Statutory Rules 1993   No. 1371

__________________

Federal Court Rules2 (Amendment)

WE, Judges of the Federal Court of Australia, make the following Rules under the Federal Court of Australia Act 1976.

         Dated 15 June 1993.

 

                                                                           c. a. sweeney j.

                                                                           r. m. northrop j.

                                                                           j. f. gallop j.

                                                                           j. d. davies j.

                                                                           j. s. lockhart j.

                                                                           k. j. jenkinson j.

                                                                           a. r. neaves j.

                                                                           b. a. beaumont j.

                                                                           m. r. wilcox j.

                                                                           j. a. miles j.

                                                                           d. m. ryan j.

                                                                           r. s. french j.

                                                                           m. r. einfeld j.

                                                                           h. w. olney j.

                                                                           j. w. von doussa j.

                                                                           d. g. hill j.

                                                                           m. f. o’loughlin j.

                                                                           d. f. o’connor

                                                                           t. j. higgins j.

                                                                           r. e. cooper j.

                                                                           a. p. whitlam j.

                                                                           m. j. beazley j.             

                                                                                   Judges of the Federal Court  of  Australia

 

j. t. howard

Registrar

____________

1.   Commencement

1.1   These Rules commence on 23 June 1993.

2.    Amendment

2.1   The Federal Court Rules are amended as set out in these Rules.

3.       Order 4, rule 12 (Alteration of date)

3.1     Add at the end:

            “(3)   This rule does not apply to a proceeding to which Order 71 applies if a public notice or advertisement of the date for hearing of the proceeding is required under Order 71 or by directions made by the Court in that proceeding.”.

4.      Order 22, rule 2 ((Discontinuance—Form 29)

4.1     Subrule 2 (1):

Omit “sub-rule 2”, substitute “subrules 2 and 3”.

4.2     Add at the end:

            “(3)   An application for a winding up order under section 459p or paragraph 461 (a) of the Corporations Law may not be discontinued without leave of the Court.”

5.      Order 71, rule 2 (Interpretation)

5.1     Subrule 2 (1):

Omit the definition of “liquidator”.

5.2     Subrule 2 (1):

Omit paragraph (c) of the definitition of “prescribed information”, substitute:

            “(c)   unless the company to which the proceedings relate is the applicant or has entered an appearance in the proceedings—a statement of the address of the company’s registered office, as determined by a search, made not earlier than 7 days before the application was filed, of records maintained by the Commission.”.

5.3     Subrule 2 (1):

Insert the following definition:

“‘controller’ means a controller of property of a company;”.

6.       Order 71, rule 4 (Form of documents)

6.1     Subrule 4 (4):

Omit the subregulation, substitute:

            “(4)   If applicable, the words “(in liquidation)”, “(receiver appointed)”, “(receiver and manager appointed)”, “(under official management)” or “(administrator appointed)” must be added to the name of a corporation that is a party to proceedings.”.

7.       Order 71, rule 6 (Commencement of proceedings by a person aggrieved—sections 350, 574, 777, 1082, 1140 and 1323)

7.1     After subrule 6 (1), insert:

          “(1a)   Persons named as respondents to an application under this rule must include:

              (a)   in an application under section 350 or section 574 of the Corporations Law—the Commission; and

              (b)   in an application under section 777 of the Corporations Law—the relevant securities exchange; and

              (c)   in an application under section 1140 of the Corporations Law—the relevant futures exchange, clearing house for a futures exchange, or futures association, as the case may be.”.

7.2     Subrule 6 (3):

Omit “filing the application,”, substitute “filing,”.

8.       Order 71, rule 7 (Powers of Registrars)

8.1     Paragraph 7 (1) (a)”:

Omit “or”, substitute “and”.

8.2     Subrules 7 (4) and (5):

Omit the subrules, substitute:

            “(4)   A decision or direction of a Registrar may be reviewed by the Court or a Judge.”.

9.       Order 71, rule 12 (Applications under sections 167, 168, 172, 194, 197, 198, 199, 202 and 1074)

9.1     Subrule 12 (4):

Omit “filing the application,”, substitute “filing,”.

10.     Order 71, rule 13 (Order confirming the issue of shares at a discount—subsection 190 (3))

10.1   Subrule 13 (3):

Omit “filing the application,”, substitute “filing,”.

11.     Order 71, rule 14(Application for order confirming reduction of capital—section 195)

11.1   Subrule 14 (18):

Omit all the words from “whose” to and including “application, and”.

12.     Order 71, rule 16 (Application opposing giving of financial assistance—section 205 (12))

12.1   Subrule 16 (4):

Omit “filing the application,”, substitute “filing,”.

13.     Order 71, rule 17 (Application by creditor in relation to a proposed buy-back scheme or buy-back—section 206ld)

13.1   Subrule 17 (3):

Omit “filing the application,”, substitute “filing,”.

14.     Order 71, Division 4

14.1   Heading to Division:

After “(Part 3.2),”, insert “Financial benefits to related parties of public companies (Part 3.2a),”.

 

 

15.     Order 71, rule 18 (Grant of leave to manage a corporation—section 229)

15.1   Subrule 18 (3):

Omit “filing the application,”, substitute “filing,”.

16.     Order 71, rule 19 (Order prohibiting a person from managing a corporation—section 230)

16.1   Subrule 19 (3):

Omit “filing the application,”, substitute “filing,”.

17.     Order 71, New rule 19a

17.1   After rule 19, insert:

Order sanctioning non-compliance with Part 3.2a—section 243zd

         “19a. (1)   This rule applies to an application for an order or orders under section 243zd of the Corporations Law.

            “(2)   An application must specify the condition prescribed in Part 3.2a of the Corporations Law in respect of which the applicant seeks a declaration.

            “(3)   As soon as practicable after filing the application, but in any event not later than 14 days after the date of filing, the applicant must serve a copy of the application:

              (a)   on the other parties to the transaction to which the application relates; and

              (b)   if the company to which the application relates is not the applicant or a party to the proceeding—on that company.

            “(4)   The Court may direct that notice of an application under section 243zd of the Corporations Law be given by advertisement or otherwise to such persons or classes of persons as the Court determines, and may adjourn the application for that purpose.”.

18.     Order 71, rule 20 (Application for orders in cases of oppression or injustice—section 260)

18.1   Subrule 20 (4):

Omit “filing the application,”, substitute “filing,”.

18.2   Subrule 20 (5):

Omit the subrule, substitute:

            “(5)   If the remedies sought in an application under section 260 of the Corporations Law include an order that the company be wound up, the applicant:

              (a)   may, at the same time as filing the application and any affidavit in support, lodge a nomination in accordance with Form 88 of an official liquidator who,if an order for the winding up is made and, unless the Court is satisfied that some other official liquidator should be appointed, will be appointed as liquidator; and

              (b)   must, within 14 days of filing, serve a copy of any such nomination on the company.”.

18.3   Subrule 20 (6):

Omit “5 days”, substitute “7 days”.

19.     Order 71, Division 6

19.1   Omit the Division heading, substitute:

“Division 6—Receivers and Other Controllers of Corporation Property—Part 5.2”’

20.     Order 71, new rule 27a

20.1   Before rule 28, insert:

Declaration as to validity of controller’s appointment—section 418a

         “27a.   (1)     A person (other than a controller) who intends to file an application for a declaration concerning the validity of a controller’s appointment under section 418a of the Corporations Law must give written notice of the proposed application to the controller, not later than the day before the application is filed:

              (a)   by hand delivery; or

              (b)   by express post addressed to the controller.

            “(2)   An application for a declaration must be accompanied by an affidavit annexing a copy of the notice required under subrule (1).

            “(3)   As soon as practicable after filing an application for a declaration, and in any event not later than 7 days after the date of filing, the applicant must serve a copy of the application on;

              (a)   if the controller is not the applicant—the controller; and

              (b)   if the company concerned is not the applicant—that company.

            “(4)   The Court may direct that notice of an application be given by advertisement or otherwise to such persons or classes of persons as the Court determines, and may adjourn the application for that purpose.”.

21.     Order 71, new rules 28a. 28b and 28c

21.1   After rule 28, insert:

Application for relief of controller from liability—subsection 419a (7)

         “28a.   (1)   An application under subsection 419a (7) of the Corporations Law must be accompanied by an affidavit setting out the identity of persons to whom the controller is or may be liable for rent or other payments in the absence of an order relieving the controller from liability.

            “(2)   As soon as practicable after filing the application and affidavit, and in any event not later than 7 days after the date of filing, the controller must serve a copy of the application and affidavit on each of the persons identified in the affidavit as a person to whom the controller is or may be liable.

Court’s power to authorise managing controller to dispose of property despite prior charge—section 420b

         “28b.   (1)   An application under section 420b of the Corporations Law must be accompanied by an affidavit setting out:

              (a)   the nature of the property that the controller seeks authority to dispose of; and

              (b)   a summary of the terms of the proposed sale or disposition; and

              (c)   the identity of the proposed purchaser or disponee; and

             (d)   the identity of the person who holds a prior charge over the property and the nature of that charge; and

              (e)   the steps taken by the managing controller to obtain the consent of the holder of the prior charge to the sale or disposal; and

              (f)   the identity of any other persons who, to the knowledge of the applicant, hold an interest in the property.

            “(2)   As soon as practicable after filing the application and affidavit, and in any event not later than 7 days after the date of filing, the applicant must serve a copy of the application and affidavit on:

              (a)   the person identified in that affidavit as the holder of the prior charge; and

              (b)   any other person identified in that affidavit as holding an interest in the property; and

              (c)   the company concerned.

Receiver’s power to carry on a corporation’s business during a winding-up—section 420c

         “28c.   (1)   As soon as practicable after filing an application under section 420c of the Corporations Law, and in any event not later than 7 days after the date of filing, the applicant must serve a copy of the application on the liquidator of the corporation.”.

22.     Order 71, rule 29 (Inquiry as to conduct of a controller—section 423)

22.1   Subrule 29 (1):

Omit “receiver” wherever occurring, substitute “controller”.

22.2   Subrule 29 (3):

Omit “receiver of property of a corporation”, substitute “controller”.

22.3   Subrule 29 (3):

Omit “ the receiver”, substitute “the controller”.

22.4   Paragraphs 29 (3) (a) and (b):

Omit “ receiver”, substitute “controller”.

23.     Order 71, rule 30 (Application by controller for directions—section 424)

23.1   Subrule 30 (1):

Omit “receiver of property of a corporation”, substitute “controller”.

23.2   Subrule 30 (1):

Omit “ receiver”, substitute “controller”.

24.     Order 71, new rules 30a , 30b, and 30c

24.1   After rule 30, insert:

Court’s power to fix receiver’s remuneration—section 425

         “30a.   (1)   As soon as practicable after filing an application under section 425 of the Corporations Law, and in any event not later than 7 days after the date of filing, the applicant must serve a copy of the application on:

              (a)   if a liquidator of the corporation is not the applicant—that liquidator; and

              (b)   if an administrator of the corporation is not the applicant—that administrator; and

              (c)   if an administrator of a deed of company arrangement executed by the corporation is not the applicant—that administrator; and

             (d)   if the receiver concerned is not the applicant—the receiver; and

              (e)   the Commission.

Court’s power to remove controller for misconduct—section 434a

         “30b.   (1)   Evidence brought by an applicant in support of an application for the removal of a controller under section 434a of the Corporations Law must include an affidavit:

              (a)   stating any material facts relied upon by the applicant in support of the application; and

              (b)   identifying the grounds on which it is said that the controller should be removed.

            “(2)   As soon as practicable after filing the application and affidavit in support, and in any event not later than 7 days after the date of filing, the applicant must serve a copy of the application and affidavit on:

              (a)   the controller; and

              (b)   the corporation concerned.

Removal of redundant controller—section 434b

         “30c.   (1)   An application for the removal of a redundant controller under section 434b of the Corporations Law must be accompanied by an affidavit setting out:

              (a)   the nature of the property in relation to which the controller is appointed; and

              (b)   the identity of the holder of the charge under which the controller is appointed; and

              (c)   the grounds on which the applicant relies to allege that the controller is redundant.

            “(2)   As soon as practicable after filing the application, and in any event not later than 7 days after the date of filing, the applicant must serve a copy of the application on:

              (a)   the person specified in that affidavit as the holder of the charge under which the controller was appointed; and

              (b)   the controller.”.

25.    Order 71, rule 31 (Stay of proceedings where company is under official management—section 444)

25.1   Add at the end:

            “(4)   This rule applies only to companies placed in official management before 23 June 1993.”.

26.    Order 71, rule 32 (Inquiry as to conduct of official manager—subsection 452 (4))

26.1   Add at the end:

            “(6)   This rule applies only to companies placed in official management before 23 June 1993.”.

27.    Order 71, rule 33 (Application for variation or cancellation of resolution to place company  under official management—section 454)

27.1   Add at the end:

            “(8)   This rule applies only to companies placed in official management before 23 June 1993.”.

28.    Order 71, rule 34 (Release of official manager—section 456)

28.1   Add at the end:

            “(2)   This rule applies only to companies placed in official management before 23 June 1993.”.

29.     Order 71, new Division 7a

29.1   After rule 34, insert:

“Division 7a—Administration of a Company’s Affairs (Part 5.3a)

Applications under Part 5.3a

         “34a.   (1)   An application under Part 5.3a of the Corporations Law must be made in accordance with Form 5.

            “(2)   Without limiting the generality of Order 71 rule 9, the Court may direct that notice of an application within the scope of Part 5.3a of the Corporations Law be given by advertisement or otherwise to such persons or classes of persons as the Court determines, and may adjourn the application for that purpose.

            “(3)   As soon as practicable after filing an application that relates to a matter specified in Column 1 of the following table, and in any event not later than 7 days after the date of filing, the applicant must serve a copy of the application on the person or persons specified in Column 2 of the table.

