by a number is a reference to the form so numbered in Schedule 1 to these Rules.
1.7 Substantial compliance with forms
(1) It is sufficient compliance with these Rules in relation to a document that is required to be in accordance with a form in Schedule 1 if the document is substantially in accordance with the form required or has only such variations as the nature of the case requires.
(2) Without limiting subrule (1), the Court or the Court officer must not reject a document for filing only because a term used to describe a party in the document differs from the term used in these Rules.
1.8 Court’s power to give directions
The Court may give directions in relation to the practice and procedure to be followed in a proceeding if it is satisfied, in the circumstances of the proceeding, that:
(a) the provisions of the Corporations Law, the ASC Law, or the rules of this Court do not adequately provide for the practice and procedure to be followed in the proceeding; or
(b) a difficulty arises, or doubt exists, in relation to the practice and procedure to be followed in the proceeding.
1.9 Calculation of time
(1) If, for any purpose, these Rules:
(a) prohibit, permit or require an act or thing to be done within, by, or before the end of; or
(b) otherwise prescribe, allow or provide for;
a period of time before or after a particular day, act or event, the period is to be calculated without counting that day, or the day of the act or event, as the case may be.
(2) Without limiting subrule (1), in calculating how many days a particular day, act or event is before or after another day, act or event, only the first day, or the day of the first act or event, is to be counted.
(3) If the last day of any period prescribed or allowed by these Rules for an act or thing to be done falls on a day that is not a business day in the place where the act or thing is to be or may be done, the act or thing may be done on the first business day in the place after that day.
(4) In calculating a period of time for the purposes of these Rules, the period beginning on 25 December in a year and ending at the end of 1 January in the next year is not to be counted.
1.10 Extension and abridgment of time
Unless the Corporations Law, the ASC Law, or these Rules otherwise provide, the rules of this Court that provide for the extension or abridgment of a period of time fixed for the doing of any act or thing in relation to a proceeding apply to a proceeding to which these Rules apply.
Division 2 Proceedings generally
2.1 Title of documents in a proceeding — Form 1
The title of a document filed in a proceeding must be in accordance with Form 1.
2.2 Originating process and interlocutory process — Forms 2 and 3
(1) Unless these Rules otherwise provide, a person must make an application required or permitted by the Law to be made to the Court:
(a) if the application is not made in a proceeding already commenced in the Court — by filing an originating process; and
(b) in any other case — by filing an interlocutory process.
(2) Unless the Court otherwise directs, a person may make an application to the Court in relation to a proceeding in respect of which final relief has been granted by filing an interlocutory process in that proceeding.
(3) An originating process must:
(a) be in accordance with Form 2; and
(b) state:
(i) each section of the Law or the ASC Law, or each regulation of the Corporations Regulations, under which the proceeding is brought; and
(ii) the relief sought.
(4) An interlocutory process must:
(a) be in accordance with Form 3; and
(b) state:
(i) if appropriate, each section of the Law or the ASC Law, or each regulation of the Corporations Regulations, or each rule of Court under which the interlocutory application is made; and
(ii) the relief sought.
2.3 Fixing of hearing
On receiving an originating process or interlocutory process, the Registrar:
(a) must fix a time, date and place for hearing and endorse those details on the originating process or interlocutory process; and
(b) may seal a sufficient number of copies for service and proof of service.
2.4 Supporting affidavits
(1) Unless the Court otherwise directs, an originating process, or interlocutory process, must be supported by an affidavit stating the facts in support of the process.
(2) An affidavit in support of an originating process must annex or exhibit a record of a search of the records maintained by the Commission, in relation to the company that is the subject of the application to which the originating process relates, carried out no earlier than 7 days before the originating process is filed.
2.5 Affidavits made by creditors
Subject to rule 5.4, an affidavit that is to be made by a creditor may be made:
(a) if the creditor is a corporation — by a director, secretary, or other principal officer of the corporation, or by a person employed by the corporation who is authorised to make the affidavit on its behalf; or
(b) if the creditor is a company to which a liquidator, provisional liquidator, receiver, administrator or controller has been appointed — by that person; or
(c) in any other case — by the creditor or a person authorised by the creditor to make the affidavit on behalf of the creditor.
2.6 Form of affidavits
An affidavit must be in a form that complies with:
(a) the rules of the Court; or
(b) the rules of the Supreme Court of the State (if any) or Territory (if any) where the affidavit was sworn or affirmed; or
(c) the rules of the Federal Court of Australia.
2.7 Service of originating process or interlocutory process and supporting affidavit
(1) As soon as practicable after filing an originating process and, in any case, at least 5 days before the date fixed for hearing, the plaintiff must serve a copy of the originating process and any supporting affidavit on:
(a) each defendant (if any) to the proceeding; and
(b) if the corporation to which the proceeding relates is not a party to the proceeding — the corporation.
(2) As soon as practicable after filing an interlocutory process and, in any case, at least 3 days before the date fixed for hearing, the applicant must serve a copy of the interlocutory process and any supporting affidavit on:
(a) each respondent (if any) to the interlocutory application; and
(b) if the corporation to which the interlocutory application relates is not a party to the interlocutory application — the corporation.
2.8 Notice of certain applications to be given to Commission
(1) This rule has effect in addition to the requirements of the Law that, in relation to a proceeding, particular documents are to be served on the Commission or notice of particular matters is to be given to the Commission.
(2) This rule does not apply to a person making an application if the person is the Commission or a person authorised by the Commission.
(3) Unless the Court otherwise orders, if a person makes an application under a provision of the Law mentioned in column 1 of the following table, the person must serve on the Commission, a reasonable time before the hearing of the application, a copy of the originating process, or interlocutory process, and supporting affidavit in respect of the application.
| Column 1
Provision | Column 2
Description of application |
Subsection 254E (1) |
To validate an issue of shares or confirm its terms |
Subsection 266 (4) |
To extend the time for registration of a charge |
Subsections 445G (1), (2) and (3) |
To avoid or validate a deed of company arrangement |
Section 449B |
To remove an administrator |
Subsections 473(2) and (3) |
To fix the remuneration of a provisional liquidator or liquidator |
Section 480 |
For the release of a liquidator of a company and the deregistration of the company |
Subsection 482 (1) |
For the stay of a compulsory winding-up |
Subsection 509 (6) |
For the deregistration of a company |
Paragraph 511 (1) (b) |
If the application is for the exercise of the power that would be exercisable under subsection 482 (1) of the Law if a company were being wound up by the Court — for a stay of the voluntary winding up |
Subsection 532 (2) |
For leave to be appointed or act as a liquidator |
Subsection 536 (1) |
For an inquiry into the conduct of a liquidator |
Section 598 |
In respect of fraud, negligence, etc by a person concerned with a corporation |
Subsection 601AH (2) |
To reinstate of the registration of a company |
Subsection 601CC (8) |
To restore the name of an Australian body to the register |
Subsection 601CL (9) |
To restore the name of a foreign company to the register |
Subsections 1224 (1) and (4) |
To restrain dealings with a futures broker’s bank accounts |
Section 1226 |
For a further order or directions following an order made under section 1224 of the Law |
Subsections 1317JA (2), (4) and (5) |
For relief from liability for contravention of a civil penalty provision |
Subsection 1318 (2) |
For relief from liability for negligence, default or breach of trust or duty |
Subsection 1322 (4) |
To overcome any irregularity in a proceeding
2.9 |
Notice of appearance (s 465C of the Law) — Form 4
(1) A person who intends to appear before the Court at the hearing of an application must, before appearing:
(a) file:
(i) a notice of appearance in accordance with Form 4; and
(ii) if appropriate — an affidavit stating any facts on which the person intends to rely; and
(b) serve on the plaintiff a copy of the notice of appearance and any affidavit not later than:
(i) if the person is named in an originating process — 3 days before the date fixed for hearing; or
(ii) if the person is named in an interlocutory process — 1 day before the date fixed for hearing.
(2) If the person intends to appear before the Court to oppose an application for winding up, the person may include in the notice of appearance the notice of the grounds on which the person opposes the application required by section 465C of the Law.
(3) The period prescribed for filing and serving the notice and affidavit required by section 465C of the Law is the period mentioned in subparagraph (1) (b) (i).
Note Under section 465C of the Law, a person may not, without the leave of the Court, oppose an application for winding up unless, within the period prescribed by the rules (see subrule (3) of this rule), the person has filed, and served on the plaintiff, notice of the grounds on which the person opposes the application and an affidavit verifying the matters stated in the notice.
2.10 Intervention in proceeding by Commission (s 1330 of the Law) — Form 5
(1) If the Commission intends to intervene in a proceeding, the Commission must file a notice of intervention in accordance with Form 5.
(2) Not later than 3 days before the date fixed for the hearing at which the Commission intends to appear in the proceeding, the Commission must serve a copy of the notice, and any affidavit on which it intends to rely, on the plaintiff and on any other party to the proceeding.
