Federal Court Rules (Amendment) (Cth)
2024
We, Judges of the Federal Court of Australia, hereby make the
following Rules of Court under the
Dated 14 December 1990.
C. A. SWEENEY A.C.J. | |
R. M. NORTHROP J. | |
J. D. DAVIES J. | |
J. S. LOCKHART J. | |
I. F. SHEPPARD J. | |
T. R. MORLING J. | |
K. J. JENKINSON J. | |
A. R. NEAVES J. | |
B. A. BEAUMONT J. | |
M. R. WILCOX J. | |
J. E. J. SPENDER J. | |
P. R. A. GRAY J. | |
| C. W. PINCUS J. |
J. C. S. BURCHETT J. | |
J. A. MILES J. | |
D. M. RYAN J. | |
W. M. C. GUMMOW J. | |
R. S. FRENCH J. | |
M. R. EINFELD J. | |
M. L. FOSTER J. | |
M. C. LEE J. | |
J. W. VON DOUSSA J. | |
D. G. HILL J. | |
M. F. O’LOUGHLIN J. |
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J. T. HOWARD
Registrar
1.1 These Rules commence on 1 January 1991.
2.1 The Federal Court Rules are amended as set out in these Rules.
3.1 Add at the end:
“(4) In spite of subrule 2 (1), for the purposes of Order 71, personal service may be effected:
(a) on a company, as defined in section 9 of the
Corporations Act 1989 of the Commonwealth or corresponding legislation of a State or Territory (“the Corporations Law” ),in any manner permitted by section 220 of the Corporations Law; and(b) on the liquidator of a company, in the manner permitted by subsection 220 (5) of the Corporations Law; and
(c) on an official manager of a company, in the manner permitted by subsection 220 (6) of the Corporations Law.
“(5) For the purposes of Order 71, a document served by sending it by pre-paid post addressed to:
(a) a company at the registered office of the company; or
(b) a liquidator at the last address of the office of the liquidator notice of which has been lodged; or
(c) an official manager at the last address of the office of the official manager notice of which has been lodged;
is taken to be served on the seventh day after posting.”
4.1 After Order 70, insert:
“1. This Order may be cited as the Corporations Rules.
“2. (1) In this Order, unless the contrary intention appears:
(a) a statement of:
(i) the statute under which the company was incorporated; and
(ii) the date of the company’s incorporation; and
(iii) 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:
(i) a statement of the address of the company’s registered office as disclosed in the most recent of:
(a) a notice of address in respect of the company under subsection 218 (1) or 359 (1) of the, Corporations Law or a provision of a previous law of a State or Territory that corresponds to those subsections; or
(b) a notice of change of address in respect of the company under subsection 218 (3) or 359 (3) of the Corporations Law or a provision of a previous law of a State or Territory that corresponds to those subsections;
lodged with the Commission, the National Companies & Securities Commission or a delegate of the National Companies & Securities Commission, as determined by a search made not earlier than 3 days before the application was filed; and
(ii) a statement of the date on which the relevant notice of address or notice of change of address was lodged; and
(iii) if an annual return of the company under subsection 335 (1) of the Corporations Law or a provision of a previous law of a State or Territory that corresponds to that subsection:
(a) has a more recent date than the most recent notice of address or notice of change of address lodged by the Company; and
(b) states an address for the registered office of the Company which differs from the address shown in the most recent notice of address or notice of change of address;
a statement of that other address and of the date of that annual return;
(a) where the proceedings relating to a body corporate and the prescribed office of that body corporate is within 100 kilometres of the Registry in the proper place of the proceedings, a daily
newspaper circulating generally in the proper place of the proceedings; or
(b) where the proceedings relate to a body corporate which does not have a prescribed office, and if the principal place of business or the last known principal place of business of the body corporate is or was within 100 kilometres of the Registry in the proper place of the proceedings, a daily newspaper circulating generally in the proper place of the proceedings; or
(c) where the proceedings relate to any other body corporate:
(i) if the body corporate has a prescribed office, a newspaper circulating generally in the district in which the prescribed office of the body corporate is situated; or
(ii) if the body corporate does not have a prescribed office, a newspaper circulating generally in the district in which the principal place of business or the last known principal place of business of the body corporate is or was situated;
(a) where a body corporate is a company, its registered office for the purposes of section 217; or
(b) where a body corporate is registered under Division 1 or Division 2 of Part 4.1 of the Corporations Law, its registered office for the purposes of section 359.
“(2) In this Order, unless the contrary intention appears:
(a) a reference to a section, subsection or paragraph in this Order is a reference to a section, subsection or paragraph of the Corporations Law; and
(b) a reference to a form by number is a reference to the form in the First Schedule which has that number.
“(3) In this Order, unless the contrary intention appears, a word or phrase defined for the purposes of the Corporations Law has the same meaning as in the Corporations Law.
“3. (1) This Order applies to all proceedings arising under the Corporations Law or under the ASC Law, whether or not expressly referred to in this Order.
“(2) Subject to this Order and to any law of the Commonwealth, the provisions of the other Orders of these Rules apply, so far as is practicable, to proceedings arising under the Corporations Law or under the ASC Law.
“4. (1) Subject to subrule (2), all documents (including an application under rule 5 or rule 6), filed in proceedings arising under the Corporations Law or under the ASC Law, whether or not expressly referred to in this Order, must be headed as in Form 75.
“(2) Except in the case of:
(a) an originating process; or
(b) a document to be served on a person not a party to a proceeding; or
(c) a final order;
a document may bear a heading in Form 76 abbreviating the title of the proceeding in a manner sufficient to identify the proceeding.
“(3) All documents (including an application under rule 5 or rule 6), filed in proceedings arising under the Corporations Law or under the ASC Law must specify the name and (if applicable) the Australian Company Number of the corporation which is the subject of the proceedings.
“(4) The words ‘(in liquidation)’, ‘(receiver appointed)’, ‘(receiver and manager appointed)’ or ‘(under official management)’ must be added to the name of a corporation where applicable.
“5. (1) All proceedings (other than proceedings within the scope of rule 6) in the Court’s original jurisdiction arising under the Corporations Law or under the ASC Law, whether or not expressly referred to in this Order, must be commenced by filing an application in or substantially in Form 5.
“(2) An application under this rule must specify the section or sections of the Corporations Law or ASC Law under which the proceedings are brought.
“6. (1) This rule applies to an application for:
(a) an order that the name of a foreign company be restored to the register under section 350; and
(b) an order for the reinstatement of the registration of a company under section 574; and
(c) an order giving directions concerning compliance with the business rules or listing rules of a securities exchange under section 777, if that application is made by a person who claims to be aggrieved by the non-compliance; and
(d) an order under subsection 1082 (2) relating to orders made or directions given where a person was convicted of an offence in
respect of an invitation or offer in contravention of Division 6 of Part 7.12 of the Corporations Law; and
(e) an order giving directions concerning compliance with the business rules of a futures exchange, of a clearing house for a futures exchange or of a futures association under section 1140, if that application is made by a person who claims to be aggrieved by the non-compliance; and
(f) an order prohibiting the payment or transfer of money, securities, futures contracts or other properties or any other order under section 1323, if that application is made by a person claiming to be a person aggrieved.
“(2) An application under this rule must:
(a) be commenced by filing an application in or substantially in Form 77, together with an affidavit in support of the application; and
(b) specify the section or sections of the Corporations Law or ASC Law under which the proceedings are brought.
“(3) As soon as practicable after filing an application under this rule, and in any event not later than 14 days after the date of filing the application, the applicant must serve the application and the affidavit in support of the application upon:
(a) the other parties to the proceedings; and
(b) the company to which the proceedings relate, if it is not a party to the proceedings.
“(4) If another party to the proceedings objects to the competency of the application, it must file and serve a notice of objection to competency, stating briefly the grounds of its objection, within 14 days of service of the application upon it.
“(5) In addition to the powers of the Court under Order 10 and this Order, the Court may give directions in relation to an application under this rule:
(a) that a party give notice of the application to such persons or classes of persons in such a manner as the Court directs; and
(b) where a notice of objection of competency has been filed by a party to the proceedings, that the objection be determined before the application to which the objection relates is determined.
“7. (1) A Registrar may, if the Court or a Judge so directs, exercise a power of the Court:
(a) under a provision of the Corporations Law specified in column 2 or 3 of an item in Part 1 of the Third Schedule; or
(b) under a provision of the ASC Law specified in column 2 or 3 of an item in Part 2 of the Third Schedule.
“(2) Where a form specified or referred to in a rule is to be used in a proceeding before a Registrar, the form may be altered in such manner as the circumstances require to make the form applicable to that proceeding.
“(3) An application for the review of a decision, direction or act of a Registrar made, given or done under this Order, must be made within 14 days after the decision, direction or act complained of, or within such further time as the Court allows.
“(4) For the purposes of review of a Registrar’s decision under this rule, the Court is to be constituted by a single judge.
“(5) A decision or direction of a Registrar made in Chambers may be reviewed by a Judge sitting in Chambers and any other decision or direction of a Registrar may be reviewed by a Judge sitting in Court, subject to any contrary direction by the Court or a Judge.
“8. (1) If a Registrar or a party to the application made to a Registrar under this Order seeks to have that application determined by the Court, the Registrar must refer the application for hearing and determination by the Court.
“(2) If an application is referred to the Court under subrule (1), each party must comply with any directions given by the Registrar as to notification to any other party to the application of the date, time and place at which the application will be heard by the Court.
“9. Without limiting any other power of the Court, at any stage of a proceeding under the Corporations Law the Court may:
(a) direct that notice of any matter be given to any person; and
(b) direct that a document be served on any person; and
(c) give such further directions with respect to such a matter or document as the Court thinks fit.
“10. (1) The Court may grant leave to any person who is or claims to be:
(a) a creditor, contributory or officer of a body corporate; or
(b) an officer of a creditor of a body corporate; or
(c) an officer of a contributory of a body corporate;
to be heard in proceedings under the Corporations Law without becoming a party to those proceedings.
“(2) Leave may be granted under subrule (1) on conditions, and may be revoked by the Court at any time.
“(3) If the Court considers that the attendance of a person to whom leave has been granted under subrule (1) has resulted in additional costs for any party to the proceedings (including the body corporate to which the proceedings relate) which should be borne by the person to whom leave was granted, the Court may direct that those costs be paid by that person and may order that that person is not entitled to be heard in the proceedings until those costs are paid or secured to the Court’s satisfaction.
“(4) The Court may order that a person who is or claims to be a creditor, contributory or officer of the body corporate be added as a respondent in proceedings under the Corporations Law, and may impose conditions on such an order.
