Federal Register of Legislation - Australian Government

Primary content

Rules/Court & Tribunal Rules as made
This instrument amends the Federal Court (Corporations) Rules 2000.
Administered by: Attorney-General's
Made 01 Dec 2017
Registered 05 Dec 2017
Tabled HR 06 Dec 2017
Tabled Senate 07 Dec 2017
Date of repeal 07 Dec 2017
Repealed by Division 1 of Part 3 of Chapter 3 of the Legislation Act 2003
Table of contents.

 

 

Federal Court (Corporations) Amendment (Insolvency Law Reform) Rules 2017

 

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

Dated 1 December 2017

J.L.B. ALLSOP CJ

J.A. DOWSETT J

A.N. SIOPIS J

A.P. GREENWOOD J

S.D. RARES J

A.J. BESANKO J

R.R.S. TRACEY J

J.E. MIDDLETON J

J. GILMOUR J

J.A. LOGAN J

G.A. FLICK J

N.W. McKERRACHER J

J.E. REEVES J

N. PERRAM J

J.M. JAGOT J

L.G. FOSTER J

J.V. NICHOLAS J

D.M. YATES J

M. BROMBERG J

A.J. KATZMANN J

A. ROBERTSON J

B.M. MURPHY J

J.E. GRIFFITHS J

D.J.C. KERR J

L.K. FARRELL J

T. PAGONE J

J. DAVIES J

D.S. MORTIMER J

D.C. RANGIAH J

R.C. WHITE J

M.A. WIGNEY J

M.A. PERRY J

J.S. GLEESON J

 

J.B.R. BEACH J

B.S. MARKOVIC J

M.K. MOSHINSKY J

R.J. BROMWICH J

N. CHARLESWORTH J

S.C.G. BURLEY J

D.J. O’CALLAGHAN J

M.B.J. LEE J

R.M. DERRINGTON J

 

 

                                                                    

                                                                    

                                                                     Judges of the

                                                         Federal Court of Australia

 

 

 

W.G. Soden

Chief Executive Officer and Principal Registrar


Contents

1............ Name............................................................................................................................. 1

2............ Commencement............................................................................................................. 1

3............ Authority....................................................................................................................... 1

4............ Schedules...................................................................................................................... 1

Schedule 1—Amendments                                                                                                                          2

Part 1—Amendments                                                                                                                              2

Federal Court (Corporations) Rules 2000                                                                                       2

Part 2—Transitional provisions                                                                                                         16

Federal Court (Corporations) Rules 2000                                                                                     16

 


1  Name

                   These Rules are the Federal Court (Corporations) Amendment (Insolvency Law Reform) Rules 2017.

2  Commencement

             (1)  Each provision of these Rules specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

 

Commencement information

Column 1

Column 2

Column 3

Provisions

Commencement

Date/Details

1.  The whole of these Rules

The day after these Rules are registered.

6 December 2017

Note:          This table relates only to the provisions of these Rules as originally made. It will not be amended to deal with any later amendments of these Rules.

             (2)  Any information in column 3 of the table is not part of these Rules. Information may be inserted in this column, or information in it may be edited, in any published version of these Rules.

3  Authority

                   These Rules are made under the Federal Court of Australia Act 1976.

4  Schedules

                   Each instrument that is specified in a Schedule to these Rules is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to these Rules has effect according to its terms.

Schedule 1Amendments

Part 1Amendments

Federal Court (Corporations) Rules 2000

1  Rule 1.4

Before “Unless”, insert “(1)”.

2  Rule 1.4 (note)

Omit:

official liquidator—see section 9

3  At the end of rule 1.4 (after the note)

Insert:

             (2)  Unless the contrary intention appears, an expression used in the Rules and in the Insolvency Practice Schedule (Corporations) has the same meaning in these Rules as it has in that Schedule.

Note:          Definitions of expressions used in the Insolvency Practice Schedule (Corporations) are set out in Division 5 of that Schedule.

