Rules of the Supreme Court (Corporations Law) Amendment Rules 2004
We, the Honourable WILLIAM JOHN ELLIS COX, Companion of the Order of Australia, Chief Justice, and the Honourable PETER GEORGE UNDERWOOD, the Honourable EWAN CHARLES CRAWFORD and the Honourable PIERRE WILLIAM SLICER, Puisne Judges of the Supreme Court of Tasmania, on the recommendation of the Rule Committee, make the following Rules of Court under the Supreme Court Civil Procedure Act 1932 .
1Short titleThese Rules of Court may be cited as the Rules of the Supreme Court (Corporations Law) Amendment Rules 2004 . 2CommencementThese Rules of Court take effect on the day on which their making is notified in the Gazette. 3Principal RulesIn these Rules of Court, the Rules of the Supreme Court (Corporations Law) 2000 are referred to as the Principal Rules. 4Rule 1 amended (Short title) Rule 1 of the Principal Rules is amended by omitting "Rules of the Supreme Court (Corporations Law)" and substituting "Supreme Court (Corporations) Rules". 5Rule 3 amended (Application of these Rules and other rules of the Court) Rule 3 of the Principal Rules is amended as follows: (a) by omitting from subrule (1) "Corporations Law" and substituting "Corporations Act"; (b) by omitting from subrule (1) "ASIC Law" and substituting "ASIC Act"; (c) by omitting from subrule (2) "Corporations Law" and substituting "Corporations Act"; (d) by omitting from subrule (2) "ASIC Law" and substituting "ASIC Act"; (e) by omitting from subrule (3) "Corporations Law" twice occurring and substituting "Corporations Act"; (f) by omitting from subrule (3) "ASIC Law" twice occurring and substituting "ASIC Act". 6Rule 4 amended (Expressions used in the Corporations Act) Rule 4 of the Principal Rules is amended by omitting "Corporations Law" twice occurring and substituting "Corporations Act". 7Rule 5 amended (Definitions for these Rules) Rule 5 of the Principal Rules is amended as follows: (a) by inserting the following definitions after the definition of applicant : ASIC Act means the Australian Securities and Investments Commission Act 2001 of the Commonwealth; Commission means the Australian Securities and Investments Commission established by the Australian Securities and Investments Commission Act 1989 of the Commonwealth; Corporations Act means the Corporations Act 2001 of the Commonwealth; Corporations Regulations means the Corporations Regulations 2001 of the Commonwealth; (b) by omitting "Law" first occurring from the definition of defendant and substituting "Corporations Act"; (c) by omitting "ASIC Law" from the definition of defendant and substituting "ASIC Act"; (d) by omitting "Law" first occurring from the definition of plaintiff and substituting "Corporations Act"; (e) by omitting "ASIC Law" from the definition of plaintiff and substituting "ASIC Act"; (f) by omitting "proceeding;" from the definition of respondent and substituting "proceeding."; (g) by omitting the definition of the Law . 8Rule 8 amended (Court's power to give directions) Rule 8(a) of the Principal Rules is amended as follows: (a) by omitting "Corporations Law" and substituting "Corporations Act"; (b) by omitting "ASIC Law" and substituting "ASIC Act". 9Rule 10 amended (Extension and abridgment of time) Rule 10 of the Principal Rules is amended as follows: (a) by omitting "Corporations Law" and substituting "Corporations Act"; (b) by omitting "ASIC Law" and substituting "ASIC Act". 10Rule 12 amended (Originating process and interlocutory process Forms 2 and 3) Rule 12 of the Principal Rules is amended as follows: (a) by omitting from subrule (1) "Law" and substituting "Corporations Act"; (b) by omitting from subrule (3)(b)(i) "Law" first occurring and substituting "Corporations Act"; (c) by omitting from subrule (3)(b)(i) "ASIC Law" and substituting "ASIC Act"; (d) by omitting from subrule (4)(b)(i) "Law" first occurring and substituting "Corporations Act"; (e) by omitting from subrule (4)(b)(i) "ASIC Law" and substituting "ASIC Act". 11Rule 14A amended (Application for order setting aside statutory demand (Corporations Act s 459G)) Rule 14A(1) of the Principal Rules is amended by omitting "Law" and substituting "Corporations Act". 12Rule 18 amended (Notice of certain applications to be given to Commission) Rule 18 of the Principal Rules is amended as follows: (a) by omitting from subrule (1) "Law" and substituting "Corporations Act"; (b) by omitting from subrule (3) "Law" and substituting "Corporations Act". 