2.11 Publication of notices
If a rule requires a notice in relation to a body to be published in accordance with this rule, the notice must be published once in a daily newspaper circulating generally in the State or Territory where the body has its principal, or last known, place of business.
Note Under the Law, certain notices may also be required to be published in the Gazette. Nothing in this rule is intended to affect the operation of any provision of the Law that requires publication of a notice in the Gazette.
2.12 Proof of publication
(1) This rule applies in relation to any matter published in connection with a proceeding.
(2) Unless these Rules otherwise provide, or the Court otherwise orders, the person responsible for the publication of the matter, or the person’s legal practitioner, must file:
(a) an affidavit made by the person, or the person’s legal practitioner, that states the date of publication and to which is annexed or exhibited a copy of the published matter; or
(b) a memorandum signed by the person, or the person’s legal practitioner, that states the date of publication and refers to and annexes a copy of the published matter.
(3) The affidavit or memorandum is prima facie evidence that the publication took place on the date and otherwise as stated in the affidavit or memorandum.
2.13 Leave to creditor, contributory or officer to be heard
(1) The Court may grant leave to any person who is, or who claims to be:
(a) a creditor, contributory or officer of a corporation; or
(b) an officer of a creditor, or contributory, of a corporation;
to be heard in a proceeding without becoming a party to the proceeding.
(2) If the Court considers that the attendance of a person to whom leave has been granted under subrule (1) has resulted in additional costs for any party, or the corporation, which should be borne by the person to whom leave was granted, the Court may:
(a) direct that the person pay the costs; and
(b) order that the person not be heard further in the proceeding until the costs are paid or secured to the Court’s satisfaction.
(3) The Court may order that a person who is, or who claims to be, a creditor, contributory or officer of a corporation be added as a defendant to the proceeding.
(4) The Court may grant leave to a person under subrule (1), or order that a person be added as a defendant to a proceeding under subrule (3):
(a) on application by the person or a party to the proceeding; or
(b) on the Court’s own initiative.
(5) The Court may:
(a) appoint a creditor or contributory to represent all or any class of the creditors or contributories on any question, or in relation to any proceeding, before the Court, at the expense of the corporation; and
(b) remove any person so appointed.
2.14 Inquiry in relation to corporation’s debts etc
The Court may direct an inquiry in relation to the debts, claims or liabilities, or a class of debts, claims or liabilities, of or affecting a corporation to which a proceeding relates.
2.15 Meetings ordered by the Court
Subject to the Law, these Rules and any direction of the Court to the contrary, regulations 5.6.12 to 5.6.36A of the Corporations Regulations apply to meetings ordered by the Court.
Division 3 Compromises and arrangements in relation to Part 5.1 bodies
3.1 Application of Division 3
This Division applies if an application is made to the Court for approval of a compromise or arrangement between a Part 5.1 body and its creditors or members, or any class of its creditors or members.
3.2 Nomination of chairperson for meeting
Before the hearing of an application under subsection 411 (1), (1A) or (1B) of the Law, the plaintiff must file an affidavit stating:
(a) the names of the persons who have been nominated to be the chairperson and alternate chairperson of the meeting; and
(b) that each person nominated:
(i) is willing to act as chairperson; and
(ii) has had no previous relationship or dealing with the body, or any other person interested in the proposed compromise or arrangement, except as disclosed in the affidavit; and
(iii) has no interest or obligation that may give rise to a conflict of interest or duty if the person were to act as chairperson of the meeting, except as disclosed in the affidavit; and
(c) the name of the person (if any) proposed to be appointed to administer the proposed compromise or arrangement; and
(d) that the person does not fall within paragraphs 411 (7) (a) to (f) of the Law, except as disclosed in the affidavit.
3.3 Order for meetings to identify proposed scheme
An order under subsection 411 (1) or (1A) of the Law ordering a meeting or meetings in relation to a proposed compromise or arrangement must set out in a schedule, or otherwise identify, a copy of the proposed compromise or arrangement.
3.4 Notice of hearing (s 411 (4), s 413 (1) of the Law) — Form 6
(1) This rule applies to:
(a) an application, under subsection 411 (4) of the Law, for an order approving a proposed compromise or arrangement in relation to a Part 5.1 body; and
(b) an application, under subsection 413 (1) of the Law, for an order in relation to the reconstruction of a Part 5.1 body, or Part 5.1 bodies, or the amalgamation of 2 or more Part 5.1 bodies.
(2) Unless the Court otherwise orders, the plaintiff must publish a notice of the hearing of the application.
(3) The notice must be:
(a) in accordance with Form 6; and
(b) published in accordance with rule 2.11 at least 5 days before the date fixed for the hearing of the application.
3.5 Copy of order approving compromise or arrangement to be lodged with Commission
If the Court makes an order under subsection 411 (1), (1A) or (4), or 413 (1) of the Law, the plaintiff must, as soon as practicable after the order is made:
(a) have the order sealed; and
(b) lodge an office copy of the order with the Commission; and
(c) serve an office copy of the order on any person appointed to administer the compromise or arrangement.
Division 4 Receivers and other controllers of corporation property (Part 5.2 of the Law)
4.1 Inquiry into conduct of controller (s 423 of the Law)
A complaint to the Court under paragraph 423 (1) (b) of the Law about an act or omission of a receiver, or a controller appointed by the Court, must be made by an originating process seeking an inquiry in relation to the complaint.
Division 5 Winding up proceedings (including oppression proceedings where winding up is sought)
5.1 Application of Division 5
This Division applies to the following applications for the winding up of a company:
(a) an application under section 246AA of the Law in a case of oppression or injustice;
(b) an application under Part 5.4 or Part 5.4A of the Law.
5.2 Affidavit accompanying statutory demand (s 459E (3) of the Law) — Form 7
For the purposes of subsection 459E (3) of the Law, the affidavit accompanying a statutory demand relating to a debt, or debts, owed by a company must:
(a) be in accordance with Form 7 and state the matters mentioned in that Form; and
(b) be made by the creditor or by a person with the authority of the creditor or creditors; and
(c) not state a proceeding number, or refer to a Court proceeding, in any heading or title to the affidavit.
5.3 Application for leave to apply for winding up in insolvency (s 459P (2) of the Law)
An application for leave to apply to the Court for an order that a company be wound up in insolvency may be made at the same time as the application for an order that the company be wound up in insolvency is made.
5.4 Affidavit in support of application for winding up (s 459P, s 462, s 464 of the Law)
(1) The affidavit in support of an originating process seeking an order that company be wound up must be made by the plaintiff or by a person with the authority of the plaintiff or plaintiffs.
(2) If the application is made in reliance on a failure by the company to comply with a statutory demand, the affidavit must:
(a) verify service of the demand on the company; and
(b) verify the failure of the company to comply with the demand; and
(c) state whether and, if so, to what extent the debt, or each of the debts, to which the demand relates is still due and payable by the company at the date when the affidavit is made.
(3) If the application is made in reliance on the ground mentioned in paragraph 461 (1) (a) of the Law, the affidavit must:
(a) state whether the company is able to pay all its debts as and when they become due and payable; and
(b) refer to the company’s most recent balance sheet and profit and loss statement as an annexure or exhibit to the affidavit, or explain their absence.
(4) The affidavit must be made within 7 days before the originating process is filed.
5.5 Consent of liquidator (s 532 (9) of the Law) — Form 8
(1A) Each of the following subrules shall have no operation until a notice by the Chief Justice notifying its commencement is published in the Gazette. A notice may relate to one or more subrules.
(1) In this rule:
liquidator does not include a provisional liquidator.
(2) For the purposes of subsection 532 (9) of the Law, the consent of an official liquidator to act as liquidator of a company must be in accordance with Form 8.
(3) In an application for an order that a company be wound up, the plaintiff must:
(a) before the hearing of the application, file the consent mentioned in subrule (2) of an official liquidator who would be entitled to be appointed as liquidator of the company; and
(b) serve a copy of the consent on the company at least 1 day before the hearing.
5.6 Notice of application for winding up — Form 9
(1) Unless the Court otherwise orders, the plaintiff must publish a notice of the application for an order that a company be wound up.
(2) The notice must be:
(a) in accordance with Form 9; and
(b) published in accordance with rule 2.11:
(i) at least 3 days after the originating process is served on the company; and
(ii) at least 7 days before the date fixed for hearing of the application.
5.7 Applicant to make copies of documents available
A copy of any document filed in a proceeding to which this Division applies must be available at the plaintiff’s address for service for inspection by a creditor, contributory or officer of the company, or an officer of a creditor or contributory of the company.
5.8 Discontinuance of application for winding up
An application for an order that a company be wound up may not be discontinued except with the leave of the Court.
5.9 Appearance before Registrar
After filing an originating process seeking an order that a company be wound up, the plaintiff must, if required:
(a) appear before the Registrar on a date to be appointed by the Registrar; and
(b) satisfy the Registrar that the plaintiff has complied with the Law and these Rules in relation to applications for a winding up order.