 

Column 1  Nature of application	Column 2  Persons to be served copy
Application for leave to enforce a charge if an administrator has been appointed— section 440b	The administrator of the company concerned
Application for leave to take possession of property—section 440c	The administrator of the company concerned

 

 

Column 1  Nature of application	Column 2  Persons to be served copy
Application for leave to begin, or proceed, with a proceeding in a court against a company which is in administration, or in relation to any of its property—section 440d	The administrator of the company concerned
Application for leave to begin, or proceed, with enforcement process in relation to the property of a company—section 440f	The administrator of the company concerned
Application to permit a court officer to take action, or to make a payment, which would be prohibited under subsection 440g (2)	The administrator of the company concerned
Application for leave to take enforcement action under a guarantee—section 440j	(a)  The person who gave the guarantee concerned; and (b)  the administrator of the company concerned
Application to limit powers of chargee in relation to charged property—section 441d	The chargee, receiver or other person, to which the application properly relates
Application to limit powers of receiver etc. in relation to property used by company—section 441h	The person who has entered into possession or assumed control of property or who exercises any other power in relation to the property, in respect of whom the application is made.

 

Column 1  Nature of application	Column 2  Persons to be served copy
Application for leave to dispose of: (a)  property of a company in administration which is subject to a charge; or (b)  property that is used or occupied by, or is in the possession of, a company in administration but of which someone else is the owner or lessor; —section 442C	The chargee, owner or lessor of the property concerned.
Application for relief of administrator from personal liability for rent—section 443b	The owner or lessor of the property concerned.
Application for extension of time for execution of deed of company arrangement—section 444b (2)	(a)  The company concerned (if it is not the applicant); and (b)  the administrator of the company (if he or she is not the applicant)
Application for leave to act inconsistently with deed of company arrangement—section 444c	The administrator concerned
Application by a person bound by a deed of company arrangement to begin, or proceed with: (a)  a proceeding against the company or in relation to any of its property; or (b)  enforcement process in relation to the property of the company —section 444e	The administrator of the company concerned

 

Column 1  Nature of application	Column 2  Persons to be served copy
Application for an order cancelling a variation of a deed of company arrangement—section 445b	The administrator concerned
Application for an order terminating a deed of company arrangement—section 445d	(a)  The administrator of the deed of company arrangement (if he or she is not the applicant); and (b)  the company concerned (if it is not the applicant)
Application for an order as to the application of Part 5.3a in respect of a particular company—section 447a	(a)  If the company is in administration—the adminis-trator of the company (if he or she is not the applicant); and (b)  if the company has executed a deed of company arrangement—the deed’s administrator (if he or she is not the applicant)
Application for an order to protect interests of a company’s creditors during an administration—section 447b	(a)  The administrator of the company (if he or she is not the applicant); or (b)  the administrator of the deed of company arrangement concerned (if he or she is not the applicant)
Application for declaration as to whether administrator is validly appointed—section 447c	(a)  The person who holds a purported appointment as administrator of the company, or the administrator of the deed of company arrangement (if he or she is not the applicant); and (b)  the company (if it is not the applicant)
Column 1  Nature of application	Column 2  Persons to be served copy
Application for the determination, or review, of the remuneration of an administrator; section 449e	The administrator of the company concerned or of the deed of arrangement of the company concerned, as the case may be (if he or she is not the applicant)

Court’s power to limit rights of secured creditor or owner or lessor of property—subsection 444f (1)

         “34b.   (1)   An application for an order under subsection 444f (1) of the Corporations Law must be accompanied by an affidavit that:

              (a)   annexes a copy of the proposed deed of company arrangement or of the executed deed of company arrangement, as the case may be; and

              (b)   sets out the identity of the secured creditor or owner or lessor, as the case may be, of property to which the application relates; and

              (c)   sets out the nature of the security or the interest in the property; and

             (d)   specifies the grounds (if any) on which it is said that the interests of the creditor, owner or lessor will be adequately protected by the terms of the deed.

            “(2)   As soon as practicable after filing the application and affidavit, and in any event not later than 7 days after the date of filing, the applicant must serve a copy of the application and affidavit on any creditor, owner or lessor of property to which the application relates.

Application to avoid or validate a deed of company arrangement—section 445g

         “34c.   (1)   A person (other than the administrator of a deed of company arrangement) who intends to file an application under section 445g of the Corporations Law for an order avoiding the deed of company arrangement , must give written notice of the proposed application  to the administrator not later than the day before the application is filed:

              (a)   by hand delivery; or

              (b)   by express post addressed to the administrator.

            “(2)   An application for an order under subsection 445g (1) of the Corporations Law must be accompanied by an affidavit:

              (a)   stating any material facts relied on by the applicant in support of the application; and

              (b)   identifying the grounds on which it is said that the Court should make an order under subsection 447g (1) of the Corporations Law; and

              (c)   if the application is for an order avoiding the deed—annexing a copy of the notice required under subrule (1).

            “(3)   As soon as practicable after filing an application and affidavit, and in any event not later than 7 days after the date of filing, the applicant must serve a copy of the application and affidavit on:

              (a)   if the administrator of the deed of company arrangement is not the applicant—the administrator; and

              (b)   the Commission.

Application by administrator for directions—section 447d

         “34d.   (1)   An application to the Court under section 447d of the Corporations Law must indicate the matter in respect of which the administrator seeks directions from the Court.

            “(2)   An application must be accompanied by an affidavit setting out any matters known to the applicant and material to the application.

Supervision of administrator of company or deed of company arrangement—section 447e

         “34e.   (1)   An application for an order under subsection 447e (1) of the Corporations Law must be accompanied by an affidavit:

              (a)   stating any material facts relied upon by the applicant in support of the application; and

              (b)   identifying the grounds on which it is said that the Court should make an order under subsection 447e (1) of the Corporations Law.

            “(2)   As soon as practicable after filing an application and affidavit, and in any event not later than 7 days after the date of filing, the applicant must serve a copy of the application and affidavit on:

              (a)   the administrator of the company or of the deed of company arrangement, as the case may be; and

              (b)   the Commission.

Removal of administrator—section 449b

         “34f.   (1)   An application for an order under subsection 449b of the Corporations Law must be accompanied by an affidavit:

              (a)   stating any material facts relied upon by the applicant in support of the application; and

              (b)   identifying the grounds on which it is said that the Court should make an order under subsection 447e (1) of the Corporations Law.

            “(2)   As soon as practicable after filing an application and affidavit and in any event within 7 days after the date of filing, the applicant must serve a copy of the application and affidavit on:

              (a)   the administrator of the company or of the deed of company arrangement concerned; and

              (b)   the Commission.

Vacancy in office of administrator of a company or of administrator of a deed of company arrangement—sections 449c and 449d

         “34g.   (1)   This rule applies to an application:

              (a)   under section 449c of the Corporations Law—for an order that a person be appointed as administrator of a company; or

              (b)   under section 449d of the Corporations Law—for an order that a person be appointed as administrator of a deed of company arrangement.

            “(2)   At the same time as filing an application, the applicant must lodge a nomination in accordance with Form 92a of a person who (unless the Court is satisfied that some other person should be appointed) will be appointed:

              (a)   as administrator of the company, if an order under section 449c of the Corporations Law is made; or

              (b)   as administrator of the deed of company arrangement, if an order under section 449d of the Corporations Law is made.

            “(3)   Within 14 days of filing the application, the applicant must file a written acknowledgment in accordance with Form 92b, signed by the person nominated under subrule (2).

            “(4)   The applicant must publish a notice of the application in accordance with Form 92c, in the manner prescribed by rule 104, not later than 7 days before the date on which the application is to be heard.”.

30.     Order 71, rule 35 (Address for service in winding up applications)

30.1   Subrule 72 (1):

Omit “section 460 or 461.”, substitute “section 459p or 462 of the Corporations Law.”.

31.     Order 71, rule 36 (Application for a winding up order under section 461)

31.1   Omit the rule substitute:

Application for a winding up order—section 462

           “36.   (1)     This rule applies to an application for a winding up order under section 462 of the Corporations Law, on or after 23 June 1993.

            “(2)   On filing and serving an application, the applicant must also file and serve:

              (a)   an affidavit made not earlier than 7 days before the application is filed, setting out the prescribed information, which may be in , or substantially in, accordance with Form 128; and

              (b)   an affidavit made not earlier than 7 days before the application is filed, setting out:

                           (i)   any other material facts to be relied on by the applicant in support of the application; and

                          (ii)   the grounds of the application and a reference to the provision or provisions of section 461 of the Corporations Law on which the applicant relies.

            “(3)   If an application is made on a ground provided for by paragraph 461 (a) of the Corporations Law, the affidavit referred to in paragraph (2) (a) must:

              (a)   include a statement whether, at the date of the application, the company is able to pay all its debts as and when they become due and payable; and

              (b)   annex the most recent accounts of the company that are lodged with the Commission.

            “(4)   The affidavit referred to in paragraph (2) (b) must be made by a person who can depose of his or her own knowledge to at least some of the grounds relied on for the winding up of the company.

            “(5)   Subject to subrule (6), at the same time as filing the application and any affidavit in support, the applicant may lodge a nomination in accordance with Form 88 of an official liquidator who will be appointed as liquidator (unless the Court is satisfied that some other official liquidator should be appointed) if an order for the winding up of the company is made.

            “(6)   Subrule (5) applies to a voluntary winding up occurring under Part 5.5 of the Corporations Law, if for the purposes of winding up the affairs and distributing the property of the company, a person has been nominated to be liquidator:

              (a)   by the company at its meeting; or

              (b)   by the creditors of the company at their meeting.

            “(7)   As soon as is practicable after filing the application and any affidavit in support, and in any event not later than 14 days after the date of filing, the applicant (unless it is the company) must serve on the company, in a manner permitted by section 220 of the Corporations Law:

              (a)   a signed and sealed copy of the application; and

              (b)   the affidavits on which it relies; and

              (c)   any nomination of a liquidator under subrule (5).

            “(8)   Unless the Court orders to the contrary, notice of an application in accordance with Form 93 must be published in the manner prescribed by rule 104 not earlier than 3 days after the date a copy of the application was served on the company and not later than 7 days before the day appointed for directions under Order 4, rule 8.

            “(9)   If the Court thinks fit, it may hear and determine an application for the winding up of a company on the day appointed for directions under Order 4, rule 8, or a day subsequently appointed for directions in the proceedings.

          “(10)   If the company to which a winding up application  relates intends to appear on the day appointed for directions or on the hearing of a winding up application, and to oppose the application, it must:

              (a)   file a.notice of appearance in accordance with Form 79, specifying the grounds of opposition and an affidavit verifying those grounds in accordance with Form 93a; and

              (b)   serve a copy of the notice of appearance and affidavit on the applicant, not later than 2 days before the day appointed for directions or the day of the hearing, as the case may be.

          “(11)   A person (other than the company to which a winding up application  relates) who intends to appear on the day appointed for directions, or on the hearing of a winding up application, must:

              (a)   file:

                           (i)   a notice of appearance in accordance with Form 79, specifying any grounds of opposition to the application; and

                          (ii)   if he or she opposes the application—an affidavit verifying the grounds of opposition in accordance with Form 93a; and

              (b)   serve a copy of the notice of appearance and affidavit on the applicant not later than 2 days before the day appointed for directions or the day of the hearing, as the case may be.

        [NOTE TO APPLICANTS:  Section 465C of the Corporations Law provides that a person may not oppose an application for winding up of a company under section 459P, 462 or 464, without the leave of the Court, unless the person has filed and served on the applicant notice of the grounds on which the person opposes the application and an affidavit verifying the matters stated in the notice, within the period prescribed by the Rules.]

          “(12)   At the first directions hearing or at any subsequent directions hearing, the Court may direct the applicant or its solicitors to prepare and file a list in accordance with Form 80 of the names and addresses of persons who have given notice of their intention to appear in the proceedings.

          “(13)   Without limiting any right of inspection otherwise available under Order 46, rule 6, a person who is or claims to be a contributory, member, creditor or officer of a company, and who makes application in a form approved by the Registrar, must:

              (a)   be permitted by the Registrar to inspect an application to wind up the company , and any affidavits in relation to the application that are in the Registrar’s custody; and

              (b)   on payment of the prescribed fee—be provided with  a copy of those documents.

          “(14)   Nothing in this rule shall restrict any power of the Court to appoint more than one liquidator and to declare whether anything that is required by the Corporations Law to be done by the liquidator is to be done by all, or by any one or more, of the persons appointed.

          “(15)   An application to which this rule applies may not be discontinued without the leave of the Court.”.

32.     Order 71, new rules 36a , 36b and 36c

32.1   After rule 36, insert:

Form of affidavit in support of statutory demand—section 459e

         “36a.   (1)     An affidavit verifying that a debt is due, for the purposes of subsection 459e (3) of the Corporations Law, must:

              (a)   be in accordance with Form 93b; and

              (b)   contain the statement headed ‘Important Note’ set out in the form; and

              (c)   not state a proceedings number.

            “(2)   An affidavit under this rule must not be filed with the Court unless winding up proceedings have been commenced in the matter to which the affidavit relates.

            “(3)   Unless the Court orders to the contrary, an affidavit under this rule must be made by a person who can depose to his or her own knowledge of the indebtedness of the company.

            “(4)   For the purposes of subsection 459e (3) of the Corporations Law, an affidavit in support of a statutory demand that complies with the rules of a Supreme Court of a State or Territory is taken to be an affidavit that complies with this rule.

Application to set aside a statutory demand—section 459g

         “36b.   An application under subsection 459g (1) of the Corporations Law must be made in accordance with Form 5 and must be accompanied by an affidavit:

              (a)   stating any material facts relied upon by the applicant in support of the application; and

              (b)   identifying the grounds on which it is said that the Court should make an order under section 459h of the Corporations Law setting aside the demand.

