Rules of the Supreme Court of the Australian Capital Territory (Amendment) (Cth)
STATUTORY RULES
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY*
PURSUANT to
the
“Order 75.—I.—Preliminary.
II.—Application of New South Wales Companies Rules, 1945.
III.—Investigation of Affairs of a Company.”
and inserting in their stead the following words—
“Order 75.—I.—Preliminary.
II.—Procedure on Applications by Petition and Summons.
III.—Applications by Petition.
IV.—Applications by Summons.
V.—Appeals.
VI.—Winding-up and Petitions under Section 186.
VII.—General.”.
* Notified in the
Statutory Rules 1937, No. 85, as amended by Statutory Rules 1938, No. 99; 1939, Nos. 48 and 61; 1950, No. 22; 1956, No. 135; 1958, No. 64; 1962, Nos. 47 and 76; 1966, No. 132; 1967, No. 68; 1968, No. 13; and 1969, Nos. 57, 66 and 221.
26656/68—Price 65c
“ORDER 75.
“I.—Preliminary.
N.S.W. r. 4.
“1.—(1.) In this Order, unless the contrary intention appears—
‘The Company’ means the company to which any proceeding application or matter under these Rules relates including a foreign company or unregistered company;
‘Liquidator’ includes a provisional liquidator;
‘The Ordinance’ means the
Companies Ordinance 1962-1969 of the Australian Capital Territory or, if that Ordinance is amended, that Ordinance as so amended;‘Party’ includes petitioner, applicant, appellant and respondent;
‘Prescribed Newspaper’ means in the case of a company whose registered office or if there shall be no such office then whose principal or last-known principal place of business is or was situate within the Territory, a daily newspaper published and circulating in the Territory; and in the case of any other company, a local newspaper circulating in the city or district where the registered office or if there shall be no such office then the principal or last-known principal place of business is or was situate;
‘Proceedings’ means proceedings under the Ordinance or this Order;
‘Registrar’ means the Registrar of the Supreme Court and includes an Acting Registrar of the Supreme Court and subject to the provisions of any Act or Ordinance a Deputy Registrar of the Supreme Court;
‘Registrar of Companies’ means the Registrar of Companies holding office under the Ordinance, and includes an Acting Registrar of Companies and a Deputy Registrar of Companies so holding office.
“(2.) In these Rules, unless the contrary intention appears, expressions defined by the Ordinance have, subject to the last preceding sub-rule, the same respective meanings as they have in the Ordinance.
“(3.) In this Order, and in a form referred to in this Order, a reference to the Companies Rules, 1969, shall be read as a reference to the provisions of this Order as in force from time to time.
“(4.) A reference in this Order to a form by number shall be read as a reference to the form so numbered in the Seventh Schedule to these Rules.
“II.—Procedure on Applications by Petition and Summons.
N.S.W. r. 6.
“2. If a day is appointed for the sitting of the Court in company matters, every petition and summons shall, except in a case of urgency, be made returnable on that day.
N.S.W. r. 7.
“3. Every petition, summons, notice, affidavit and other proceedings under any petition or summons and every proceeding in a winding-up shall be dated and shall with any necessary additions be intituled as in Form No. 1. Numbers and dates should be denoted by figures.
N.S.W. r. 8.
“4. Every petition or summons shall be served upon every person against whom any order or other relief is sought unless the Court otherwise orders.
N.S.W. r. 9.
“5.—(1.) Every petition or summons to be served upon a company shall be served at its registered office in the Territory, if any, and if there is no such registered office, then at its principal or last known principal place of business in the Territory, if any such can be found, by leaving a sealed copy with any
member officer servant or agent of the company there, or if no such member officer servant or agent can be found there, then by leaving a sealed copy at such registered office or principal place of business, or shall be served on such person or persons and in such manner as the Court may direct.
“(2.) Every petition or summons to be served upon a company in liquidation shall be served upon the liquidator of the company by leaving a sealed copy with him or with any officer or servant of the liquidator at his office registered in pursuance of the Ordinance, and in case no such officer or servant can be found there, then by leaving a sealed copy at such office. Any petition or summons so served shall be deemed good service on the company.
“(3.) Proof of service shall be given by affidavit in Form No. 2 or 3.
N.S.W. r. 10.
“6. Service of every petition or summons on persons except a company shall be personal but where prompt personal service cannot be effected the Court may make such order for substituted or other service or for the substitution for service of notice by advertisement or for dispensing with service or otherwise as may be just. Every application to the Court for an order for substituted or other service, or for the substitution of notice for service or for dispensing with service, shall be supported by an affidavit setting forth the grounds upon which the application is made.
N.S.W. r. 11.
“7. Any document referred to as an exhibit in an affidavit shall be made available free of charge upon request for inspection by any party to the proceeding unless the Court shall otherwise order.
“8. Any person served with a petition or summons who intends to appear on the hearing thereof shall, before being heard, enter an appearance in the Registrar’s office. The appearance shall be in accordance with Form No. 4. The provisions of Order 13, Rules 2, 3, 4, 5, 6 and 9 shall,
mutatis mutandis , be followed as closely as possible.
N.S.W. r. 13.
“9. The forms in the Seventh Schedule where applicable, and where they are not applicable forms of the like character with such variations as circumstances may require, shall be used. References to Forms shall mean the Forms in the Seventh Schedule. Where by any provision of these Rules any Form in the Seventh Schedule is directed, required or prescribed to be the Form to be used it shall, unless the Court otherwise orders, be a compliance with such direction, requirement or prescription to use a form which does not differ materially from the form in the Seventh Schedule.
N.S.W. r. 14.