“(5) Leave may be sought under subrule (1) or an order may be made under subrule (3) on:
(a) a notice of motion brought in the proceedings by a party to the proceedings; or
(b) a notice of motion brought in the proceedings by a person having an interest in the proceedings; or
(c) on the Court’s own motion.
“11. (1) The Court may direct an inquiry as to any debts, claims or liabilities or any class of debts, claims or liabilities of a body corporate to which a proceeding under the Corporations Law relates, or which affects such a body corporate.
“(2) Where the Court directs an inquiry under subrule (1), subrules 13(4) to 13(8) (inclusive) apply, with such modifications as may be necessary, as though the Court had directed that a list of creditors be settled.
“12. (1) This rule applies to an application for:
(a) an order for the cancellation of a change of status of a company under section 167; and
(b) an order for the cancellation of a change from a public company to a proprietary company or from a proprietary company to a public company under section 168; and
(c) an order for the cancellation of an alteration of the memorandum of a company under section 172; and
(d) an order validating a purported issue or allotment of shares or
confirming the terms of a purported issue or allotment of shares under section 194; and
(e) an order setting aside a variation or abrogation of rights attached to shares or an alteration of the memorandum or articles of a company, where the company has a share capital divided into classes of shares, under section 197; and
(f) an order setting aside a variation or abrogation of rights attached to shares or an alteration of the memorandum or articles of a company, where the company has a share capital that is not divided into classes of shares, under section 198; and
(g) an order setting aside a variation or abrogation of rights of members of a company included in a class of members or an alteration of the memorandum or articles of a company, where the company does not have a share capital, under section 199; and
(h) an order approving the payment of interest out of the capital of a company under section 202; and
(i) an order confirming a resolution that an undertaking, scheme, enterprise or arrangement be wound up under section 1074.
“(2) Except where an application is brought under section 1074, evidence brought by the applicant in support of an application must include an affidavit setting out:
(a) the prescribed information; and
(b) the amounts of the authorised and issued share capital of the company, and the classes, if any, of the issued shares;
which may be in or substantially in Form 128.
“(3) Where an application is brought under section 1074, evidence brought by the applicant in support of an application must include:
(a) an affidavit setting out the prescribed information in relation to the management company under an approved deed, which may be in or substantially in Form 128; and
(b) an affidavit setting out details of the undertaking, scheme, enterprise of arrangement to which the application relates.
“(4) As soon as practicable after filing an application under this rule, and in any event not later than 14 days after the date of filing the application, the applicant (if it is not the company to which the proceedings relate) must serve that application and the affidavit in support of the application on the company to which the proceedings relate.
“(5) Unless the Court orders to the contrary, notice in Form 78 of an application to which this rule applies must be published in the manner prescribed by rule 104 not later than 5 days before the date appointed for directions under Order 4, rule 8.
“(6) If a person on whom the application has not been served intends to appear on the date appointed for directions under Order 4, rule 8, he or she must:
(a) file a notice of appearance in Form 79; and
(b) serve that notice of appearance on the applicant;
not later than 2 days before the date appointed for directions.
“(7) At the first directions hearing or any subsequent directions hearing, the Court may direct the applicant or its solicitors to prepare and file a list in Form 80 of the names and addresses of persons who have given notice of their intention to appear in the proceedings.
“13. (1) This rule applies to an application for an order confirming the issue of shares at a discount under subsection 190 (3).
“(2) Evidence brought by the applicant in support of an application must include an affidavit setting out:
(a) the prescribed information; and
(b) the amounts of the authorised and issued share capital of the company, and the classes, if any, of the issued shares;
which may be in or substantially in Form 128.
“(3) As soon as practicable after filing an application under this rule, and in any event not later than 14 days after the date of filing the application, the applicant (if it is not the company to which the proceedings relate) must serve that application and the affidavit in support of the application on the company to which the proceedings relate.
“(4) Unless the Court orders to the contrary, notice in Form 78 of an application to which this rule applies must be published in the manner prescribed by rule 104 not later than 5 days before the date appointed for directions under Order 4, rule 8.
“(5) If a person on whom the application has not been served intends to appear on the date appointed for directions under Order 4, rule 8, he or she must:
(a) file a notice of appearance in Form 79; and
(b) serve that notice of appearance on the applicant;
not later than 2 days before the date appointed for directions.
“(6) At the first directions hearing or any subsequent directions hearing, the Court may direct the applicant or its solicitors to prepare and file a list in Form 80 of the names and addresses of persons who have given notice of their intention to appear in the proceedings.
“(7) Unless the Court orders to the contrary, an office copy of an order confirming the issue of shares at a discount must be lodged with the Commission within 14 days after the order is made, or within any other time specified by the Court in the order, and the order will not take effect until after that office copy has been lodged.
“14. (1) This rule applies to an application for an order confirming a reduction of the share capital of a company under section 195.
“(2) In a directions hearing in proceedings under this rule, the Court may:
(a) determine whether all or any of the provisions of subsection 195 (3) are to apply; and
(b) where settlement of a list of creditors is required, fix a date with reference to which the list of creditors is to be made out for the purposes of paragraph 195 (3) (a); and
(c) fix the date by which a creditor must furnish particulars of his or her claim for the purposes of paragraph 195 (3) (b); and
(d) give directions as to the publication of advertisements for the purposes of section 195 or this rule; and
(e) give directions as to the compliance with any other requirements of section 195 or this rule; and
(f) set a date for the hearing of the application.
“(3) Subrules (4) to (11) (inclusive) apply where the Court fixes a date for the purposes of paragraph 195 (3) (a).
“(4) Within 7 days after the date fixed by the Court for the purposes of paragraph 195 (3) (a), the company must:
(a) make out a list of the creditors of the company on that date; and
(b) file an affidavit in Form 81 annexing that list of creditors and verifying the truth of that list.
“(5) A list of creditors made out under subrule (4) must contain:
(a) so far as practicable, the names and addresses of the creditors of the company; and
(b) the amount due to each creditor for any debt, claim or liability within the scope of the inquiry; and
(c) if a debt is payable on a contingency or is not ascertained, or if a claim or liability is not ascertained, an estimate of the value of that debt, claim or liability.
“(6) A copy of the list of creditors made out under subrule (4) must be kept at the company’s registered office and at the office of its solicitors in the proceedings and must be made available for inspection
at all times during which the company’s office is required to be open and accessible to the public under section 217.
“(7) A list of creditors made available for inspection under subrule (6) must show:
(a) the names and addresses of creditors; and
(b) a figure for the total amount due to creditors, including the total value of any estimated debts, claims or liabilities;
and, unless the Court orders to the contrary, the amount due to particular creditors must not be shown on that list.
“(8) Within 7 days of filing the affidavit required under subrule (4), the company must:
(a) publish a notice in Form 82 in the manner prescribed by rule 104; and
(b) serve a notice in Form 83 on each creditor whose name is contained in the list of creditors made out under subrule (4).
“(9) A notice published or served under subrule (8) must specify the date by which a creditor must furnish particulars of his or her claim which was fixed by the Court for the purposes of paragraph 195 (3) (b).
“(10) Within 7 days after any date fixed by the Court under paragraph 195 (3) (b) as being the final day on which creditors whose names are not entered on the list of creditors may claim to be so entered, the company must file:
(a) a notice of motion in the proceedings seeking directions from the Court; and
(b) an affidavit in Form 84 which must be made by the company secretary, the company’s solicitor and a managing director, director or other responsible officer of the company and must annex:
(i) a copy of the notice published by the company under subrule (8) (a); and
(ii) a copy of the notice served by the company on each creditor under subrule (8) (b); and
(iii) the list of creditors made out by the company under subrule (4); and
(iv) lists in alphabetical order of the persons who have sent in particulars of their debts or claims set out as in Schedules D and E to Form 84; and
(c) a list in alphabetical order of all creditors who have been paid or who have consented to the proposed reduction of capital, verified by an affidavit by a responsible officer or officers of the company; and
(d) a list in alphabetical order of all creditors whose debts or claims
the company does not admit at their full amount but is willing to provide for at their full amount, verified by an affidavit by a responsible officer or officers of the company.
“(11) In a directions hearing in relation to a motion for directions under subrule (10), the Court may:
(a) order that the company serve a notice in Form 85 upon a person claiming to be a creditor of the company in an amount other than that admitted by the company, specifying the date on which that person’s claim to be a creditor will be heard; or
(b) direct that any claim of that person be investigated in such manner as the Court thinks fit; or
(c) require the claimant to provide particulars or evidence of his or her claim or to produce any security relating to the claim; or
(d) allow the claim in whole or in part and fix the amount of the claim or disallow the claim in whole or in part; or
(e) give such directions as it thinks proper for securing the claim in the manner specified in paragraph 195 (3) (c).
“(12) After hearing the claim of any person claiming to be a creditor of a company other than that admitted by the company, the Court may settle a list of persons entitled to object to the application under subsection 195 (3).
“(13) The Court may disallow a claim in whole or in part or limit the amount of that claim to the amount set out beside the claimant’s name in the list of creditors filed by the company under subrule (4) if the claimant does not:
(a) comply with a notice served under subrule (11) by filing an affidavit setting out all relevant information and serving that affidavit on the company before the time specified in that notice; and
(b) attend at the hearing of his or her claim at the time specified in that notice; and
(c) produce any securities or documents relating to the claim.
“(14) Following settlement of a list of the names of creditors entitled to object under section 195 (3) (b), the Court may appoint a date for hearing the application for an order confirming the reduction of the share capital of the company under section 195 (5).
“(15) Unless the Court orders to the contrary, the company must:
(a) publish notice in Form 86 of the hearing of the application in the manner prescribed by rule 104 not later than 5 days before the date appointed for the hearing of the application; and
(b) serve a copy of the application and of each affidavit on which it intends to rely at the hearing of the application on the
Commission not later than 5 days before the date appointed for the hearing of the application.
“(16) Subject to subrule (17), any creditor of the company:
(a) who has not consented to the proposed reduction of capital; and
(b) whose debt or claim has not been discharged or secured in full; may appear at the hearing and oppose the application, unless the company has indicated that it is willing to appropriate the amount of that debt or claim in such a manner as the Court directs.
“(17) Unless the Court orders to the contrary, a creditor who appears pursuant to subrule (16) is entitled to his or her costs of doing so.
“(18) A person whose name appears on the list of creditors settled by the Court as entitled to object to the application, and who intends to appear at the hearing of the application, must:
(a) file a notice of appearance in Form 79 together with any affidavit on which he or she intends to rely; and
(b) serve that notice of appearance and any such affidavit on the company;
not later than 2 days before the date appointed for the hearing of the application.