        [NOTE TO APPLICANTS:  Subsection 459G (3) of the Corporations Law provides that an application is made in accordance with section 459G only if, within 21 days after a statutory demand is served on the company, an affidavit supporting the application is filed with the Court and a copy of the application and of the supporting affidavit are served on the person who served the demand on the company.]

Application for leave to bring a winding up application under section 459p (2)

         “36c.   (1)     An application by a person described in section 459p (2) of the Corporations Law for leave to bring a winding up application must be made in accordance with Form 5.

            “(2)   An application for leave must be accompanied by an affidavit:

              (a)   setting out the prescribed information; and

              (b)   specifying the material facts on which the applicant relies, for the purposes of subsection 459p (3) of the Corporations Law, to establish a prima facie case that the company is insolvent.

            “(3)   As soon as practicable after filing the application and affidavit, and in any event not later than 14 days after the date of filing, the applicant must serve a copy of the application and the affidavit on the company to which the application relates.

            “(4)   If the Court grants leave under subsection 459p (2) of the Corporations Law to an applicant to bring a winding up application:

              (a)   an application in accordance with Form 93c may be filed in the proceedings in which leave to bring the winding up application was granted; and

              (b)   the winding up proceedings shall othewise proceed under Order 71, rule 37.”.

33.     Order 71, rule 37 (Winding up of a company under section 460 or paragraph 461 (a))

33.1   Omit the rule, substitute:

Winding up of a company in insolvency under section 459p

           “37.   (1)     This rule applies to an application under section 459p of the Corporations Law for a winding up order.

            “(2)   An application that relies on a failure to comply with a statutory demand may be made in or substantially in accordance with Form 93c and must set out the matters referred to in paragraph 459q (a) of the Corporations Law and have attached the documents referred to in paragraph 459q (b) of the Corporations Law.

            “(3)   An application that does not rely on a failure to comply with a statutory demand, may be made in or substantially in accordance with Form 93c and must specify the grounds on which the applicant relies to allege that the company is insolvent.

        [NOTE TO APPLICANTS:  Section 465A of the Corporations Law requires a person who applies for an order that a company be wound up under section 459P, 462 or 464, to lodge a notice in the prescribed form that the application has been made; to serve a copy of it on the company within 14 days after the application is made; and to advertise the application as prescribed in the Rules.]

            “(4)   On filing and serving an application referred to in subrule (2), the applicant must also file and serve:

              (a)   an affidavit made not earlier than 7 days before the application is filed, setting out the prescribed information, which may be in or substantially in accordance with Form 128; and

              (b)   if the debt is not a judgment debt—an affidavit in or substantially in accordance with Form 94 setting out:

                           (i)   a statement of the debt alleged and details of how and when it was incurred; and

                          (ii)   a statement that  the debt is due and payable to the applicant.

            “(5)   On filing and serving an application referred to in subrule (3), the applicant must also file and serve an affidavit setting out the material facts relied on in support of the application.

            “(6)   Unless the Court orders to the contrary, an affidavit referred to in paragraph (4) (b) or subrule (5) must be:

              (a)   made by a person who can depose to the indebtedness of the company, or to the facts relied on in support of the application, as the case may be, to his or her own knowledge ; and

              (b)   served on the company, with the copy of the application.

            “(7)   At the same time that the application and any affidavit in support is filed, the applicant may lodge a nomination in accordance with Form 88 of an official liquidator who, if an order for the winding up of the company is made, and unless the Court is satisfied that some other official liquidator should be appointed, will be appointed as liquidator.

            “(8)   As soon as is practicable after filing the application and any affidavit in support, and in any event not later than 14 days after the date of filing, the applicant (unless it is the company) must serve on the company concerned a copy of any affidavits on which it relies, and any nomination of a liquidator under subrule (7), in a manner permitted by section 220 of the Corporations Law.

            “(9)   Unless the Court orders to the contrary, notice of an application in  accordance with Form 93 must be published in the manner prescribed by rule 104 not earlier than 3 days after the date a copy of the application was served on the company and not later than 7 days before the day appointed for directions under Order 4, rule 8.

          “(10)   If the Court thinks fit, it may hear and determine an application for the winding up of a company on the day appointed for directions under Order 4, rule 8 or a day subsequently appointed for directions in the proceedings.

          “(11)   If the company to which a winding up application  relates intends to appear on the day appointed for directions or on the hearing of a winding up application, and to oppose the application, it must:

              (a)   file a.notice of appearance in accordance with Form 79, specifying the grounds of opposition and an affidavit verifying those grounds in accordance with Form 93a; and

              (b)   serve a copy of the notice of appearance and affidavit on the applicant, not later than 2 days before the day appointed for directions or the day of the hearing, as the case may be.

          “(12)   A person (other than the company to which a winding up application  relates) who intends to appear on the day appointed for directions, or on the hearing of a winding up application, must:

              (a)   file:

                           (i)   a notice of appearance in accordance with Form 79, specifying any grounds of opposition to the application; and

                          (ii)   if he or she opposes the application—an affidavit verifying the grounds of opposition in accordance with Form 93a; and

              (b)   serve a copy of the notice of appearance and affidavit on the applicant not later than 2 days before the day appointed for directions or the day of the hearing, as the case may be.

        [NOTE TO APPLICANTS:  Section 465C of the Corporations Law provides that a person may not oppose an application for winding up of a company under section 459P, 462 or 464 without the leave of the Court, unless the person has filed and served on the applicant notice of the grounds on which the person opposes the application  and an affidavit verifying the matters stated in the notice, within the period prescribed by the Rules.]

          “(13)   At the first directions hearing or at any subsequent directions hearing, the Court may direct the applicant or its solicitors to prepare and file a list in accordance with Form 80 of the names and addresses of persons who have given notice of their intention to appear in the proceedings.

          “(14)   Without limiting any right of inspection otherwise available under Order 46, rule 6, a person who is or claims to be a contributory, member, creditor or officer of a company, and who makes application in a form approved by the Registrar, must:

              (a)   be permitted by the Registrar to inspect an application to wind up the company , and any affidavits in relation to the application that are in the Registrar’s custody; and

              (b)   on payment of the prescribed fee—be provided with  a copy of those documents.

          “(15)   An application may not be discontinued without the leave of the Court.

          “(16)   Nothing in this rule shall restrict any power of the Court to appoint more than one liquidator and to declare whether anything that is required by the Corporations Law to be done by the liquidator is to be done by all, or by any one or more, of the persons appointed.”.

34.     Order 71, rule 38 (Filing of documents in support of an application under rules 36 and 37)

34.1   Omit the rule, substitute:

Filing in Court of documents in support of an application under section 459p or 462

           “38.   (1)     Subject to subrule (2), the applicant must file either before or at the hearing of an application under section 459p or 462 of the Corporations Law:

              (a)   an affidavit or affidavits:

                           (i)   if the company is not the applicant—proving service on the company of the application and any affidavits in support of the application; and

                          (ii)   stating that a notice of the making of the winding up application was lodged with the Commission in compliance with paragraph 470 (1) (a) of the Corporations Law, and annexing a copy of that notice as lodged; and

                         (iii)   proving publication of notice of the application in compliance with subrule 37 (9) or 36 (8), as the case may be, and annexing a copy of that notice as published; and

              (b)   an affidavit or affidavits, made not earlier than 3 days before the day of the final hearing of the application, stating that a search of the company records maintained by the Commission was undertaken not earlier than 3 days before the date on which that affidavit is made, and stating whether or not the search disclosed:

                           (i)   that an administrator had been appointed to the company, and, if so, stating details of that appointment; and

                          (ii)   that a winding up application was pending or a winding up order had been made against the company, and, if so, stating details of that application or order; and

              (c)   if the application relies on a failure to comply with a statutory demand—an affidavit in accordance with Form 95, made not earlier than 3 days before the date of the final hearing of the application.

            “(2)   If the applicant seeks the determination of the application at a directions hearing, he or she must file the documents referred to in subrule (1) either before or at the directions hearing.”.

35.     Order 71, new rule 39a

35.1   After rule 39, insert:

Court’s power to extend time within which application for a company to be wound up in insolvency is to be determined—section 459r

        “39A.   (1)     An application under section 459r of the Corporations Law for an extension of time for determination of a winding up application must be made by notice of motion in the winding up proceedings.

            “(2)   An application must be supported by an affidavit setting out the material facts on which the applicant relies.

            “(3)   As soon as practicable after filing the application and affidavit in support, and in any event within 14 days of the date of filing, the applicant must serve a copy of the application and affidavit in support on the company to which the winding up application relates.”.

36.     Order 71, rule 41 (Substituted applicant in winding up application—sections 460, 461)

36.1   Omit the rule, substitute:

Substituted applicant in winding up application—section 465b

           “41.   (1)     An order under section 465b may:

              (a)   include an order in, or substantially in, accordance with Form 97, substituting the person who applied for the order for the person who was formerly the applicant in the proceedings; and

              (b)   if the Court sees fit—include an order requiring publication of a notice in accordance with Form 98 in the manner prescribed by rule 104 or in such other manner as the Court directs.

            “(2)   This rule does not limit the powers of the Court under Order 6.”.

37.     Order 71, rule 42 (Notice of appointment of liquidator)

37.1   Subrule 42 (1):

Omit “(unless it is the Commission)”.

37.2   Paragraph 42 (1) (c):

After “company by”, insert “delivering that notice to the registered office of the company or”.

        [NOTE: The following note is added after rule 42:

        NOTE TO APPLICANTS:  Section 470 of the Corporations Law requires that, within 7 days of the making and entry of an order for the winding up of a company, the applicant must lodge an office copy of the sealed order of the Court with the Commission, serve an office copy of the sealed order on the company and deliver an office copy of the sealed order of the Court to the liquidator appointed in the winding up order, together with a statement that the order has been served on the company in compliance with paragraph 470 (2) (b) of the Corporations Law.]

38.     Order 71, rule 43 (Service of winding up order)

38.1   Omit the rule, substitute:

Short form bills for winding up applications—subsection 466 (2)

           “43.   (1)     If an order is made for the winding up of a company in a proceeding under the Corporations Law instituted in the Court, an applicant may claim as his or her costs of the application:

              (a)   the amounts that, on the date on which the application was filed, were the prescribed amounts in item 51 in Schedule 2; and

              (b)   his or her proper disbursements incurred in relation to the application.

            “(2)   An applicant claiming costs must serve on the liquidator appointed to the company:

              (a)   a bill of costs and disbursements, which need not include an itemised account of the work or services performed; and

              (b)   copies of receipts, vouchers  or journals that evidence the disbursements claimed.

            “(3)   Within 14 days of service of a bill of costs and disbursements, the liquidator must advise the applicant in writing whether or not any, and, if so, which, of the costs or disbursements claimed are disputed by the liquidator.

            “(4)   Within 14 days of receipt of an advice given by the liquidator under subrule (3), the applicant must file with the Court:

              (a)   the documents referred to in subrule (2); and

              (b)   an affidavit of service of the bill of costs and disbursements on the liquidator; and

              (c)   a copy of the advice given by the liquidator.

            “(5)   The applicant, the liquidator and their respective solicitors must not attend on taxation of the bill of costs and disbursements, unless directed to do so by a taxing officer.

            “(6)   This rule does not limit an applicant’s right to claim the taxed costs of the winding up application  under Order 62, except that an applicant who claims the costs of a winding up application:

              (a)   under this rule—has no further claim to recover any or all of the taxed costs of that application under Order 62; and

              (b)   under Order 62—has no further claim to recover any or all of the taxed costs of that application under this rule.”.

39.     Order 71, rule 46 (Application for leave to commence or continue proceedings against a company—subsection 471 (2))

39.1   Omit the rule, substitute:

Application for leave to commence or continue proceedings against a company—section 471b

           “46.   (1)     This rule applies to a proceeding in the Court:

              (a)   against a company that is being wound up in insolvency or by the Court; or

              (b)   in respect of which a provisional liquidator has been appointed; or

              (c)   in relation to property of a company that is being wound up in insolvency or by the Court.

            “(2)   If the proceeding was commenced before:

              (a)   the making of a winding up order; or

              (b)   the appointment of a provisional liquidator;

an application under section 471b of the Corporations Law for leave to proceed with the proceeding may be made by notice of motion in the proceeding or in the winding up proceedings.

            “(3)   If a person seeks leave under section 471b to begin a proceeding, the application for leave may be made by notice of motion in the winding up proceedings.”.

40.     Order 71, rule 47 (Reports by the liquidator in a winding up by the Court—sections 476, 482 and 533)

40.1   Omit the rule, substitute:

Transitional provisions for winding up applications

           “47.   Rules 36, 37 and 41set out in Schedule 4 to these Rules apply to an application for a winding up order under section 460 or 461 of the Corporations Law that is made before 23 June 1993 and to proceedings in relation to such an application.”.

41.     Order 71, rule 48 (Appointment of provisional liquidator—section 472)

41.1   Paragraph 48 (2) (b):

Omit the paragraph, substitute:

            “(b)   a nomination in accordance with Form 88 of an official liquidator for appointment as a provisional liquidator;”.

41.2   Paragraph 48 (2) (d):

Omit the paragraph, substitute:

            “(d)   a draft order for appointment of the provisional liquidator, including a short description of the property of which the provisional liquidator is to take possession.”.

41.3   Subrule 48 (4):

After “The Court”, insert “or a Judge”.

42.     Order 71, rule 49 (Notice of appointment of provisional liquidator)

42.1   Subrule 49 (1):

Omit “(unless it is the Commission)”.

42.2   Paragraph 49 (1) (c):

After “company by”, insert “delivering the notice to the registered office of the company or by”.

43.     Order 71, rule 50 (Service of order appointing a provisional liquidator)

43.1   Rule 50:

Omit “(unless it is the Commission)”.