“10. Where the Court orders an inquiry as to the debts claims or liabilities of or affecting a company or any of them the procedure to be followed shall,
mutatis mutandis, follow as closely as possible the procedure laid down in Rule 26 of the Rules.
“11. All orders made upon petition or summons shall be drawn up, passed and filed within seven days after they have been made.
“12. If the person having the carriage of such order does not draw up, pass and file the same within seven days after it has been made, the carriage thereof may be in any other party appearing in the proceeding or matter and the party assuming such carriage shall be entitled to the costs thereof whatever may be the result of the proceeding or matter.
N.S.W. rr. 18 and 19.
“13. The provisions of Order 34 shall,
mutatis mutandis, be followed as closely as possible in any proceeding or matter.
“14. The provisions of Order 35, Rules 2, 3, 4, 5, 7, 8 and 9 shall,
mutatis mutandis, be followed as closely as possible in any proceeding or matter.26656/68—2
N.S.W. r. 20.
“15.—(1.) Any party to a proceeding or matter may apply to the Court for an order directing any other party to give such particulars as the Court thinks fit of any allegation or statement in a petition or summons, and an order may be made accordingly.
“(2.) Where a party to a proceeding or matter is a company or any other body empowered by law to sue or be sued, whether in its own name or in the name of any officer or other person, any party may apply to the Court for an order directing any member or officer of such company or body to give such particulars as the Court thinks fit of any allegation or statement in a petition or summons, and an order may be made accordingly.
N.S.W. r. 21.
“16. If any party or person fails to comply with an order to answer interrogatories, for discovery inspection or production of documents, or to give particulars, he shall be liable to attachment or, if a corporation, to sequestration; and the Court may make such orders as it thinks fit, and without limiting the generality of the foregoing the Court may make orders dismissing the proceedings, strike out petitions, summonses or other documents, staying proceedings or as to costs.
N.S.W. r. 22.
“17. Upon the hearing of any petition or summons or at any other time the Court may:—
(
a ) Direct that notices be given to any person.(
b ) Dispense with any notices being given or steps being taken which are required by the Rules.(
c ) Direct a speedy hearing of the petition or summons or any issue or matter.(
d ) Direct service of documents upon any person.(
e ) Direct an inquiry as to the debts, claims or liabilities of or affecting the company or as to any of such debts, claims or liabilities.(
f ) Give such directions as to the proceedings as the Court thinks fit.
“III.—Applications by Petition.
N.S.W. r. 23.
“18. The following applications shall be made by petition:—
(
a )To cancel an alteration with respect to the objects of a company under section 28 of the Ordinance.(
b ) To confirm the issue of shares at a discount under section 59of the Ordinance.(
c ) To validate the issue or allotment of shares under section 63 of the Ordinance.(
d ) To confirm a reduction of capital under section 64 of the Ordinance.(
e ) To cancel, disallow or confirm any variation or abrogation of the rights of holders of special classes of shares under section 65 of the Ordinance.(
f ) For approval to payment of interest on share capital out of capital under section 69 of the Ordinance.(
g )To confirm a resolution to wind up a scheme under section 87 of the Ordinance.(
h )By the Attorney-General for the winding-up of a company under section 175 of the Ordinance.(
i ) For approval to a compromise or arrangement under sub-section (2.) of section 181 and applications under section 183 of the Ordinance.(
j ) For relief against oppression under section 186 of the Ordinance.(
k )For the winding-up of a company by the Court under section 221 of the Ordinance.(
l )For the winding-up of an unregistered company under section 315 of the Ordinance.
N.S.W. r. 24.
“19. Every petition shall be presented at the Registrar’s Office. The Registrar shall appoint the time and place at which the petition is to be heard. Notice of the time and place appointed for hearing the petition shall be written on the petition and sealed copies thereof. A petition when sealed with the seal of the Court shall be deemed to be presented. The original petition shall be filed in the Registrar’s Office.
N.S.W. r. 25.
“20. Every petition shall contain all the allegations necessary in support thereof and shall set out in the prayers thereof the nature of the relief sought. Every petition, except a petition to wind up a company or a petition under section 186 of the Ordinance, shall be in Form No. 5.
N.S.W. r. 26.
“21. Unless the Court otherwise orders every contributory or creditor of the company shall be entitled to be furnished by the solicitor of the petitioner with a copy of the petition, within 48 hours after requiring same, on paying the rate of 20 cents per folio for such copy: Provided that if the petitioner has no solicitor an officer of the Court shall furnish such copy on payment of such fee.
N.S.W. r. 27.
“22. Every person who intends to appear on the hearing of a petition, except a person mentioned in Rule 8, shall serve on or send by post to the petitioner or his solicitor notice of his intention. The notice shall contain the name and address of such person and an address for service within three miles of the Registrar’s Office, and shall be signed by him or by his solicitor and shall be served (or if sent by post shall be posted in such time as, in ordinary course of post, to reach the petitioner or his solicitor) not later than 1 p.m. on the day prior to the hearing of the petition or on the preceding Friday where the petition is to be heard on a Monday or on a Tuesday following a Court holiday. Where a person intends to appear on the hearing of a petition and to support or oppose it, he shall give notice of his intention in Form No. 6. Where a person intends to appear on the hearing of a petition but has not decided to support or oppose the petition, he shall give notice of his intention in Form No. 7. A person who has failed to comply with this Rule shall not, without the leave of the Court, be allowed to appear on the hearing of the petition. A person so allowed to appear shall forthwith file an appearance.
N.S.W. r. 28.
“23.—(1.) The petitioner or his solicitor shall prepare and file not earlier than 1 p.m. on the day prior to the hearing of the petition or on the preceding Friday where the petition is to be heard on a Monday, or on a Tuesday following a Court holiday, a statement containing the names and addresses of the persons who have given notice of their intention to appear on the hearing of the petition, and of their respective solicitors, which shall be in Form No. 8.