“(19) The company or its solicitors must prepare a list in Form 80 of the names and addresses of persons who have given notice of their intention to appear under subrule (18) and must file that list in Court at the time the application is heard.
“(20) Evidence brought by the company in support of an application to which this rule relates must include an affidavit setting out:
(a) the prescribed information; and
(b) the amounts of the authorised and issued share capital of the company, and the classes, if any, of the issued shares;
which may be in or substantially in Form 128.
“(21) On hearing the application, the Court may:
(a) give directions under paragraph 195 (3) (c) to secure payment of the debt or claim of a creditor who does not consent to a proposed reduction of the capital of the company; and
(b) may require such further evidence and give such further directions as are necessary for that purpose.
“(22) In a directions hearing under this rule or on hearing the application, the Court may:
(a) order that a creditor shown on the list filed under subrule (10) as consenting to the proposed reduction of capital be permitted to appear at the hearing of the application and oppose that
application, if the Court is satisfied that the creditor did not consent or that the circumstances of his or her consent were such that an order should be made; and
(b) for the purposes of this subrule, direct such investigation, require such information and hear such evidence as it thinks fit.
“(23) An order confirming a reduction of capital must contain the particulars required under subsection 195 (6).
“15. Within 7 days after an order confirming a reduction of capital is made, or within any other time specified by the Court in the order, the company must:
(a) lodge an office copy of the order with the Commission; and
(b) publish a notice in Form 87;
(i) once in the
Gazette; and(ii) once in a prescribed newspaper; and
(iii) in such other publications as the Court directs.
“16. (1) This rule applies to an application under subsection 205 (12) opposing the giving by a company of financial assistance for the purpose of or in connection with an acquisition or proposed acquisition of shares or units of shares in the company or in a holding company of the company, where a special resolution has been passed by the company under paragraph 205 (10) (a).
“(2) The application must be accompanied by an affidavit or statement of claim setting out:
(a) the prescribed information; and
(b) a statement of the grounds of the application.
“(3) An affidavit filed under subrule (2) may be in or substantially in Form 128.
“(4) As soon as practicable after filing:
(a) the application; and
(b) the affidavit in support of the application or the statement of claim;
and in any event not later than 14 days after the date of filing the application, the applicant must serve the application and that affidavit or statement of claim on the company concerned.
“17. (1) This rule applies to an application by a creditor under section 206LD for an order prohibiting the making of offers in relation to a proposed buy-back scheme or the entering into of a proposed buy-back.
“(2) The application must be accompanied by:
(a) an affidavit setting out the prescribed information which may be in, or substantially in, Form 128; and
(b) an affidavit:
(i) setting out a statement of the grounds of the application; and
(ii) annexing a copy of the notice relating to the proposed buy back scheme or buy-back published by the company in a newspaper under section 206LC.
“(3) As soon as practicable after filing the application and affidavits in support of the application, and in any event not later than 14 days after the date of filing the application, the applicant must serve the application and affidavits on:
(a) the company concerned; and
(b) the Commission.
“18. (1) This rule applies to an application for leave to manage a corporation under subsection 229 (1) or 229 (3).
“(2) The evidence in support of the application must include:
(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 Form 128; and
(b) an affidavit made not earlier than 7 days before the application is filed setting out any other material facts to be relied on by the applicant, in support of the application.
“(3) As soon as practicable after filing the application and the affidavit in support of the application, and in any event not later than 14 days after the date of filing the application, the applicant must serve the application and that affidavit on:
(a) the corporation concerned; and
(b) the Commission.
“19. (1) This rule applies to an application for an order under section 230 prohibiting a person from managing a corporation.
“(2) The evidence in support of the application must include:
(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 Form 128; and
(b) an affidavit made not earlier than 7 days before the application is filed setting out:
(i) any material facts to be relied upon by the applicant in support of the application; and
(ii) a statement of the grounds of the application and a reference to the paragraph or paragraphs of subsection 230 (1) on which the applicant relies.
“(3) As soon as practicable after filing the application and the affidavit in support of the application, and in any event not later than 14 days after the date of filing the application, the applicant must serve the application and that affidavit on:
(a) the person in relation to whom orders are sought; and
(b) any body corporate to which the application relates and any liquidator, provisional liquidator or official manager of that body corporate; and
(c) if the Commission is not the applicant, on the Commission.
“20. (1) This rule applies to an application for an order or orders under section 260.
“(2) The evidence in support of the application must include:
(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 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 upon by the applicant in support of the application; and
(ii) a statement of the grounds of the application and a reference to the subparagraph of subsection 260(1) on which the applicant relies.
“(3) The affidavit setting out the matters 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 upon in support of the application.
“(4) As soon as practicable after filing the application and the affidavit in support of the application, and in any event not later than 14 days after the date of filing the application, the applicant must serve the application and that affidavit on:
(a) the company; and
(b) any person against whom orders are sought in the application.
“(5) If the remedies sought in an application under section 260 include an order that the company be wound up, the applicant must:
(a) at the same time as filing the application and any affidavit in support of the application, apply in Form 88 for the Registrar’s nomination of an official liquidator who will be appointed as liquidator if an order for the winding up of the company is made, unless the Court is satisfied that some other official liquidator should be appointed; and
(b) within 14 days of filing the application, file a written acknowledgement in Form 89 signed by the official liquidator nominated by the Registrar under paragraph (a).
“(6) Unless the Court orders to the contrary, notice of the application in Form 90 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 5 days before the date appointed for directions under Order 4, rule 8.
“(7) If a person on whom the application has not been served intends to appear on the date appointed for directions under Order 4, rule 8, he or she must:
(a) file a notice of appearance in Form 79; and
(b) serve that notice of appearance on the applicant and on the company concerned;
not later than 2 days before the date appointed for directions.
“(8) At the first directions hearing or any subsequent directions hearing, the Court may direct the applicant or its solicitors to prepare and file a list in Form 80 of the names and addresses of person who have given notice of their intention to appear in the proceedings.
“(9) Without limiting any right of inspection otherwise available under Order 46, rule 6, the Registrar must:
(a) permit a person who is or claims to be a contributory, member, creditor or officer of the company to inspect an application for an order or orders under section 260 and any affidavits in relation to the application which are in the Registrar’s custody; and
(b) on payment of the prescribed fee, provide a person who is or claims to be a contributory, member, creditor or officer of the company with a copy of the application and any affidavits in relation to the application which are in the Registrar’s custody.
“(10) The Registrar may prescribe a form of application to be completed by a person who seeks to inspect or be provided with a copy of a document under subrule (9).
“21. (1) Evidence brought by an applicant in support of an application for leave to enforce a charge under subsection 267 (3) must include:
(a) an affidavit setting out the prescribed information, which may be in or substantially in Form 128; and
(b) an affidavit setting out:
(i) the evidence on which the applicant relies to establish that the company which created the charge was solvent immediately after the creation of the charge; and
(ii) any other matters relevant to the application.
“(2) Unless the Court orders to the contrary, notice of an application for an order under subsection 267 (3) need not be published.
“22. (1) This rule applies to an application to the Court to approve a compromise or arrangement in relation to a Part 5.1 body.
“(2) An application relating to a compromise or arrangement under section 411 may be commenced in Form 5. Any further application relating to that compromise or arrangement may be made by notice of motion in the proceedings.
“(3) Evidence brought by the applicant in support of an application for an order under subsection 411 (1) that a meeting or meetings be convened must include:
(a) an affidavit setting out:
(i) the prescribed information; and
(ii) the amounts of the authorised and issued share capital of the company, and the classes, if any, of the issued shares;
which may be in or substantially in Form 128;
(b) an affidavit setting out:
(i) the names, addresses and amounts owed by the company to each of its creditors; and
(ii) details of any security held by any creditor of the company; and
(iii) details of any priority or preference to which any creditor would be entitled if the company was then to be wound up; and
(iv) details of any prospective or contingent creditor; and
(v) a statement of the sources from which the list of creditors and their addresses has been compiled and a statement as to the likely accuracy and completeness of that list; and
(vi) a statement that, to the best of the knowledge of the person making the statement, there are no prospective,
contingent or other creditors of the company or threatened claims against the company other than those which have been disclosed in the information provided under paragraph (b), and setting out the basis of knowledge of the person making the statement; and
(vii) a statement of any Australian State or Territory or any other country in which the company has carried on business or dealings; and
(viii) details of any other compromise or arrangement which has been proposed to be implemented in relation to the company and of any liquidation, official management, receivership or other arrangements between the company and its members or creditors; and
(ix) a statement as to the terms of the proposed compromise or arrangement; and
(x) where the company is already in liquidation or under official management, details of any outstanding steps to be taken in the liquidation or the official management; and
(xi) a statement of any other matters relevant to the application; and
(xii) a copy of the proposed compromise or arrangement and the draft explanatory statement in relation to the proposed compromise or arrangement.
“(4) Subject to any direction by the Court to the contrary, evidence brought by an applicant in support of an application for an order under subsection 411 (1a) or 411 (1B) that a meeting or meetings of creditors of a holding company and each of its wholly-owned subsidiaries be held on a consolidated basis must include:
(a) an affidavit, which may be in or substantially in Form 128, setting out:
(i) the names of the holding company and each of the Part 5.1 bodies which are said to be wholly-owned subsidiaries of the holding company (
“the relevant subsidiaries” ); and(ii) the amounts of the authorised and issued share capital of the holding company, and the classes, if any, of the issued shares; and
(iii) the prescribed information in relation to the holding company and each of the relevant subsidiaries;
(b) an affidavit setting out:
(i) a statement of the evidence on which the applicant relies to establish that each of the relevant subsidiaries is a wholly-owned subsidiary of the holding company; and
(ii) a statement as to the terms of the proposed compromise or arrangement; and
(iii) a statement of the matters on which the applicant relies in support of the application, including a statement of the number of meetings between creditors which would be required in the absence of an order under subsection 411 (1A) or 411 (1B); and
(iv) a statement of any other matters relevant to the application; and
(v) a copy of the proposed compromise or arrangement and the draft explanatory statement in relation to the proposed compromise or arrangement.
“(5) If a person making an affidavit or affidavits filed under subrule (3) or subrule (4) cannot depose to all the contents of the affidavit from his or her own knowledge, he or she must specify details of the sources of information contained in the affidavit and state his or her belief in the truth of that information.
“(6) Prior to the hearing of an application under subsection 411 (1), 411 (1A) or 411 (1B), the applicant must file an affidavit stating that:
(a) the person who is nominated to act as chairman or alternate chairman of a meeting ordered to be convened under subsection 411 (1), 411 (1A) or 411 (1B):
(i) is willing to act in that capacity; and
(ii) does not have and has not previously had any relationship or dealing with the company or any other person interested in the proposed compromise or arrangement, except as disclosed in the affidavit; and
(iii) does not have any interest or obligation which may give rise to a conflict of interest in acting as chairman of the meeting, except as disclosed in the affidavit; and
(b) the person proposed to be appointed to administer the proposed compromise or arrangement does not fall within paragraphs (a) to (f) (inclusive) of subsection 411 (7), except as disclosed in the affidavit.