44.     Order 71, rule 51 (Power of provisional liquidator—section 472)

44.1   Subrule 51 (1):

Omit the subrule, substitute:

            “(1)   For the purpose of enabling the provisional liquidator to take out letters of administration of the estate of a deceased contributory or debtor or otherwise to obtain payment of money due from a contributory or debtor or his or her estate under paragraph 477 (2) (h), money due to the company is deemed to be due to the provisional liquidator.”.

44.2   Subrule 51 (3):

Omit the subrule, substitute:

            “(2)   An application under subsection 472 (6) of the Corporations Law in relation to the exercise or proposed exercise of the powers of a provisional liquidator may be made by notice of motion in the proceedings for the winding up order.”.

45.     Order 71, rule 52 (Remuneration of provisional liquidator—subsection 473 (2))

45.1   Subrules 52 (1) and (2):

After “the Court” (wherever occurring), insert “or a Judge”.

45.2   Add at the end:

            “(3)   The Court or a Judge may direct that notice of an application under subsection 473 (2) of the Corporations Law be given by advertisement or otherwise to such persons or classes of persons as the Court or a Judge determines, and may adjourn the application for that purpose.”.

46.     Order 71, rule 55 (Report as to company’s affairs—section 475)

46.1   Subrule 55 (6):

Omit the subrule, substitute:

            “(6)   In this rule, ‘liquidator’ includes a provisional liquidator.”.

47.     Order 71, rule 56 (Settlement of list of contributories—section 478)

47.1   Omit the rule.

48.     Order 71, rule 60 (Liquidator’s power to require payment of money or transfer of property—section 483)

48.1   Omit the rule, substitute:

Liquidator’s power to require payment of money or transfer of property—section 483

           “60.   An application by a liquidator for an order under paragraph 483 (3) (b) of the Corporations Law may be made by notice of motion filed in the winding up proceedings.”.

49.     Order 71, rule 61 (Calls upon contributories with the sanction of a committee of inspection—sections 483 and 488)

49.1   Omit the rule.

50.     Order 71, rule 62 (Calls upon contributories by leave of the Court—section 483 and 488)

50.1   Omit the rule.

51.     Order 71, rule 64 (Powers delegated to liquidator by the Court—section 488)

51.1   Rule 64:

Omit “Part 5.4”, substitute “Part 5.4b”.

51.2   Paragraph 64 (f):

Omit “the making of calls and”.

52.     Order 71, new rule 64a

52.1   After rule 64, insert:

Distribution of surplus—subsection 488 (2))

         “64a.   (1)     This rule applies to an application for leave to distribute a surplus under subsection 488 (2) of the Corporations Law.

            “(2)   An application under this rule must be supported by an affidavit specifying the manner in which the liquidator proposes that the surplus be distributed, including the names and addresses of each person to whom any part of the surplus would be distributed.

            “(3)   Notice of the application must be given by publication of a notice in accordance with Form 116a in the manner prescribed by rule 104 not later than 14 days before the date set for hearing of the application.

            “(4)   A person who intends to appear at the hearing of the application must:

              (a)   file a notice of appearance in accordance with Form 79, together with any affidavit on which he or she intends to rely; and

              (b)   serve the notice of appearance on the liquidator, not later than 2 days before the date appointed for the hearing.

            “(5)   At the first directions hearing or any subsequent directions hearing, the Court may direct the liquidator, or his or her solicitors, to prepare and file a list in accordance with Form 80 of the names and addresses of persons who have given notice of their intention to appear in the proceedings.”.

53.     Order 71, rule 65 (Appointment of temporary joint liquidator)

53.1   Subrule 65 (1):

After “official liquidator”, insert “or other official liquidators”.

54.     Order 71, rule 73 (Supervision of liquidators by the Court—section 536)

54.1   Add at the end:

            “(6)   In this rule, ‘liquidator’ includes a provisional liquidator.”.

55.     Order 71, rule 74 (Meetings of creditors or contributories—section 547)

55.1   Omit the rule.

56.     Order 71, new rules 76a and 76b

56.1   After rule 76, insert:

Determination of value of debts and claims of uncertain value in liquidation—section 554a

         “76a.   (1)     An application by a liquidator under subsection 554a (2) of the Corporations Law may be made by notice of motion in the winding up proceedings.

            “(2)   An appeal to the Court under subsection 554a (3) of the Corporations Law against a liquidator’s estimate of the value of a debt or claim:

              (a)   must be made in accordance with Form 5; and

              (b)   must be supported by an affidavit specifying the value that it is said should be attributed to the debt or claim and the means by which that value is derived.

            “(3)   An appeal to the Court under subsection 554a (6) of the Corporations Law against the way in which a method determined by the Court was applied by a liquidator:

              (a)   may be made by notice of motion in the proceedings in which that method was determined; and

              (b)   must be supported by an affidavit specifying:

                           (i)   the nature of any error that the liquidator is said to have made in applying the method determined by the Court; and

                          (ii)   the way in which the applicant says the liquidator should have applied the method determined by the Court; and

                         (iii)   the result of the application of the method determined by the Court, in the way in which the applicant says that method should have been applied.

            “(4)   As soon as practicable after filing an application under subrule (2) or a motion under subrule (3), and in any event within 14 days of the date of filing, the applicant must serve that application or motion and the affidavit in support on the liquidator.

Amendment of valuation of security in proof of debt by secured creditor—section 554g

         “76b.   An application under section 554g of the Corporations Law for permission to amend a proof of debt by altering the estimated value of the security must be made in accordance with Form 5.

            “(2)   An application must be supported by an affidavit setting out the basis on which the amendment of the value of the security is sought and stating the value which the applicant seeks to attribute to that security.

            “(3)   As soon as practicable after filing the application and affidavit in support, and in any event not later than 14 days after the date of filing, the applicant must serve the application and affidavit in support on the liquidator.”.

57.     Order 71, rule 77 (Disclaimer of onerous property—section 568)

57.1   Omit the rule, substitute:

Disclaimer of contract—section 568

           “77.   (1)     An application under subsection 568 (1a) of the Corporations Law for leave to disclaim a contract (other than an unprofitable contract or a lease of land) may be made by notice of motion in the proceedings for the winding up order.

            “(2)   A liquidator who has been required to apply to the Court for leave to disclaim a contract under subsection 568(1a) of the Corporations Law  must file an affidavit:

              (a)   setting out the parties to the contract and any persons who, to the liquidator’s knowledge, are interested in the contract; and

              (b)   stating the reasons why it is said to be just to grant leave to disclaim.

          “(3)   An affidavit filed under subrule (2) must be served on the parties to the contract and any person interested in the contract.

Application to set aside disclaimer before it takes effect—section 568b

         “77a.   (1)     An application under section 568b of the Corporations Law to set aside a disclaimer before it takes effect must be made in accordance with Form 5.

            “(2)   An application under this rule must be supported by an affidavit stating:

              (a)   the nature of the applicant’s interest in the disclaimed property; and

              (b)   the grounds on which it is said that the disclaimer should be set aside.

            “(3)   As soon as practicable after filing the application and the affidavit in support, and in any event within the period specified in paragraph 568b (1) (a), (b) or (c) of the Corporations Law , as the case may be, the applicant must serve a copy of the application on the liquidator.

Application to set aside disclaimer after it has taken effect—section 568e

         “77b.   (1)     An application under section 568e of the Corporations Law  set aside a disclaimer which has taken effect must be made in accordance with Form 5.

            “(2)   An application under this rule must be supported by an affidavit stating:

              (a)   the nature of the applicant’s interest in the disclaimed property; and

              (b)   the reasons why it is said to be just to grant leave to set aside the disclaimer after it has taken effect.

            “(3)   As soon as practicable after filing the application and the affidavit in support, and in any event not later than 14 days after the date of filing, the applicant must serve a copy of the application on the liquidator.

Vesting of disclaimed property by Court Order—section 568f

         “77c.   (1)     An application under section 568f of the Corporations Law must be made in accordance with Form 5.

            “(2)   The Court may direct that notice of an application be given by advertisement or otherwise to such persons or classes of persons as the Court determines, and may adjourn the application for that purpose.”.

58.     Order 71, rule 81 (Examinations of persons concerned with corporations—section 597)

58.1   Omit the rule, substitute:

Issue of summons for examination—sections 596a and 596b

           “81.   (1)     An application for the issue of a summons under section 596a or 596b of the Corporations Law must:

              (a)   be made in acordance with Form 5; and

              (b)   be accompanied by:

                           (i)   a draft of the summons in acordance with Form 122; and

                          (ii)   an affidavit in support of the issue of the summons.

            “(2)   An affidavit in support of the issue of a summons must set out the material facts on which the applicant relies, to establish:

              (a)   that the applicant is an eligible applicant for the purposes of paragraph 596a (a) or 596b (a) of the Corporations Law, as the case may be; and

              (b)   that the person to whom the summons is to be issued:

                           (i)   if the application is under section 596a of the Corporations Law—is or was an examinable officer of the corporation for the purposes of paragraph 596a (b) of the Corporations Law; or

                          (ii)   if the application is under section 596b of the Corporations Law:

                                     (a)   has taken part, or been concerned in, examinable affairs of the corporation, and has been, or may have been, guilty of misconduct in relation to the corporation; or

                                     (b)   may be able to give information about the examinable affairs of the corporation.

            “(3)   An application for the issue of a summons and affidavit in support of that application may, at the option of the applicant, be filed in a sealed envelope marked, as appropriate:

              (a)   ‘Application for issue of summons for examination under section 596a of the Corporations Law’; or

              (b)   ‘Application for issue of summons for examination under section 596b of the Corporations Law’.

            “(4)   The Court or a Judge may issue a summons for examination in, or substantially in, accordance with Form 122.

            “(5)   At least 8 days before the date set for the examination, a summons issued under this rule must be personally served on the person who is to be examined or served in such other manner as the Court or a Judge may direct.

            “(6)   A person served with a summons may apply to discharge the summons by filing, within 3 days of service of the summons:

              (a)   a notice of motion in the proceedings in which the summons was issued, seeking an order that the summons be discharged; and

              (b)   an affidavit setting out the material facts and matters relied on by the person seeking to discharge the summons.

            “(7)   A copy of a notice of motion and affidavit filed under subrule (6) must forthwith be served on:

              (a)   the person who applied for the examination; and

              (b)   unless a person authorised by the Corporation applied for the examination—the Commission.

Conduct of examination under Part 5.9, Division 1

         “81a.   (1)     An application under subsection 597 (4) of the Corporations Law for a direction that an examination be held in private may be made at the commencement of, or in the course of, the examination.

            “(2)   If the Court orders under subsection 597 (13) of the Corporations Law that a written record be kept of the questions put to a person and of his or her answers at an examination:

              (a)   the applicant must file the written record in the Registry; and

              (b)   if the Court requires that written record be signed by the person who was examined—the person must sign the record at such time as the Court directs.

            “(3)   A person who is examined may apply in writing to the Registrar to be provided with a copy of the written record of the examination, and must be given a copy on payment of the prescribed fee.

            “(4)   For the purposes of subsection 597 (14) of the Corporations Law, a transcript of an examination may be authenticated by a certificate, in accordance with Form 124, that the transcript is a correct record of the examination, signed by:

              (a)   the person who made the transcript; or

              (b)   a responsible officer of the organisation that is authorised to provide transcription services at the examination.”.

59.     Order 71, rule 82 (Default in relation to an examination under Part 5.9)

59.1   Subrule 82 (1):

Omit “section 597”, substitute “Division 1 of Part 5.9 of the Corporations Law”.

59.2   Paragraphs 82 (1) (a), (b), (c), (d) and (e):

Omit the paragraphs, substitute:

            “(a)   in contravention of subsection 597 (6) of the Corporations Law—to attend the examination as required by a summons under section 596a or 596b of the Corporations Law, or to attend from day to day until the conclusion of the examination; or

              (b)   in contravention of subsection 597 (7) of the Corporations Law—to take the oath or make an affirmation or to answer a question which he or she is directed by the Registrar to answer; or

              (c)   in contravention of subsection 597(7) or (10a) of the Corporations Law—to produce books; or

             (d)   in contravention of a direction made by the Court under subsection 597 (13) of the Corporations Law—to sign the written record of the examination.”.

 

59.3   Subrule 82 (2):

Omit “section 597”, substitute “Part 5.9, Division 1 of the Corporations Law”.

59.4   Subrule 82 (2):

Omit “the Court”, substitute “a Judge”.

59.5   Subrule 82 (4):

Omit “section 597”, substitute “Part 5.9, Division 1 of the Corporations Law”.

60.     Order 71, rule 83 (Orders under section 598 or 599)

60.1   Subrule 83 (3):

Omit “filing the application,”. substitute “filing,”.

61.     Order 71, rule 84 (Proceedings under Chapter 6 or 7 of the Corporations Law)

61.1   Omit “filing the application.”. substitute “filing.”.

62.     Order 71, rule 85 (Orders in respect of agreement, payment or benefit—section 740)

62.1   Subrule 85 (2):

Omit “filing the application,”. substitute “filing,”.

63.     Order 71, rule 86 (Orders in respect of contravention by substantial shareholder—section 741)

63.1   Subrule 86 (2):

Omit “filing the application,”. substitute “filing,”.

64.     Order 71, rule 87 (Application for order of Court declaring that an act, document or matter is not invalid—section 743)

64.1   Subrule 87 (2):

Omit “filing the application,”. substitute “filing,”.

65.     Order 71, rule 88 (Application for order varying an agreement with a non-licensee—section 799a))

65.1   Subrule 88 (2):

Omit “filing that application,”. substitute “filing,”.

66.     Order 71, rule 93 (Orders relating to refusal to register transfer or transmission—section 1094)

66.1   Subrule 93 (3):

Omit “filing the application,”. substitute “filing,”.