4  Rule 1.5

Insert:

Insolvency Practice Schedule (Corporations) means Schedule 2 to the Corporations Act.

5  Subrule 2.8(3) (table item 3, column headed “Provision”)

Omit “subsection 509 (6)”, substitute “subsection 509(2)”.

6  Subrule 2.8(3) (table item 4)

Repeal the item.

7  Subrule 2.8(3) (at the end of the table)

Add:

10

subsection 45‑1(3) of the Insolvency Practice Schedule (Corporations)

For an order under subsection 45‑1(1) of the Insolvency Practice Schedule (Corporations) in relation to a registered liquidator

11

subsection 90‑10(1) of the Insolvency Practice Schedule (Corporations)

For an inquiry into the external administration of a company

12

section 90‑20 of the Insolvency Practice Schedule (Corporations)

For an order under section 90‑15 of the Insolvency Practice Schedule (Corporations) in relation to the external administration of a company

8  Division 4 (heading)

Repeal the heading, substitute:

Division 4Process for seeking an inquiry or order in relation to controller, registered liquidator or external administration

9  At the end of rule 4.1

Add “The complaint may be made by a person mentioned in any of paragraphs 11.2(1)(a) to (d).”.

10  At the end of Division 4

Add:

4.2  Order or inquiry in relation to registered liquidator or external administration of a company

                   An application to the Court:

                     (a)  under section 45‑1 of the Insolvency Practice Schedule (Corporations) for an order in relation to a registered liquidator; or

                     (b)  under section 90‑10 of that Schedule for an inquiry into the external administration of a company; or

                     (c)  under section 90‑20 of that Schedule for an order in relation to the external administration of a company;

must be made:

                     (d)  in the case of a winding up by the Court—by an interlocutory process seeking the inquiry or order; or

                     (e)  in any other case—by an originating process seeking the inquiry or order.

Note:          An application for an order or inquiry in relation to the external administration of a company ordered to be wound up by a Court is normally made to the Court that made the winding up order.

11  Rule 5.6

Repeal the rule, substitute:

5.6  Notice of application for winding up

             (1)  If a person applies for a company to be wound up and the application is not made under section 459P, 462 or 464 of the Corporations Act, the person must, unless the Court otherwise orders, cause a notice of the application to be published in a daily newspaper circulating generally in the State or Territory where the company has its principal, or last known, place of business. The notice must be in accordance with Form 9.

Note:          If a person applies under section 459P, 462 or 464 of the Corporations Act for a company to be wound up, the person must cause a notice, setting out the information prescribed by regulation 5.4.01A of the Corporations Regulations, to be published in the manner provided by section 1367A of the Corporations Act and regulation 5.6.75 of the Corporations Regulations: see subsection 465A(1) of the Corporations Act.

             (2)  A notice under subrule (1), or under paragraph 465A(1)(c) of the Corporations Act, of an application for a company to be wound up must be published:

                     (a)  at least 3 days after the originating process is served on the company; and

                     (b)  at least 7 days before the date fixed for the hearing of the application.

12  Rule 5.11 (heading)

Repeal the heading, substitute:

5.11  Notice of winding up order and appointment of liquidator

13  Subrules 5.11(3) and (4)

Repeal the subrules, substitute:

             (3)  If the winding up order results from an application other than an application under section 459P, 462 or 464 of the Corporations Act, the liquidator must cause a notice of the winding up order and the liquidator’s appointment to be published in a daily newspaper circulating generally in the State or Territory where the company has its principal, or last known, place of business. The notice must be in accordance with Form 11.

Note:          If the winding up order results from an application under section 459P, 462 or 464 of the Corporations Act, the liquidator must cause a notice, setting out the information prescribed by regulation 5.4.01B of the Corporations Regulations, to be published in the manner provided by section 1367A of the Corporations Act and regulation 5.6.75 of the Corporations Regulations: see subsection 465A(2) of the Corporations Act.

             (4)  A notice under subrule (3), or under subsection 465A(2) of the Corporations Act, of a winding up order must be published as soon as practicable after the liquidator is informed of the appointment.