“(7) Unless the Court orders to the contrary, notice in Form 91 of:
(a) an application for an order approving a compromise or arrangement under subsection 411 (4); or
(b) an application for an order in respect of the reconstruction or amalgamation of a Part 5.1 body or bodies under subsection 413 (1);
must be published in the manner prescribed by rule 104 not later than 5 days before the date appointed for the hearing of the application.
“(8) A copy of an application for an order under subsection 411 (4) or 413 (1) must be served on the Commission, together with copies of any affidavits upon which the applicant intends to rely, as soon as
practicable after the notice of motion is filed and in any event not later than 14 days after the date of filing the application.
“(9) If a person on whom the application has not been served intends to appear at the hearing of the application, he or she must:
(a) file a notice of appearance in Form 79 together with any affidavit on which he or she intends to rely; and
(b) serve that notice of appearance and any such affidavit on the applicant;
not later than 2 days before the date appointed for the hearing of the application.
“(10) If the Commission intends to appear at a hearing of the application seeking approval of the compromise or arrangement and to oppose the grant of that approval, it must:
(a) file a notice of intervention in Form 127 together with any affidavit on which it intends to rely; and
(b) serve that notice of intervention and any such affidavit on the applicant;
not later than 2 days before the date appointed for the hearing of the application.
“(11) At the first directions hearing or any subsequent directions hearing, the Court may direct the applicant or its solicitors to prepare and file a list in Form 80 of the names and addresses of persons who have given notice of their intention to appear in the proceedings.
“23. The applicant must lodge an office copy of an order of the Court under subsection 411 (1), 411 (4), 411 (6) or 413(1) with the Commission and serve an office copy of the order on any person appointed to administer the compromise or arrangement within 7 days of the date on which the order is made, or within any other time specified by the Court in the order.
“24. (1) A complaint to the Court under subsection 411 (9) may be made by filing a notice of motion seeking an inquiry in respect of the complaint and an affidavit setting out the relevant circumstances in the proceedings in which the compromise or arrangement was approved by the Court.
“(2) A report to the Court by the Commission in respect of the conduct of a person administering a compromise or arrangement may be made by filing:
(a) a notice of motion seeking orders in respect of the report; and
(b) an affidavit setting out the relevant circumstances or annexing a copy of the report;
in the proceedings in which the compromise or arrangement was approved by the Court.
“(3) A report filed under subrule (2) must not be inspected or used except with the leave of the Court.
“(4) The Commission, a creditor or contributory of a Part 5.1 body, or a person aggrieved by the conduct of a person administering a compromise or arrangement may seek an order that the person administering the compromise or arrangement or any other person be examined under subsection 411 (9) by filing a notice of motion in the proceedings in which the compromise or arrangement was approved by the Court.
“(5) Rule 81 applies, with such adaptations as may be necessary, to an examination under subrule (4).
“25. (1) Where a compromise or arrangement has been proposed between a Part 5.1 body and its creditors or any class of them, an application under subsection 411 (16) for an order restraining further proceedings in an action or civil proceeding against that body may be made by notice of motion in the proceedings commenced under subsection 411 (1).
“(2) Unless the Court orders to the contrary, the notice of motion referred to in subrule (1) must be served on the person bringing the action or proceeding against that body.
“26. On the application of a person whose interests are affected by a compromise or arrangement approved by the Court under section 411, the Court may fix or review the remuneration of the person appointed to administer the compromise or arrangement.
“27. (1) A trustee or manager under a compromise or arrangement or any member bound by a compromise or arrangement may apply to the Court by notice of motion for directions in relation to any matter arising in the administration of the compromise or arrangement.
“(2) A notice of motion under subrule (1) must indicate the matter in respect of which directions are sought.
“(3) The Court may direct that notice of an application under subrule (1) 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.
“28. An application for:
(a) an order under paragraph 419 (3) (d) in respect of a person who entered into or assumed control of property of a corporation and was not properly appointed as receiver; and
(b) an order under paragraph 419 (3) (e) in respect of a person who purported to appoint the first person as receiver;
may be made by notice of motion in the proceedings referred to in paragraph 419 (3) (c).
“29. (1) A complaint to the Court under paragraph 423 (1) (b) or a report to the Court by the Commission under subsection 423 (2) may be made:
(a) in the case of a receiver appointed under an instrument, by filing:
(i) an application in Form 5 seeking an inquiry in respect of the complaint; and
(ii) (a) in the case of a report to the Court by the Commission under subsection 423 (2), an affidavit setting out the relevant circumstances or annexing a copy of the report; or
(b) in any other case, an affidavit setting out the relevant circumstances; or
(b) in the case of a receiver appointed by the Court, by filing:
(i) a notice of motion seeking an inquiry in respect of the complaint in the proceeding in which the receiver was appointed; and
(ii) (a) in the case of a report to the Court by the Commission under subsection 423 (2), an affidavit setting out the relevant circumstances or annexing a copy of the report; or
(b) in any other case, an affidavit or affidavits setting out the relevant circumstances.
“(2) A report by the Commission under subsection 423 (2) must not be inspected or used without the leave of the Court.
“(3) The Commission, a creditor or contributory or a person aggrieved by the conduct of a receiver of property of a corporation
may seek an order that the receiver or any other person be examined under subsection 423 (3):
(a) in the case of a receiver appointed under an instrument, by filing an application in Form 5; or
(b) in the case of a receiver appointed by the Court, by filing a notice of motion in the proceeding in which the receiver was appointed.
“(4) Rule 81 applies, with such adaptations as may be necessary, to an examination under subrule (3).
“30. (1) An application to the Court by a receiver of property of a corporation under section 424 must indicate the matter in respect of which the receiver seeks the directions of the Court.
“(2) The Court may direct that notice of an application under section 424 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.
“31. (1) An application for leave to carry on an action or civil proceeding against a company under official management may be made by notice of motion in the action or proceeding in respect of which leave is sought.
“(2) An application for leave to commence an action or civil proceeding against a company under official management may be made by filing an application in Form 5.
“(3) Were a company has convened a meeting of its creditors for the purpose of placing the company under official management under section 436, an application for a stay of proceedings in an action or civil proceeding against the company under subsection 444 (2) may be made by notice of motion in that action or proceeding.
“32. (1) A complaint to the Court under subsection 452 (4) may be made by filing an application in Form 5 seeking an inquiry in respect of the complaint and an affidavit setting out the relevant circumstances.
“(2) A report to the Court by the Commission in respect of conduct of an official manager of a company may be made by filing:
(a) an application in Form 5 seeking orders in respect of the report; and
(b) an affidavit setting out the relevant circumstances or annexing a copy of the report.
“(3) A report filed under subrule (2) must not be inspected or used except with the leave of the Court.
“(4) The Commission, a creditor or contributory of a company, or a person aggrieved by the conduct of an official manager of a company may seek an order that the official manager or any other person be examined under subsection 452 (4) by filing an application in Form 5.
“(5) Rule 81 applies, with such adaptations as may be necessary, to an examination under subrule (4).
“33. (1) This rule applies to an application under section 454 for the variation or cancellation of a resolution determining that a company be placed under official management.
“(2) An application under this rule need not be served on any person.
“(3) Evidence brought by the applicant in support of the application must include:
(a) an affidavit setting out the prescribed information, which may be in or substantially in Form 128; and
(b) an affidavit setting out:
(i) evidence that the applicant falls within paragraph 454 (1) (a), 454 (1) (b) or 454 (1) (c) and a statement of which of those paragraphs applies; and
(ii) a statement whether the applicant claims that there is no reasonable prospect of the company being rehabilitated or that the resolution to place the company under official management is not in the interests of creditors and members of the company or both.
“(4) An application for a variation of the resolution must be accompanied by a draft of the variation which is sought.
“(5) Unless the Court orders to the contrary, notice in Form 92 of the application must be published in the manner prescribed by rule 104 not later than 5 days before the date appointed for the hearing of the application.
“(6) If a person on whom the application has not been served intends to appear at the hearing of the application, he or she must:
(a) file a notice of appearance in Form 79 together with any affidavit on which he or she intends to rely; and
(b) serve that notice of appearance and any such affidavit on the applicant;
not later than 2 days before the date appointed for the hearing of the application.
“(7) The applicant or its solicitors must prepare a list in Form 80 of the names and addresses of persons who have given notice of their intention to appear under subrule (6) and must file that list in Court at the time the application is heard.
“34. A person who applies for an order of release under subsection 456 (19) or 456 (20) must give notice of that application to:
(a) each creditor who has proved his or her debt; and
(b) each creditor who is:
(i) mentioned in the report as to the affairs of the company prepared under subsection 436 (4); and
(ii) who has not proved his or her debt.
“35. (1) Order 7
“(2) For the purposes of proceedings referred to in subrule (1), the address given as the address for service of a person who is represented by a solicitor must:
(a) be within the District in which the winding up application is filed; and
(b) be the address of the solicitor or of a solicitor acting as agent for that solicitor.
“36. (1) This rule applies to an application for a winding up order under section 461, other than an application where rule 37 of this Order applies.
“(2) On filing and serving an application under this rule, the applicant must also file and serve:
(a) an affidavit made not earlier than 7 days before the application is filled 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, which may be in or substantially in 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 on which the applicant relies.
“(3) The affidavit setting out the matters referred to in paragraph (c) of subrule (2) must be made by a person who can depose of his or her own knowledge to at least some of the grounds relied upon for the winding up of the company.
“(4) As soon as is practicable after filing the application and affidavit or affidavits in support of the application, and in any event not later than 14 days after the date of filing the application, the applicant must serve that application and the affidavits on which it relies on:
(a) the company, in a manner permitted by section 220 of the Corporations Law; and
(b) if the company is in the course of being wound up in a voluntary winding up, the liquidator of the company.
“(5) Unless the Court orders to the contrary, notice of the application in Form 93 must be published in the manner prescribed by rule 104 not earlier than 3 days after the date the application was served on the company and not later than 7 days before the date appointed for directions under Order 4, rule 8.
“(6) At the same time as filing the application and any affidavit in support of the application, the applicant must apply in Form 88 for the Registrar’s nomination of an official liquidator who will be appointed as liquidator if an order for the winding up of the company is made, unless the Court is satisfied that some other official liquidator should be appointed.