13Rule 19 amended (Notice of appearance (Corporations Act s 465C) — Form 4) Rule 19 of the Principal Rules is amended as follows: (a) by omitting from subrule (2) "Law" and substituting "Corporations Act"; (b) by omitting from subrule (3) "Law" and substituting "Corporations Act". 14Rule 25 amended (Meetings ordered by the Court) Rule 25 of the Principal Rules is amended by omitting "Law" and substituting "Corporations Law". 15Rule 27 amended (Nomination of chairperson for meeting) Rule 27 of the Principal Rules is amended as follows: (a) by omitting "Law" first occurring and substituting "Corporations Law"; (b) by omitting from paragraph (d) "Law" and substituting "Corporations Law". 16Rule 28 amended (Order for meetings to identify proposed scheme) Rule 28 of the Principal Rules is amended as follows: (a) by omitting from subrule (1) "Law" and substituting "Corporations Act"; (b) by omitting from subrule (2) "Law" first occurring and substituting "Corporations Act"; (c) by omitting from subrule (2)(a) "Law" and substituting "Corporations Act"; (d) by omitting from subrule (2)(b) "Law" and substituting "Corporations Act"; (e) by omitting from subrule (3) "Law" and substituting "Corporations Act". 17Rule 29 amended (Notice of hearing (Corporations Act s 411 (4), s 413 (1)) — Form 6) Rule 29(1) of the Principal Rules is amended as follows: (a) by omitting from paragraph (a) "Law" and substituting "Corporations Act"; (b) by omitting from paragraph (b) "Law" and substituting "Corporations Act". 18Rule 30 amended (Copy of order approving compromise or arrangement to be lodged with Commission) Rule 30 of the Principal Rules is amended by omitting "Law" and substituting "Corporations Act". 19Part 4: Heading amended Part 4 of the Principal Rules is amended by omitting "(PART 5.2 OF THE LAW)" from the heading to that Part and substituting "(CORPORATIONS ACT PART 5.2)". 20Rule 31 amended (Inquiry into conduct of controller (Corporations Act s 423)) Rule 31 of the Principal Rules is amended by omitting "Law" and substituting "Corporations Act". 21Rule 32 amended (Application of Part 5 ) Rule 32 of the Principal Rules is amended as follows: (a) by omitting from paragraph (a) "Law" and substituting "Corporations Act"; (b) by omitting from paragraph (b) "Law" and substituting "Corporations Act". 22Rule 33 amended (Affidavit accompanying statutory demand (Corporations Act s 459E (3)) — Form 7) Rule 33 of the Principal Rules is amended by omitting "Law" and substituting "Corporations Act". 23Rule 35 amended (Affidavit in support of application for winding up (Corporations Act s 459P, s 462, s 464)) Rule 35(3) of the Principal Rules is amended by omitting "Law" and substituting "Corporations Act". 24Rule 36 amended (Consent of liquidator (Corporations Act s 532 (9)) — Form 8) Rule 36(2) of the Principal Rules is amended by omitting "Law" and substituting "Corporations Act". 25Rule 40 amended (Appearance before Registrar) Rule 40(b) of the Principal Rules is amended by omitting "Law" and substituting "Corporations Act". 26Rule 41 amended (Order substituting plaintiff in application for winding up (Corporations Act s 465B) — Form 10) Rule 41(1) of the Principal Rules is amended by omitting "Law" and substituting "Corporations Act". 27Part 6: Heading amended Part 6 of the Principal Rules is amended by omitting "(PART 5.4B OF THE LAW)" from the heading to that Part and substituting "(CORPORATIONS ACT PART 5.4B)". 28Rule 43 amended (Appointment of provisional liquidator (Corporations Act s 472) — Form 8) Rule 43(1) of the Principal Rules is amended by omitting "Law" and substituting "Corporations Act". 29Rule 47 amended (Report to liquidator as to company’s affairs (Corporations Act s 475)) Rule 47 of the Principal Rules is amended as follows: (a) by omitting from subrule (1) "Law" and substituting "Corporations Act"; (b) by omitting from subrule (3) "Law" and substituting "Corporations Act". 30Rule 49 amended (Release of liquidator and deregistration of company (Corporations Act s 480 (c) and (d))) Rule 49 of the Principal Rules is amended as follows: (a) by omitting from subrule (2)(b) "Law" and substituting "Corporations Act"; (b) by omitting from subrule (3)(e) "Law" and substituting "Corporations Act"; (c) by omitting from subrule (3)(h) "Law" and substituting "Corporations Act"; (d) by omitting from subrule (3)(m) "Law" and substituting "Corporations Act". 