“(2.) If no notice of intention to appear has been received, a statement in writing by the petitioner or his solicitor to that effect shall be filed not earlier than 1 p.m. on the day prior to the hearing of the petition or on the preceding Friday where the petition is to be heard on a Monday or on a Tuesday following a Court holiday which shall be in Form No. 9.
N.S.W. r. 29.
“24.—(1.) Except in the case of petitions for winding-up and petitions under section 186 of the Ordinance, notice of the hearing of every petition shall, unless the Court otherwise orders, be advertised once in the
Gazette and once in a prescribed newspaper not less than seven days before the day appointed for hearing the petition provided that on application by the petitioner or any person interested, the Court may authorise or direct that the petition not be advertised or may give special directions with regard to the advertisement thereof.“(2.) The advertisements shall state the date on which the petition was presented, the time, date and place appointed for the hearing and the name and address of the petitioner and of his solicitor and shall contain a note at the foot thereof, stating that any person who intends to appear on the hearing of the petition must send notice of his intention to the petitioner, or to his solicitor within the time and in the manner hereinbefore prescribed by Rule 22.
“(3.) In the case of petitions to confirm reductions of capital the advertisement shall be in Form No. 10 and in any other case Form No. 11.
N.S.W. r. 30.
“25. Without limiting the power to give directions conferred on the Court by Rule 17 of this Order, where a petition to confirm a reduction of capital is presented to the Court, the Court may, upon the hearing of the petition or at any other time, make such orders and give such directions as it sees fit in relation to the petition, including directions with respect to any of the following matters:—
(
a ) the publication of notices;(
b )the settling of a list of creditors entitled to object to the proposed reduction;(
c ) the fixing of the date with reference to which the list of creditors is to be made out;(
d )the holding of an inquiry as to the debts, claims or liabilities of or affecting the company or as to any such debts, claims or liabilities; and(
e ) the fixing of times for the taking of all other proper steps in the matter, whether expressly mentioned in these Rules or not.
N.S.W. r. 31.
“26. In cases where the Court has directed that a list of creditors be settled or directed an inquiry as to the debts, claims or liabilities of or affecting the company or as to any of such debts, claims or liabilities, the following provisions shall apply, subject to any dispensations modifications or variations specified by the Court in the direction:—
(1) (
a ) Within seven days after the date as at which the list of creditors is to be made out or within such other time as the Court may order the company shall file an affidavit made by some officer or officers of the company competent to make the same verifying a list containing so far as possible the names and addresses of the creditors of the company to whom such inquiry extends.(
b )The said list shall also state the amounts due to the creditors therein named respectively in respect of any debts, claims or liabilities to which the inquiry extends, or in the case of any such debt or claim payable on a contingency or not ascertained the value so far as can be justly estimated of such debt or claim.(
c ) Such list shall be filed with the affidavit.(
d ) The person making any such affidavit shall state therein his belief that the list verified by such affidavit is correct and that there was not at the date as at which the list of creditors is to be made out any debt claim or liability which, if that date were the commencement of the winding-up of the company, would be admissible in proof against the company, except the debts, claims and liabilities set forth in such list and any debts, claims or liabilities to which the inquiry does not extend. Such affidavit shall be in Form No. 12.(
e ) Copies of such list containing the names and addresses of such creditors and the total amount due to them including in such total the value of any debts or claims estimated as aforesaid shall be kept at the registered office of the company, and any person desirous of inspecting the same may at any time during the ordinary hours of business inspect and take extracts from the same on payment of the sum of twenty cents.
(2) Within seven days after the filing of the affidavit mentioned in paragraph (
a )of sub-rule (1) of this Rule or such other time as the Court may order, notice of the presentation of the petition, ofthe effect of the order directing the inquiry and of the list of creditors shall be published by the company once in the
Gazette and once in a prescribed newspaper. Every such notice shall state the places where the aforesaid list of creditors may be inspected, and the time within which creditors of the company who are not but are entitled to be entered on the said list, and are desirous of being entered therein, must send in their names and addresses and the particulars of their debts or claims and the names and addresses of their solicitors (if any) to the company or its solicitor. Such notice shall be in Form No. 13.(3) The company shall within seven days after the filing of the affidavit mentioned in paragraph (
a ) of sub-Rule (1) of this Rule or such other time as the Court may allow, send to each creditor whose name is entered in the said list a notice stating the effect of the order directing the inquiry and the amount or estimated value of the debt or the contingent debt or claim or both for which such creditor is entered in the said list, and the time fixed by the Court within which, if he claims to be entitled to be entered on such list as a creditor for a larger amount, he must send to the solicitor for the company his name and address and the particulars of his debt or claim and the name and address of his solicitor (if any). Such notice shall be sent through the post in a prepaid letter addressed to each such creditor at his last known address or place or abode, and shall be in Form No. 14.(4) The company shall within seven days after expiration of the time fixed by the Court for creditors to send in particulars of their claims or within such other time as the Court shall direct, file an affidavit made by the solicitor for the company or his partner or some person in his employ stating the result of the notices mentioned in sub-Rules 2 and 3 of this Rule and verifying a list to be filed with such affidavit containing in alphabetical order the names and addresses of the persons (if any) who shall have sent in the particulars of their debts or claims in pursuance of such notices respectively and the amounts of such debts or claims. Some competent officer of the company shall join in such affidavit and shall in such list distinguish which (if any) of the debts and claims are wholly, or as to any and what part thereof, admitted by the company and which (if any) of such debts and claims are wholly, or as to any and what part thereof, disputed by the company and which (if any) of such debts and claims are alleged by the company to be wholly, or as to any and what part thereof, excluded from the inquiry. Such affidavit shall also state which of the persons who are entered either in the list of creditors kept in pursuance of paragraph (
e ) of sub-Rule 1 of this Rule or that made out in pursuance of this sub-Rule, have been paid or have consented to the proposed reduction. Such affidavit shall be in Form No. 15.(5) If the company contends that a person is not entitled to be entered in the list of creditors in respect of any debt or claim whether admitted or not or if any debt or claim the particulars of which have been sent in shall not be admitted by the company at its full amount, then and in every such case unless the company is willing to appropriate in such manner as the Court shall direct the full amount of such debt or claim, the company shall send to the creditor a notice that he is required to come in and prove before the Registrar such debt or claim or such part thereof as is not admitted by the company by a day to be therein named being not less than seven days after such notice and
being the time appointed by the Registrar for adjudication upon such debts or claims. Such notice shall be sent in the manner mentioned in sub-Rule 3 of this Rule and shall be in Form No. 16.