14  After the heading to Division 6

Insert:

Note:       See also rule 7.3 (report to provisional liquidator as to company’s affairs under section 475 of the Corporations Act).

15  Rule 6.2 (heading)

Repeal the heading, substitute:

6.2  Notice of appointment of provisional liquidator

16  Subrules 6.2(3) and (4)

Repeal the subrules, substitute:

             (3)  If the order results from an application other than an application under section 459P, 462 or 464 of the Corporations Act, the provisional liquidator must cause a notice of the provisional liquidator’s appointment to be published in a daily newspaper circulating generally in the State or Territory where the company has its principal, or last known, place of business. The notice must be in accordance with Form 12.

Note:          If the order results from an application under section 459P, 462 or 464 of the Corporations Act, the provisional liquidator must cause a notice, setting out the information prescribed by regulation 5.4.01B of the Corporations Regulations, to be published in the manner provided by section 1367A of the Corporations Act and regulation 5.6.75 of the Corporations Regulations: see subsection 465A(2) of the Corporations Act.

             (4)  A notice under subrule (3), or under subsection 465A(2) of the Corporations Act, of a provisional liquidator’s appointment must be published as soon as practicable after the relevant order is made.

17  Rule 7.1

Repeal the rule.

18  Rule 7.2

Repeal the rule, substitute:

7.2  Vacancy in office of liquidator (Corporations Act s 473A and s 499(3) and Insolvency Practice Schedule (Corporations) s 90‑15)

                   If, for any reason, there is no liquidator of a company under external administration, the Court may appoint a registered liquidator whose written consent in accordance with Form 8 has been filed.

Note:          The Court may make the appointment:

(a)    on its own initiative, during proceedings before the Court; or

(b)    on application under section 90‑20 of the Insolvency Practice Schedule (Corporations).

                   See subsection 90‑15(2) of that Schedule.

19  Before subrule 7.3(1)

Insert:

          (1A)  In this rule:

liquidator includes a provisional liquidator.

20  Subrule 7.3(4)

Repeal the subrule, substitute:

             (4)  Unless the Court otherwise orders, a report filed by a liquidator under subsection 475(7) of the Corporations Act is not available for inspection by any person.

Note:          A report filed by a liquidator under subsection 475(7) of the Corporations Act may include commercial‑in‑confidence information that may not be inspected: see subsection 1274(4G) of the Corporations Act.

21  Paragraph 7.5(3)(e)

Repeal the paragraph, substitute:

                     (e)  whether ASIC has caused books in relation to the company to be audited under section 70‑15 of the Insolvency Practice Schedule (Corporations);

22  Rule 7.11

Repeal the rule, substitute:

7.11  Appointment of reviewing liquidator (Insolvency Practice Schedule (Corporations) s 90‑23(8))

             (1)  An application to the Court under subsection 90‑23(8) of the Insolvency Practice Schedule (Corporations) to appoint a registered liquidator to carry out a review into a matter relating to the external administration of a company must be made:

                     (a)  in the case of a winding up by the Court—by filing an interlocutory process seeking the relevant orders; or

                     (b)  in the case of a voluntary winding up—by filing an originating process seeking the relevant orders.

             (2)  The application must be accompanied by the written declaration made by the proposed reviewing liquidator under section 90‑18 of the Insolvency Practice Rules (Corporations) 2016.

23  Rule 9.2

Repeal the rule, substitute:

9.2  Determination of remuneration of external administrator (Insolvency Practice Schedule (Corporations) s 60‑10(1)(c) and (2)(b))—Form 16

             (1)  This rule applies in relation to an application for a determination under paragraph 60‑10(1)(c) or (2)(b) of the Insolvency Practice Schedule (Corporations) specifying remuneration that an external administrator of a company is entitled to receive for necessary work properly performed by the external administrator in relation to the external administration.