5.10 Order substituting plaintiff in application for winding up (s 465B of the Law) — Form 10
(1) If the Court makes an order under section 465B of the Law, the Court may also order that the substituted plaintiff or plaintiffs publish a notice stating that the substituted plaintiff or plaintiffs intend to apply for an order that the company be wound up.
(2) The notice must be:
(a) in accordance with Form 10; and
(b) published in accordance with rule 2.11 or as otherwise directed by the Court.
5.11 Notice of winding up order and appointment of liquidator — Form 11
(1) This rule applies if the Court orders that a company be wound up and an official liquidator be appointed as liquidator of the company.
(2) Not later than the day after the order is made, the plaintiff must inform the liquidator of the appointment.
(3) As soon as practicable after being informed of the appointment, the liquidator must publish a notice of the winding up order and the liquidator’s appointment.
(4) The notice must be:
(a) in accordance with Form 11; and
(b) published in accordance with rule 2.11.
(5) In this rule:
liquidator does not include a provisional liquidator.
Division 6 Provisional liquidators (Part 5.4B of the Law)
6.1 Appointment of provisional liquidator (s 472 of the Law) — Form 8
(1) An application by a company, a creditor or contributory of the company, or the Commission, under subsection 472 (2) of the Law, for an official liquidator to be appointed as a provisional liquidator of the company must be accompanied by the written consent of the official liquidator.
(2) The consent must be in accordance with Form 8.
(3) An order appointing a provisional liquidator of a company must include a short description of the property of the company that the provisional liquidator may take into the provisional liquidator’s custody.
(4) The Court may require the plaintiff to give an undertaking as to damages.
6.2 Notice of appointment of provisional liquidator — Form 12
(1) This rule applies if the Court orders that an official liquidator be appointed as a provisional liquidator of a company.
(2) Not later than the day after the order is made, the plaintiff must:
(a) except if the plaintiff is the Commission — lodge an office copy of the order with the Commission; and
(b) serve an office copy of the order on the company (except if the plaintiff is the company) and on any other person as directed by the Court; and
(c) give to the provisional liquidator an office copy of the order and a written statement that the order has been served as required by paragraph (b).
(3) As soon as practicable after the order is made, the provisional liquidator must publish a notice of the provisional liquidator’s appointment.
(4) The notice must be:
(a) in accordance with Form 12; and
(b) published in accordance with rule 2.11.
Division 7 Liquidators
7.1 Resignation of liquidator (s 473 (1) of the Law)
(1) A liquidator appointed by the Court who wishes to resign office must file with the Registrar, and lodge with the Commission, a memorandum of resignation.
(2) The resignation takes effect on the filing and lodging of the memorandum.
7.2 Filling vacancy in office of liquidator (s 473 (7), s 502 of the Law)
(1) If, for any reason, there is no liquidator acting in a winding up, the Court may:
(a) in the case of a winding up by the Court — appoint another official liquidator whose written consent in accordance with Form 8 has been filed; and
(b) in the case of a voluntary winding up — appoint another registered liquidator whose written consent in accordance with Form 8 has been filed.
(2) The Court may make the appointment:
(a) in any case — on application by the Commission, a creditor or a contributory; or
(b) in the case of a winding up by the Court — on its own initiative.
7.3 Report to liquidator as to company’s affairs (s 475 of the Law)
(1) If a person is required under section 475 of the Law to submit and verify a report as to the affairs of a company, the liquidator must give to the person the appropriate forms and instructions for the preparation of the report.
(2) Except by order of the Court, no person is to be allowed out of the property of a company any costs or expenses incurred in relation to the preparation of the report that have not been:
(a) sanctioned by the liquidator before being incurred; or
(b) taxed or assessed.
(3) The liquidator must report to the Court any default in complying with the requirements of section 475 of the Law.
(4) In this rule:
liquidator includes a provisional liquidator.
7.4 Liquidator to file certificate and copy of settled list of contributories (s 478 of the Law)
If, in a winding up by the Court, a liquidator has settled and certified a list, or supplementary list, of contributories, the liquidator must, within 14 days after doing so, file the certificate and a copy of the list.
7.5 Release of liquidator and deregistration of company (s 480 (c) and (d) of the Law)
(1) This rule applies to an application by the liquidator of a company:
(a) for an order that the liquidator be released; or
(b) for an order that the liquidator be released and that the Commission deregister the company.
(2) The interlocutory process seeking the order must include:
(a) a notice stating that any objection to the release of the liquidator must be made by filing and serving a notice of objection, in the prescribed form, within 21 days after the date of service of the interlocutory process; and
(b) a statement setting out the terms of subsection 481 (3) of the Law.
Note Subsection 481 (3) of the Law provides that an order of the Court releasing a liquidator discharges the liquidator from all liability in respect of any act done or default made by the liquidator in the administration of the affairs of the company, or otherwise in relation to the liquidator’s conduct as liquidator, but any such order may be revoked on proof that it was obtained by fraud or by suppression or by concealment of any material fact.
(3) The supporting affidavit must include details of the following matters:
(a) whether the whole of the company’s property has been realised or whether so much of the company’s property has been realised as, in the liquidator’s opinion, can be realised without needlessly protracting the winding up;
(b) any calls made on contributories in the course of the winding up;
(c) any dividends paid in the course of the winding up;
(d) whether the committee of inspection (if any) has passed a resolution approving the liquidator’s release;
(e) whether the Commission has appointed an auditor to report on an account or statement of the position in the winding up under subsection 539 (2) of the Law;
(f) whether the Court has ordered a report on the accounts of the liquidator to be prepared;
(g) whether any objection to the release of the liquidator has been received by the liquidator from:
(i) an auditor appointed by the Commission or by the Court; or
(ii) any creditor, contributory or other interested person;
(h) whether any report has been submitted by the liquidator to the Commission under section 533 of the Law;
(i) whether the liquidator considers it necessary to report on the affairs of the company or any of its officers;
(j) any property disclaimed in the course of the winding up;
(k) any remuneration paid or payable to the liquidator and how such remuneration was determined;
(l) any costs, charges or expenses payable by the liquidator if the Court grants the liquidator’s release;
(m) if the application is made under paragraph 480 (c) of the Law — the facts and circumstances by reason of which it is submitted that the company should not be deregistered.
(4) The liquidator must include in the supporting affidavit the statements set out in paragraphs (a) and (b) of this subrule, including, if appropriate, the words in brackets:
(a) ‘To the best of my belief, there has been no act done or default made by me in the administration of the affairs of the subject corporation or otherwise in relation to my conduct as liquidator which is likely to give rise to any liability to the subject corporation or any creditor or contributory [except as disclosed in this affidavit]’;
(b) ‘I am not aware of any claim made by any person that there has been any such act or default [except as disclosed in this affidavit]’.
(5) The liquidator must file with, or annex to, the supporting affidavit:
(a) a statement of the financial position of the company at the date when the interlocutory process seeking release was filed; and
(b) a summary of the liquidator’s receipts and payments in winding up the company.
(6) Unless the Court otherwise orders, the liquidator must serve by prepaid post, on each creditor who has proved a debt in the course of the winding up, and on each contributory, a copy of the interlocutory process accompanied by:
(a) a copy of the summary of the liquidator’s receipts and payments in winding up the company; and
(b) a copy of the statement of the financial position of the company at the date when the interlocutory process seeking release was filed.
7.6 Objection to release of liquidator — Form 13
(1) A creditor or contributory of a company who wishes to object to the release of the liquidator of the company must, within 21 days after the date of service of the interlocutory process seeking release:
(a) file:
(i) a notice of objection in accordance with Form 13; and
(ii) if appropriate, an affidavit stating any facts relied on; and
(b) serve a copy of the notice and the affidavit (if any) on the liquidator.
(2) If the liquidator is served with a notice of objection by a creditor or contributory, the liquidator must, within 3 days after being served, serve on the creditor or contributory a copy of the affidavit supporting the interlocutory process.
7.7 Report on accounts of liquidator (s 481 of the Law)
(1) If the Court orders that a report on the accounts of a liquidator be prepared under subsection 481 (1) of the Law, the liquidator must give to the auditor appointed to prepare the report all information, books and vouchers required to prepare the report.
(2) On completing the report, the auditor must:
(a) file a copy of the report in a sealed envelope that is marked with the title and number of the proceeding and the words ‘Auditor’s report under subsection 481 (1) of the Corporations Law’; and
(b) serve a copy of the report on the liquidator; and
(c) lodge a copy of the report with the Commission.
(3) Except with the leave of the Court, a report is not available for inspection by any person except the liquidator or the Commission.
7.8 Application for payment of call (s 483 (3) (b) of the Law) — Form 14
The affidavit in support of an application by the liquidator of a company, under paragraph 483 (3) (b) of the Law, for an order for the payment of a call must be in accordance with Form 14.