67.     Order 71, rule 95 (Application for order varying agreement with a non-licensee—section 1165a)

67.1   Subrule 95 (2):

Omit “filing the application,”. substitute “filing,”.

68.     Order 71, new rules 98a and 98b

68.1   After rule 98, insert:

Leave to manage a corporation where a person is subject to a civil penalty disqualification—section 1317ef

         “98a.   (1)     This rule applies to an application under section 1317ef of the Corporations Law by a person is subject to a civil penalty disqualification, for leave to manage a corporation.

            “(2)   The evidence in support of the application must include an affidavit made not earlier than 7 days before the application is filed, setting out the material facts to be relied on by the applicant in support of the application.

            “(3)   As soon as practicable after filing the application and the affidavit in support, and in any event not later than 14 days after the date of filing, the applicant must serve a copy of the application and the affidavit on:

              (a)   the corporation concerned; and

              (b)   the Commission.

Relief from liability for contravention of civil penalty provisions—section 1317ja

         “98b.   (1)     An application under section 1317ja for relief from liability for a contravention of a civil penalty provision must be accompanied by an affidavit setting out any material facts relied on by the applicant in support of the application.

            “(2)   As soon as practicable after filing an application and the affidavit in support, and in any event not later than 14 days after the date of filing, the applicant must serve a copy of the application and the affidavit on:

              (a)   the corporation concerned; and

              (b)   the Commission.”.

69.     Order 71, rule 100 (Appeals from decisions of administrator, receiver, official manager, liquidator, etc—section 1321)

69.1   Subrule 100 (3):

Omit “filing the application,”. substitute “filing,”.

70.     Order 71, rule 103 (Meetings ordered by the Court)

70.1   Omit “Part 3 of Chapter 5”, substitute “regulations 5.6.12 to 5.6.36a, inclusive,”.

71.     First Schedule (Forms)

71.1   Form 75:

Omit from the note “or ‘(under official management)’”, substitute “‘(under official management)’ or ‘(under administration)’”.

71.2   Form 76:

Omit from the note “or ‘(under official management)’”, substitute “‘(under official management)’ or ‘(under administration)’”.

71.3   Form 78:

Omit “(No heading or title)”, substitute:

 

“IN THE FEDERAL COURT OF AUSTRALIA

(name of State) DISTRICT REGISTRY”.

71.4   Form 78:

Omit “In Proceedings No.     of 19    commenced on (date), (name”, substitute “(Name”.

71.5   Form 78:

Omit “comply with order 71, subrule 12 (6) (OR subrule 13 (5)) of the Federal Court Rules by filing”, substitute “file”.

71.6   Form 78:

Omit “This notice is inserted by (name of solicitors) of (address), solicitors for the applicant.”.

71.7   Form 79:

Omit the form, substitute:

 

FORM 79

 

NOTICE OF INTENTION TO APPEAR AT HEARING

(and insert if applicable)

AND OF GROUNDS OF OPPOSITION TO A WINDING-UP APPLICATION

 

 

(Order 71, subrules 12 (6), 13 (5), 14 (18), 20 (7), 22 (9), 33 (6), 36 (10), 36 (11), 37 (11), 37 (12), 64a (4) and 78 (4))

 

(Heading in Form 75)

 

NOTICE OF INTENTION TO APPEAR AT HEARING RELATING TO

(Name of company in capitals) (“the company”)

 

(Insert where the company to which a winding up application under section 459p, 461, 462 or 464 relates, opposes the application). 

1.      The company intends to appear at the hearing of the winding up application and to oppose that application.  The grounds of opposition to the application are  (grounds of opposition).

 

(OR)

(Insert where the person appearing is not the company to which the application relates) 

1.      (Name of person who intends to appear at hearing)  of  (address of person who intends to appear at hearing)  (“the person appearing”) intends to appear on the hearing of the application advertised to be heard at  (time)  on  (date)  and to 

 

         (if the person appearing intends to support the applicant’s application) support the applicant’s application.

 

         (OR)

         (if the person appearing intends to oppose the applicant’s application) oppose the applicant’s application.

 

         (Insert where the person appearing is not the company to which the application relates and intends to oppose the  winding up application)  

         The grounds of opposition to the application are (grounds of opposition).

 

(Insert where the person appearing is not the company to which the application relates)

2.      The address for service of the person appearing is (address for service).

 

(Insert where the person appearing is a contributory)

3.      The person appearing is a contributory holding (number and class of shares held) shares in the company,

 

(OR)

(Insert where the person appearing is a creditor) 

3.      The company is indebted to the person appearing in the sum of $ (specify amount).

 

(OR)

(Insert where the person appearing has standing to appear on any other ground) 

3.      The person appearing has standing to appear at the hearing of the application on the ground that (ground).

 

Date: eg 7 May 19

 

 

................................................

Signature of person appearing

or his or her solicitor

 

Name of person appearing

or his or her solicitor:

 

         [NOTE:  Section 465c of the Corporations Law provides that, on the hearing of an application under section 459p, 462 or 464, a person may not, without the leave of the Court, oppose the application unless, within the period prescribed by the Rules, the person has filed and served on the applicant notice of the grounds on which the person opposes the application and an affidavit verifying the matters stated in the notice.]

 

_________

71.8   Form 80:

Omit “37 (9), 62 (6)”, substitute “37 (13), 64a (5)”.

71.9   Form 82:

After “(No heading or title)”, insert:

 

“IN THE FEDERAL COURT OF AUSTRALIA

(name of State) DISTRICT REGISTRY”.

71.10 Form 82:

Omit “Signature of applicant’s solicitor”.

71.11 Form 83:

After “To: (Name and address of creditor)”, insert:

 

“IN THE FEDERAL COURT OF AUSTRALIA

(name of State) DISTRICT REGISTRY”.

71.12 Form 85:

Omit “commenced on (date),”.

71.13 Form 86:

After “(No heading or title)”, insert:

 

“IN THE FEDERAL COURT OF AUSTRALIA

(name of State) DISTRICT REGISTRY”.

71.14 Form 86:

Omit “commenced on (date), (name”; substitute “(Name”.

71.15 Form 86:

Omit “Subrule 14 (16) of Order 71 of the Federal Court Rules provides that any”; substitute “Any”.

71.16 Form 86:

Omit “comply with Order 71, subrule 14 (18) of the Federal Court Rules by filing”; substitute “file”.

71.17 Form 86:

Omit “by serving”; substitute “serve”.

71.18 Form 86:

Omit “This notice is inserted by (name of solicitors) of (address), solicitors for the Company.”.

71.19 Form 87:

After “(No heading or title)”, insert:

 

“IN THE FEDERAL COURT OF AUSTRALIA

(name of State) DISTRICT REGISTRY”.

71.20 Form 87:

Omit “This notice is inserted by (name of solicitors) of (address), solicitors for the company.”.

71.21 Form 88:

Omit the form, substitute:

 

FORM 88

 

NOMINATION OF LIQUIDATOR

 

(Order 71, subrules 20 (5), 36 (5) and 37 (7)

 

(Heading in Form 75)

 

To:    The District Registrar

          Federal Court of Australia

          (name of State) District Registry

 

(Name of applicant) nominates:

 

Name:         (name of official liquidator)  of

 

Address:     (address of official liquidator)

 

to act as the liquidator of (name of company), if appointed by the Court.

 

This application is filed by (name of solicitors), solicitors for the applicant, whose address for service is (address for service).

 

Dated:

 

...................................

Signature of applicant

or his or her solicitor

 

Name of applicant or his or her solicitor:

 

[NOTE TO APPLICANTS:  The Court may determine that a liquidator other than the person nominated by the applicant should be appointed.]

71.22 Form 89:

Omit the form.

71.23 Form 90:

Omit “(No heading or title)”, substitute:

 

“IN THE FEDERAL COURT OF AUSTRALIA

(name of State) DISTRICT REGISTRY”.

71.24 Form 90:

Omit “commenced on (date application was filed), (name”, substitute “(Name”.

71.25 Form 90:

Omit “an order under section 260 of the Corporations Act in respect of the above company (where”; substitute “orders under section 260 of the Corporations Law in respect of the above company (and insert  where” .

71.26 Form 90:

Omit “comply with Order 71, subrule 20 (7) of the Federal Court Rules by filing”; substitute “file”.

71.27 Form 90:

Omit “serving”, substitute “serve”.

71.28 Form 90:

Omit “This notice is inserted by (name of solicitors) of (address), solicitors for the applicant.”.

71.29 Form 91:

Omit “(No heading or title)”, substitute:

 

“IN THE FEDERAL COURT OF AUSTRALIA

(name of State) DISTRICT REGISTRY”.

71.30 Form 91:

Omit “comply with Order 71, subrule 22 (9) of the Federal Court Rules by filing”; substitute “file”.

71.31 Form 91:

Omit “serving”, substitute “serve”.

71.32 Form 91:

Omit “This notice is inserted by (name of solicitors) of (address), solicitors for the applicant.”.

71.33 Form 92:

Omit “(No heading or title)”, substitute:

 

“IN THE FEDERAL COURT OF AUSTRALIA

(name of State) DISTRICT REGISTRY”.

 

71.34 Form 92:

Omit “(name of company)” (twice occurring); substitute “the Company”.

71.35 Form 92:

Omit “(variation of the resolution) must comply with Order 71, subrule 33 (6) of the Federal Court Rules by filing a notice of appearance in Form 79 together with any affidavit on which he or she intends to rely at the hearing of the application and by serving”; substitute:

(OR variation of the resolution) must file a notice of appearance in accordance with Form 79 together with any affidavit on which he or she intends to rely at the hearing of the application and serve”.

71.36 Form 92:

Omit “This notice is inserted by (name of solicitors) of (address), solicitors for the applicant.”.

71.37 New Forms 92a, 92b and 92c:

After Form 92, insert:

 

FORM 92a

 

NOMINATION OF ADMINISTRATOR

 

(Order 71, subrule 34g (2))

 

(Heading in Form 75)

 

To:  The District Registrar

Federal Court of Australia

(name of District) District Registry

 

(Name of Applicant) nominates:

 

Name:        (name of person nominated for appointment as administrator)

of

Address:    (address of person nominated for appointment as administrator)

 

to act as the administrator of (name of company) (OR the administrator of a deed of company arrangement relating to (name of company)), if appointed by the Court.

 

This application is filed by (name of solicitors), solicitors for the Applicant, whose address for service is (address for service).

 

Date:  e.g.  7 May 19  

 

 

...........................................

Signature of Applicant or

his or her solicitor

 

 

Name of Applicant or his or her solicitor

 

[NOTE TO APPLICANTS:  The Court may determine that an administrator other than the person nominated by the Registrar should be appointed.]

 

_______________________________________________________

 

To:    (name of applicant or his or her solicitor)

of:     (address for service)

 

Pursuant to your application for the nomination of an administrator under Order 71 of the Federal Court Rules, the Registrar has nominated:

 

Name:

of:

 

to act as administrator of (name of company) (OR administrator of a deed of company arrangement relating to (name of company)), if appointed by the Court.

 

 

Signed:

 

 

 

District Registrar

 

Date:  e.g.  7 May 19

 

[NOTE TO APPLICANTS:  The Court may determine that an administrator other than the person nominated by the Registrar should be appointed.]

 

[NOTE: The name and address of the nominated administrator is to be completed by the Registry.]

 

___________

 

FORM 92b

 

CONSENT OF ADMINISTRATOR

 

(Order 71, subrule 34g (3))

 

(Heading in Form 75)

 

1.      I, (name of nominated administrator) of (address) acknowledge that I have been nominated by (name of applicant) of the Federal Court of Australia to act as the administrator of (name of company) (“the company”) (OR as administrator of a deed of company arrangement relating to (name of company) (“the company”)).

 

2.      To the best of my knowledge, information and belief, neither I nor my firm has any conflict of interest which would make it improper for me to act as administrator of the company (OR as administrator of the deed of company arrangement relating to the company). 

 

3.      I undertake to notify the Court without delay if any conflict emerges.

 

 

Dated:

 

 

Signature of Administrator

 

Name of Administrator

 

__________

 

FORM 92C

 

NOTICE OF APPLICATION TO FILL OFFICE OF ADMINISTRATOR OF COMPANY UNDER SECTION 449c

OF THE CORPORATIONS LAW

 

(OR

NOTICE OF APPLICATION TO FILL OFFICE OF ADMINISTRATOR OF DEED OF COMPANY ARRANGEMENT UNDER SECTION 449d OF THE CORPORATIONS LAW)

 

(Order 71, subrule 34g (4))

 

IN THE FEDERAL COURT OF AUSTRALIA

(name of State) DISTRICT REGISTRY

 

NOTICE OF APPLICATION RELATING TO (name of company in capitals)

 

AUSTRALIAN COMPANY NUMBER: (specify Australian company number of the company to which the proceedings relate)

 

1.      (Name of Applicant) will apply to the Federal Court of Australia at (time) on (date) at (address of Court) for an order under section 449c of the Corporations Law that a person be appointed as administrator of the above company (OR for an order under section 449d of the Corporations Law that a person be appointed as administrator of a deed of company arrangement).

 

2.      The Applicant’s address for service is (specify address for service).

3.      Any person intending to appear at the hearing must file a notice of appearance in accordance with Form 79 and serve that notice of appearance on the applicant at its address for service shown above, not later than 2 days before the day appointed for the hearing of the application.

__________

71.38 Form 93:

Omit “460 (SECTION 461)”; substitute “459p (OR 462)”.

71.39 Form 93:

Omit “36 (5) and 37 (5)”; substitute “36 (8) and 37 (9)”.

71.40 Form 93:

After “(No heading or title)”, insert:

 

“IN THE FEDERAL COURT OF AUSTRALIA

(name of State) DISTRICT REGISTRY”.