(6) Every creditor who has received notice that he is required to come in and prove his debt or claim shall file an affidavit verifying his debt or claim and shall on the day fixed appear before the Registrar and there produce all deeds and documents necessary to prove his debt or claim.
(7) The Registrar may adjourn the hearing of the proofs of debts and claims as often as he shall think fit and may on the hearing or any adjourned hearing direct such investigation of all or any of the debts or claims and require such further particulars information or evidence relating thereto as he may think fit and may hear evidence relating thereto as he may think fit and may disallow any debt or claim or any part thereof or fix the amount at which any any debt or claim is to be allowed.
(8) Such creditors as come in to prove their debts or claims in pursuance of any such notice as mentioned in sub-Rule 5 of this Rule, shall be allowed their costs of proof against the company and will be answerable for costs in such manner as the Registrar shall think just. The Registrar may assess such costs or any portion thereof.
(9) (
a )Where the foregoing provisions of these Rules have been complied with the Registrar shall proceed to settle the list of creditors and the company shall obtain an appointment for the Registrar to settle the same. The result of the settlement of the list of creditors shall be stated in a certificate to be settled and signed by the Registrar.(
b ) Such certificate shall state,inter alia, —(i) the debts or claims admitted at their full amount by the company;
(ii) the debts or claims the full amount of which the company is willing to appropriate;
(iii) the names of the creditors who have come in under sub-Rule 6 of this Rule and sought to establish their right to be entered in the list of creditors, distinguishing those whose debts or claims have been disallowed by the Registrar and those the amounts of whose debts or claims have been fixed by the Registrar and showing the amounts so fixed; and
(iv) the debts or claims the full amount of which the company does not admit or is not willing to appropriate or such as have been disallowed or the amounts of which have not been fixed by the Registrar.
(
c ) No reference need be made in the certificate to any debts or claims to which the inquiry does not extend.(
d ) The certificate shall be in Form No. 17.
N.S.W. r. 32.
“27.—(1.) In all cases where a list of creditors is settled the Registrar shall on settling his certificate fix the time and place for the further hearing of the petition which shall not be less than twenty-one days after the date of the settlement of the certificate.
“(2.) On such day being fixed the company shall not less than five days before such day publish a notice in Form No. 18 once in the
Gazette and once in a prescribed newspaper.
“IV.—Applications by Summons.
N.S.W. r. 34.
“28.—(1.) Except as provided by the Ordinance or these Rules, every application to the Court under the Ordinance or these Rules shall be made by summons.
“(2.) Applications to the Registrar may be made by summons or appointment.
N.S.W. r. 35.
“29. Every summons shall be issued from the Registrar’s Office. A summons when sealed shall be deemed to be issued. Except in the case of a summons issued pursuant to Rule 115, every summons shall be in Form No. 19 and the original of such summons shall be filed in the Registrar’s Office.
“V.—Appeals.
“30. Subject to the provisions of the Rules, this Part shall apply with regard to appeals against the following:—
(
a )Any order, decree, direction, decision or determination of the Registrar.(
b ) Any act, decision or refusal of the Registrar of Companies where an appeal lies under the Ordinance.(
c ) Any act, decision or determination of a receiver (or his successor) where an appeal lies under section 194 of the Ordinance.(
d ) Any arrangement where an appeal lies under section 273 of the Ordinance.(
e ) Any act, decision or determination of a liquidator where an appeal lies under section 279 of the Ordinance.
N.S.W. r. 37.
“31. Appeals to which this Part applies shall be to the Court and shall be instituted by issuing a summons out of the Registrar’s Office. The summons shall state the grounds of the appeal and shall be in Form No. 19.
N.S.W. r. 38.
“32. Appeals referred to in paragraphs (
a ), (b ), (c ), (f ) and (g ) of Rule 30 shall be instituted within twenty-one days from the date of the order, decree, direction, decision, determination, act or refusal complained of being made, given or done.
N.S.W. r. 39.
“33. Subject to the Ordinance the Court shall have power to extend the time for appealing or to amend the grounds of appeal on such terms as the Court shall think just. Subject to the Ordinance the Court may extend the time for appealing notwithstanding that the application for such extension is not made until after the time for appealing has expired.
N.S.W. r. 40.
“34. An appeal shall not operate as a stay of proceedings unless so ordered by the Court.
N.S.W. r. 41.
“35. An appeal from any order, decision or determination of any officer of the Court shall be by way of rehearing.
“VI.—Winding-up and Petitions under Section 186.
N.S.W. r. 42.
“36.—(1.) Rules which from their nature and subject matter or by their headlines or terms are applicable only to the proceedings in a winding-up by the Court, shall not apply to the proceedings in a voluntary winding-up unless the Court otherwise orders.