7.9 Distribution of surplus by liquidator with special leave of the Court (s 488 (2) of the Law) — Form 15
(1) The affidavit in support of an application for special leave to distribute a surplus must state how the liquidator intends to distribute the surplus including the name and address of each person to whom the liquidator intends to distribute any part of the surplus.
(2) At least 14 days before the date fixed for hearing of the application, the liquidator must publish a notice of the application.
(3) The notice must be:
(a) in accordance with Form 15; and
(b) published in accordance with rule 2.11.
7.10 Powers delegated to liquidator by the Court (s 488 of the Law)
Subject to the Corporations Law, the Corporations Regulations, these Rules, and any order of the Court, the powers and duties conferred or imposed on the Court by Part 5.4B of the Law in respect of the matters mentioned in subsection 488 (1) of the Law may be exercised or performed by a liquidator appointed by the Court as an officer of the Court and subject to the control of the Court.
7.11 Inquiry into conduct of liquidator (s 536 of the Law)
(1) A complaint to the Court under paragraph 536 (1) (b) of the Law must be made:
(a) in the case of a winding up by the Court — by an interlocutory process seeking an inquiry; and
(b) in the case of a voluntary winding up — by an originating process seeking an inquiry.
(2) A report to the Court by the Commission under subsection 536 (2) of the Law must be made:
(a) in the case of a winding up by the Court — by filing:
(i) an interlocutory process seeking orders under the subsection; and
(ii) a written report in a sealed envelope that is marked with the title and number of the proceeding; and
(b) in the case of a voluntary winding up — by filing:
(i) an originating process seeking orders under the subsection; and
(ii) a written report in a sealed envelope that is marked with the title of the proceeding and provision for its number.
(3) The contents of a report filed under subrule (2) need not, at the time of filing, be verified by an affidavit.
(4) Except with the leave of the Court, a report made under subsection 536 (2) of the Law is not available for inspection by any person except the liquidator or the Commission.
(5) In this rule:
liquidator includes a provisional liquidator.
Division 8 Special managers (Part 5.4B of the Law)
8.1 Application for appointment of special manager (s 484 of the Law)
(1) An application by a liquidator for the appointment of a special manager in relation to a company must state the powers which, in the liquidator’s opinion, should be entrusted by the Court to the special manager.
(2) The supporting affidavit must state:
(a) the circumstances making it proper that a special manager be appointed; and
(b) details of the remuneration proposed to be paid to the special manager; and
(c) whether any committee of inspection in the winding up, or a meeting of creditors, has approved the appointment of a special manager.
8.2 Security given by special manager (s 484 of the Law)
(1) The Court may, from time to time, direct that the amount of security given by a special manager be varied.
(2) Unless the Court otherwise directs, the costs of furnishing the security given by a special manager in respect of a particular winding up:
(a) are the personal expenses of the special manager; and
(b) must not be charged against the property of the company as an expense incurred in the winding up.
8.3 Special manager’s receipts and payments (s 484 of the Law)
(1) A special manager must give to the liquidator:
(a) an account of the special manager’s receipts and payments; and
(b) a statutory declaration verifying the account.
(2) If the liquidator approves the account, the liquidator must include the total amounts of the special manager’s receipts and payments in the liquidator’s accounts.
Division 9 Remuneration of office-holders
9.1 Remuneration of receiver (s 425 (1) of the Law) —Form 16
(1) This rule applies to an application by a receiver of property of a corporation for an order under subsection 425 (1) of the Law fixing the receiver’s remuneration.
Note Under paragraph 425 (2) (b) of the Law, the Court may exercise its power to make an order fixing the remuneration of a receiver even if the receiver has died, or has ceased to act, before the making of the order or the application for the order.
(2) At least 21 days before filing an originating process, or interlocutory process, seeking the order, the receiver must serve a notice in accordance with Form 16 of the receiver’s intention to apply for the order, and a copy of any affidavit on which the receiver intends to rely, on the following persons:
(a) the person who appointed the receiver;
(b) any creditor holding security over all or any of the same property of the corporation (except if the creditor is the person who appointed the receiver);
(c) any administrator, liquidator or provisional liquidator of the corporation;
(d) any administrator of a deed of company arrangement executed by the corporation;
(e) if there is no person of the kind mentioned in paragraph (c) or (d):
(i) each of the 5 largest (measured by amount of debt) unsecured creditors of the corporation; and
(ii) each member of the corporation whose shareholding represents at least 10 per cent of the issued capital of the corporation.
(3) Within 21 days after the last service of the documents mentioned in subrule (2), any creditor or contributory, or any person mentioned in paragraph (2) (c), (d) or (e), may give to the receiver a notice of objection to the remuneration claimed, stating the grounds of objection.
(4) If the receiver does not receive a notice of objection within the period mentioned in subrule (3):
(a) the receiver may file an affidavit, made after the end of that period, in support of the originating process, or interlocutory process, seeking the order stating:
(i) the date, or dates, when the notice and affidavit required to be served under subrule (2) were served; and
(ii) that the receiver has not received any notice of objection to the remuneration claimed within the period mentioned in subrule (3); and
(b) the receiver may endorse the originating process, or interlocutory process, with a request that the application be dealt with in the absence of the public and without any attendance by, or on behalf of, the receiver; and
(c) the application may be so dealt with.
(5) If the receiver receives a notice of objection within the period mentioned in subrule (3), the receiver must serve a copy of the originating process, or interlocutory process, seeking the order on each creditor or contributory, or other person, who has given a notice of objection.
(6) An affidavit in support of the originating process, or interlocutory process, seeking the order must:
(a) state the nature of the work carried out by the receiver; and
(b) state the amount of remuneration claimed; and
(c) include a summary of the receipts taken and payments made by the receiver for the period for which remuneration is claimed; and
(d) if the receivership is continuing — give details of any matters delaying the completion of the receivership.
9.2 Remuneration of administrator (s 449E (1) of the Law) — Form 16
(1) This rule applies to an application by the administrator of a company under administration, or of a deed of company arrangement, for an order under subsection 449E (1) of the Law fixing the administrator’s remuneration.
(2) The administrator must not apply for the order until after the end of 28 days after the date when a meeting of creditors mentioned in paragraph 449E (1) (a) of the Law was held.
(3) At least 21 days before filing an originating process, or interlocutory process, seeking the order, the administrator must serve a notice in accordance with Form 16 of the administrator’s intention to apply for the order, and a copy of any affidavit on which the administrator intends to rely, on the following persons:
(a) each creditor who was present, in person or by proxy at the meeting of creditors;
(b) each member of any committee of inspection;
(c) each member of the company whose shareholding represents at least 10 per cent of the issued capital of the company.
(4) Within 21 days after the last service of the documents mentioned in subrule (3), any creditor or contributory may give to the administrator a notice of objection to the remuneration claimed, stating the grounds of objection.
(5) If the administrator does not receive a notice of objection within the period mentioned in subrule (4):
(a) the administrator may file an affidavit, made after the end of that period, in support of the originating process, or interlocutory process, seeking the order stating:
(i) the date, or dates, when the notice and affidavit required to be served under subrule (3) were served; and
(ii) that the administrator has not received any notice of objection to the remuneration claimed within the period mentioned in subrule (4); and
(b) the administrator may endorse the originating process, or interlocutory process, with a request that the application be dealt with in the absence of the public and without any attendance by, or on behalf of, the administrator; and
(c) the application may be so dealt with.
(6) If the administrator receives a notice of objection within the period mentioned in subrule (4), the administrator must serve a copy of the originating process, or interlocutory process, seeking the order on each creditor or contributory who has given a notice of objection.
(7) An affidavit in support of the originating process, or interlocutory process, seeking the order must:
(a) state the nature of the work carried out by the administrator; and
(b) state the amount of remuneration claimed; and
(c) include a summary of the receipts taken and payments made by the administrator for the period for which remuneration is claimed; and
(d) if the administration is continuing — give details of any matters delaying the completion of the administration.
9.3 Remuneration of provisional liquidator (s 473 (2) of the Law) — Form 16
(1) This rule applies to an application by a provisional liquidator of a company for an order under subsection 473 (2) of the Law determining the provisional liquidator’s remuneration.
(2) The application must be made by interlocutory process in the winding up proceeding.
(3) At least 21 days before filing the interlocutory process seeking the order, the provisional liquidator must serve a notice in accordance with Form 16 of the provisional liquidator’s intention to apply for the order, and a copy of any affidavit on which the provisional liquidator intends to rely, on the following persons:
(a) any liquidator (except the provisional liquidator) of the company;
(b) each member of any committee of inspection or, if there is no committee of inspection, each of the 5 largest (measured by amount of debt) creditors of the company;
(c) each member of the company whose shareholding represents at least 10 per cent of the issued capital of the company.