Note:          Section 60‑10 of the Insolvency Practice Schedule (Corporations) does not apply in relation to the remuneration of a provisional liquidator or a liquidator appointed by ASIC under section 489EC of the Corporations Act: see section 60‑2 of the Insolvency Practice Schedule (Corporations).

             (2)  At least 21 days before filing an originating process, or interlocutory process, seeking the determination, the external administrator must serve a notice in accordance with Form 16 of the external administrator’s intention to apply for the determination, and a copy of any affidavit on which the external administrator intends to rely, on the following persons:

                     (a)  each creditor who was present, in person or by proxy, at any meeting of creditors;

                     (b)  each member of any committee of inspection;

                     (c)  if there is no committee of inspection, and no meeting of creditors has been convened and held—each of the 5 largest (measured by amount of debt) creditors of the company;

                     (d)  each member of the company whose shareholding represents at least 10% of the issued capital of the company.

             (3)  Within 21 days after the last service of the documents mentioned in subrule (2), any creditor or contributory may give to the external administrator a notice of objection to the remuneration claimed, stating the grounds of objection.

             (4)  If the external administrator does not receive a notice of objection within the period mentioned in subrule (3):

                     (a)  the external administrator may file an affidavit, made after the end of that period, in support of the originating process, or interlocutory process, seeking the determination stating:

                              (i)  the date, or dates, when the notice and affidavit required to be served under subrule (2) were served; and

                             (ii)  that the external administrator has not received any notice of objection to the remuneration claimed within the period mentioned in subrule (3); and

                     (b)  the external administrator may endorse the originating process, or interlocutory process, with a request that the application be dealt with in the absence of the public and without any attendance by, or on behalf of, the external administrator; and

                     (c)  the application may be so dealt with.

             (5)  If the external administrator receives a notice of objection within the period mentioned in subrule (3), the external administrator must serve a copy of the originating process, or interlocutory process, seeking the determination on each creditor or contributory who has given a notice of objection.

             (6)  An affidavit in support of the originating process, or interlocutory process, seeking the determination must:

                     (a)  include evidence of the matters mentioned in section 60‑12 of the Insolvency Practice Schedule (Corporations); and

                     (b)  state the nature of the work performed or likely to be performed by the external administrator; and

                     (c)  state the amount of remuneration claimed; and

                     (d)  include a summary of the receipts taken and payments made by the external administrator; and

                     (e)  state particulars of any objection of which the external administrator has received notice; and

                      (f)  if the external administration is continuing—give details of any matters delaying the completion of the external administration.

24  Rule 9.2A (heading)

Repeal the heading, substitute:

9.2A  Review of remuneration determination for external administrator (Insolvency Practice Schedule (Corporations) s 60‑11(1))

25  Subrule 9.2A(1)

Repeal the subrule, substitute:

             (1)  This rule applies in relation to an application under subsection 60‑11(1) of the Insolvency Practice Schedule (Corporations) for a review of a remuneration determination for an external administrator of a company.

Note 1:       Section 60‑11 of the Insolvency Practice Schedule (Corporations) does not apply in relation to the remuneration of a provisional liquidator or a liquidator appointed by ASIC under section 489EC of the Corporations Act: see section 60‑2 of the Insolvency Practice Schedule (Corporations).

Note 2:       An application may not be made under subsection 60‑11(1) of the Insolvency Practice Schedule (Corporations) for a review of a remuneration determination made by the Court under paragraph 60‑10(1)(c) or (2)(b) of that Schedule: see subsection 60‑11(5) of that Schedule.

26  Subrule 9.2A(2)

Repeal the subrule.

27  Paragraph 9.2A(3)(a)

Omit “a committee of creditors or”.

28  Paragraph 9.2A(3)(b)

Omit “the administrator”, substitute “the external administrator”.

29  Subrule 9.2A(7)

Omit “The administrator”, substitute “The external administrator”.

30  Paragraph 9.2A(7)(a)

Omit “subsection 449E (4) of the Corporations Act”, substitute “section 60‑12 of the Insolvency Practice Schedule (Corporations)”.

