Federal Court Rules (Amendment) (Cth)
__________________
WE, Judges of
the Federal Court of Australia, make the following Rules under the
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.
Judges of the Federal Court of Australia
j. t. howard
Registrar
____________
1.1 These Rules commence on 23 June 1993.
2.1 The Federal Court Rules are amended as set out in these Rules.
3.1 Add at the end:
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.”.
4.1 Subrule 2 (1):
Omit “sub-rule 2”, substitute “subrules 2 and 3”.
4.2 Add at the end:
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.”
5.1 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:
“
6.1 Subrule 4 (4):
Omit the subregulation, substitute:
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.”.
7.1 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,”.
8.1 Paragraph 7 (1) (a)”:
Omit “or”, substitute “and”.
8.2 Subrules 7 (4) and (5):
Omit the subrules, substitute:
A decision or direction of a Registrar may be reviewed by the Court or a Judge.”.
9.1 Subrule 12 (4):
Omit “filing the application,”, substitute “filing,”.
10.1 Subrule 13 (3):
Omit “filing the application,”, substitute “filing,”.
11.1 Subrule 14 (18):
Omit all the words from “whose” to and including “application, and”.
12.1 Subrule 16 (4):
Omit “filing the application,”, substitute “filing,”.
13.1 Subrule 17 (3):
Omit “filing the application,”, substitute “filing,”.
14.1 Heading to Division:
After
“
15.1 Subrule 18 (3):
Omit “filing the application,”, substitute “filing,”.
16.1 Subrule 19 (3):
Omit “filing the application,”, substitute “filing,”.
17.1 After rule 19, insert:
“
“(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.
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.
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.”.
18.1 Subrule 20 (4):
Omit “filing the application,”, substitute “filing,”.
18.2 Subrule 20 (5):
Omit the subrule, substitute:
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”.
19.1 Omit the Division heading, substitute:
“
20.1 Before rule 28, insert:
“
(a) by hand delivery; or
(b) by express post addressed to the controller.
An application for a declaration must be accompanied by an affidavit annexing a copy of the notice required under subrule (1).
(a) if the controller is not the applicant—the controller; and
(b) if the company concerned is not the applicant—that company.
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.”.
21.1 After rule 28, insert:
“
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.
“
(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.
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.
“
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”.
23.1 Subrule 30 (1):
Omit “receiver of property of a corporation”, substitute “controller”.
23.2 Subrule 30 (1):
Omit “ receiver”, substitute “controller”.
24.1 After rule 30, insert:
“
(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.
“
(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.
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.
“
(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.
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.”.
25.1 Add at the end:
This rule applies only to companies placed in official management before 23 June 1993.”.
26.1 Add at the end:
This rule applies only to companies placed in official management before 23 June 1993.”.
27.1 Add at the end:
This rule applies only to companies placed in official management before 23 June 1993.”.
28.1 Add at the end:
This rule applies only to companies placed in official management before 23 June 1993.”.
29.1 After rule 34, insert:
“
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.
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.
Nature of application | 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 |
Nature of application | 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. |
Nature of application | Persons to be served copy |
Application for leave to dispose of:
—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:
—section 444e | The administrator of the company concerned |
Nature of application | 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) |
Nature of application | 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) |
“
(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.
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.
“
(a) by hand delivery; or
(b) by express post addressed to the administrator.
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).
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.
“
An application must be accompanied by an affidavit setting out any matters known to the applicant and material to the application.
“
(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.
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.
“
(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.
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.
“
(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.
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.
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).
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.”.
30.1 Subrule 72 (1):
Omit “section 460 or 461.”, substitute “section 459p or 462 of the Corporations Law.”.
31.1 Omit the rule substitute:
“
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.
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.
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.
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.
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).
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.
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.
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.]
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.
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.
An application to which this rule applies may not be discontinued without the leave of the Court.”.
32.1 After rule 36, insert:
“
(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.
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.
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.
“
(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.]
“
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.
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.
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.”.
33.1 Omit the rule, substitute:
“
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.
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.]
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.
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.
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.
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.
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.
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.
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.
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.
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.
An application may not be discontinued without the leave of the Court.
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.”.
34.1 Omit the rule, substitute:
“
(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.
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.”.
35.1 After rule 39, insert:
“
An application must be supported by an affidavit setting out the material facts on which the applicant relies.
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.”.
36.1 Omit the rule, substitute:
“
(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.
This rule does not limit the powers of the Court under Order 6.”.
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.]
38.1 Omit the rule, substitute:
“
(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.
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.
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.
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.
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.”.
39.1 Omit the rule, substitute:
“
(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.
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.”.
40.1 Omit the rule, substitute:
“
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”.
42.1 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”.
43.1 Rule 50:
Omit “(unless it is the Commission)”.
44.1 Subrule 51 (1):
Omit the subrule, substitute:
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:
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.”.