“(2.) Rules which from their nature and subject matter or by their headlines or terms are applicable only to the proceedings in a voluntary winding-up shall not apply to the proceedings in a winding-up by the Court unless the Court otherwise orders.
“(3.) Rules which from their nature and subject matter or by their headlines or terms are applicable only to the proceedings in a winding-up by the Court and proceedings in a creditors’ voluntary winding-up shall not apply to the proceedings in a members’ voluntary winding-up unless the Court otherwise orders.
N.S.W. r. 43.
“37. The first proceeding in every winding-up matter shall have a number assigned to it in the Registrar’s Office, and all proceedings in any such matter subsequent to the first proceeding shall bear the same number as the first proceeding.
N.S.W. r. 45.
“38.—(1.) Any person who has been a director or officer of a company which is being wound-up, any contributory, any creditor, and the solicitor for any such person shall be entitled, unless the Court otherwise orders, at all reasonable times to inspect the file of proceedings and to take copies of or extracts from any document therein or to be furnished with such copies or extracts at a rate not exceeding twenty cents per folio. Any duly authorised officer of the Registrar of Companies shall have the same right without charge.
“(2.) If any contributory or creditor of any company in liquidation requires to see any document in the custody of the liquidator which the liquidator refuses to produce for his inspection, such contributory or creditor may apply to the Court for leave to inspect such document, which order the Court may grant on any terms and conditions the Court may think fit.
N.S.W. r. 46.
“39. Every petition for the winding-up of a company by the Court shall be in Form No. 20 or Form No. 21.
N.S.W. r. 47.
“40. Every petition under section 186 of the Ordinance shall be in Form No. 22.
N.S.W. r. 48.
“41.—(1.) Every petition for the winding-up of a company and under section 186 of the Ordinance shall be verified by an affidavit written on the petition in Form No. 23 or Form No. 24.
“(2.) Such affidavit shall be made by the petitioner or by one of the petitioners, if more than one, or where the petition is presented by a corporation by some director, secretary or other principal officer thereof.
“(3.) Unless the Court otherwise orders such affidavit shall be sworn within seven days before the petition is presented.
N.S.W. r. 49.
“42.—(1.) Every petition shall be advertised once in a prescribed newspaper not earlier than three days after the petition has been served on the company and not later than seven days before the hearing of the petition provided that, on application by the petitioner or any person interested, the Court may authorise or direct that the petition not be advertised or may give special directions with regard to the advertisement thereof.
“(2.) The advertisements shall state the day on which the petition was presented and the time date and place appointed for the hearing thereof, and the name and address of the petitioner and of his solicitor and shall contain a note at the foot thereof stating that any person who intends to appear on the hearing of the petition must send notice of his intention to the petitioner or to his solicitor within the time and in the manner hereinbefore prescribed by Rule 22.
“(3.) The advertisement of a petition for winding-up a company by the Court shall be in Form No. 25. The advertisement of a petition under section 186 of the Ordinance shall be in Form No. 26.
N.S.W. r. 50.
“43.—(1.) At any time after the presentation of a petition the Court may upon the application of the petitioner or any creditor or contributory or of the company and upon proof of sufficient ground for the appointment of a provisional liquidator make the appointment upon such terms as the Court shall think just or necessary.
“(2.) An order appointing a provisional liquidator shall be in Form No. 27 or Form No. 28 and unless the Court otherwise orders shall contain at the foot thereof a notice stating that it will be the duty of such of the persons who are liable to make out or concur in making out the company’s statement of affairs as the provisional liquidator may require to attend on the provisional liquidator at such time and place as he may appoint and give him all information he may require.
“(3.) Upon the making of an order for the appointment of a provisional liquidator, it shall be the duty of the party obtaining the order to:—
(
a ) File forthwith with the Registrar of Companies a notice of the making thereof and cause such notice to be advertised once in a prescribed newspaper. The notice shall be in Form No. 29 and the advertisement shall be in Form No. 30.(
b )Leave at the Registrar’s Office a copy of the Judge’s notes of the order and a draft order for settlement by the Registrar together with a request in writing by the petitioner or his solicitor for its. settlement. Such request may be endorsed on the draft order. Upon settlement if the party having the carriage thereof attend thereon and in any case upon receipt of a notice from the Registrar’s Office that the order has been signed or settled, as the case may be, it shall be the duty of the party obtaining the order to attend at the Registrar’s Office and pay the appropriate Court fees and to procure two office copies of the order, one of which shall be filed with the Registrar of Companies and one delivered to the provisional liquidator.“(4.) Subject to the Ordinance and to any order of the Court the provisional liquidator shall be entitled to be paid out of the property of the company all the costs charges and expenses properly incurred by him as provisional liquidator and such salary or remuneration by way of percentage or on a time basis or otherwise as may be authorised by the order appointing him or any subsequent order. The provisional liquidator shall have a charge upon the company’s assets until the same has been paid.
“(5.) All the Rules relating to liquidators in a winding-up by the Court shall, so far as the same are applicable and subject to the direction of the Court, apply to provisional liquidators.
N.S.W. r. 51.
“44.—(1.) Where a liquidator is appointed by the Court in a winding-up by the Court the provisional liquidator shall account to the liquidator.
“(2.) If the liquidator is dissatisfied with the account or any part thereof he may refer the matter to the Registrar who shall take such action (if any) thereon as he may deem expedient.
N.S.W. r. 52.