31  Paragraphs 9.2A(7)(b), (c), (d) and (e)

Omit “the administrator”, substitute “the external administrator”.

32  Paragraph 9.2A(7)(f)

Omit “the administration” (wherever occurring), substitute “the external administration”.

33  Subrule 9.2A(8)

Repeal the subrule.

34  Rule 9.3 (heading)

Repeal the heading, substitute:

9.3  Remuneration of provisional liquidator (Insolvency Practice Schedule (Corporations) s 60‑16)—Form 16

35  Subrule 9.3(1)

Repeal the subrule, substitute:

             (1)  This rule applies in relation to an application by a provisional liquidator of a company for a determination under subsection 60‑16(1) of the Insolvency Practice Schedule (Corporations) of the remuneration the provisional liquidator is entitled to receive.

36  Subrules 9.3(3), (5), (6) and (7)

Omit “the order” (wherever occurring), substitute “the determination”.

37  Subrule 9.3(8)

Omit “subsection 473 (10) of the Corporations Act”, substitute “section 60‑12 of the Insolvency Practice Schedule (Corporations)”.

38  Paragraph 9.3(8)(b)

Omit “‘liquidator’”, substitute “‘external administrator’”.

39  Rules 9.4 and 9.4A

Repeal the rules.

40  Paragraph 9.5(3)(b)

Omit “committee of creditors or” (wherever occurring).

41  Division 11 (heading)

Repeal the heading, substitute:

Division 11Inquiries, examinations, investigations, and orders against person concerned with corporation

42  Rule 11.2

Repeal the rule, substitute:

11.2  Inquiries, examinations and investigations under paragraph 411(9)(b) or subsection 423(3) of the Corporations Act or Subdivision B of Division 90 of the Insolvency Practice Schedule (Corporations)

             (1)  An application for an order for an examination or investigation under subsection 423(3) of the Corporations Act in relation to a controller of property of a corporation may be made by any of the following:

                     (a)  a person with a financial interest in the administration of the corporation;

                     (b)  an officer of the corporation;

                     (c)  if the committee of inspection (if any) so resolves—a creditor, on behalf of the committee;

                     (d)  ASIC.

Note:          An application:

(a)    under paragraph 411(9)(b) of the Corporations Act for an inquiry into the administration of a compromise or arrangement or an examination or investigation in connection with such an inquiry; or

(b)    under Subdivision B of Division 90 of the Insolvency Practice Schedule (Corporations) for an inquiry into the external administration of a company or an examination or investigation in connection with such an inquiry;

                   may be made by a person mentioned in subsection 90‑10(2) of the Insolvency Practice Schedule (Corporations): see paragraph 411(9)(b) of the Corporations Act and subsection 90‑10(1) of the Insolvency Practice Schedule (Corporations).

             (2)  The following applications may be made without notice to any person:

                     (a)  an application under paragraph 411(9)(b) of the Corporations Act for an inquiry into the administration of a compromise or arrangement or an examination or investigation in connection with such an inquiry;

                     (b)  an application for an order for an examination or investigation under subsection 423(3) of the Corporations Act;

                     (c)  an application under Subdivision B of Division 90 of the Insolvency Practice Schedule (Corporations) for an inquiry into the external administration of a company or an examination or investigation in connection with such an inquiry.

             (3)  The provisions of this Division that apply to an examination under Division 1 of Part 5.9 of the Corporations Act apply, with any necessary adaptations, to an inquiry, examination or investigation under paragraph 411(9)(b) or subsection 423(3) of the Corporations Act or Subdivision B of Division 90 of the Insolvency Practice Schedule (Corporations).

43  Rule 11.8 (heading)

Repeal the heading, substitute:

11.8  Inspection of record or transcript of examination or investigation under s 411 or s 423 of the Corporations Act or Subdivision B of Division 90 of the Insolvency Practice Schedule (Corporations)

44  Subrule 11.8(1)

Omit “under section 411, 423 or 536”, substitute “under section 411 or 423 of the Corporations Act or Subdivision B of Division 90 of the Insolvency Practice Schedule (Corporations)”.