45.1 Subrules 52 (1) and (2):
After “the Court” (wherever occurring), insert “or a Judge”.
45.2 Add at the end:
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.”.
46.1 Subrule 55 (6):
Omit the subrule, substitute:
In
this rule,
47.1 Omit the rule.
48.1 Omit the rule, substitute:
“
49.1 Omit the rule.
50.1 Omit the rule.
51.1 Rule 64:
Omit “Part 5.4”, substitute “Part 5.4b”.
51.2 Paragraph 64 (f):
Omit “the making of calls and”.
52.1 After rule 64, insert:
“
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.
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.
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.”.
53.1 Subrule 65 (1):
After “official liquidator”, insert “or other official liquidators”.
54.1 Add at the end:
In
this rule,
55.1 Omit the rule.
56.1 After rule 76, insert:
“
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.
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.
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.
“
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.
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.”.
57.1 Omit the rule, substitute:
“
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.
An affidavit filed under subrule (2) must be served on the parties to the contract and any person interested in the contract.
“
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.
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.
“
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.
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.
“
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.”.
58.1 Omit the rule, substitute:
“
(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.
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.
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’.
The Court or a Judge may issue a summons for examination in, or substantially in, accordance with Form 122.
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.
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.
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.
“
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.
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.
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.”.
59.1 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”.
60.1 Subrule 83 (3):
Omit “filing the application,”. substitute “filing,”.
61.1 Omit “filing the application.”. substitute “filing.”.
62.1 Subrule 85 (2):
Omit “filing the application,”. substitute “filing,”.
63.1 Subrule 86 (2):
Omit “filing the application,”. substitute “filing,”.
64.1 Subrule 87 (2):
Omit “filing the application,”. substitute “filing,”.
65.1 Subrule 88 (2):
Omit “filing that application,”. substitute “filing,”.
66.1 Subrule 93 (3):
Omit “filing the application,”. substitute “filing,”.
67.1 Subrule 95 (2):
Omit “filing the application,”. substitute “filing,”.
68.1 After rule 98, insert:
“
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.
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.
“
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.”.
69.1 Subrule 100 (3):
Omit “filing the application,”. substitute “filing,”.
70.1 Omit “Part 3 of Chapter 5”, substitute “regulations 5.6.12 to 5.6.36a, inclusive,”.
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
(
71.4 Form 78:
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 (
71.7 Form 79:
Omit the form, substitute:
FORM 79
NOTICE OF INTENTION TO APPEAR AT HEARING
(
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))
(
NOTICE OF INTENTION TO APPEAR AT HEARING RELATING TO
(
(
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 ).
(
(
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 ).
(
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,
(
(I
3. The company is indebted to the person appearing in the sum of $ (
specify amount ).
(
(I
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 465 c of the Corporations Law provides that, on the hearing of an application under section 459 p , 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
(
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
(
71.12 Form 85:
Omit “commenced on (date),”.
71.13 Form 86:
After “(No heading or title)”, insert:
“IN THE FEDERAL COURT OF AUSTRALIA
(
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
(
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)
(
To: The District Registrar
Federal Court of Australia
(
(
Name: (
Address: (
to act as the liquidator of (
This application is filed by (
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
(
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 (
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
(
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
(
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:
(
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))
(
The District Registrar
Federal Court of Australia
(
name of District ) District Registry
(
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 (
This application is filed by (
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: (
of: (
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 (
Signed:
District Registrar
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))
(
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
(
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
(
NOTICE OF APPLICATION RELATING TO (
AUSTRALIAN COMPANY NUMBER: (
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 (
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
(
71.41 Form 93:
Omit:
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) (“
substitute:
“(Name of applicant) will apply to the
Federal Court of Australia at (
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))
(
On (
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.
)
)
...............................................................
A Justice of the Peace
_________
FORM 93b
AFFIDAVIT UNDER SECTION 459e OF
THE CORPORATIONS LAW
(Order 71, rule 36a)
(
Creditor
(
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 ).
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).
(
(
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
(
(Order 71, subrule 81a (4))
(
to of the transcript annexed hereto are a
correct record of the examination of (
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
(
(Order 71, subrule 82 (1))
(
I CERTIFY that, in respect of an examination of (
(
(
(
(
(
(
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))
(
On (
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 ).
(
(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 ).
)
)
......................................................
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. ]
72.1 After item 43, insert:
43a. |
| 1750.00 |
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) | 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) | 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 | 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 | 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 |
80.1 After Schedule 3, add:
Order 71, rule 47
CORPORATIONS LAW—1993 TRANSITIONAL PROVISIONS
UNDER ORDER 71 FOR WINDING UP PROCEEDINGS
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.
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.
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.
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).
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.
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.
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.
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.
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.
(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.
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.
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.
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.
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).
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.
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.
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.
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.
(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.
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.
_____________
____________________________________________________________
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
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