“(7) If the Court thinks fit, it may hear and determine an application for the winding up of a company on the date appointed for directions under Order 4, rule 8 or a date subsequently appointed for directions in the proceedings.
“(8) If a person on whom the application has not been served intends to appear on the date appointed for directions under Order 4, rule 8, he or she must:
(a) file a notice of appearance in Form 79; and
(b) serve that notice of appearance on the applicant;
not later than 2 days before the date appointed for directions.
“(9) At the first directions hearing or any subsequent directions hearing, the Court may direct the applicant or its solicitors to prepare and file a list in Form 80 of the names and addresses of persons who have given notice of their intention to appear in the proceedings.
“(10) Without limiting any right of inspection otherwise available under Order 46, rule 6, the Registrar must:
(a) permit a person who is or claims to be a contributory, member, creditor or officer of a company to inspect an application to wind up the company and any affidavits in relation to the application which are in the Registrar’s custody; and
(b) on payment of the prescribed fee, provide a person who is or claims to be a contributory, member, creditor or officer of the company with a copy of the application and any affidavits in relation to the application which are in the Registrar’s custody.
“(11) The Registrar may prescribe a form of application to be completed by a person who seeks to inspect or be provided with a copy of a document under subrule (10).
“37. (1) This rule applies to:
(a) an application under section 460 for a winding up order on the ground that a company is unable to pay its debts; and
(b) an application under paragraph 461 (1) (a) for a winding up order where a company has by special resolution resolved that it be wound up, if an officer of the company files an affidavit at the time the application is made deposing that the company is unable to pay its debts as they become due.
“(2) On filing and serving an application under this rule, the applicant must also file and serve:
(a) an affidavit made not earlier than 7 days before the application is filed setting out a statement by a person who has, not earlier than 3 days before the date on which the affidavit is made, undertaken a search of the company records maintained by the Commission, as to whether any winding up application is pending or any winding up order has been made against the company; and
(b) an affidavit made not earlier than 7 days before the application is filed setting out the prescribed information, which may be in or substantially in 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 to the best of the knowledge, information and belief of the deponent 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 in or substantially in Form 94 proving service of a notice under subsection 460 (2), if applicable, together with copies of any documents exhibited to that affidavit.
“(3) Unless the Court orders to the contrary, the affidavit setting out the matters referred to in paragraph (c) of subrule (2) must be:
(a) made by a person who can depose to the indebtedness of the company to his or her own knowledge; and
(b) made on the day on which the application is filed, or on the immediately preceding day; and
(c) served on the company with the application.
“(4) As soon as is practicable after filing the application and the affidavit in support of the application, and in any event not later than 14 days after the date of filing the application, the applicant must serve that application and the affidavits on which it relies on:
(a) the company, in a manner permitted by section 220 of the Corporations Law; and
(b) if the company is in the course of being wound up in a voluntary winding up, the liquidator of the company.
“(5) Unless the Court orders to the contrary, notice of the application in Form 93 must be published in the manner prescribed by rule 104 not earlier than 3 days after the date the application was served on the company and not later than 7 days before the date appointed for directions under Order 4, rule 8.
“(6) At the same time as filing the application and any affidavit in support of the application, the applicant must apply in Form 88 for the Registrar’s nomination of an official liquidator who will be appointed as liquidator if an order for the winding up of the company is made, unless the Court is satisfied that some other official liquidator should be appointed.
“(7) If the Court thinks fit, it may hear and determine an application for the winding up of a company on the date appointed for directions under Order 4, rule 8 or a date subsequently appointed for directions in the proceedings.
“(8) If a person on whom the application has not been served intends to appear on the date appointed for directions under Order 4, rule 8, he or she must:
(a) file a notice of appearance in Form 79; and
(b) serve that notice of appearance on the applicant; not later than 2 days before the date appointed for directions.
“(9) At the first directions hearing or any subsequent directions hearing, the Court may direct the applicant or its solicitors to prepare and file a list in Form 80 of the names and addresses of persons who have given notice of their intention to appear in the proceedings.
“(10) Without limiting any right of inspection otherwise available under Order 46, rule 6, the Registrar must:
(a) permit a person who is or claims to be a contributory, member, creditor or officer of a company to inspect an application to wind up the company, any affidavit in support of that application and any affidavits in relation to the application which are in the Registrar’s custody; and
(b) on payment of the prescribed fee, provide a person who is or claims to be a contributory, member, creditor or officer of the company with a copy of the application and any affidavits in relation to the application which are in the Registrar’s custody.
“(11) The Registrar may prescribe a form of application to be completed by a person who seeks to inspect or be provided with a copy of a document under subrule (10).
“38. (1) Subject to subrule (2), the applicant must file and serve at least 3 days before the date set for the hearing of an application within the scope of rules 36 and 37:
(a) a written acknowledgement in Form 89 signed by the official liquidator nominated by the Registrar under subrule 36 (6) or 37 (6), as the case may be; and
(b) an affidavit or affidavits:
(i) proving service on the company of the application and the affidavit 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); and
(iii) proving publication of notice of the application in compliance with subrule 36 (5) or 37 (5), as the case may be; and
(c) if an application is within the scope of rule 37, an affidavit in Form 95 stating that the defendant has not paid, secured or compounded for the debt to the reasonable satisfaction of the applicant sworn not earlier than 2 days before the date of service; and
(d) a draft order in Form 96; and
(e) a draft notice of the appointment of a liquidator in Form 99.
“(2) If the applicant seeks the determination of the application at a directions hearing, he or she must file and serve the documents referred to in subrule (1).at least 3 days before the date of that directions hearing.
“39. If an applicant attends the hearing at which the winding up order is made with a sufficient number of copies of:
(a) an order for the winding up of the company in Form 96 in the same form as the draft filed under paragraph (d) of subrule 38(1); and
(b) a notice of the appointment of a liquidator in Form 99 in the same form as the draft filed under paragraph (e) of subrule 38(1);
the Court may, at the time it makes the order for the winding up of the company, direct that those copies be sealed forthwith.
“40. The number assigned to proceedings relating to an application to wind up a company must be shown on any document filed in proceedings in the winding up of the company after the winding up order is made.
“41. (1) If an applicant in proceedings in relation to a winding up order under section 460 or 461:
(a) fails to take all steps prescribed by this Order 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); and
(b) be made on such terms and conditions as the Court thinks fit; and
(c) include an order in or substantially in 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 Form 98.
“(3) This rule does not limit the powers of the Court under Order 6.
“42. (1) If an order for the winding up of a company is made, the applicant (unless it is the Commission) must:
(a) if a notice of appointment of liquidator in Form 99 has not been sealed after the making of the winding up order under rule 39, obtain a sealed copy of that notice from the Registry not later than the day after the order was made; and
(b) serve the sealed notice on the liquidator appointed to the company not later than the day after the order was made; and
(c) if the company is not the applicant, serve a copy of the notice on the company by posting that notice by prepaid post not later than the day after the order was made; and
(d) publish a notice in Form 100 in the manner prescribed by rule 104 as soon after the order was made as is practicable.
“(2) Unless the Court orders to the contrary, the expense of complying with this rule will be a charge on the assets of the company.
“43. Within 7 days of the making and entry of an order for the winding up of a company, the applicant (unless it is the Commission) must:
(a) lodge an office copy of the sealed order of the Court with the Commission in compliance with paragraph 470 (2) (a); and
(b) serve an office copy of the sealed order on the company in compliance with paragraph 470 (2) (b); and
(c) serve an office copy of the sealed order of the Court on the liquidator appointed in the winding up order in compliance with paragraph 470 (2) (c).
“44. If:
(a) a winding up application has been made in relation to a company and a winding up order has not been made; and
(b) an action or other civil proceeding against the company is pending;
an application to the Court for an order staying or restraining further proceedings in the action or proceeding may be made by notice of motion in that action or proceeding or in the proceedings for the winding up order.
“45. An application for an order under subsection 468 (3) validating a disposition of property of a company or permitting the business of the company or a portion of that business to be carried on may be made by notice of motion in the proceedings for the winding up order.
“46. (1) If:
(a) an order has been made for the winding up of a company or a provisional liquidator has been appointed to the company; and
(b) an action or other civil proceeding was commenced prior to the making of the winding up order or the appointment of the provisional liquidator;
an application under subsection 471 (2) for leave to proceed with an action or civil proceeding may be made by notice of motion in that action or proceeding or in the proceedings for the winding up order.
“(2) If:
(a) an order has been made for the winding up of a company or a provisional liquidator has been appointed to the company; and
(b) a person seeks leave to commence an action or civil proceeding against the company under subsection 471 (2);
an application for leave may be made by notice of motion in the proceedings for the winding up order.
“47. (1) In a winding up by the Court, the liquidator must file in the Registry a copy of any report lodged with the Commission under section 476, subsection 533 (1) or subsection 533 (2).
“(2) A report furnished by the liquidator under subsection 482 (2) in respect of an application for an order staying or terminating a winding up must be filed in the Registry and a copy of that report must be lodged with the Commission.
“(3) A report filed by a liquidator under this rule may be inspected by the Commission or a person authorised by the Commission without the leave of the Court, but must not be inspected or used by any other person except with the leave of the Court.
“48. (1) A creditor or contributory of a company, the company or the Commission may apply for the appointment of a provisional liquidator under subsection 472 (2) by notice of motion in the proceedings for a winding up order.
“(2) At the time of filing a notice of motion under subrule (1), an applicant for the appointment of a provisional liquidator must file:
(a) an affidavit setting out the material facts relied upon to support the application; and
(b) a written consent of an official liquidator in Form 89; and
(c) a draft notice of the appointment of a provisional liquidator in Form 99; and
(d) a draft order appointing the provisional liquidator including a short description of:
(i) the property of which the provisional liquidator is to take possession; and
(ii) the duties he or she is to perform; and
(iii) the powers sought to be conferred on him or her.
“(3) The applicant (if not the company as to which an order is sought) must forthwith serve the notice of motion referred to in subrule (1) and the affidavit referred to in subrule (2) on the company.
“(4) The Court may order that a provisional liquidator be appointed on such terms and conditions as it thinks fit, and may require that the applicant for the order give an undertaking as to damages.
“49. (1) If an order for the appointment of a provisional liquidator is made, the applicant (unless it is the Commission) must:
(a) obtain a sealed copy of a notice in Form 99 from the Registry not later than the day after the order was made; and
(b) serve the sealed notice on the provisional liquidator appointed to the company not later than the day after the order was made; and
(c) if the company is not the applicant, serve a copy of the notice on the company by posting that notice by prepaid post not later than the day after the order was made; and
(d) lodge a copy of the notice with the Commission within 2 business days after the making of the order; and
(e) publish a notice in Form 100 in the manner prescribed by rule 104 as soon after the order was made as is practicable.