“45.—(1.) When a petitioner is not entitled to present a petition, or whether so entitled or not, where he (
a ) fails to advertise his petition within the time by the Rules prescribed or such extended time as the Court may allow, or (b )consents to withdraw his petition, or to allow it to be dismissed, or fails to appear in support of his petition when it is called on in Court on the day fixed for the hearing thereof, or any day to which the hearing has been adjourned, or (c ) if appearing, does not apply for an order in the terms of the prayers of his petition, the Court may, at any time and upon such terms as it may think just, substitute as petitioner any person who, in the opinion of the Court, would have a right to present the petition and who is desirous of prosecuting the petition.
26656/68—3
“(2.) Where an order has been made by the Court substituting a person as petitioner, the petitioner shall give reasonable assistance to the substituted petitioner and shall comply with such orders or directions as the Court may make or give to enable the petition to be prosecuted and the Court may make orders as to the petitioner’s costs of compliance with such orders or directions.
“(3.) An order under this Rule shall be in Form No. 31 with such variations as the circumstances may require.
N.S.W. r. 53.
“46. The petitioner shall within seven days after the making of an order for the winding-up of a company lodge with the Resistrar a notice informing him of the making of the order and its date and of the name and address of the liquidator. The notice shall be in Form No. 32.
N.S.W. r. 54.
“47. On the passing and entering of the winding-up order the petitioner shall within seven days—
(
a ) lodge an office copy of the order with the Registrar of Companies;(
b )cause an office copy of the order to be served upon the secretary or manager of the company or upon such other person as the Court may direct; and(
c ) deliver an office copy of the order to the liquidator with a statement in writing that the requirements of sub-section (2.) of section 230 of the Ordinance have been complied with.
“48. The Registrar shall give notice verbally or in writing to a liquidator or provisional liquidator of his appointment by the Court within two days after such appointment has been made.
N.S.W. r. 56.
“49.—(1.) It shall be the duty of the petitioner not later than seven days after an order for the winding-up of a company has been made to leave at the Registrar’s Office a copy of the Judge’s notes of the order and a draft order for settlement by the Registrar together with a request in writing by the petitioner or his solicitor for its settlement. Such request may be endorsed on the draft order.
“(2.) It shall not be necessary to take out an appointment to settle the order unless in any particular case the circumstances in the opinion of the Registrar make an appointment necessary (in which case he shall direct what parties are to be served with notice of the appointment). The order shall be settled without any attendance by the parties where no appointment is necessary.
“(3.) Immediately after the order has been settled as aforesaid the Registrar shall cause written notice thereof to be sent to the petitioner or his solicitor together with a note of the appropriate Court fees to be paid. It shall then be the duty of the petitioner or his solicitor to attend forthwith at the Registrar’s Office and to pay such fees and to order an engrossment and at least one Office copy of the order.
“(4.) Save as aforesaid every order made by the Court shall be settled by the Registrar in accordance with these Rules unless in any proceeding the Court directs that no order need be drawn up.
N.S.W. r. 57.
“50. When an order for the winding-up of a company by the Court has been made and a liquidator appointed by the Court, the order and the appointment shall be advertised by the liquidator once in the
Gazette and once in a prescribed newspaper within seven days after his appointment. The advertisement shall be in Form No. 33.
N.S.W. r. 58.
“51. The order for the winding-up of a company shall be in Form No. 34 with such variations as the circumstances may require.
N.S.W. r. 59.
“52. For the purposes of section 299 of the Ordinance a notice that (1) a winding-up petition has been presented, or (2) a winding-up order has been made, or (3) a provisional liquidator has been appointed, or (4) a meeting has been called at which there is to be proposed a resolution for the voluntary winding-up of the company, or (5) a resolution has been passed for the voluntary winding-up of the company, shall be in writing and shall be addressed where the execution is in respect of a judgment of the Supreme Court to the Sheriff and in any other case to the officer charged with the execution, and may be served by being delivered by hand or by registered post in the case of a notice to the Sheriff at his office and in any other case at the office of the officer charged with the execution.
N.S.W. r. 61.
“53.—(1.) An application by a liquidator for the appointment of a special manager shall be supported by a report of the liquidator which shall be filed and such report shall state the powers which in the liquidator’s opinion shall be entrusted to the special manager and either (
a )state the amount of remuneration which in the opinion of the liquidator ought to be allowed to the special manager or (b )that it is in the opinion of the liquidator desirable that the fixing of such remuneration should be deferred. No affidavit by the liquidator in support of the application shall be required.“(2.) The remuneration of a special manager shall unless the Court or the Registrar otherwise directs be stated in the order appointing him but the Court or the Registrar may at any subsequent time make an order increasing reducing or otherwise altering the remuneration of the special manager.
N.S.W. r. 62.
“54.—(1.) Every special manager shall account to the liquidator and the special manager’s accounts shall be verified by affidavit and when approved by the liquidator the totals of the receipts and payments shall be included by the liquidator in his accounts. The affidavit shall be in Form No. 35.
“(2.) If the liquidator is dissatisfied with the account or any part thereof he may refer the matter to the Registrar who shall take such action (if any) thereon as he shall deem expedient.
N.S.W. r. 63.
“55. In the case of a special manager, the following provisions as to security shall have effect, namely:—
(1) The security shall be given to the satisfaction of the Court or the Registrar.
(2) It shall not be necessary that security be given in each separate winding-up; but security may be given either specially in a particular winding-up, or generally, to be available for any winding-up in which the person giving security may be appointed special manager.
(3) The Registrar shall fix the amounts and nature of such security and may from time to time as he thinks fit either increase or diminish the amount of special or general security which any person has given and the special manager shall give additional security or reduce the amount of the security as the case may be within such time as the Registrar prescribes.
(4) Where the security required to be given is a bond with the guarantee of an approved company it shall be in Form No. 36.