(4) Within 21 days after the last service of the documents mentioned in subrule (3), the liquidator, or any creditor or contributory, may give to the provisional liquidator a notice of objection to the remuneration claimed, stating the grounds of objection.
(5) If the provisional liquidator does not receive a notice of objection within the period mentioned in subrule (4):
(a) the provisional liquidator may file an affidavit, made after the end of that period, in support of the interlocutory process seeking the order stating:
(i) the date, or dates, when the notice and affidavit required to be served under subrule (3) were served; and
(ii) that the provisional liquidator has not received any notice of objection to the remuneration claimed within the period mentioned in subrule (4); and
(b) the provisional liquidator may endorse the interlocutory process with a request that the application be dealt with in the absence of the public and without any attendance by, or on behalf of, the provisional liquidator; and
(c) the application may be so dealt with.
(6) If the provisional liquidator receives a notice of objection within the period mentioned in subrule (4), the provisional liquidator must serve a copy of the interlocutory process seeking the order:
(a) on each creditor or contributory who has given a notice of objection; and
(b) on the liquidator (if any).
(7) An affidavit in support of the interlocutory process seeking the order must:
(a) state the nature of the work carried out by the provisional liquidator; and
(b) state the amount of remuneration claimed; and
(c) include a summary of the receipts taken and payments made by the provisional liquidator for the period for which remuneration is claimed; and
(d) if the winding up proceeding has not been determined — give details of:
(i) any reasons known to the provisional liquidator why the winding up proceeding has not been determined; and
(ii) any reasons why the provisional liquidator’s remuneration should be determined before the determination of the winding up proceeding.
9.4 Remuneration of liquidator (s 473 (3) of the Law) — Form 16
(1) This rule applies to an application by a liquidator of a company for an order under subsection 473 (3) of the Law determining the liquidator’s remuneration.
(2) The application:
(a) must be made by interlocutory process in the winding up proceeding; and
(b) must not be made until after the end of 28 days after the date of the meeting of creditors mentioned in subsection 473 (4) of the Law.
(3) At least 21 days before filing the interlocutory process seeking the order, the liquidator must serve a notice in accordance with Form 16 of the liquidator’s intention to apply for the order, and a copy of any affidavit on which the liquidator intends to rely, on the following persons:
(a) each creditor who was present, in person or by proxy, at the meeting of creditors;
(b) each member of any committee of inspection;
(c) each member of the company whose shareholding represents at least 10 per cent of the issued capital of the company.
(4) Within 21 days after the last service of the documents mentioned in subrule (3), any creditor or contributory may give to the liquidator a notice of objection to the remuneration claimed, stating the grounds of objection.
(5) If the liquidator does not receive a notice of objection within the period mentioned in subrule (4):
(a) the liquidator may file an affidavit, made after the end of that period, in support of the interlocutory process seeking the order stating:
(i) the date, or dates, when the notice and affidavit required to be served under subrule (3) were served; and
(ii) that the liquidator has not received any notice of objection to the remuneration claimed within the period mentioned in subrule (4); and
(b) the liquidator may endorse the interlocutory process with a request that the application be dealt with in the absence of the public and without any attendance by, or on behalf of, the liquidator; and
(c) the application may be so dealt with.
(6) If the liquidator receives a notice of objection within the period mentioned in subrule (4), the liquidator must serve a copy of the interlocutory process seeking the order on each creditor or contributory who has given a notice of objection.
(7) An affidavit in support of the interlocutory process seeking the order must:
(a) state the nature of the work carried out by the liquidator; and
(b) state the amount of remuneration claimed; and
(c) include a summary of the receipts taken and payments made by the liquidator for the period for which remuneration is claimed; and
(d) if the winding up is continuing — give details of any matters delaying the completion of the winding up.
9.5 Remuneration of special manager (s 484 (2) of the Law) — Form 16
(1) This rule applies to an application by a special manager of the property or business of a company for an order under subsection 484 (2) of the Law fixing the special manager’s remuneration.
(2) The application must be made by interlocutory process in the winding up proceeding.
(3) At least 21 days before filing the interlocutory process seeking the order, the special manager must serve a notice in accordance with Form 16 of the special manager’s intention to apply for the order, and a copy of any affidavit on which the special manager intends to rely, on the following persons:
(a) the liquidator of the company;
(b) each member of any committee of inspection or, if there is no committee of inspection, each of the 5 largest (measured by amount of debt) creditors of the company;
(c) each member of the company whose shareholding represents at least 10 per cent of the issued capital of the company.
(4) Within 21 days after the last service of the documents mentioned in subrule (3), the liquidator, or any creditor or contributory, may give to the special manager a notice of objection to the remuneration claimed, stating the grounds of objection.
(5) If the special manager does not receive a notice of objection within the period mentioned in subrule (4):
(a) the special manager may file an affidavit, made after the end of that period, in support of the interlocutory process seeking the order stating:
(i) the date, or dates, when the notice and affidavit required to be served under subrule (3) were served; and
(ii) that the special manager has not received any notice of objection to the remuneration claimed within the period mentioned in subrule (4); and
(b) the special manager may endorse the interlocutory process with a request that the application be dealt with in the absence of the public and without any attendance by, or on behalf of, the special manager; and
(c) the application may be so dealt with.
(6) If the special manager receives a notice of objection within the period mentioned in subrule (4), the special manager must serve a copy of the interlocutory process seeking the order:
(a) on each creditor or contributory who has given a notice of objection; and
(b) on the liquidator.
(7) The affidavit in support of the interlocutory process seeking the order must:
(a) state the nature of the work carried out by the special manager; and
(b) state the amount of remuneration claimed; and
(c) include a summary of the receipts taken and payments made by the special manager for the period for which remuneration is claimed; and
(d) if the special management is continuing — give details of any matters delaying the completion of the special management.
Division 10 Winding up generally
10.1 Determination of value of debts or claims (s 554A (2) of the Law)
A reference to the Court by a liquidator of a company under paragraph 554A (2) (b) of the Law must be made:
(a) in the case of a winding up by the Court — by filing an interlocutory process seeking an order estimating, or determining a method for working out, the value of the debt or claim; and
(b) in the case of a voluntary winding up — by filing an originating process seeking an order estimating, or determining a method for working out, the value of the debt or claim.
10.2 Disclaimer of contract (s 568 (1A) of the Law)
(1) The affidavit in support of an application by a liquidator, under section 568 (1A) of the Law, for leave to disclaim a contract in relation to a company must:
(a) specify the persons interested, and their interests, under the contract; and
(b) state the facts on which it is submitted that the contract should be disclaimed.
(2) The liquidator must serve the affidavit on each party to the contract (except the company) and on any person interested in the contract.
10.3 Winding up Part 5.7 bodies (s 583, s 585 of the Law) and registered schemes (s 601ND of the Law)
These Rules apply, with any necessary adaptations, and in the same way as they apply to a company, in relation to the winding up of a Part 5.7 body or a registered scheme.
Division 11 Examinations and orders (Part 5.9, Divisions 1 and 2 of the Law)
11.1 Definition for Division 11
In this Division:
examination summons means a summons under section 596A or 596B of the Law for the examination of a person about a corporation’s examinable affairs.
11.2 Application for examination or investigation under s 411, s 423 or s 536 (3) of the Law
(1) An application for an order for the examination or investigation of a person under section 411 or 423 or subsection 536 (3) of the Law may be made by:
(a) the Commission; or
(b) a person authorised by the Commission; or
(c) a creditor or contributory; or
(d) any other person aggrieved by the conduct of:
(i) a person appointed to administer a compromise or arrangement; or
(ii) a controller; or
(iii) a liquidator or provisional liquidator.
(2) The application may be made ex parte.
(3) The provisions of this Division that apply to an examination under Division 1 of Part 5.9 of the Law apply, with any necessary adaptations, to an examination or an investigation under section 411 or 423 or subsection 536 (3) of the Law.
11.3 Application for examination summons (s 596A, s 596B of the Law) — Form 17
(1) An application for the issue of an examination summons must be made by filing an interlocutory process or an originating process, as the case requires.
(2) The application may be made ex parte.
(3) The originating process, or interlocutory process, seeking the issue of the examination summons must be:
(a) supported by an affidavit stating the facts in support of the process; and
(b) accompanied by a draft examination summons.
(4) The originating process, or interlocutory process, and supporting affidavit must be filed in a sealed envelope marked, as appropriate:
(a) ‘Application and supporting affidavit for issue of summons for examination under section 596A of the Corporations Law’; or
(b) ‘Application and supporting affidavit for issue of summons for examination under section 596B of the Corporations Law’.
(5) If the application is not made by the liquidator, the liquidator must be given notice of the application and, if required by the liquidator, served with a copy of the originating process, or interlocutory process, and the supporting affidavit.
(6) If the application is not made by the Commission, the Commission must be given notice of the application and, if required by the Commission, served with a copy of the originating process, or interlocutory process, and the supporting affidavit.