“(2) Unless the Court orders to the contrary, the expense of complying with this rule will be a charge on the assets of the company.
“50. Within 7 days of the making and entry of an order for the appointment of a provisional liquidator to a company, the applicant (unless it is the Commission) must:
(a) serve an office copy of the sealed order of the Court on the provisional liquidator; and
(b) serve an office copy of the sealed order on the company.
“51. (1) Subject to:
(a) the Corporations Law; and
(b) this Order; and
(c) any direction of the Court to the contrary;
a provisional liquidator appointed under subsection 472 (2) has power to carry on the business of the company and has the powers specified in paragraphs 477 (2) (a) to 477 (2) (k) (inclusive).
“(2) 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.
“(3) The exercise of the powers given to a provisional liquidator under this rule is subject to the control of the Court. A creditor or contributory of the company may apply to the Court with respect to an exercise or proposed exercise of those powers by a provisional liquidator, by notice of motion in the proceedings for the winding up order.
“52. (1) Subject to any order of the Court to the contrary, a provisional liquidator is entitled to be paid out of the assets of the company all costs, charges and expenses he or she has properly incurred and such remuneration as the Court determines.
“(2) A provisional liquidator must give notice of his or her claim to remuneration to any liquidator of the company (other than himself or herself) and to any committee of inspection before applying to the Court to determine his or her remuneration under subsection 473 (2).
“53. (1) If a liquidator or provisional liquidator appointed by the Court seeks to resign his or her office he or she must:
(a) if practicable, obtain the written consent of another official liquidator to act as liquidator or provisional liquidator of the company in his or her place; and
(b) call separate meetings of creditors and contributories of the company to determine the view of the creditors and contributories as to whether the resignation should be accepted; and
(c) apply by notice of motion in the proceedings for the winding up order, for leave of the Court for his or her resignation and for an order appointing another liquidator or provisional liquidator in his or her place.
“(2) The notice of motion referred to in paragraph (c) of subrule (1) must be accompanied by an affidavit setting out the liquidator’s reasons for seeking leave to resign and by any consent referred to in paragraph (a) of subrule (1).
2. The statement annexed to this affidavit and marked “A” shows:
(a) the amount due in respect of the debts proved and admitted against the Company and the estimated amount of the costs, charges and expenses of and incidental to the winding up of the Company, which amounts total approximately $ (total amount);
(b) the property of the Company which amounts to approximately $ (amount).
3. There is no other property of the Company (other than amounts due from some of the contributories, which I believe will realise approximately $ (amount)).
4. (Number) persons are shown on the list of the contributories of the Company as holding the total number of (number) shares.
5. I believe that $ (amount) will be required to satisfy the debts and liabilities of the Company and the costs, charges and expenses of and incidental to the winding up of the Company, after taking into account the proceeds of realisation of the profit of the Company and the amounts referred to in paragraph 2 (b) and paragraph 3.
6. To provide $ (amount specified in paragraph 5), it is necessary to make a call upon the persons shown on the list of contributories. Having regard to the probability that some of those contributories will partly or wholly fail to pay the amount of the call, I believe that a call of $ (amount) per share should be made.
SWORN at:
Before me:
...........................................
A Justice of the Peace
FORM 112
NOTICE OF APPLICATION FOR LEAVE TO MAKE A CALL
(Order 71, subrule 62 (3))
(No heading or title)
NOTICE OF APPLICATION FOR LEAVE TO MAKE A CALL
UPON CONTRIBUTORIES OF
(Name of company in capitals)
AUSTRALIAN COMPANY NUMBER: (specify Australian Company Number of the company to which the proceedings relate)
On (date) at (time) the Federal Court of Australia at (address of Court) in Proceedings No. of 19 will hear an application by the liquidator of (name of company) for leave to make a call of $ (amount) per share on all of the contributories of the Company (or specify the class of contributories on whom the call is to be made).
All persons interested are entitled to attend the hearing. Any person intending to appear at the hearing must comply with Order 71, subrule 62 (5) 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 and by serving that notice and affidavit on the liquidator at the address shown below not later than 2 days before the date appointed for the hearing of the application.
A copy of an affidavit showing the necessity for the call may be obtained from the liquidator of the Company at the address shown below.
Name of liquidator.
Address of liquidator:
FORM 113
ORDER GIVING LEAVE TO MAKE A CALL
(Order 71, subrule 62 (7))
(Heading in Form 75)
JUDGE:
DATE OF ORDER:
WHERE MADE:
ORDER
THE COURT ORDERS THAT:
1. Leave be given to the liquidator of (name of company) to make a call of $ (amount) per share on all of the contributories of the company (or specify the class of contributories on whom the call is to be made).
2. Each contributory pay to the liquidator of the company on or before (date) the amount of the call made on him or her.
(Complete as in general form of order under Order 36).
FORM 114
NOTICE OF CALL ON CONTRIBUTORIES
(Order 71, subrule 62 (9))
(No heading or title)
To: (Name and address of contributory)
NOTICE OF CALL RELATING TO
(Name of company in capitals)
AUSTRALIAN COMPANY NUMBER: (specify Australian Company Number of the company to which the proceedings relate)
On (date order was made), the Federal Court of Australia in Proceedings No. of 19 granted leave to me to make a call of $ (amount) per share on all of the contributories of (name of company) (or specify the class of contributories on whom the call is to be made). A copy of the order of the Court granting leave to make the call is annexed to this notice.
Accordingly, I call upon you to pay the amount of $ (amount) to me at (address) on or before (date).
............................................
Signature of liquidator
Name of liquidator:
Address of liquidator:
FORM 115
AFFIDAVIT IN SUPPORT OF APPLICATION FOR ORDER FOR PAYMENT OF CALL
(Order 71, Subrule 63 (1))
(Heading in Form 75)
On (date) I (name and address), official liquidator, say on oath:
I am the liquidator of (name of company) (“Company”).
2. On (date of resolution of committee of inspection), the committee of inspection of the Company sanctioned the making of a call of $ (amount) per share on all of the contributories of the Company (or specify the class of contributories on whom the call is to be made). The document now produced to me and marked “A” is a copy of the resolution of the committee of inspection granting that leave.
OR
2. On (date of court order) the Court ordered that I be given leave to make a call of $ (amount) per share on all of the contributories of the Company (or specify the class of contributories on whom the call is to be made). The document now produced to me and marked “A” is a copy of that order.
3. (if call was sanctioned by a committee of inspection) Each of the contributories whose names are shown in the Schedule marked “B” was duly served with notice of the call in Form 114 prescribed under the Federal Court Rules, annexing a copy of the resolution of the committee of inspection sanctioning the making of the call.
OR
3. (if call was made by leave of the Court) Each of the contributories whose names are
shown in the Schedule marked “B” was duly served with notice of the call in Form 110 prescribed under the Federal Court Rules annexing a copy of the order of the Court granting leave to make the call.
4. Each of the contributories of the Company whose names are set out in the second column of the Schedule marked “B” has not paid or caused to be paid to me the sum specified opposite his or her name in the fifth column of the Schedule, which is due from that contributory under the call of $ (amount) per share duly made under the Corporations Law on (date of call).
5. The amount set out opposite the name of each of the contributories in the sixth column of the Schedule is an estimate of the amount due by that contributory in respect of the costs of applying for and giving effect to the order for payment of the call. The estimate of the costs of applying for and giving effect to the order for payment of the call has been reached by apportioning those costs equally among contributories who have not paid the call.
6. The amount set out opposite the name of each of the contributories in the seventh column of the Schedule is the total of the amount due by that contributory in respect of the call as set out in the fifth column and the amount due in respect of costs as set out in the sixth column.
SWORN at:
Before me:
..........................................
A Justice of the Peace
“B”
SCHEDULE
Number on Name list of contributories | Address | Character in which included in list | Amount of call | Proportion of costs of application | Total amount payable |
FORM 116
ORDER FOR PAYMENT OF CALL DUE FROM A CONTRIBUTORY UNDER PARAGRAPH 483 (3) (b) OF THE CORPORATIONS LAW
(Order 71, subrule 63 (2))
(Heading in Form 75)
JUDGE:
DATE OF ORDER:
WHERE MADE:
ORDER
THE COURT ORDERS THAT:
1. Each person named in the second column of the Schedule marked “A” to this order, who is a contributory of (name of company) (“Company”) pay to the liquidator of the Company at (address) within (number) days of the date of this order the amount set out opposite his or her name in the fifth column of the Schedule, which is the amount due from that person under the call of $ (amount of call) per share duly made on (date of call).
2. Each person named in the second column of the Schedule to this order pay to the liquidator at the address specified above and within the time specified above the sum set out opposite his or her name in the sixth column of the Schedule, which is the proportion of the liquidator’s costs of the application for this order and of giving effect to that order attributable to that person.
“A”
SCHEDULE
Number on list of contributories | Name | Address | Character in which included in list | Amount of call | Proportion of costs of application | Total amount payable |
(Complete as in general form of order under Order 36).
FORM 117
REQUEST TO DELIVER BILL FOR TAXATION
(Order 71, Subrules 66 (1) and 66 (3))
NOTICE OF REQUEST TO DELIVER BILL FOR TAXATION
IN RELATION TO
(Name of company in capitals)
AUSTRALIAN COMPANY NUMBER: (specify Australian Company Number of the company to which the proceedings relate)
of 19
TO: (Name and address of person who rendered services).
Pursuant to Order 71, rule 66 of the Federal Court Rules, I request that, within (specify time period) of the date of this request, you deliver to me your bill of costs (OR charges OR expenses) as (state nature of employment) employed by me in the winding up of the above company, for the purposes of taxation by the Registrar of the Federal Court of Australia.
If your bill of costs is not delivered within the time specified above, or within any extension of that time allowed by the Court, I would be entitled to disregard your claim in declaring and distributing a dividend in the winding up and your claim against the assets of the company for your costs (OR charges OR expenses) would be liable to be forfeited.
Date: e.g. 7 May 19
...........................................
Signature of Liquidator
Name of Liquidator:
Address of Liquidator:
FORM 118
STATUTORY DECLARATION BY SPECIAL MANAGER VERIFYING HIS OR HER ACCOUNTS
(Order 71, subrule 68 (2))
I (name) of (address) in the State of (name of state), do solemly and sincerely declare as follows:
1. I am the special manager of the property and business (or as the case may be) of (name of company), Australian Company Number (specify Australian Company Number) (“Company”).
2. The account of receipts and payments annexed hereto and marked “A” contains a full and true account of my receipts and payments as special manager from (date) to (date).
3. I have not during that period received or paid any monies on account of the Company other than the items mentioned in that account nor has any other person done so by my order or for my use.