45  Division 14 (heading)

Repeal the heading, substitute:

Division 14Appeals authorised by the Corporations Act

46  Rule 14.1 (heading)

Repeal the heading, substitute:

14.1  Appeals against acts, omissions or decisions

47  Rule 15A.5 (heading)

Repeal the heading, substitute:

15A.5  Registered liquidator’s consent to act

48  After paragraph 16.1(1)(a)

Insert:

                    (aa)  under a provision of the Insolvency Practice Schedule (Corporations) mentioned in column 2, or a provision of these Rules mentioned in column 3, of an item in Part 1A of Schedule 2; or

49  Schedule 1 (Form 8)

Repeal the form, substitute:

Form 8Consent of liquidator/provisional liquidator

  

(rules 5.5, 6.1, 7.2)

[Title]

I, [name], of [address], a registered liquidator, consent to be appointed by the Court and to act as the *liquidator/*provisional liquidator of [name of company].

I am not aware of any conflict of interest or duty that would make it improper for me to act as *liquidator/*provisional liquidator of the company.

EITHER

I am not aware of any relevant relationship mentioned in subsection 60(2) of the Corporations Act 2001.

OR

I have, or have had within the preceding 24 months, the following relevant relationships mentioned in subsection 60(2) of the Corporations Act 2001:

[Set out all relevant relationships]

The time‑cost rates currently charged in respect of work done as *liquidator/*provisional liquidator by me, and by my partners and employees who may perform work in this external administration, are set out below or in the Schedule attached to this Consent. I acknowledge that my appointment by the Court does not constitute an express or implied approval by the Court of these rates.

Note        The remuneration that an external administrator is entitled to receive for necessary work properly performed by the external administrator in relation to the external administration of a company is regulated by Division 60 of the Insolvency Practice Schedule (Corporations).

Date:

………………………………….

Signature of registered liquidator

*   Omit if not applicable

Schedule

[description of time‑cost rate(s)]

50  Schedule 1 (Form 16, note to Form heading)

Omit “9.4,”.

51  Schedule 1 (Form 16)

Omit “*administrator”, substitute “*external administrator”.

52  Schedule 1 (Form 16)

Omit “*administrator”, substitute “*external administrator”.

53  Schedule 1 (Form 16A, note to Form heading)

Repeal the note, substitute:

(rule 9.2A)

54  Schedule 1 (Form 16A)

Omit “*administrator” (wherever occurring), substitute “*external administrator”.

55  Schedule 1 (Form 16A)

Omit “subrule *9.2A (4)/*9.4A (4)”, substitute “subrule 9.2A(4)”.

56  Schedule 1 (Form 17A)

Omit “Signature of Registrar”, substitute “Judge/Registrar”.

57  Schedule 1 (Form 19)

Repeal the form, substitute:

Form 19Consent to act as designated person

  

(rule 15A.5)

[Title]

I, [name], of [address], a registered liquidator, consent to be appointed by the Court and to act as the person designated by the Court under *article 19/*article 21 of the Model Law to *administer/*realise/*distribute the assets of [name of company].

I am not aware of any conflict of interest or duty that would make it improper for me to act as the person designated by the Court.

The time‑cost rates currently charged in respect of work done as the person designated by the Court by me, and by my partners and employees who may perform work in this administration, are set out below or in the Schedule attached to this Consent.

I acknowledge that my appointment by the Court does not constitute an express or implied approval by the Court of these rates.

Date:

………………………………….

Signature of registered liquidator

*   Omit if not applicable

Schedule

[description of time‑cost rate(s)]

58  Part 1 of Schedule 2 (after table item 10)

Insert:

 

10A

sections 415A and 415B

 

Power to make orders in relation to proposals considered at a meeting of creditors

59  Part 1 of Schedule 2 (table item 45, column headed “Provision of the Corporations Act”)

Omit “sections 449C and 449D”, substitute “section 449C”.