(7) Unless the Court otherwise orders, an affidavit in support of an application for an examination summons is not available for inspection by any person.
(8) An examination summons is to be in accordance with Form 17.
11.4 Service of examination summons
An examination summons issued by the Court must be personally served, or served in any other manner as the Court may direct, on the person who is to be examined at least 8 days before the date fixed for the examination.
11.5 Discharge of examination summons
(1) This rule applies if a person is served with an examination summons.
(2) Within 3 days after the person is served with the examination summons, the person may apply to the Court for an order discharging the summons by filing:
(a) an interlocutory process seeking an order discharging the summons; and
(b) an affidavit stating the facts in support of the interlocutory process.
(3) As soon as practicable after filing the interlocutory process seeking the order and the supporting affidavit, the person must serve a copy of the interlocutory process and the supporting affidavit on:
(a) the person who applied for the examination; and
(b) unless that person is the Commission or a person authorised by the Commission — the Commission.
11.6 Filing of record of examination (s 597 (13) of the Law)
If the Court makes an order in relation to an examination under subsection 597 (13) of the Law, the Court may give directions for the filing of the written record of the examination.
11.7 Authentication of transcript of examination (s 597 (14) of the Law)
For the purposes of subsection 597 (14) of the Law, a transcript of an examination may be authenticated:
(a) by the person, or persons, who prepared the record of examination, or under whose supervision the record was prepared, certifying in writing signed by the person or persons, that the record is a true transcript of the record of examination; or
(b) by any person present at the examination, or any part of the examination, signing the person’s name at the bottom of each page of the written record that records a part of the examination at which the person was present.
11.8 Inspection of record or transcript of examination or investigation under s 411, s 423 or s 536 of the Law
(1) A written record or transcript of an examination or investigation under section 411, 423 or 536 is not available for inspection by any person except:
(a) with the consent of the liquidator (if any) or the Commission; or
(b) by leave of the Court.
(2) This rule does not apply to the liquidator, the Commission or any person authorised by the Commission.
11.9 Entitlement to record or transcript of examination held in public
(1) This rule applies if:
(a) an examination under section 597 of the Law is held wholly or partly in public; and
(b) a written record or transcript of the examination is filed in the Court.
(2) The person examined may apply to the Registrar, within 3 years after the date of completion of the examination, for a copy of the record or transcript of the part of the examination of the person held in public.
(3) On receiving an application from a person under subrule (2), and any applicable fee, the Registrar must give a copy of the record or transcript to the person.
11.10 Default in relation to examination
(1) This rule applies if a person is summoned or ordered by the Court to attend for examination, and:
(a) without reasonable cause, the person:
(i) fails to attend at the time and place appointed; or
(ii) fails to attend from day to day until the conclusion of the examination; or
(iii) refuses or fails to take an oath or make an affirmation; or
(iv) refuses or fails to answer a question that the Court directs the person to answer; or
(v) refuses or fails to produce books that the summons requires the person to produce; or
(vi) fails to comply with a requirement by the Court to sign a written record of the examination; or
(b) before the day fixed for the examination, the person who applied for the summons or order satisfies the Court that there is reason to believe that the person summoned or ordered to attend for examination has absconded or is about to abscond.
(2) The Court may:
(a) issue a warrant for the arrest of the person summoned or ordered to attend for examination; and
(b) make any other orders that the Court thinks just or necessary.
11.11 Service of application for order in relation to breaches etc by person concerned with corporation (s 598 of the Law)
(1) This rule applies to a person applying for an order under section 598 of the Law.
(2) In addition to complying with rules 2.7 and 2.8, the person must serve a copy of the originating process, or interlocutory process, as the case requires, and the supporting affidavit on any liquidator or provisional liquidator (except if the person is the liquidator or provisional liquidator) of the corporation or body.
Note Under rule 2.7, a plaintiff must serve a copy of the originating process, and any supporting affidavit, on a defendant to the proceeding and, if necessary, on the corporation to which the proceeding relates; and an applicant must serve a copy of an interlocutory process, and any supporting affidavit, on a respondent to the proceeding and, if necessary, on the corporation to which the proceeding relates. In certain cases, these documents may also be required to be served on the Commission — see rule 2.8.
Division 12 Acquisition of shares (Chapter 6 of the Law) and Securities (Chapter 7 of the Law)
12.1 Service on Commission in relation to proceedings under Chapter 6 or 7 of the Law
If the Commission is not a party to an application made under Chapter 6 or 7 of the Law, the plaintiff must serve a copy of the originating process and the supporting affidavit on the Commission as soon as practicable after filing the originating process.
12.2 Application for summons for appearance of person (s 1092 (3) of the Law) — Form 18
(1) An application for the issue of a summons under subsection 1092 (3) of the Law must be made by filing an originating process or an interlocutory process.
(2) The application may be made ex parte.
(3) The originating process, or interlocutory process, seeking the issue of the summons must be:
(a) supported by an affidavit stating the facts in support of the process; and
(b) accompanied by a draft summons.
(4) Unless the Court otherwise orders, a summons issued under this rule is to be in accordance with Form 18.
12.3 Application for orders relating to refusal to register transfer or transmission of shares etc (s 1094 of the Law)
As soon as practicable after filing an originating process seeking an order under section 1094 of the Law, the plaintiff must serve a copy of the originating process and the supporting affidavit on:
(a) the company; and
(b) any person against whom an order is sought.
Division 13 The futures industry (Chapter 8 of the Law)
13.1 Appeal against decision of futures exchange or futures association (s 1135 of the Law)
For the purposes of subsection 1135 (1) of the Law, a written notice of appeal against a decision of a futures exchange or futures association must:
(a) be in the form of an originating process; and
(b) state whether the whole, or part only, of the decision is complained of and, if part only, identify that part; and
(c) state concisely the grounds of appeal.
13.2 Proceedings against futures organisation to establish claim against fidelity fund (s 1243 of the Law)
A person who has been given leave by the Court, under subsection 1243 (3) of the Law, to bring a proceeding to establish a claim against the fidelity fund of a futures organisation may bring the claim in the proceeding in which the leave was granted.
Division 14 Powers of Courts (Part 9.5 of the Law)
14.1 Appeal from act, omission or decision of administrator, receiver or liquidator, etc (s 554A, s 1321 of the Law)
(1) All appeals to the Court authorised by the Law must be commenced by an originating process, or interlocutory process, stating:
(a) the act, omission or decision complained of; and
(b) in the case of an appeal against a decision — whether the whole or part only and, if part only, which part of the decision is complained of; and
(c) the grounds on which the complaint is based.
(2) Unless the Law or the Corporations Regulations otherwise provide, the originating process, or interlocutory process, must be filed within:
(a) 21 days after the date of the act, omission or decision appealed against; or
(b) any further time allowed by the Court.
(3) The Court may extend the time for filing the originating process, or interlocutory process, either before or after the time for filing expires and whether or not the application for extension is made before the time expires.
(4) As soon as practicable after filing the originating process, or interlocutory process, and, in any case, at least 5 days before the date fixed for hearing, the person instituting the appeal must serve a copy of the originating process, or interlocutory process, and any supporting affidavit, on each person directly affected by the appeal.
(5) As soon as practicable after being served with a copy of the originating process, or interlocutory process, and any supporting affidavit, a person whose act, omission or decision is being appealed against must file an affidavit:
(a) stating the basis on which the act, omission or decision was done or made; and
(b) annexing or exhibiting a copy of all relevant documents that have not been put in evidence by the person instituting the appeal.
Division 15 Proceedings under the ASC Law
15.1 Reference to Court of question of law arising at hearing of Commission (s 61 of the ASC Law)
Part 32 Divisions 1 and 2 of the Supreme Court Rules 1970 apply, with any necessary adaptations, to a reference of a question of law arising at a hearing by the Commission to the Court under section 61 of the ASC Law.
15.2 Reference to Court of question of law arising at hearing of Corporations and Securities Panel (s 196 of the ASC Law)
Part 32 Divisions 1 and 2 of the Supreme Court Rules 1970 apply, with any necessary adaptations, to a reference of a question of law arising at a hearing by the Corporations and Securities Panel to the Court under section 196 of the ASC Law.
15.3 Application for inquiry (s 70, s 201, s 219 of the ASC Law)
An application for an inquiry under subsection 70 (3), 201 (3) or 219 (7) of the ASC Law must be made by filing an originating process seeking an inquiry and orders under the relevant subsection.
Division 16 Appeals from Registrars
16.1 Appeal from registrar: winding up order
(1) An appeal shall lie to the Court from a winding up order made under the Corporations Law by a Registrar.
(2) Part 60 rules 9 and 1115A of the Supreme Court Rules 1970 shall apply, making such changes as it is necessary to make, to an appeal under subrule (1) as they apply to an appeal under Part 60 Division 3 of those rules (which relates to an appeal from a master to a Judge).