71.41 Form 93:

Omit:

“In Proceedings No.    of 19    commenced on (date), (name of applicant) will apply to the Federal Court of Australia at (time) on (date appointed for directions under Order 4, rule 8) at (address of Court) for an order that (name of company) (“Company”) be wound up.”;

substitute:

“(Name of applicant) will apply to the Federal Court of Australia at (time) on (date appointed for directions under Order 4, rule 8) at (address of Court) in Proceedings No.    of 19    for an order that (name of company) (“Company”) be wound up.”.

71.42 Form 93:

Omit:

“Subject to the Rules, the Registrar of the Court will permit a contributory, member, creditor or officer of the company to inspect the application and any affidavit in relation to the application and will provide a copy of the application and of any affidavit in relation to the application to a contributory, member, creditor or officer of the company on payment of the prescribed fee.”.

71.43 Form 93:

Omit:

“Any person intending to appear at the directions hearing must comply with Order 71, subrule 36 (8)) (OR subrule 37 (8) of the Federal Court Rules by filing a notice of appearance in Form 79 and serving that notice of appearance on the applicant at its address for service shown above not later than 2 days before the date appointed for the directions under Order 4, rule 8.

 

This notice is inserted by (name of solicitors) of (address), solicitors for the applicant”;

substitute:

“Any person intending to appear at the directions hearing must file a notice of appearance in accordance with Form 79 and an affidavit verifying any grounds of opposition to the winding up application in accordance with Form 93b and must serve the notice of appearance and affidavit on the applicant at its address for service shown above, not later than 2 days before the day appointed for the hearing.”.

71.44 New Forms 93a, 93b and 93c:

After Form 93, insert:

 

FORM 93a

 

AFFIDAVIT VERIFYING GROUNDS OF OPPOSITION

TO WINDING UP APPLICATION UNDER

SECTION 459p, 462 or 464

 

 

(Order 71, subrules 36 (10) and (11) and 37 (11) and (12))

 

(Heading in Form 75)

 

On (date), I (name, address and occupation) say on oath:

 

1.      I refer to the Notice of Intention to Appear at a Hearing and of Grounds of Opposition to a Winding Up Application dated (date) signed by (signatory to notice).

 

2.      I believe that the statements of fact in the notice are true.

 

 

SWORN at:                                            )

before me:                                              )

 

 

...............................................................

                                 A Justice of the Peace

 

_________

 

 

FORM 93b

 

AFFIDAVIT UNDER SECTION 459e OF

THE CORPORATIONS LAW

 

 

(Order 71, rule 36a)

 

 

(Name of creditor)

Creditor

 

 

(Name of company)

         Debtor

 

AFFIDAVIT

 

On (date), I (name, address and occupation) say on oath:

 

1.      To my knowledge, the amount of $ (amount or amounts) is due and payable by the debtor to the creditor.

 

2.      (Specify details of how and when the debt was incurred).

 

 

SWORN at:                                   )

before me:                                     )

 

 

 

......................................................

A Justice of the Peace

 

[IMPORTANT NOTE:

 

(1)     This affidavit accompanies a statutory demand under section 459e of the Corporations Law.

 

(2)     No proceedings have been commenced in respect of the debt to which the affidavit relates.

 

(3)     Any questions relating to this affidavit or the debt to which it relates should be directed either to the person named as applicant or the applicant’s solicitors.]

 

_________

 

FORM 93c

 

APPLICATION TO WIND UP A COMPANY

UNDER SECTION 459p OF THE CORPORATIONS LAW

 

(Order 71, subrules 37 (2) and (3))

 

(Heading in Form 75)

 

 

1.      The applicant claims:

         (a)      an order that (name of company) be wound up.

         (b)     (specify any other orders).

 

(INSERT THE FOLLOWING, ONLY IF THE WINDING UP APPLICATION RELIES ON A FAILURE TO COMPLY WITH A STATUTORY DEMAND)

 

2.       Pursuant to section 459q of the Corporations Law, the applicant states as follows:

 

(If service was on directors of the company) 

          (a)     On (date) the applicant (OR the applicant’s solicitors) ascertained from records maintained by the Australian Securities Commission that (name of director) of (address of director) and (name of second director) of (address of second director) were directors of (name of company) (“the company”).  A statutory demand on the form annexed and marked “A” was served on each of (name of first director) on (date) and on (name of second director) on (date).

(OR)

(If notice was served at the registered office of the company and an officer or employee received the notice)  

          (a)     On (date) the applicant (OR the applicant’s solicitors) ascertained from records maintained by the Australian Securities Commission that the registered office of (name of company) (“the company”) was then situated at (address of registered office).  On (date) a statutory demand in the form annexed and marked “A” was left at the registered office of the company with (name of person, if known).

(OR)

(If notice was served at the registered office the company  and no officer or employee received the notice)

          (a)     On (date) the applicant (OR the applicant’s solicitors) ascertained from records maintained by the Australian Securities Commission that the registered office of (name of company) (“the company”) was situated at (address of registered office).  On (date) a statutory demand in the form annexed and marked “A” was left at the registered office of the company, at which it appeared the company was still carrying on business because (specify reason) (OR with which it appeared the company had the following connection, namely that (specify connection)).

(OR)

(If notice was served by post)

          (a)    On (date) the applicant (OR the applicant’s solicitors) ascertained from records maintained by the Australian Securities Commission that the registered office of (name of company) (“the company”) was situated at (address of registered office).  On (date) a statutory demand in the form annexed and marked “A” was posted by pre-paid mail addressed to the company at its registered office.  That notice has not been returned to the applicant or its solicitors by Australia Post as unclaimed.

 

(If the demand has been varied by an Order under subsection 459h (4) of the Corporations Law.) 

          (b)     Annexed and marked “B” is a copy of an order made by the Federal Court of Australia under subsection 459h (4) of the Corporations Law on (date), that varied the statutory demand which is annexure “A”.

 

 

          (c)     The company did not comply with the requirements of the statutory demand which is Annexure “A” (OR the statutory demand which is Annexure “A”, as varied by the order which is Annexure “B”) within the period for compliance, being the period of 21 days after the demand was served (OR the period specified in an order made by the Federal Court of Australia on (date) extending the period for compliance) (OR the period ending 7 days after an application to set aside the statutory demand was finally determined or otherwise disposed of).

 

(OR, INSERT THE FOLLOWING, ONLY IF THE WINDING UP APPLICATION RELIES ON A FAILURE TO COMPLY WITH A STATUTORY DEMAND)

 

2.       The grounds on which the applicant relies to allege that the company is insolvent are  (grounds).

 

DATED:

 

 

Signature of applicant’s solicitor

 

Name of applicant’s solicitor:

 

Address for Service:

 

_______________________________________________________

To the Respondent:  (address)

 

If the Court thinks fit, it may hear and determine the Application at the time and place specified below, or on a day subsequently appointed for directions in the proceedings.  If there is no attendance before the Court by you or by your counsel or solicitor at the time and place specified below, the application may be dealt with and judgment may be given or an order made in your absence.

 

Before any attendance at that time you must file an appearance in the Registry.

APPOINTMENT FOR DIRECTIONS HEARING

 

Time:          (date and time to be entered by Registry unless fixed by Court)

 

Place:          (address of Court)

 

Date:          ...................................................................

 

 

District Registrar

 

The applicant’s address for service is (address for service).

 

The applicant’s address is (if a natural person—specify residence or place of business;   if a body corporate—specify principal place of business).

__________

71.45 Form 94:

Omit the form, substitute:

 

FORM 94

 

AFFIDAVIT VERIFYING DEBT UNDER SECTION 459Q

OF THE CORPORATIONS LAW

 

(Order 71, subrule 37 (4))

 

(Heading in Form 75)

 

On (date), I (name, address and occupation) say on oath:

 

1.      The amount of $ (amount or amounts) is due and payable by the respondent to the applicant.

 

2.      (Specify details of how and when the debt was incurred).

 

3.      The Respondent has failed to pay the amount of $ (amount or amounts) to the applicant or to secure or compound for that amount to the reasonable satisfaction of the applicant.

 

 

SWORN at:                                      )

before me:                                        )

 

 

 

.........................................................

                          A Justice of the Peace

 

___________

71.46 Form 95:

Omit the form, substitute:

 

FORM 95

 

AFFIDAVIT THAT DEBT REMAINS UNPAID

 

(Order 71, subrule 38 (1))

 

(Heading in Form 75)

 

On  (date),  I  (name, address and occupation),  say on oath:

1.       I am the  (specify)  of the applicant herein.

 

(If the debt is not a judgment debt)

2,      I refer to my earlier affidavit made on  (date on which affidavit under paragraph 37 (4) (b) was made)  and filed in these proceedings.  As at the date of the affidavit, the respondent was indebted to the applicant in the amount of  (specify amount).

(OR)

(If the debt is a judgment debt)

2.      On the date on which the application for a winding up order was filed by applicant in these proceedings, the respondent was indebted to the applicant in the amount of  (specify amount)  by reason of the judgment of (specify Court)  in proceedings number  (number)  given on  (date of judgment).  Annexed and marked “A” is a copy of the Court order giving rise to the judgment debt.

 

3.      As at the date of this affidavit, the respondent is indebted to the applicant in the amount of  (specify amount).  The respondent has failed to pay the amount or to secure or compound for it to the reasonable satisfaction of the applicant.

 

SWORN at:                                       )

before me:                                         )

 

 

..........................................................

                             A justice of the Peace

 

___________

 

71.47 Form 96:

Omit “(subrule 38(1) and)”.

71.48 Form 96:

Omit “affairs of the said”.

71.49 Form 96:

After clause 2, insert:

 

“3.     The applicant’s costs (including reserved costs) be taxed and reimbursed out of the property of the company in accordance with subsection 466 (2) of the Corporations Law.”.

71.50 Form 97:

Omit “subrule 41 (2)” substitute “subrule 41 (1)”.

71.51 Form 97:

Omit from clause 3 “affidavit”, substitute “further affidavits”.

71.52 Form 98:

Omit the form, substitute:

 

FORM 98

 

NOTICE OF APPLICATION BY SUBSTITUTED APPLICANT UNDER SECTION 459P OR SECTION 462 OF THE CORPORATIONS LAW

 

(Order 71, subrule 41 (1))

 

 

IN THE FEDERAL COURT OF AUSTRALIA

(name of State) DISTRICT REGISTRY

 

NOTICE OF APPLICATION RELATING TO (name of company in captitals)

 

AUSTRALIAN COMPANY NUMBER: (specify Australian Company Number of the company to which the proceedings relate)

 

1.      (Name of substituted applicant), who was, with the leave of the Court, substituted as applicant in respect of Proceedings No.     of 19     , will apply to the Federal Court of Australia at  (time)  on  (date)  at  (address of Court)  for an order that the company to which this application relates be wound up.

 

2.      The address for service of the substituted applicant is  (address for service).

3.      Any person intending to appear at the directions hearing must file a notice of appearance in accordance with Form 79 and serve a copy of the notice on the applicant at its address for service shown above not later than 2 days before the date appointed for the hearing.

 

Dated:

 

__________

 

71.53 Form 99:

Omit the form, substitute:

 

FORM 99

 

NOTICE TO LIQUIDATOR (OR PROVISIONAL LIQUIDATOR) OF APPOINTMENT

 

(Order 71, subrules 39 (2), 42 (1), 48 (2) and 49 (1))

 

(Heading in Form 75)

 

To:    (Name and address of liquidator OR provisional liquidator)

 

(Insert if liquidator was appointed) 

         (Name of company) of (address of registered office of company) was wound up by order of the Court made on (date) (name and address of liquidator) was appointed as the liquidator of that company.

 

(OR)

(Insert if provisional liquidator was appointed) 

         By order of the Court on  (date) (name and address of provisional liquidator) was appointed as provisional liquidator of (name of company)  of  (address of registered office of company).

 

...........................................

                   District Registrar

 

Date:  eg  7 May 19

 

         [NOTE:  Where a liquidator is appointed by the Court, Order 71, rule 39 of the Federal Court Rules permit the Court to direct that copies of this notice be sealed forthwith.  If this notice is not sealed after making of the winding up order under rule 39, subrule 42 (1) requires that the applicant attend at the Registry to obtain a sealed copy of a notice in this form not later than the day after the order was made,  The requirements for service of that notice are specified in paragraphs 42 (1) (b) and (c).

         Where a provisional liquidator is appointed, subrule 49 (1) requires that the applicant attend at the Registry to obtain a sealed copy of a notice in this form not later than the day after the order was made,  The requirements for service and lodgment of that notice are specified in paragraphs 49 (1) (b) to (e), inclusive.]

 

___________

71.54 Form 100:

Omit the form, substitute:

 

FORM 100

 

ADVERTISEMENT OF WINDING UP ORDER AND OF APPOINTMENT OF LIQUIDATOR

(OR PROVISIONAL LIQUIDATOR)

 

(Order 71, subrules 42 (1) and 49 (1))

 

IN THE FEDERAL COURT OF AUSTRALIA

(name of State) DISTRICT REGISTRY

 

IN THE MATTER OF  (name of the company to which the proceedings relate)

 

AUSTRALIAN COMPANY NUMBER:  (specify Australian Company Number of the company to which the proceedings relate)

 

(Insert if  a liquidator was appointed) 

         On  (date), the Federal Court of Australia in Proceedings No.             of 19    ordered the winding up of (name of company) and appointed  (name of liquidator)  of  (address)  as the liquidator of the company.

 

(OR)

(Insert if a provisional liquidator was appointed) 

         On  (date), the Federal Court of Australia in Proceedings No.                of 19    appointed  (name of provisional liquidator)  of (address)  as the provisional liquidator of the company.