AND I MAKE this solemn declaration by
virtue of the
DECLARED
at this day of
before me:
...…………………………………….. ……………………………………
A Justice of the Peace
FORM 119
REPORT BY CHAIRMAN OF MEETING OF CREDITORS OR CONTRIBUTORIES
(Order 71, subrule 74 (2))
(Heading in Form 75)
1. I, (name and address) was appointed by the Court to act as a chairman of a meeting of creditors (or contributories) convened under subsection 547 (1) of the Corporations Law.
2. The meeting of creditors (or contributories) of (name of company) (“Company”) was held on (date) at (place).
3. The meeting was convened by a notice published in the Gazette on (date) and in the (name of newspaper) on (date), a copy of which is annexed hereto and marked “A”.
4. The meeting was attended, either personally or by proxy, by (number) creditors whose proofs of debt against the Company were admitted for voting purposes and amounted to the total value of $(amount).
OR
4. The meeting was attended, either personally or by proxy, by (number) contributories who together held (number) shares in the Company and were entitled to (number) votes under the regulations of the Company.
5. The proposals submitted to the meeting were (state the effect of the proposals).
6. I certify that results of the proposals were as follows (state the results of the proposals, showing whether voting was unanimous, with the total number and value of creditors or the total number and votes of contributories voting for and against each proposal).
Date: e.g. 7 May 19
............................................
Signature
Name of Chairman:
FORM 120
NOTICE OF APPLICATION UNDER SECTION 571 OF THE CORPORATIONS LAW
(Order 71, subrule 78 (3))
(No heading or title)
NOTICE OF APPLICATION RELATING TO
(Name of company in capitals)
AUSTRALIAN COMPANY NUMBER: (specify Australian Company Number of the company to which the proceedings relate)
of 19 (name of applicant) will apply to the Federal Court of Australia at (time) on (date) at (address of Court) for an order under section 571 of the Corporations Law declaring the dissolution of the above company to have been void.
The applicant’s address for service is (specify address for service).
Any person intending to appear at the directions hearing must comply with Order 71, subrule 78 (4) 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 two days before the date appointed for the hearing.
This notice is inserted by (name of solicitors) of (address for service), solicitors for the applicant.
FORM 121
ORDER FOR EXAMINATION UNDER SUBSECTION 597 (3) OF THE CORPORATIONS LAW
(Order 71, subrule 81 (4))
(Heading in Form 75)
JUDGE:
DATE OF ORDER:
WHERE MADE:
ORDER
THE COURT ORDERS THAT:
1. (Name) of (address) attend before the Federal Court of Australia at a time and place specified by the Registrar and from day to day until the conclusion of his or her examination, to be examined on oath or affirmation on any matters relating to the promotion, formation
management, administration or winding up of (name of company) (and produce any books in his or her possession or under his or her control relevant to those matters).
2. (If applicable) (Any directions made under subsection 597 (5) as the matters to be inquired into, the procedure to be followed at the examination, or as to persons who may be present at a private examination.)
3. (If applicable) The questions put to (name) and the answers given by (him or her) be recorded m writing.
4. The person to whom this order is directed have liberty to apply to set aside the order by filing, within 3 days of service of the order upon him, a notice of motion in the proceedings seeking the discharge of the order together with an affidavit setting out the material facts and matters on which he or she relies.
5. Subject to any further order of the Court, the applicant be paid or retain out of the property of the Company his or her costs of this application and the examination.
(Complete as in general form of order under Order 36)
FORM 122
NOTICE TO ATTEND EXAMINATION UNDER SECTION 597 OF THE CORPORATIONS LAW
(Order 71, subrule 81(5))
(Heading in Form 75)
To: (Name and address of person to be examined)
NOTICE OF EXAMINATION RELATING TO
(Name of Company in capitals)
On (date of order) the Federal Court of Australia ordered that you, (name of person to be examined) of (address of person to be examined), attend before the Court at a time and place specified by the Registrar and from day to day until the conclusion of your examination, to be examined on oath or affirmation on any matters relating to the promotion, formation, management, administration or winding up of (name of company) (and that you produce any books in your possession or under your control relevant to those matters). An office copy of that order accompanies this notice.
The Registrar has specified that your examination is to be held at (address) on (date) at (time).
Accordingly, you are required to attend at that time and place, and at any adjournments of the examination (and to bring with you and produce all books, papers, writings and other documents in your possession or under your control relating to the above company).
Subsection 597(6) of the Corporations Law provides that a person who is ordered to attend before the Court for an examination must not, without reasonable excuse, fail to attend as required by the order or fail to attend from day to day until the conclusion of the examination.
Subsection 597(9) provides that a person attending before the Court for examination, if directed by the Court to produce any books in his or her possession or under his or her control relevant to the matters on which he or she is to be or is being examined, must not refuse or fail to comply with the direction.
Date: e.g. 7 May 19
...........................................................
Signature of applicant’s solicitor
Name of applicant’s solicitor:
The applicant’s address for service is (specify address for service).
FORM 123
NOTICE OF EXAMINATION UNDER SUBSECTION 597 OF THE CORPORATIONS LAW
(Order 71, subrule 81 (6))
(No heading or title)
NOTICE OF EXAMINATION RELATING TO:
(Name of company in capitals)
AUSTRALIAN COMPANY NUMBER: (specify Australian Company Number of the company to which the proceedings relate)
The Federal Court of Australia in Proceedings No. of 19 has ordered that (name of person to be examined) be examined on matters relating to the promotion, formation, management, administration or winding up of (name of company) under section 597 of the Corporations Law at (time) on (date) at (place of examination). This order was made on application by (name of applicant).
This notice is inserted by (name of solicitors) of (address), solicitors for the applicant.
FORM 124
CERTIFICATE AUTHENTICATING A TRANSCRRIPT TAKEN ON AN EXAMINATION UNDER SECTION 597
(Order 71, subrule 81 (13))
(Heading in Form 75)
I CERTIFY that pages to of the transcript annexed hereto are a correct record of the examination of (name of person examined) which occurred before (name of presiding judge or name of registrar) on (date) at (time).
Date: e.g. 7 May 19
...................................................
Signature
Name of person who made
transcript
or of responsible officer of
the
Commonwealth Reporting
Service:
FORM 125
CERTIFICATE OF DEFAULT IN RELATION TO AN EXAMINATION UNDER SECTION 597 OF THE CORPORATIONS LAW
(Order 71, subrule 82 (1))
(Heading in Form 75)
I CERTIFY that in respect of an examination of (name of person examined) which occurred before me on (date) at (time), (name of person examined) refused (OR failed)
to attend the examination as required by an order under subsection 597 (3).
OR
to attend from day to day until the conclusion of the examination.
OR
to take the oath.
OR
to answer a question which he or she was directed by me to answer.
OR
to produce books.
OR
to sign the written record of his (or her) examination.
Date: e.g. 7 May 19
.................................................
Signature
Name of presiding registrar
FORM 126
SUMMONS UNDER SUBSECTION 1092 (3) OF THE CORPORATIONS LAW
(Order 71, subrule 92 (3))
(Heading in Form 75)
TO: (name and address)
You are required to appear before the Federal Court of Australia at the time and place specified below and show cause why the document(s) specified in the Schedule should not be delivered up and produced by delivering that document to the office of (name of company) at (address of company) within (period as ordered)
to have that document cancelled
OR
to have that document rectified
OR
as the notice given under subsection 1092(2) required
OR
to have the transfer of the said document registered
OR
to have that document otherwise dealt with as ordered.
The applicant’s address for service is (specify address for service).
Date and time: (Date and time to be entered by Registry unless fixed by the Court)
Place: (Address of Court)
Date: e.g. 7 May 19
District Registrar
SCHEDULE
(Description of document)
FORM 127
NOTICE OF INTERVENTION BY THE COMMISSION UNDER SECTION 1330 OF THE CORPORATIONS LAW
(Order 71, subrules 22 (10) and)
(Heading in Form 75)
The Australian Securities Commission of (address for service) intervenes in (specify proceedings).
This notice is given by the Australian Securities Commission of (address) whose address for service is (specify address for service).
..........................................
Signed:
Name of signatory
Capacity of signatory:
Date: e.g. 7 May 19
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 (2), 72 (2), 78 (2), 83 (2) and 93 (2))
(Heading in Form 75)
On (date), I (name address and occupation) say on oath:
1. On (specify date, which must be not earlier than 3 days before the application was filed) I undertook a search at the Australian Securities Commission at (location of ASC office) in respect of (name of company) (“the Company”).
2. That search indicates that:
(a) the Company was incorporated under (specify relevant statute); and
(b) the date of the Company’s incorporation was (specify 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 (specify)) is (specify).
(Insert the following paragraph only if required for the purposes of:
(i) an application within the scope of Order 71, rule 12 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).
2A. 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).
(Insert the following two paragraphs if the company to which the proceedings relate is not the applicant, has not entered an appearance in proceedings, and has lodged a notice of address or notice of change of address under the Corporations Law)
3. The address of the registered office of the Company shown in a notice of address under subsection 218 (1) of the Corporations Law (OR notice of address under subsection 359 (1) of the Corporations Law) (OR notice of change of address under subsection 218 (3) of the Corporations Law) (OR notice of change of address under subsection 359 (3) of the Corporations Law), being the most recent of any notice of address or notice of change of address lodged with the Australian Securities Commission, is (specify).
4. That notice of address (OR notice of change of address) was lodged on (specify date of lodgment).
OR
(Insert the following two paragraphs if the company to which the proceedings relate is not the applicant, has not entered an appearance in proceedings, and has not lodged a notice of address or notice of change of address under the Corporations Law)
3. The address of the registered office of the Company shown in a notice of address under subparagraph 84 (2) (b) (ia) of the Companies (name of State) Code (OR notice of address under subsection 217 (1) of the Companies (name of State) Code) (OR notice of change of address under paragraph 85 (4) (fa) of the Companies (name of State) Code) (OR notice of change of address under subsection 217 (3) of the Companies (name of State) Code), being the most recent of any notice of address or notice of change of address lodged with the (specify name of delegate of National Companies & Securities Commission), is (specify).
4. That notice of address (OR notice of change of address) was lodged on (specify date of lodgment).
(Insert the following if an annual return of the Company of a more recent date than that specified in paragraph 4 states an address for the registered office of the company which differs from the address shown on the most recent notice of address or notice of change of address lodged by the Company)
5. An annual return of the Company dated (specify date) states that the registered office of the Company is located at (specify address).
(Insert the following if the company to which the proceedings relate is not the applicant)
6. The applicant makes the application in the capacity of (specify) (eg shareholder in the Company, creditor of the Company).