(3) For the purpose of the application of subrule (2), Part 60 rules 9 and 1115A shall be read as if:
(a) ‘registrar’ were substituted for ``master''; and
(b) ‘rule 16.1 of the Corporations Law Rules’ were substituted for ‘this Division’,
where appearing in those rules.
Schedule 1 Forms
(rule 1.6)
Form 1 Document title
IN THE SUPREME COURT OF NEW SOUTH WALES No. of [year]
DIVISION: [insert]
REGISTRY: [insert]
IN THE MATTER OF [full name of corporation to which the proceeding relates and, if applicable, the words ‘(in liquidation)’, ‘(receiver appointed)’, ‘(receiver and manager appointed)’, ‘(controller acting)’, or ‘(under administration)’]
ACN or ARBN: [insert ACN or ARBN]
AB (and Others)
Plaintiff(s)
[list, in a schedule, any further plaintiffs]
CD (and Others)
Defendant(s)
[list, in a schedule, any further defendants]
Form 2 Originating process
[Title]
A. DETAILS OF APPLICATION
This application is made under *section/*regulation [number] of the *Corporations Law/*ASC Law/*Corporations Regulations.
[State briefly the nature of the proceeding, eg application for winding-up on ground of insolvency; or complaint about a receiver.]
On the facts stated in the supporting affidavit(s), the plaintiff claims:
1
2
etc
AND
Date:
. . . . . . . . . . . . . . . . . . . . .
Signature of plaintiff or
plaintiff’s legal practitioner
B. NOTICE TO DEFENDANT(S)
TO: [name and address of each defendant (if any).
This application will be heard by the Supreme Court of New South Wales at [address of Court] at . . . . . . . . *am/*pm on . . . . . . . . If you or your legal practitioner do not appear before the Court at that time, the application may be dealt with, and an order made, in your absence. As soon after that time as the business of the Court will allow, any of the following may happen:
(a) the application may be heard and final relief given;
(b) directions may be given for the future conduct of the proceeding;
(c) any interlocutory application may be heard.
Before appearing before the Court, you must file a notice of appearance, in the prescribed form, in the Registry and serve a copy of it on the plaintiff.
Note A Corporation may not enter an appearance in, or defend, any proceedings otherwise than by a solicitor or by a director authorised in accordance with Part 11 rule 1A of the Supreme Court Rules 1970.
C. APPLICATION FOR WINDING UP ON GROUND OF INSOLVENCY
[Complete this section if this originating process is seeking an order that a company be wound up in insolvency on the ground that the company has failed to comply with a statutory demand (see section 459Q of the Corporations Law)]
[Set out particulars of service of the statutory demand on the company and of the failure to comply with the demand]
[Attach to this originating process a copy of the statutory demand and, if the demand has been varied by an order made under subsection 459H (4) of the Corporations Law because of a dispute or offsetting claim, a copy of the order made under that subsection.]
[The affidavit in support of this originating process must:
(a) verify service of the demand on the company; and
(b) verify the failure of the company to comply with the demand; and
(c) state whether and, if so, to what extent the debt, or each of the debts, to which the demand relates is still due and payable at the date when the affidavit is made.]
D. FILING
Date of filing: [date of filing to be entered by Court officer]]
This originating process is filed by [name] for the plaintiff.
E. SERVICE
The plaintiff’s address for service is [address of plaintiff’s legal practitioner or of plaintiff].
*It is not intended to serve a copy of this originating process on any person.
OR
*It is intended to serve a copy of this originating process on each defendant and on any person listed below:
[name of defendant and any other person on whom a copy of the originating process is to be served]
[Complete the following section if the time for service has been abridged]
The time by which a copy of this originating process is to be served has been abridged by order made by [name of Judge or other Court officer] on [date] to [time and date].
* Omit if not applicable
Form 3 Interlocutory process
[Title]
A. DETAILS OF INTERLOCUTORY APPLICATION
*This interlocutory application is made under *section/*regulation [number] of the *Corporations Law/*ASC Law/*Corporations Regulations.
On the facts stated in the supporting affidavit(s), the applicant, [name], applies for the following interlocutory relief:
1
2
etc
AND
Date:
. . . . . . . . . . . . . . . . . . . . .
Signature of applicant making this application or
applicant’s legal practitioner
B. NOTICE TO RESPONDENT(S)
TO: [name and address of each respondent to this interlocutory process (if any). If applicable, also state the respondent’s address for service.]
This interlocutory application will be heard by the Supreme Court of New South Wales at [address of Court] at . . . . . . . . *am/*pm on . . . . . . . . If you or your legal practitioner do not appear before the Court at that time, the application may be dealt with, and an order made, in your absence.
Before appearing before the Court, you must, except if you have already done so or you are the plaintiff in this proceeding, file a notice of appearance, in the prescribed form, in the Registry and serve a copy of it on the plaintiff in the originating process.
Note A Corporation may not enter an appearance in, or defend, any proceedings otherwise than by a solicitor or by a director authorised in accordance with Part 11 rule 1A of the Supreme Court Rules 1970.
C. FILING
This interlocutory process is filed by [name] for the applicant.
D. SERVICE
The applicant’s address for service is [address of applicant’s legal practitioner or of applicant].
*It is not intended to serve a copy of this interlocutory process on any person.
OR
*It is intended to serve a copy of this interlocutory process on each respondent and on any person listed below:
[name of respondent and any other person on whom a copy of the interlocutory process is to be served]
[Complete the following section if the time for service has been abridged]
The time by which a copy of this interlocutory process is to be served has been abridged by order made by [name of Judge or other Court officer] on [date] to [time and date].
* Omit if not applicable
Form 4 Notice of appearance
[Title]
A. DETAILS OF PERSON INTENDING TO APPEAR
Notice is given that [state full name and address], [briefly state your interest in the proceeding, eg a creditor for $ (amount), or a contributory, of the corporation] intends to appear before the Court at the hearing of the application to be heard at the Supreme Court of New South Wales [address] on [date] and, if applicable, to *oppose/*support the application.
Note A Corporation may not enter an appearance in, or defend, any proceedings otherwise than by a solicitor or by a director authorised in accordance with Part 11 rule 1A of the Supreme Court Rules 1970.
B. GROUNDS OF OPPOSITION TO WINDING UP
[Complete this section only if you are opposing an application to wind up a company]
The grounds on which I oppose the application for winding up are:
1
2
etc
C. SERVICE
[This section must be completed]
The address for service of the person giving this notice is [address of person’s legal practitioner or of person].
. . . . . . . . . . . . . . . . . . . . .
Signature of person giving notice
or of person’s legal practitioner
* Omit if not applicable
Form 5 Notice of intervention by the Commission
[Title]
The Australian Securities and Investments Commission, whose address for service is [address], intervenes in this proceeding.
Date:
. . . . . . . . . . . . . . . . . . . . .
Signed on behalf of the Commission
Name of signatory: [name].
Capacity of signatory: [capacity].
Form 6 Notice of hearing to approve compromise or arrangement
TO all the creditors and members of [name of company].
TAKE NOTICE that at . . . . . . . . *am/*pm on . . . . . . . ., the Supreme Court of New South Wales at [address of Court] will hear an application by [name of plaintiff] seeking the approval of a compromise or arrangement between the above-named company and its *members/*creditors as proposed by a resolution passed by the meeting of the *members/*creditors of the company held on [date].
[Complete this section if applicable]
The proposed compromise or arrangement as passed by the meeting was amended from the form of compromise or arrangement previously sent to you in the following respects:
[Set out the details of any amendment made at the meeting]
If you wish to oppose the approval of the compromise or arrangement, you must file and serve on the plaintiff a notice of appearance, in the prescribed form, together with any affidavit on which you wish to rely at the hearing. The notice of appearance and affidavit must be served on the plaintiff at its address for service at least 1 day before the date fixed for the hearing of the application.
[This section must be completed]
The address for service of the plaintiff is [address of plaintiff’s legal practitioner or of plaintiff].
Name of person giving notice or of person’s legal practitioner [name]
* Omit if not applicable
Form 7 Affidavit accompanying statutory demand
[Name of creditor(s)]
Creditor(s)
[Name of debtor company]
Debtor company
I, [name] of [address and occupation], *say on oath/*affirm:
1 I am [state deponent’s relationship to the creditor(s), eg, ‘the creditor’, ‘(name), one of the creditors’, ‘a director of the creditor’, ‘a director of (name), one of the creditors’] named in the statutory demand, which this affidavit accompanies, relating to the *debt/*debts owed by [name of debtor company].
2 [If the deponent is not the creditor, state the facts entitling the deponent to make the affidavit, eg ‘I am authorised by the creditor(s) to make this affidavit on its/their behalf].
3 [State the source of the deponent’s knowledge of the matters stated in the affidavit in relation to the debt or each of the debts, eg ‘I am the person who, on behalf of the creditor(s), had the dealings with the debtor company that gave rise to the debt’, ‘I have inspected the business records of the creditor in relation to the debtor company’s account with the creditor’].