60  Part 1 of Schedule 2 (table item 55, column headed “Provision of the Corporations Act”)

Omit “473(7)”, substitute “473A(1)”.

61  Part 1 of Schedule 2 (table item 56, column headed “Provision of the Corporations Act”)

Omit “473(8)”, substitute “473A(4)”.

62  Part 1 of Schedule 2 (table item 79, column headed “Provision of the Corporations Act”)

Omit “509(6)”, substitute “509(2)”.

63  After Part 1 of Schedule 2

Insert:

Part 1AInsolvency Practice Schedule (Corporations)

  

 

Item

Provision of the Insolvency Practice Schedule (Corporations)

Rule

Description (for information only)

1

subsection 20‑70(3)

 

Power to extend time to apply to ASIC for renewal of a liquidator’s registration

2

paragraph 40‑5(4)(b)

 

Power to give a direction to a liquidator to lodge a document or give any information or document

3

paragraph 40‑10(4)(b)

 

Power to direct a liquidator:

(a) to confirm to ASIC that information is complete and correct; or

(b) to complete or correct information; or

(c) to notify any persons specified by ASIC of any additional or corrected information

4

subsection 45‑1(1)

 

Power to make orders in relation to a registered liquidator

5

paragraphs 60‑10(1)(c) and (2)(b)

9.2

Power to determine an external administrator’s remuneration

6

subsection 60‑11(3)

9.2A

Power to review a remuneration determination for an external administrator of a company

7

subsection 60‑16(1)

9.3

Power to determine a provisional liquidator’s remuneration

8

section 65‑45

 

Power to give directions regarding the handling of money and securities by an external administrator

9

paragraph 70‑35(3)(c)

 

Power to give directions in relation to destruction of the books of a company

10

section 70‑90

 

Power to order an external administrator to give relevant material to a person

11

subsection 75‑41(3)

 

Power to make orders in relation to proposals considered at a meeting of creditors

12

subsection 75‑42(4)

 

Power to order that a resolution passed at a meeting of creditors because of a casting vote be set aside or varied and make further orders or give further directions

13

subsection 75‑43(4)

 

Power to order that a resolution considered at a meeting of creditors is taken to have been passed and make further orders or give further directions

14

subsection 80‑50(2)

 

Power to approve a committee of inspection incurring expenses in obtaining advice or assistance

15

paragraph 80‑55(5)(b)

 

Power to give leave for a member of committee of inspection to derive a profit or advantage

16

subsection 90‑5(1)

 

Power to inquire into the external administration of a company

17

subsections 90‑5(2) and 90‑10(4)

 

Power to require an external administrator or former external administrator to give information, provide a report or produce a document

18

section 90‑15

7.2 and 11.8

Power to make orders in relation to the external administration of a company, including the following:

(a) determining a question or questions arising in the external administration;

(b) that a person cease to be the external administrator;

(c) that another registered liquidator be appointed;

(d) in relation to the costs of an action (including court action) taken by the external administrator or another person in relation to the external administration;

(e) in relation to any loss that the company has sustained because of a breach of duty by the external administrator;

(f) in relation to remuneration, including requiring a person to repay to a company, or the creditors of a company, remuneration paid to the person as external administrator of the company

19

subsections 90‑23(6) and (9)

 

Power to appoint a registered liquidator to carry out a review into a matter that relates to the external administration of a company and to specify the matters which the liquidator is appointed to review and the way in which the cost of carrying out the review is to be determined

20

section 90‑28

 

Power to make orders in relation to a review by a reviewing liquidator on the application of the reviewing liquidator, a person with a financial interest in the external administration of the company or an officer of the company

21

subsection 90‑35(6)

 

Power to order the reappointment of a former external administrator

64  Amendments of listed provisions—registered liquidators

 