(5) The certificate of the Registrar that a special manager has given security to his satisfaction shall be filed. This certificate shall be in Form No. 37.
(6) The cost of furnishing the required security by a special manager including any premium which he may pay therefor unless the Court or the Registrar otherwise directs shall be borne by him personally and shall not be charged against the assets of the company as an expense incurred in the winding-up.
(7) The Court or the Registrar may order that it shall not be necessary in a particular winding-up for a special manager to give security.
N.S.W. r. 64.
“56.—(1.) If a special manager fails to give the required security or additional security within the time stated for that purpose in any order the liquidator shall report such failure to the Court or the Registrar and the Court or the Registrar may thereupon rescind the order appointing the special manager.
“(2.) If a special manager fails to keep up his security the liquidator shall report such failure to the Court or the Registrar and the Court or the Registrar may thereupon remove the special manager and make such order as to costs as it or he thinks fit.
“(3.) The Court or the Registrar may, on application made
ex parte and on being satisfied that the condition of any bond given as security has been broken, order the bond to be assigned to some person to be named in the order and that person his executors or administrators shall thereupon be entitled to sue upon the bond in his or their own name or names as if the bond had been originally given to such person and shall be entitled to recover thereon as trustee or trustees for all persons interested in the full amount recoverable in respect of any breach of the condition of the bond.
N.S.W. r. 65.
“57.—(1.) A person who under the Ordinance is required to submit and verify a statement of affairs of a company shall be furnished by the liquidator with such forms and instructions (if any) as the liquidator in his discretion shall consider necessary. The original of the statement of affairs shall be retained by the liquidator.
“(2.) In a winding-up by the Court the liquidator shall within seven days after receipt of the statement of affairs cause a copy thereof to be filed in the Registrar’s Office.
“(3.) The liquidator may from time to time hold personal interviews with any such person as is mentioned in paragraph (
a ), (b ) or (c ) of sub-section (2.) of section 234 of the Ordinance for the purpose of investigating the company’s affairs, and it shall be the duty of every such person to attend on the liquidator and give him all information that he may require.
N.S.W. r. 66.
“58. When any person requires any extension of time for submitting the statement of affairs he may apply to the liquidator who may for special reasons give a written certificate extending the time. The certificate shall be filed in the Registrar’s Office. A copy of such certificate shall toe lodged by the liquidator with the Registrar of Companies.
N.S.W. r. 67.
“59. After the statement of affairs of a company has been submitted to the liquidator, it shall be the duty of each person who has made or concurred in making it if and when required to attend on the liquidator and answer all such questions as may be put to him, and give all such further information as may be required of him by the liquidator in relation to the statement of affairs.
N.S.W. r. 68.
“60. If any person fails to comply with the requirements of section 234 of the Ordinance the liquidator may report the matter to the Court or the Registrar by issuing and prosecuting a summons in Form No. 38 or the liquidator may notify the Registrar of Companies of such failure.
N.S.W. r. 69.
“61. A person who is required to make or concur in making any statement of affairs of a company shall before incurring any costs or expenses in and about the preparation and making of the statement apply to the liquidator for his approval and submit a statement of the estimated costs and expenses which it is intended to incur: and except by order of the Court or the Registrar no person shall be allowed out of the assets of the company any costs or expenses which have not before being incurred been approved by the liquidator.
N.S.W. r. 70.
“62.—(1.) The liquidator shall also as soon as practicable after the statement of affairs has been submitted to him send to each creditor mentioned therein and to each person appearing from the company’s books or otherwise to be a creditor or contributory of the company, a summary of the company’s statement of affairs including, if possible, an estimate by the liquidator of the funds which may be available for distribution to the creditors and any observations which the liquidator may think fit to make.
“(2.) Where, prior to a winding-up order, the company has commenced to be wound-up voluntarily, the liquidator appointed under such order may, if in his absolute discretion he sees fit so to do, send the persons aforesaid, or any of them, an account of such voluntary winding-up showing how such winding-up has been conducted and how the property of the company has been disposed of, and any observations which the liquidator may think fit to make on the voluntary winding-up.
N.S.W. r. 71.
“63. Where the Rules provide that a matter may be referred or reported to the Court or the Registrar, the person seeking so to refer or report a matter shall do so by filing a report in the Registrar’s Office in Form No. 39.
N.S.W. r. 72.
“64.—(1.) A report made by the liquidator in a winding-up by the Court pursuant to section 235 shall state in narrative form the facts and matters which the liquidator is required or desires to bring to the notice of the Court or the Registrar and his opinion as required by the said section.
“(2.) Reports made by the liquidator in a winding-up by the Court shall be made by the same being filed in the Registrar’s Office.
“(3.) Subject to the Ordinance reports made by the liquidator under the Ordinance shall not be open to the inspection of any person except the liquidator his counsel solicitor the Registrar of Companies or any duly authorised officer of the Registrar of Companies unless the Court or the Registrar shall so direct.
N.S.W. r. 74.
“65.—(1.) If meetings of creditors and contributories are held pursuant to section 241 of the Ordinance the liquidator shall report the result thereof to the Registrar. The report shall be in Form No. 40.
“(2.) Upon the result of the meetings of creditors and contributories being reported to the Registrar if there is a difference between the determinations of the meetings of the creditors and contributories, the Registrar shall, on the application of the liquidator, fix a time and place for considering the resolutions and determinations (if any) of the meetings, deciding differences, and making such orders as shall be necessary.
“(3.) When a time and place have been fixed for the consideration of the resolutions and determinations of the meetings, such time and place shall be advertised by the liquidator in such manner as the Registrar shall direct, but so that the first or only advertisement shall be published not less than seven days before the time so fixed.