31Rule 51 amended (Report on accounts of liquidator (Corporations Act s 481)) Rule 51 of the Principal Rules is amended as follows: (a) by omitting from subrule (1) "Law" and substituting "Corporations Act"; (b) by omitting from subrule (2)(a) "Corporations Law" and substituting "Corporations Act 2001". 32Rule 52 amended (Application for payment of call (Corporations Act s 483 (3) (b)) — Form 14) Rule 52 of the Principal Rules is amended by omitting "Law" and substituting "Corporations Act". 33Rule 54 amended (Powers delegated to liquidator by the Court (Corporations Act s 488)) Rule 54 of the Principal Rules is amended as follows: (a) by omitting "Corporations Law" and substituting "Corporations Act"; (b) by omitting "Law" second occurring and substituting "Corporations Act"; (c) by omitting "Law" third occurring and substituting "Corporations Act". 34Rule 55 amended (Inquiry into conduct of liquidator (Corporations Act s 536(1) and (2))) Rule 55 of the Principal Rules is amended as follows: (a) by omitting from subrule (1) "Law" and substituting "Corporations Act"; (b) by omitting from subrule (2) "Law" and substituting "Corporations Act"; (c) by omitting from subrule (4) "Law" and substituting "Corporations Act". 35Part 8: Heading amended Part 8 of the Principal Rules is amended by omitting "(PART 5.4B OF THE LAW)" from the heading to that Part and substituting "(CORPORATIONS ACT PART 5.4B)". 36Rule 59 amended (Remuneration of receiver (Corporations Act s 425 (1)) — Form 16) Rule 59(1) of the Principal Rules is amended by omitting "Law" and substituting "Corporations Act". 37Rule 60 amended (Remuneration of administrator (Corporations Act s 449E (1)) — Form 16) Rule 60 of the Principal Rules is amended as follows: (a) by omitting from subrule (1) "Law" and substituting "Corporations Act"; (b) by omitting from subrule (2) "Law" and substituting "Corporations Act". 38Rule 61 amended (Remuneration of provisional liquidator (Corporations Act s 473 (2)) — Form 16) Rule 61(1) of the Principal Rules is amended by omitting "Law" and substituting "Corporations Act". 39Rule 62 amended (Remuneration of liquidator (Corporations Act s 473 (3)) — Form 16) Rule 62 of the Principal Rules is amended as follows: (a) by omitting from subrule (1) "Law" and substituting "Corporations Act"; (b) by omitting from subrule (2)(b) "Law" and substituting "Corporations Act". 40Rule 63 amended (Remuneration of special manager (Corporations Act s 484 (2)) — Form 16) Rule 63(1) of the Principal Rules is amended by omitting "Law" and substituting "Corporations Act". 41Rule 64 amended (Determination of value of debts or claims (Corporations Act s 554A (2))) Rule 64 of the Principal Rules is amended by omitting "Law" and substituting "Corporations Act". 42Rule 65 amended (Disclaimer of contract (Corporations Act s 568 (1A))) Rule 65(1) of the Principal Rules is amended by omitting "Law" and substituting "Corporations Act". 43Part 11: Heading amended Part 11 of the Principal Rules is amended by omitting "(PART 5.9, DIVISIONS 1 AND 2 OF THE LAW)" from the heading to that Part and substituting "(CORPORATIONS ACT PART 5.9, DIVISIONS 1 AND 2)". 44Rule 67 amended (Definition for Part 11 ) Rule 67 of the Principal Rules is amended by omitting "Law" from the definition of examination summons and substituting "Corporations Act". 45Rule 68 amended (Application for examination or investigation under s 411(9)(b), s 423 or s 536 (3) of the Corporations Act) Rule 68 of the Principal Rules is amended as follows: (a) by omitting from subrule (1) "Law" and substituting "Corporations Act"; (b) by omitting from subrule (3) "Law" twice occurring and substituting "Corporations Act". 46Rule 69 amended (Application for examination summons (Corporations Act s 596A, s 596B) — Form 17) Rule 69(4) of the Principal Rules is amended as follows: (a) by omitting from paragraph (a) "Corporations Law" and substituting "Corporations Act 2001"; (b) by omitting from paragraph (b) "Corporations Law" and substituting "Corporations Act 2001". 47Rule 72 amended (Filing of record of examination (Corporations Act s 597 (13))) Rule 72 of the Principal Rules is amended by omitting "Law" and substituting "Corporations Act". 