4 *The debt of $[amount]/*The total $[amount] of the debts mentioned in the statutory demand is due and payable by the debtor company.
5 I believe that there is no genuine dispute about the existence or amount of the *debt/*any of the debts.
*Sworn/*affirmed at: [place of swearing or affirmation] on [date]
. . . . . . . . . . . . . . . . . . . . .
Signature of deponent
Before me:
. . . . . . . . . . . . . . . . . . . . .
Signature and designation of
person before whom deponent
swears or affirms affidavit
* Omit if not applicable
Form 8 Consent of liquidator/provisional liquidator
[Title]
I, [name], of +address], an official liquidator, consent to be appointed by the Court and to act as the *liquidator/*provisional liquidator of [name of company].
I am not aware of any conflict of interest or duty that would make it improper for me to act as *liquidator/*provisional liquidator of the company.
Date:
. . . . . . . . . . . . . . . . . . . . .
Signature of official liquidator
* Omit if not applicable
Form 9 Notice of application for winding up order
IN THE SUPREME COURT OF NEW SOUTH WALES No. of [year]
[Name of company]
ACN: [ACN of company to which proceeding relates]
1 A proceeding for the winding up of [name of company] was commenced by the plaintiff, [name of plaintiff], on [date of filing of originating process] and will be heard by the Supreme Court of New South Wales at [address of Court] at . . . . . . . . *am/*pm on . . . . . . . . Copies of documents filed may be obtained from the plaintiff’s address for service.
2 The plaintiff’s address for service is [address of plaintiff’s legal practitioner or of plaintiff].
3 Any person intending to appear at the hearing must file a notice of appearance, in accordance with the prescribed form, together with any affidavit on which the person intends to rely, and serve a copy of the notice and any affidavit on the plaintiff at the plaintiff’s address for service at least 3 days before the date fixed for the hearing.
Date:
Name of plaintiff or plaintiff’s legal practitioner: [name]
* Omit if not applicable
Form 10 Notice of application for winding up order by substituted plaintiff
IN THE SUPREME COURT OF NEW SOUTH WALES No. of [year]
[Name of company]
ACN: [ACN of company to which proceeding relates]
1 [Name of substituted plaintiff], who was, by order of the Supreme Court of New South Wales, substituted as a plaintiff, will apply to the Court at . . . . .*am/*pm on . . . . . . . . at [address of Court] for an order that the above company be wound up.
2 The address for service of the substituted plaintiff is [address of substituted plaintiff’s legal practitioner or of substituted plaintiff].
3 Any person intending to appear at the hearing must file a notice of appearance, in accordance with the prescribed form, together with any affidavit on which the person intends to rely, and serve a copy of the notice and any affidavit on the substituted plaintiff at its address for service at least 3 days before the date fixed for the hearing.
Date:
. . . . . . . . . . . . . . . . . . . . .
Signature of person giving notice
or of person’s legal practitioner
* Omit if not applicable
Form 11 Notice of winding up order and of appointment of liquidator
IN THE SUPREME COURT OF NEW SOUTH WALES
AT [location of Court]
IN THE MATTER OF [name of company to which the proceeding relates]
ACN: [ACN of company to which proceeding relates]
On [date], the Supreme Court of New South Wales, in Proceeding No. of [year], ordered the winding up of [name of company] and I was appointed as liquidator of the company.
Date:
Name and address of liquidator: [name and address]
Form 12 Notice of appointment of provisional liquidator
IN THE SUPREME COURT OF NEW SOUTH WALES
AT [location of Court]
IN THE MATTER OF [name of company to which the proceeding relates]
ACN: [ACN of company to which proceeding relates]
On [date], in Proceeding No. of [year], heard by the Supreme Court of New South Wales I was appointed as the provisional liquidator of the above company.
Date:
Name and address of provisional liquidator: [name and address]
Form 13 Notice by creditor or contributory of objection to release of liquidator
[Title]
[Name of creditor/contributory] of [address of creditor/contributory], a creditor of [name of company] for $[amount], or a contributory of [name of company] holding [number] shares in the company, objects to the grant of a release to [name of liquidator] of [address of liquidator], who is the liquidator of [name of company], on the following grounds:
[set out the grounds upon which the objection is made]
Date:
. . . . . . . . . . . . . . . . . . . . .
Signature of objector
or objector’s legal practitioner
Name of objector or objector’s legal practitioner: [name].
The objector’s address for service is [address of objector or objector’s legal practitioner].
Form 14 Affidavit in support of application for order for payment of call
[Title]
I, [name] of [address], liquidator, *say on oath/*affirm:
1 I am the liquidator of [name of company] (the company).
2 On [date] I made a call of $[amount] per share on all the contributories of the company [or specify the class of contributories on whom the call was made]. *Annexed/*Exhibited and marked A is a copy of the notice of the call. Each contributory whose name is shown in the Schedule marked B was duly served with notice of the call in the form annexed or exhibited and marked A.
3 Each contributory of the company whose name is set out in column 2 of the Schedule marked B has not paid, or caused to be paid, to me the sum specified opposite the contributory’s name in column 5 of the Schedule, which is due from that contributory under the call.
4 The amount set out opposite the name of each contributory in column 6 of the Schedule is an estimate of the amount due by that contributory in respect of the costs of applying for and giving effect to the order for payment of the call. The estimate of the amounts so due by the several contributories has been reached by apportioning the costs among the contributories who have not paid the call according to the liability of the respective contributories to contribute.
5 The amount set out opposite the name of each contributory in column 7 of the Schedule is the total of the amount due by that contributory in respect of the call as set out in column 5 and the amount due in respect of costs as set out in column 6.
*Sworn/*affirmed at: [place of swearing or affirmation] on [date]
. . . . . . . . . . . . . . . . . . . . .
Signature of deponent
Before me:. . . . . . . . . . . . . . . . . . . . .
Signature and designation of
person before whom deponent
swears or affirms affidavit
* Omit if not applicable
Schedule B
| Number on list of contributories | Name | Address | Character in which included in the list | Unpaid amount of call | Proportion of costs of application | Total amount payable
Form 15 Notice of application for leave to distribute a surplus |
IN THE SUPREME COURT OF NEW SOUTH WALES
APPLICATION NO:
IN THE MATTER OF [company name]
ACN: [ACN of company to which proceeding relates]
On . . . . . . . . at . . . . . . . ., the Supreme Court of New South Wales will hear an application by the liquidator of [name of company] in Proceeding No. of [year] for leave to distribute a surplus in respect of the liquidation of the company.
Any person intending to appear at the hearing must file a notice of appearance, in accordance with the prescribed form, together with any affidavit on which the person intends to rely, and serve a copy of the notice and affidavit on the liquidator at the address shown below at least 3 days before the date fixed for the hearing.
Name of liquidator: [name].
The liquidator’s address for service is [address].
. . . . . . . . . . . . . . . . . . . . .
Signature of liquidator
Form 16 Notice of intention to apply for remuneration
(rules 9.1, 9.2, 9.3, 9.4, 9.5)
IN THE MATTER OF [company name]
ACN: [ACN of company to which proceeding relates]
TO: [name and address of person to whom notice is given]
TAKE NOTICE that, not less than 21 days after this notice is served on you, I, [name and address], the *receiver/*administrator/*liquidator/*provisional liquidator/*special manager of the above company, intend to apply to the Court to determine my remuneration.
If you object to my application, you must, within 21 days after being served with this notice, serve on me a notice of objection stating the grounds of objection to the remuneration claimed.
Date:
. . . . . . . . . . . . . . . . . . . . .
Signature of *receiver/*administrator/*liquidator/
*provisional liquidator/*special manager
* Omit if not applicable
Form 17 Summons for public examination
[Title]
A. DETAILS OF SUMMONS
TO: [name and address of person to be examined]
You are summoned under *section 596A/*section 596B of the Corporations Law to:
(a) attend before the Supreme Court of New South Wales at [address of Court] at . . . . . . . . *am/*pm on . . . . . . . ., and from day to day until excused by the Court, to be examined on oath or affirmation about the examinable affairs of [name of corporation]; and
(b) *to produce at the examination the following books [specify books — include in a schedule if necessary].
Date:
. . . . . . . . . . . . . . . . . . . . .
Registrar [or other Court officer]
Form 18 Summons for appearance in relation to registration of transfer of interests
[Title]
TO: [name and address]
You are required to appear before the Supreme Court of New South Wales at [address of Court] at . . . . . . . . *am/*pm on . . . . . . . . and show cause why the document(s) specified in the Schedule should not be *delivered up/*produced at the office of [name of company] at [address of company] within [period as ordered], as required by the attached notice.
The address for service of the person applying for this summons is [address of person’s legal practitioner or of person].
Date:
. . . . . . . . . . . . . . . . . . . . .
Registrar [or other Court officer]
* Omit if not applicable
Schedule
[description of document(s)]