 

 

Dated:

___________

71.55 Form 101:

Omit the form, substitute:

 

FORM 101

 

ADVERTISEMENT OF APPOINTMENT OF LIQUIDATOR

(OR PROVISIONAL LIQUIDATOR) IN PLACE OF PREVIOUS LIQUIDATOR (0R PROVISIONAL LIQUIDATOR)

 

 

(Order 71, subrule 53 (5))

 

 

IN THE FEDERAL COURT OF AUSTRALIA

(name of State) DISTRICT REGISTRY

 

IN THE MATTER OF (name of the company to which the proceedings relate)

 

AUSTRALIAN COMPANY NUMBER: (specify Australian Company Number of the company to which the proceedings relate)

 

On  (date), in Proceedings No.               of 19    , the Federal Court of Australia appointed (name of liquidator / provisional liquidator) of (address)  to act as the liquidator (provisional liquidator) of (name of company) in place of the former (liquidator / provisional liquidatorl).

 

 

Dated:

 

__________

 

71.56 Form 102:

Omit from the heading “CREDITORS, CONTRIBUTORIES OR COMMITTEE OF INSPECTION”, substitute “CREDITORS OR CONTRIBUTORIES”.

71.57 Form 102:

Omit “OR creditors and contributories OR the committee of inspection”.

 

71.58 Form 103:

Omit the form, substitute:

 

FORM 103

 

NOTICE BY LIQUIDATOR OF INTENTION

TO SEEK RELEASE

 

(Order 71, subrule 58 (3))

 

 

IN THE FEDERAL COURT OF AUSTRALIA

(name of State) DISTRICT REGISTRY

 

NOTICE OF APPLICATION RELATING TO  (name of company in capitals)

AUSTRALIAN COMPANY NUMBER:  (specify Australian Company Number of the company to which the proceedings relate)

 

1.      TAKE NOTICE that I  (name of liquidator)  of  (address of liquidator),  the liquidator of the above company, intend to apply to the Federal Court of Australia in Proceedings No.              of 19    for my release as liquidator of the company.

 

2.      If your have any objection to the grant of my release, you must file a notice of objection in accordance with Form 104 and forward a copy of the notice to me at the address shown above, within 21 days of publication of this notice in the Gazette.

 

Dated:

 

..........................................

Signature of liquidator

 

Name of liquidator:

 

__________

 

71.59 Forms 105 to 114 inclusive:

Omit the forms.

 

71.60 Form 115:

Omit the form, substitute:

 

FORM 115

 

AFFIDAVIT IN SUPPORT OF APPLICATION FOR ORDER

FOR PAYMENT OF CALL

 

(Order 71, subrule 63 (1))

 

(Heading in Form 75)

 

On  (date)  I  (name and adddress), official liquidator, say on oath:

 

1.      I am the official liquidator of  (name of company)  (“the company”).

2.      On  (date)  I made a call of $ (amount) per share on all of the contributories of the company (or specify the class contributories on whom the call was made).  Annexed and marked “A” is a copy of the notice of the call.  Each of the contributories whose names are shown in the Schedule marked “B” was duly served with notice of the call in the form annexed and marked “A”.

 

3.      Each of the contributories of the company whose name is set out in the second column of the Schedule marked “B” has not paid or caused to be paid to me the sum specified opposite his or her name in the fifth column of the Schedule, which is due from that contributory under the call.

 

4.      The amount set out opposite the name of each of the contributories in the sixth column 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 costs of applying for and giving effect to the order for payment of the call has been reached by apportioning those costs equally among contributories who have not paid the call.

 

5.      The amount set out opposite the name of each of the contributories in the seventh column of the Schedule is the total of the amount due by that contributory in respect of the call as set out in the fifth column and the amount due in respect of costs as set out in the sixth column.

 

SWORN at:                                  )

Before me:                                   )

 

 

.....................................................

                       A Justice of the Peace

 

“B”

 

SCHEDULE

 

Number on list of contrib-utories	Name	Address	Character in which included in list	Amount of call	Proportion of cost	Total amount payable

 

71.61 Form 116:

Omit from clause 1 “who is a contributory of (name of company) (“Company”) pay to the liquidator of the Company”, substitute “pay to the liquidator of  (name of company)”.

71.62 New Form 116a:

After Form 116, insert:

 

____________

 

FORM 116A

 

NOTICE FOR APPLICATION FOR LEAVE

TO DISTRIBUTE A SURPLUS

 

(Order 71, subrule 64A (3))

 

IN THE FEDERAL COURT OF AUSTRALIA

(name of State) DISTRICT REGISTRY

 

Notice of application for leave to distribute a surplus relating to:(name of company in capitals)

 

AUSTRALIAN COMPANY NUMBER: (specify Australian company number of the company to which the proceedings relate).

 

On (date) at (time) the Federal Court of Australia at (address of Court) will hear an application by the liquidator of (name of company)  in Proceedings No.              of 19     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 Form 79 together with any affidavit on which he or she intends to rely and serve a copy of the notice and affidavit on the liquidator at the address shown below not later than 2 days before the date appointed for the hearing of the application.

 

Name of liquidator:

 

Address of liquidator:

 

__________

71.63 Form 117:

Omit “Subrules 66 (1) and (66 (3)”, substitute “ subrule 66 (2)”.

71.64 Form 119:

Omit the form.

71.65 Form 120:

Omit the form, substitute:

 

FORM 120

 

NOTICE OF APPLICATION UNDER SECTION 571 OF THE CORPORATIONS LAW

 

(Order 71, subrule 78 (3))

 

(No heading or title)

 

IN THE FEDERAL COURT OF AUSTRALIA

(name of State) DISTRICT REGISTRY

 

NOTICE OF APPLICATION RELATING TO  (name of company in capitals)

 

AUSTRALIAN COMPANY NUMBER: (specify Australian company number of the company to which the proceedings relate).

1.      (Name of applicant) will apply to the Federal Court of Australia at (time) on (date) at (address of Court) in Proceedings No.       of 19     for an order under section 571 of the Corporations Law declaring the dissolution of the above company to have been void. 

 

2.      The applicant’s address for service is (specify address for service).

 

3.      Any person intending to appear at the directions hearing must file a notice of appearance in accordance with Form 79 and serve a copy of the notice of appearance on the applicant at its address for service shown above not later than 2 days before the date appointed for the hearing.

 

Dated:

 

__________

71.66 Form121:

Omit the form.

71.67 Form 122:

Omit the form, substitute:

 

FORM 122

 

SUMMONS TO ATTEND EXAMINATION UNDER

SECTION 596a (OR SECTION 596b)

OF THE CORPORATIONS LAW

 

 

(Order 71, subrule 81 (4))

 

(Heading in Form 75)

 

To:    (Name and address of person to be examined)

 

SUMMONS TO ATTEND EXAMINATION RELATING TO  (name of company in capitals)

1.      You are required to attend before the Court at the time and place specified below and from day to day until the conclusion of your examination, to be examined on oath or affirmation on any matters relating to the promotion, formation, management, administration or winding up of (name of company)

(insert if applicable)

         and to produce any books in your possession or under your control relevant to those matters.

 

(Insert if applicable) 

         You are required to bring with you and produce at the examination all books in your possession, custody or under your control relating to the above company.

 

2.      Subsection 597 (6) of the Corporations Law provides that a person who is summoned to attend before the Court for an examination must not, without reasonable excuse, fail to attend as required by the summons or fail to attend from day to day until the conclusion of the examination.  Subsection 597 (7) of the Corporations Law provides that a person who attends before the Court for an examination must not:

 

              (a)   without reasonable excuse—refuse or fail to take an oath or make an affirmation; or

              (b)   without reasonable excuse—refuse or fail to answer a question that the Court directs him or her to answer; or

              (c)   make a statement that is false or misleading in a material particular; or

             (d)   without reasonable excuse—refuse or fail to produce books that the summons requires him or her to produce.

 

3.      Subsection 597 (9) of the Corporations Law provides that the Court may direct a person to produce, at an examination of the person, books that are in his or her possession and are relevant to matters to which the examination relates or will relate.  Section 86 of the Corporations Law provides that a thing that is in a person’s custody or is under a person’s control is in that person’s possession.  Subsection 597 (9a) of the Corporations Law provides that a person may comply with the direction under subsection 597 (9) by causing the relevant books to be

         produced at the examination.  Subsection 597 (10) of the Corporations Law provides that a person must not, without reasonable excuse, refuse or fail to comply with a direction under subsection 597 (9).

 

Date and time of examination:  (Date and time to be entered by Registry)

 

Place:  (Address of Court)

 

 

Dated:

 

............................

Registrar

 

Name of applicant:

 

Name of applicant’s solicitors:

 

Applicant’s address for service:

 

__________

71.68 Form 123:

Omit the form.

71.69 Form 124:

Omit the form, substitute:

 

FORM 124

 

CERTIFICATE AUTHENTICATING A TRANSCRIPT TAKEN ON AN EXAMINATION UNDER SECTION 596a

(OR SECTION 596b) OF THE CORPORATIONS LAW

 

(Order 71, subrule 81a (4))

 

(Heading in Form 75)

 

I CERTIFY that pages           to         of the transcript annexed hereto are a correct record of the examination of (name of person examined) which occurred before (name of presiding judge or name of registrar)  on  (date)  at  (time).

 

Dated:

 

 

..........................................................

Signature

Name of Person who made transcript

or of responsible officer

 

___________

71.70 Form 125:

Omit the form, substitute:

 

FORM 125

 

 

CERTIFICATE OF DEFAULT IN RELATION TO AN EXAMINATION UNDER SECTION 596a

(OR SECTION 596b) OF THE CORPORATIONS LAW

 

 

(Order 71, subrule 82 (1))

 

 

(Heading in Form 75)

 

I CERTIFY that, in respect of an examination of (name of person examined) that occurred before me on (date) at (time), (name of person examined) refused or failed to attend the examination as required by a summons under section 596a (OR section 596b).

 

(OR) to attend from day to day until the conclusion of the examination.

 

(OR) to take the oath or make an affirmation.

 

(OR) to answer a question which he or she was directed by me to answer.

 

(OR) to produce books which the summons required him or her to produce at the examination.

 

(OR) to produce books which the Court directed him or her to produce at the examination.

 

(OR) to sign the written record of his or her examination.

 

 

Dated:

 

 

..........................................

Signature

Name of presiding registrar

 

_________

71.71 Form 128:

Omit the form, substitute:

 

FORM 128

 

AFFIDAVIT OF PRESCRIBED INFORMATION

 

(Order 71, subrules 12 (2), 12 (3), 13 (2), 14 (20), 16 (3), 17 (2),

18 (2), 19 (2), 20 (2), 21 (1), 22 (3), 22 (4), 33 (3), 36 (2), 37 (4),

72 (2), 78 (2), 83 (2) and 93 (2))

 

(Heading in Form 75)

 

On (date), I (name address and occupation) say on oath -

 

1.      On (specify date, which must be not earlier than 3 days before the application was filed) I undertook a search at the Australian Securities Commission at (location of ASC office) in respect of (name of company) (“the company”).

2.      That search indicates that:

 

         (a)      the company was incorporated under (specify relevant statute);

 

         (b)     the date of the company’s incorporation was (date of incorporation); and

 

         (c)     the general nature of the business carried on by the company as disclosed in its last annual return (OR as disclosed in its annual return dated (date)) is (specify); and

 

         (d)     The address of the registered office of the Company is (address).

 

(Insert the following paragraph only if required for the purposes of:

         (i)      an application within the scope of rule 12 of Order 71 of the Federal Court Rules; or

         (ii)     an application under rule 13 for an order confirming a reduction of capital under section 195 of the Corporations Law; or

         (iii)    an application under rule 22 relating to a compromise with members or creditors under section 411 of the Corporations Law.)

 

3.      That search indicated that the amounts of the authorised and issued share capital of the Company, and the classes, if any, of the issued shares are (specify).

 

 

SWORN at:                                 )

before me:                                   )

 

 

 

 

......................................................

                       A Justice of the Peace

 

         [NOTE: Rule 2 of Order 71 defines “prescribed information”, in relation to a company, as:

         (a)     a statement of the statute under which the company was incorporated; the date of the company’s incorporation; and the general nature of any business carried on or previously carried on by the company at any relevant time. and

         (b)     unless the company to which the proceedings relate is the applicant—a statement of the capacity in which the applicant makes the application; and

         (c)     unless the company to which the proceedings relate is the applicant or has entered an appearance in proceedings—a statement of the address of the company’s registered office as determined by a search of records maintained by the Commission made not earlier than 7 days before the application was filed.]