48Rule 73 amended (Authentication of transcript of examination (Corporations Act s 597 (14))) Rule 73 of the Principal Rules is amended by omitting "Law" and substituting "Corporations Act". 49Rule 74 amended (Inspection of record or transcript of examination or investigation under s 411, s 423 or s 536 of the Corporations Act) Rule 74(1) of the Principal Rules is amended by inserting "of the Corporations Act" after "536". 50Rule 75 amended (Entitlement to record or transcript of examination held in public) Rule 75(1)(a) of the Principal Rules is amended by omitting "Law" and substituting "Corporations Act". 51Rule 77 amended (Service of application for order in relation to breaches etc by person concerned with corporation (Corporations Act s 598)) Rule 77(1) of the Principal Rules is amended by omitting "Law" and substituting "Corporations Act". 52Part 12: Heading amended Part 12 of the Principal Rules is amended by omitting "TAKEOVERS, ACQUISITIONS OF SHARES, &C. (CHAPTERS 6 TO 6D OF THE LAW) AND SECURITIES (CHAPTER 7 OF THE LAW)" from the heading to that Part and substituting "TAKEOVERS, ACQUISITIONS OF SHARES, &C. (CORPORATIONS ACT CHAPTERS 6 TO 6D) AND SECURITIES (CORPORATIONS ACT CHAPTER 7)". 53Rule 78 amended (Service on Commission in relation to proceedings under Chapter 6, 6A, 6B, 6C, 6D or 7 of the Corporations Act) Rule 78 of the Principal Rules is amended by omitting "Law" and substituting "Corporations Act". 54Rule 78A insertedAfter rule 78 of the Principal Rules , the following rule is inserted in Part 12: 78AReference to Court of question of law arising in proceedings before Takeovers Panel (Corporations Act s 659A) Division 3 of Part 27 of the Supreme Court Rules 2000 applies, with any necessary adaptations, to a reference of a question of law arising in a proceeding before the Takeovers Panel to the Court under section 659A of the Corporations Act. 55Rule 79 amended (Application for summons for appearance of person (Corporations Act s 1071D(4)) — Form 18) Rule 79(1) of the Principal Rules is amended by omitting "subsection 1092 (3) of the Law" and substituting "subsection 1071D(4) of the Corporations Act". 56Rule 80 amended (Application for orders relating to refusal to register transfer or transmission of shares etc (Corporations Act s 1071F)) Rule 80 of the Principal Rules is amended by omitting "section 1094 of the Law" and substituting "section 1071F of the Corporations Act". 57Part 13 rescinded Part 13 of the Principal Rules is rescinded. 58Part 14: Heading amended Part 14 of the Principal Rules is amended by omitting "(PART 9.5 OF THE LAW)" from the heading to that Part and substituting "(CORPORATIONS ACT PART 9.5)". 59Rule 83 amended (Appeal from act, omission or decision of administrator, receiver or liquidator, etc (Corporations Act s 554A, s 1321)) Rule 83 of the Principal Rules is amended as follows: (a) by omitting from subrule (1) "Law" and substituting "Corporations Act"; (b) by omitting from subrule (2) "Law" and substituting "Corporations Act". 60Part 15: Heading amended Part 15 of the Principal Rules is amended by omitting "ASIC LAW" from the heading to that Part and substituting "ASIC ACT". 61Rule 84 amended (Reference to Court of question of law arising at hearing of Commission (ASIC Act s 61)) Rule 84 of the Principal Rules is amended by omitting "ASIC Law" and substituting "ASIC Act". 62Rule 85 rescinded Rule 85 of the Principal Rules is rescinded. 63Rule 86 amended (Application for inquiry (ASIC Act s 70, s 201, s 219)) Rule 86 of the Principal Rules is amended by omitting "ASIC Law" and substituting "ASIC Act". 64Schedule 1 amended (Forms) Schedule 1 to the Principal Rules is amended by omitting Forms 2 , 3 , 8 , 10 and 17 and substituting: Form 2Originating process Form 3Interlocutory process Form 8Consent of liquidator/provisional liquidator Form 10Notice of application for winding up order by substituted plaintiff Form 17Summons for examination 65Schedule 2 insertedAfter Schedule 1 to the Principal Rules , the following Schedule is inserted: Schedule 2Notes to these Rules Note 1 – see rule 12 (Form 2 Part C) |
C. | APPLICATION FOR WINDING UP ON GROUND OF INSOLVENCY |
1. | The plaintiff relies on failure by the defendant to comply with a statutory demand. A copy of the demand, marked A, is attached to this originating process. |