Amendments relating to registered liquidators

Item

Provision

Omit

Substitute

1

Subrule 5.5(2)

an official liquidator

a registered liquidator

2

Paragraph 5.5(3)(a)

an official liquidator

a registered liquidator

3

Subrule 5.11(1)

an official liquidator

a registered liquidator

4

Subrule 6.1(1)

an official liquidator

a registered liquidator

5

Subrule 6.1(1)

the official liquidator

the registered liquidator

6

Subrule 6.2(1)

an official liquidator

a registered liquidator

7

Paragraph 15A.5(c)

an official liquidator

a registered liquidator

8

Part 1 of Schedule 2 (table item 51, column headed “Description (for information only)”)

official liquidator

registered liquidator

9

Part 1 of Schedule 2 (table item 55, column headed “Description (for information only)”)

official liquidator

registered liquidator

65  Amendments of listed provisions—repeals

Repeal the following items of the table in Part 1 of Schedule 2:

                     (a)  item 7;

                     (b)  item 8;

                     (c)  item 9;

                     (d)  item 23;

                     (e)  item 42;

                      (f)  item 43;

                     (g)  item 44;

                     (h)  item 46;

                      (i)  item 46A;

                      (j)  item 52;

                     (k)  item 53;

                      (l)  item 54;

                    (m)  item 54A;

                     (n)  item 69;

                     (o)  item 73;

                     (p)  item 74;

                     (q)  item 75;

                      (r)  item 81;

                      (s)  item 82;

                      (t)  item 84;

                     (u)  item 89;

                     (v)  item 90;

                    (w)  item 97;

                     (x)  item 112.

Part 2Transitional provisions

Federal Court (Corporations) Rules 2000

66  After Division 16

Insert:

Division 17Transitional provisions

17.1  Transitional provisions relating to the Federal Court (Corporations) Amendment (Insolvency Law Reform) Rules 2017

             (1)  Despite the repeal and substitution of rule 9.2 made by the Federal Court (Corporations) Amendment (Insolvency Law Reform) Rules 2017, that rule, as in force immediately before 1 September 2017, continues to apply in relation to the remuneration of an external administrator of a company who was appointed before 1 September 2017.

             (2)  Despite the amendments of rule 9.2A made by the Federal Court (Corporations) Amendment (Insolvency Law Reform) Rules 2017, that rule, as in force immediately before 1 September 2017, continues to apply in relation to a review of the remuneration of an external administrator who was appointed before 1 September 2017.

             (3)  Despite the amendments of rule 9.3 made by the Federal Court (Corporations) Amendment (Insolvency Law Reform) Rules 2017, that rule, as in force immediately before 1 September 2017, continues to apply in relation to the remuneration of a provisional liquidator who was appointed before 1 September 2017.

             (4)  Despite the repeal of rule 9.4 made by the Federal Court (Corporations) Amendment (Insolvency Law Reform) Rules 2017, that rule, as in force immediately before 1 September 2017, continues to apply in relation to the remuneration of a liquidator of a company who was appointed before 1 September 2017.

             (5)  Despite the repeal of rule 9.4A made by the Federal Court (Corporations) Amendment (Insolvency Law Reform) Rules 2017, that rule, as in force immediately before 1 September 2017, continues to apply in relation to a review of the remuneration of a liquidator of a company who was appointed before 1 September 2017.

             (6)  Despite the repeal and substitution of rule 11.2 made by the Federal Court (Corporations) Amendment (Insolvency Law Reform) Rules 2017, that rule, as in force immediately before 1 September 2017, continues to apply in relation to an inquiry commenced by ASIC before that date under section 536 of the old Corporations Act (including an inquiry commenced because of the extension of section 536 of the old Corporations Act by subsection 411(9) of the Corporations Act to persons appointed under the terms of a compromise or arrangement).

             (7)  In subrule (6):

old Corporations Act means the Corporations Act as in force immediately before 1 September 2017.

Note:          The Court may give directions if a difficulty arises, or doubt exists, in relation to the practice and procedure to be followed in a proceeding: see rule 1.8 and subsection 467(3) of the Corporations Act.