 

_________

72.     Second Schedule (Costs allowable for work done and services performed)

72.1   After item 43, insert:

 

	Corporations Law Short Form Bill
43a.	the amount as to the costs of obtaining a winding up order up to and including entry and service of the order under section 470 of the Corporations Law and the obtaining of a certificate of taxation ........................... additional costs are allowable for any adjournment in which costs have been reserved by the Court in accordance with  item 36 or item 37, as the case may be	1750.00

73.     Third Schedule (Powers and functions of the Court that may be exercised by a Registrar if the Court or Judge directs)

73.1   Omit items 41, 50, 68 and 82.

 

73.2   Omit items 30, 31 and 32, substitute:

 

30	section 423	rule 29	Inquiry as to conduct of controller:
31	section 424	rule 30	Controller’s application to the court for directions
32	section 425	rule 30A	Power to fix amount of remuneration of a controller:

73.3   Omit item 34, substitute:

 

34

section 434A

rule 30C

Removal of redundant controller:

73.4   Omit item 38, substitute:

 

38

sections 459P, 459R, 461,462, 464 and 465B, subsections 467 (1) and (3) and section 467A

rules 35 to 42 (inclusive)

Winding up applications

73.5   Omit items 53 and 54, substitute:

 

53	subsection 483 (1)	rule  60	Court’s power to require payment of money or transfer of property:
54	section 483	rule 63	Court’s power to make order for payment of call
54A	subsection 488 (2)	rule 64A	Power to grant leave to distribute a surplus

73.6   Omit item 86, substitute:

 

86

sections 568 to 568F (inclusive)

rules  77 to 77C (incl-usive)

Power to make orders in relation to disclaimer of onerous property

73.7   Omit item 90, substitute:

 

90

sections 596A, 596B and 597

rules  81 to 82 (incl-usive)

Powers of Court in relation to examinations

 

73.8   Insert the following items:

 

21A	section 243ZD	rule 19A	Order sanctioning non-compliance with Part 3.2A
28A	section 418A	rule 27A	Declaration as to validity of controller’s appointment
29A	section 419A	rule 28A	Relief of controller from liability
29B	section 420B	rule 28B	Power to authorise managing controller to dispose of property despite prior charge
29C	section 420C	rule 28C	Power to authorise receiver to carry on corporation’s business during the winding up
37A	section 438D		Power to direct administrator to lodge a report
37B	section 440B	rule 34A	Power to grant leave to enforce a charge if an administrator has been appointed
37C	section 440C	rule 34A	Power to grant leave to take possession of property
37D	section 440D	rule 34A	Power to grant leave to begin or proceed with a proceeding in a court against a company which is in administration, or in relation to any of its property
37E	section 440F	rule 34A	Power to grant leave to begin or proceed with enforcement process in relation to the property of a company
37F	subsection 440G(2)	rule 34A	Power to authorise a court officer to take action or to make a payment which would be prohibited
37G	section 440J	rule 34A	Power to grant leave to take enforcement action under a guarantee
37H	section 441D	rule 34A	Power to limit powers of chargee in relation to charged property
37i	section 441H	rule 34A	Power to limit powers of receiver etc. in relation to property used by company
37J	section 442C	rule 34A	Power to grant leave to dispose of property of a company under administration which is subject to a charge, or property that is used or occupied by, or is in the possession of, a company under administration but of which someone else is the owner or lessor
37K	section 443B	rule 34A	Power to grant relief of administrator from personal liability for rent
37L	subsection 444B(2)	rule 34A	Power to extend time for execution of deed of company arrangement
37M	section 444C	rule 34A	Power to grant leave to act inconsistently with deed of company arrangement
37N	section 444E	rule 34A	Power to grant leave to person bound by a deed of company arrangement to begin or proceed with a proceeding against the company or in relation to any of its property; or   to begin or proceed with enforcement process in relat-ion to the property of the company
37o	section 444F	rule 34B	Power to order secured creditor or owner or lessor of property not to take certain actions
37P	section 445B	rule 34A	Power to make an order cancelling a variation of a deed of company arrangement
37Q	section 445D	rule 34A	Power to make orders as to the operation of Part 3.2A in respect of a particular company
37R	section 445G	rule 34C	Power to avoid or validate a deed of company arrangement
37S	section 447A	rule 34A	Power to make an order to bring an administration to an end
37T	section 447B	rule 34A	Power to make order to protect interests of company’s creditors during an administration
37U	section 447C	rule 34A	Power to declare whether administrator is validly appointed
37V	section 447D	rule 34D	Power to give directions to an administrator
37W	section 447E	rule 34E	Power to make orders as to supervision of administrator of company or deed of company arrangement
37X	section 449B	rule 34F	Power to make orders as to removal of administrator
37Y	sections 449C and 449D	rule 34G	Power to make orders in respect of vacancy in office of administrator of company or in office of administrator of deed of company arrangement
37Z	section 449E	rule 34A	Power to determine or review the remuneration of an administrator
85A	section 554A	rule 76A	Appeals against determination of value of debts and claims of uncertain value in liquidation
85B	section 554G	rule 76B	Power to grant leave to secured creditor to amend valuation of security in proof of debt
88A	Sections 600A, to 600D (inclusive)		Powers of Court in relation to creditor’s resolutions

73.9   After Part 1, insert:

 

PART 1A

107		Schedule 4 rules 36, 37 and 41	Winding up applications

 

80.     New Schedule 4

80.1   After Schedule 3, add:

SCHEDULE 4

Order 71, rule 47

 

CORPORATIONS LAW—1993 TRANSITIONAL PROVISIONS

UNDER ORDER 71 FOR WINDING UP PROCEEDINGS

Application for a winding up order—former section 461

             36.   (1)     This rule applies to an application made before 23 June 1993 for a winding up order under section 461 of the Corporations Law other than an application to which rule 37 in this Schedule applies.

              (2)   On filing and serving an application under this rule, the applicant must also file and serve:

              (a)   an affidavit made not earlier than 7 days before the application is filed, setting out a statement by a person who has, not earlier than 3 days before the date on which the affidavit is made, undertaken a search of the company records maintained by the Commission, as to whether any winding up application is pending or any winding up order has been made against the company; and

              (b)   an affidavit made not earlier than 7 days before the application is filed setting out the prescribed information (within the meaning of Order 71), which may be in or substantially in accordance with Form 128; and

              (c)   an affidavit made not earlier than 7 days before the application is filed setting out:

                           (i)   any other material facts to be relied upon by the applicant in support of the application; and

                          (ii)   the grounds of the application and a reference to the provision or provisions of section 461 of the Corporations Law on which the applicant relies.

              (3)   An affidavit made under paragraph (2) (c) must be made by a person who can depose of his or her own knowledge to at least some of the grounds relied upon for the winding up of the company.

              (4)   As soon as is practicable after filing the application and affidavit or affidavits in support, and in any event not later than 14 days after the date of filing, the applicant must serve a signed and sealed copy of that application and affidavits on which it relies on:

              (a)   the company, in a manner permitted by section 220 of the Corporations Law; and

              (b)   if the company is in the course of being wound up in a voluntary winding up—the liquidator of the company.

              (5)   Unless the Court orders to the contrary, notice of the application in accordance with Form 93 must be published in the manner prescribed by rule 104 not earlier than 3 days after the date a copy of the application was served on the company and not later than 7 days before the date appointed for directions under Order 4, rule 8.

              (6)   The applicant:

              (a)   may, at the same time as filing the application and any affidavit in support, lodge a nomination in accordance with Form 88 of an official liquidator who, if an order for the winding up of the company is made and unless the Court is satisfied that some other official liquidator should be appointed, will be appointed as liquidator; and

              (b)   must, within 14 days of filing, serve a copy of any such nomination on the persons specified in paragraph (4) (a).

              (7)   If the Court thinks fit, it may hear and determine an application for the winding up of a company on the day appointed for directions under Order 4, rule 8 or a day subsequently appointed for directions in the proceedings.

              (8)   If a person on whom the application has not been served intends to appear on the day appointed for directions under Order 4, rule 8, he or she must:

              (a)   file a notice of appearance in accordance with Form 79; and

              (b)   serve a copy of the notice on the applicant not later than 2 days before the day appointed for directions.

              (9)   At the first directions hearing or at any subsequent directions hearing, the Court may direct the applicant or its solicitors to prepare and file a list in accordance with Form 80 of the names and addresses of persons who have given notice of their intention to appear in the proceedings.

            (10)   Without limiting any right of inspection otherwise available under Order 46, rule 6, a person who is or claims to be a contributory, member, creditor or officer of a company, and who makes application in a form approved by the Registrar, must:

              (a)   be permitted by the Registrar to inspect an application to wind up the company , and any affidavits in relation to the application that are in the Registrar’s custody; and

              (b)   on payment of the prescribed fee—be provided with  a copy of those documents.

            (11)   Form 79, 80, 88, 93 or 128, used in accordance with this rule, and appropriately amended as the circumstances require, is taken to be in compliance with this rule.

Transitional rule applying to winding up of a company under former section 460 or former paragraph 461 (a)

             37.   (1)     This rule applies to an application made before 23 June 1993 for a winding up order:

              (a)   under section 460 of the Corporations Law—on the ground that a company is unable to pay its debts; or

              (b)   under paragraph 461 (1) (a) of the Corporations Law—if:

                           (i)   a company has, by special resolution, resolved that it be wound up; and

                          (ii)   an officer of the company filed an affidavit at the time the application was made, deposing that the company is unable to pay its debts as they become due; or

              (c)   under paragraph 460 (2) (a) of the Corporations Law—on the ground that a company on which demand was served before 23 June 1993 is unable to pay its debts.

              (2)   On filing and serving an application under this rule, the applicant must also file and serve:

              (a)   an affidavit made not earlier than 7 days before the application is filed setting out a statement by a person who has, not earlier than 3 days before the date on which the affidavit is made, undertaken a search of the company records maintained by the Commission, as to whether any winding up application is pending or any winding up order has been made against the company; and

              (b)   an affidavit made not earlier than 7 days before the application is filed setting out the prescribed information (within the meaning of Order 71), which may be in or substantially in accordance with Form 128; and

              (c)   an affidavit setting out:

                           (i)   a statement of the debt alleged and details of how and when it was incurred; and

                          (ii)   a statement that the company is indebted to the applicant for the amount claimed; and

                         (iii)   details of any judgment obtained by the applicant against the company; and

                         (iv)   a statement of the grounds relied upon to show that the company is unable to pay its debts; and

                          (v)   a statement of any other material facts to be relied upon by the applicant in support of the application; and

             (d)   an affidavit proving service of a notice under subsection 460 (2) of the Corporations Law, if applicable, together with copies of any documents exhibited to that affidavit.

              (3)   Unless the Court orders to the contrary, an affidavit made under paragraph (2) (c) must be:

              (a)   made by a person who can depose to the indebtedness of the company to his or her own knowledge; and

              (b)   served on the company, with the application.

              (4)   As soon as is practicable after filing the application and the affidavit in support, and in any event not later than 14 days after the date of filing, the applicant (unless it is the company) must serve a signed and sealed copy of that application and the affidavits on which it relies, on:

              (a)   the company, in a manner permitted by section 220 of the Corporations Law; and

              (b)   if the company is in the course of being wound up in a voluntary winding up—the liquidator of the company.

              (5)   Unless the Court orders to the contrary, notice of the application in Form 93 must be published in the manner prescribed by rule 104 not earlier than 3 days after the date the application was served on the company and not later than 7 days before the date appointed for directions under Order 4, rule 8.

              (6)   The applicant:

              (a)   may, at the same time as filing the application and any affidavit in support, lodge a nomination in accordance with Form 88 of an official liquidator who, if an order for the winding up of the company is made and unless the Court is satisfied that some other official liquidator should be appointed, will be appointed as liquidator; and

              (b)   must, within 14 days of filing, serve a copy of any such nomination on the persons specified in paragraph (4) (a).

              (7)   If the Court thinks fit, it may hear and determine an application for the winding up of a company on the day appointed for directions under Order 4, rule 8 or a day subsequently appointed for directions in the proceedings.

              (8)   If a person on whom the application has not been served intends to appear on the day appointed for directions under Order 4, rule 8, he or she must:

              (a)   file a notice of appearance in accordance with Form 79; and

              (b)   serve a copy of the notice on the applicant not later than 2 days before the day appointed for directions.

              (9)   At the first directions hearing or at any subsequent directions hearing, the Court may direct the applicant or its solicitors to prepare and file a list in accordance with Form 80 of the names and addresses of persons who have given notice of their intention to appear in the proceedings.

            (10)   Without limiting any right of inspection otherwise available under Order 46, rule 6, a person who is or claims to be a contributory, member, creditor or officer of a company, and who makes application in a form approved by the Registrar, must:

              (a)   be permitted by the Registrar to inspect an application to wind up the company , and any affidavits in relation to the application that are in the Registrar’s custody; and

              (b)   on payment of the prescribed fee—be provided with  a copy of those documents.

            (11)   Form 79, 80, 88, 93 or 128, used in accordance with this rule, and appropriately amended as the circumstances require, is taken to be in compliance with this rule.

Application for substitution of applicant in winding up application—section 460 or 461

              41   (1)     If an applicant in proceedings in relation to a winding up order applied for under section 460 or 461 of the Corporations Law before 23 June 1993:

              (a)   fails to take all steps required under Order 71 and this Schedule to be taken preliminary to the hearing; or

              (b)   seeks the leave of the Court to discontinue the proceedings; or

              (c)   consents to the proceedings being dismissed; or

             (d)   does not appear at the hearing of the proceedings; or

              (e)   does not seek or does not obtain a winding up order at the hearing;

the Court may, subject to the Corporations Law, make orders for the further conduct of the proceedings.

              (2)   Orders made under subrule (1) may:

              (a)   be made on application by a person who falls within the classes of person specified in subsection 462 (2) of the Corporations Law, as in force before 23 June 1993; and

              (b)   be made on such terms and conditions as the Court thinks fit; and

              (c)   include an order in or substantially in accordance with Form 97, substituting the person who applied for the orders for the person who was formerly the applicant in the proceedings; and

             (d)   if the Court sees fit, include an order requiring publication of a notice in accordance with Form 98 in the manner prescribed by Order 71, rule 104 or in such other manner as the Court directs.

              (3)   This rule does not limit the powers of the Court under Order 6.

            (11)   Form 97 or 98, used in accordance with this rule, and appropriately amended as the circumstances require, is taken to be in compliance with this rule.

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NOTES

1.   Notified in the Commonwealth of Australia Gazette on  23 June 1993.

2.   Statutory Rules 1979 No. 140 as amended by 1980 No. 87; 1982 Nos. 217 and 408; 1983 No. 264; 1984 Nos. 9 and 258; 1985 Nos. 16, 97, 168 and 227; 1986 Nos. 61, 157 and 324; 1987 Nos. 73, 174 and 197; 1988 Nos. 14, 54, 144, 217 and 306; 1989 Nos. 50, 253 and 318; 1990 Nos. 72, 102, 276, 319, 414 and 453; 1991 Nos. 70, 249, 395 and 461; 1992 No. 43, 44, 86, 87, 186, 330, 421 and 453; 1993 Nos. 40 and 45