SWORN at:
Before me:
.............................................
A Justice of the Peace
(NOTE: Order 71, rule 2 defines
(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 disclosed in the most recent of:
(i) a notice of address in respect of the company under subsections 218 (1) or 359 (1) of the Corporations Law or a provision of a previous law of a State or Territory that corresponds to those subsections; or
(ii) a notice of change of address in respect of the company under subsections 218 (3) or 359 (3) of the Corporations Law or a provision of a previous law of a State or Territory that corresponds to those subsections;
lodged with the Commission, the National Companies & Securities Commission or a delegate of the National Companies &Securities Commission, as determined by a search made not earlier than 3 days before the application was filed; and
(iii) a statement of the date on which the relevant notice of address or notice of change of address was lodged; and
(iv) if an annual return of the company under subsection 335 (1) of the Corporations Law or a provision of a previous law of a State or Territory that corresponds to that subsection:
(a) has a more recent date than the most recent notice of address or notice of change of address lodged by the Company; and
(b) states an address for the registered office of the Company which differs from the address shown in the most recent notice of address or notice of change of address;
a statement of that address and of the date of that annual return).”.
7.1 Add at the end:
POWERS AND FUNCTIONS OF THE COURT THAT MAY BE EXERCISED BY A REGISTRAR IF THE COURT OR JUDGE DIRECTS
PART 1
Column 1 | Column 2 | Column 3 | Column 4 |
Item No. | Provision of the Corporations Law | Number of rule in Order 71 | Description (For information only) |
1 | 9 | Power to direct the notice be given | |
2 | 10 | Leave to creditor contributory or officer to be heard | |
3 | 11 | Inquiry as to creditors | |
4 | subsection 140 (4) | Power to approve alteration in constituent documents of registered foreign company | |
5 | section 167 | 12 | Order for cancellation of change of status of company |
6 | section 168 | 12 | Order for cancellation of change from public to proprietary company |
7 | subsection 170 (1) | Power to determine that company has ceased to be a proprietary company | |
8 | subsection 170 (4) | Power to determine that company has not ceased to be a proprietary company where default was accidental | |
9 | subsection 170 (5) | Leave to convert to proprietary company | |
10 | section 172 | 12 | Order for cancellation of alteration of memorandum |
11 | section 190 | 13 | Order confirming issue of shares at a discount |
12 | section 194 | 12 | Order validating issue or allotment of shares |
13 | section 195 | 14 and 15 | Powers of the Court as to reduction of capital |
14 | sections 197, 198 and 199 | 12 | Order setting aside variation or abrogation of rights |
15 | section 198 | Order as to rights of holders of shares | |
16 | section 199 | Order as to rights of classes of members | |
17 | section 202 | 12 | Order approving payment of interest out of capital of company |
18 | subsection 205 (12) | 16 | Application opposing giving of financial assistance |
19 | subsection 250 (4) | Leave to member of proprietary company to appoint proxy | |
20 | subsection 252 (6) | Order that company is not bound to circulate statement containing defamatory matter | |
21 | subsection 266 (4) | Power to extend period for lodgment of notice in respect of charge | |
22 | subsection 267 (3) | 21 | Leave to enforce charge |
23 | section 274. | Power to rectify register of charges | |
24 | section 319 | Order for inspection of records | |
25 | subsection 342 (9) | Order for restoration of name of registered Australian body to the Register | |
26 | subsection 350 (10) | Order for restoration of name of registered foreign company to the Register | |
27 | section 411 | 22, 23, 24, 25, 26 and 27 | Power to approve compromise or arrangement for Part 5.1 body |
28 | subsection 411 (6) | Appeal from resolution to place company under official management | |
29 | section 419 | 28 | Power to make order relieving person who incurs liability in belief that properly appointed as a receiver |
Column 1 | Column 2 | Column 3 | Column 4 |
Item No. | Provision of the Corporations Law | Number of rule in Order 71 | Description (For information only) |
30 | section 423 | 29 | Inquiry as to conduct of receiver |
31 | section 424 | 30 | Receiver’s application to the Court for directions |
32 | section 425 | Power to fix amount of remuneration of receiver | |
33 | subsection 429 (3) | Power to extend time for report | |
34 | subsection 448 (9) | Court’s power to settle nomination of liquidator | |
35 | section 452 | 32 | Inquiry as to conduct of official manager |
36 | section 454 | 33 | Creditor’s appeal against decision to appoint official manager |
37 | section 456 | 34 | Release of official manager |
38 | sections 460 and 461 | 35 to 43 (inclusive) | Winding up applications |
39 | section 468 | 45 | Validation of disposition of property |
40 | paragraph 470 (2) (b) | Service of copy of order on another person | |
41 | sections 476, 482 | 47 | Grant of leave to inspect reports filed by |
and 533 | liquidator in winding up by the Court | ||
42 | section 472 | 48 to 51 (inclusive) | Appointment of provisional liquidator |
43 | subsection 473 (1) | 53 | Resignation of liquidator or provisional liquidator |
44 | subsection 473 (2) | 52 | Determination of provisional liquidator’s remuneration |
45 | subsections 473 (3) and 473 (5) | Determination or review of liquidator’s remuneration | |
46 | subsection 473 (7) | 54 | Filling vacancy in office of official liquidator |
47 | subsection 473 (8) | Power to declare what may be done by liquidator, where more than one liquidator is appointed by the Court | |
48 | subsection 474 (2) | Order that property vests in liquidator | |
49 | subsection 475 (8) | 55 | Power to grant leave for payment of costs and expenses incurred without the liquidator’s approval in preparing and making a report under section 475 |
50 | subsection 477 (1) | Authorisation of liquidator to exercise powers | |
51 | section 480 | 58 | Release of liquidator |
52 | section 481 | 59 | Report on accounts of liquidator |
53 | subsection 483 (1) | 60 | Court’s power to require property to be delivered to liquidator |
54 | subsection 483 (3) | 62 | Leave for call on contributories |
55 | 65 | Order appointing temporary joint liquidator | |
56 | 66 | Taxation of costs incurred by agents of and persons employed by liquidator | |
57 | section 484 | 67, 68 and 69 | Appointment of special manager |
58 | section 486 | Order for inspection of books by creditors or contributories | |
59 | section 490 | Leave of Court to wind up voluntarily where application has been filed for winding up company on ground that it is unable to pay its debts | |
60 | subsection 495 (4) | Conduct of meeting in course of members voluntary winding up | |
61 | subsection 496 (3) | Order that list of creditors be sent in members’ voluntary winding up | |
62 | subsection 497 (3) | Order that list of creditors be sent in creditors’ voluntary winding up |
Column 1 | Column 2 | Column 3 | Column 4 |
Item No. | Provision of the Corporations Law | Number of rule in Order 71 | Description (For information only) |
63 | section 499 | Direction where different liquidators chosen | |
64 | section 500 | Execution and civil proceedings | |
65 | section 502 | 71 | Appointment of liquidator in voluntary winding up |
66 | section 503 | 71 | Removal of liquidator |
67 | section 504 | Review of liquidator’s remuneration in voluntary winding up | |
68 | paragraph 506 (1) (a) | Approval to liquidator’s exercise of powers in members’ voluntary winding up | |
69 | subsection 507 (6) | Power to sanction resolution to accept shares as consideration for sale of property of company | |
70 | subsection 507 (9) | Power to give directions necessary for arbitration | |
71 | subsection 507(10) | Approval to liquidator’s exercise of powers in creditors’ voluntary winding up | |
72 | subsection 509 (6) | Power to declare date of dissolution | |
73 | subsection 510 (3) | Power to settle dispute as to value of security or lien or amount of debt or set-off | |
74 | paragraph 511 (1) (a) | 72 | Determination of question in winding up of company |
75 | paragraph 511 (1) (b) | Application to the Court to exercise powers which might be exercised if a company were being wound up by the Court | |
76 | subsection 532 (2) | Leave of Court for person to be appointed as liquidator | |
77 | section 536 | 73 | Supervision of liquidators |
78 | paragraph 542 (3) (a) | Directions as to destruction of books | |
79 | subsection 543 (1) | Order as to the investment of surplus funds | |
80 | subsection 544 (2) | Power of Court to order account of funds in hands of liquidator, audit or payment of money by liquidator | |
81 | section 545 | Direction to liquidator to incur particular expense | |
82 | section 547 | 74 | Power to direct that meeting of creditors or contributories be held |
83 | section 551 | Leave of Court for member of committee of inspection to accept extra benefit | |
84 | section 552 | 76 | Power to give direction or permission where no committee of inspection is appointed |
85 | section 564 | Order giving priority to creditor who gives a company an indemnity for costs of litigation | |
86 | section 568 | 77 | Disclaimer of onerous property |
87 | section 571 | 78 | Power of Court to declare dissolution of company to be void |
88 | section 574 | Reinstatement of company on application of person aggrieved | |
89 | sections 583 and 585 | 79 | Powers under Part 5.7 in winding up bodies other than companies |
90 | section 597 | 81 and 82 | Examinations |
91 | section 743 | 87 | Powers of Court where contravention due to inadvertence |
92 | subsection 1053 (5) | Power to appoint body corporate as trustee for debenture holders | |
93 | section 1055 | Enforcement of security for debentures | |
94 | section 1056 | Orders in relation to borrowing corporations | |
95 | section 1057 | 91 | Directions on application of trustee for debenture holders |
Column 1 | Column 2 | Column 3 | Column 4 |
Item No. | Provision of the Corporations Law | Number of rule in Order 71 | Description (For information only) |
96 | section 1069 | Powers as to convenants to be included in deeds relating to prescribed interests | |
97 | section 1074 | 12 | Order confirming resolution that undertaking or scheme be wound up |
98 | section 1092 | 92 | Summons for appearance of a person |
99 | section 1093 | 93 | Orders relating to a company’s refusal to register a share transfer |
100 | subsection 1096 (4) | Court’s power to make order to remedy default in issuing certificate | |
101 | section 1274 | Order that document be lodged | |
102 | section 1303 | Order that books be available for inspection | |
103 | section 1319 | Power to give directions with respect to meetings | |
104 | section 1321 | 100 | Appeals from decisions of receivers or liquidators |
105 | section 1322 | 101 | Irregularities |
106 | section 1335 | Court’s power as to costs |
Column 1 | Column 2 | Column 3 | Column 4 |
Item No. | Provision of the ASC Law | Number of rule in Order 71 | Description (For information only) |
1 | subsection 79 (4) | Power to extend period to give notice of intention to have statements made at examination admitted |
1. Notified in
the
2. Statutory Rules 1979 No. 140 as amended to date. For previous amendments
see Note 2 to Statutory Rules 1990 No. 72 andsee also
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