2. | The demand was [or The demand and an accompanying affidavit were] served by X.Y. who delivered it [or them] to the registered office of the defendant at [insert address] on [insert date] [or, if service was by post, who posted *it/*them by ordinary prepaid post to the registered office of the defendant at [insert address] on [insert date]]. [If applicable, A copy of the accompanying affidavit, marked B, is attached to this originating process.] |
3. | The defendant failed to pay the amount of the debt demanded [or the total of the debts demanded] or to secure or compound for that *amount/*total to the plaintiff’s reasonable satisfaction within 21 days after the demand was served on the defendant [or within 7 days after [insert date] when an application by the defendant under section 459G of the Corporations Act was finally determined or otherwise disposed of] [or if the period for compliance with the demand was extended by order within the period specified in the order of the [insert name of Court] on [insert date of order or, if more than one order, the date of the last such order] as the period for compliance with the demand. A copy of the order, marked C, is attached to this originating process.] |
[If the demand was varied by order under subsection 459H (4) of the Corporations Act] |
4. | The demand was varied by order of the [insert name of Court] on [insert date of order]. A copy of the order, marked D [or as the case may be], is attached to this originating process. |
* Omit if not applicable |
Note 2 – see rule 14 and subrule 35 (2) (Affidavit in support) |
*AFFIDAVIT IN SUPPORT/*AFFIDAVIT IN SUPPORT OF APPLICATION FOR WINDING UP IN INSOLVENCY |
I, [name] of [address and occupation], *say on oath/*affirm [or *make oath and say/*solemnly and sincerely declare and affirm]: |
1. | I am the above-named plaintiff [or if the applicant is a corporation, I am *a/*the director of the above-named plaintiff which is registered or taken to be registered in [specify State or Territory]. I am duly authorised to make this affidavit on its behalf]. Now produced and shown to me and marked A is a copy of the originating process to be filed in the proceedings. |
2. | Annexed to this affidavit is a current and historical extract of the records maintained by the Australian Securities and Investments Commission with respect to the defendant. |
3. | [Where the defendant is registered or taken to be registered in another State or a Territory, state any facts – apart from the defendant’s principal place of business – which bear upon jurisdiction being exercised in Tasmania rather than in another State or Territory.] |
4. | The following facts are within my own personal knowledge save as otherwise stated. |
5. | The defendant was on [state date of statutory demand or other relevant date] indebted to the plaintiff in the sum of $ [amount] for [state concisely the consideration, for example, goods sold and delivered etc.] which sum was then due and payable. |
6. | The demand, a copy of which is attached to the originating process, was signed by or on behalf of the plaintiff. I served the demand [or the demand and the accompanying affidavit] as referred to in the originating process [or X. Y. has been instructed to make an affidavit of service of the demand [or the demand and the accompanying affidavit]]. |
7. | The matters stated in the originating process concerning the demand and failure of the defendant to comply with it are true and correct. |
8. | The sum demanded remains due and payable by the defendant to me [or the plaintiff]. |
Sworn, etc. |
* Omit if not applicable |
W. J. E. Cox
Chief Justice
P. G. Underwood
Puisne Judge
E. C. Crawford
Puisne Judge
P. W. Slicer
Puisne Judge
Countersigned,
I. G. Ritchard
Registrar
Displayed and numbered in accordance with the Rules Publication Act 1953.
Notified in the Gazette on 21 July 2004
These Rules of Court are administered in the Department of Justice.
EXPLANATORY NOTE
(This note is not part of the rule) These Rules of Court amend the
(a) renaming the rules the Supreme Court (Corporations) Rules 2000; and (b) amending a number of legislative references to refer to the relevant Commonwealth legislation; and (c) amending certain forms to reflect the change in legislation; and (d) effecting minor statute law revision.