“(4.) Upon the consideration of the resolutions and determinations of the meetings the Registrar may hear the liquidator and any creditor or contributory.
N.S.W. r. 75.
“66.—(1.) Where the liquidator or any member of the committee calls a meeting of the committee he shall do so by delivering or sending by prepaid post a notice in writing to every member of the committee. The time of notice to be given shall be not less than five days unless the circumstances are such that in the liquidator’s opinion shorter notice is necessary.
“(2.) Notwithstanding the provisions of sub-rule (1.) of this Rule if all the members of the committee so agree a meeting of the committee may be held of which no notice in writing or less than five days’ notice in writing has been given.
N.S.W. r. 76.
“67. The costs of summoning a meeting of the committee at the instance of any person other than the liquidator shall be paid by the person at whose instance it is summoned. The said costs shall be repaid out of the assets of the company if the Court or the Registrar shall by order or if the committee shall by resolution so direct.
N.S.W. r. 77.
“68. Where a meeting is summoned by the liquidator, he or someone nominated by him shall be chairman of the meeting. At every other meeting of the committee the chairman shall be such person as the meeting by resolution shall appoint.
N.S.W. r. 78.
“69. The liquidator in a winding-up by the Court shall file in the Registrar’s Office a copy certified by him of every resolution of a meeting of the committee. The certificate shall be in Form No. 41.
N.S.W. r. 79.
“70. Where a meeting of the committee is summoned by notice in writing the proceedings and resolutions at the meeting shall, unless the Court or the Registrar otherwise orders, be valid, notwithstanding that some members of the committee may not have received the notice sent to them.
N.S.W. r. 80.
“71. The chairman may, with the consent of the meeting, adjourn it from time to time and from place to place, but the adjourned meeting shall be held at the same place as the original meeting unless in the resolution for adjournment another place is specified or unless the Court or the Registrar otherwise orders.
N.S.W. r. 81.
“72. The chairman shall cause minutes of the proceedings at every meeting of the committee to be drawn up and fairly entered in the book or file referred to in Rule 176, and the minutes shall be signed by him or by the chairman of the next ensuing meeting.
N.S.W. r. 82.
“73. A liquidator in a winding-up by the Court shall be entitled to such salary or remuneration by way of percentage or on a time basis or otherwise as is determined under the Ordinance.
N.S.W. r. 83.
“74. Except as provided by the Ordinance or the Rules, a liquidator or a firm or member of a firm of which the liquidator is a member shall not under any circumstances whatever make any arrangement for or accept from any person any gift remuneration or pecuniary or other consideration or benefit whatever beyond the remuneration to which, under the Ordinance and the Rules, he is entitled as liquidator nor shall he make any arrangement for giving up or give up any part of such remuneration to any person.
N.S.W. r. 84.
“75. Neither the liquidator nor any member of the committee of inspection of a company shall while acting as liquidator or member of such committee except by leave of the Court or the Registrar either directly or indirectly by himself or any employee partner clerk agent or servant become purchaser of any part
of the company’s assets. Any such purchase made contrary to the provisions of this Rule may be set aside by the Court or the Registrar on the application of any creditor or contributory in any winding-up and the Court or the Registrar may make such order as to costs as the Court or the Registrar shall think fit.
N.S.W. r. 85.
“76. Where the liquidator carries on the business of the company he shall not without the express sanction of the Court or the Registrar purchase goods for the carrying on of such business from any person whose connection with him is of such a nature as would result in the liquidator’s obtaining any portion of the profit (if any) arising out of the transaction.
N.S.W. r. 86.
“77. In any case in which the sanction of the Court or the Registrar is obtained under Rule 75 or Rule 76 the costs of obtaining such sanction shall be borne by the person in whose interest such sanction is obtained and shall not be payable out of the company’s assets unless the Court or the Registrar otherwise orders.
N.S.W. r. 87.
“78. Where the sanction of the Court or the Registrar to a payment to a member of a committee of inspection for services rendered by him in connection with the administration of the company’s assets is obtained the order shall specify the nature of the services and such sanction shall only be given where the service performed is of special nature. Except by the express sanction of the Court or the Registrar no remuneration shall under any circumstances be paid to a member of a committee for services rendered by him in the discharge of the duties attaching to his office as a member of such committee.
N.S.W. r. 88.
“79.—(1.) Where a liquidator in a winding-up by the Court is appointed by the Court and has given notice of his appointment to the Registrar of Companies and given security (if any) the provisional liquidator (if any) shall forthwith put the liquidator into possession of all properly of the company of which he may have custody.
“(2.) It shall be the duty of a provisional liquidator if so requested by the liquidator to communicate to the liquidator all such information respecting the estate and affairs of the company as may be necessary or conducive to the due discharge of the duties of the liquidator.
N.S.W. r. 89.
“80.—(1.) A liquidator in a winding-up by the Court or in a creditors’ voluntary winding-up who desires to resign his office shall summon separate meetings of the creditors and contributories of the company to decide whether or not the resignation shall be accepted. If the creditors and contributories by ordinary resolution both agree to accept the resignation of the liquidator he shall within fourteen days after such acceptance lodge with the Registrar of Companies notice thereof and in a winding-up by the Court shall file a copy thereof in the Registrar’s Office, and the resignation shall thereupon take effect. The notice shall be in Form No. 42.
“(2.) A liquidator in a members’ voluntary winding-up who desires to resign his office shall summon a meeting of the contributories of the company to decide whether or not the resignation shall be accepted. If the contributories by ordinary resolution agree to accept the resignation of the liquidator he shall within fourteen days after such acceptance lodge with the Registrar of Companies notice thereof and the resignation shall thereupon take effect. The notice shall be in Form No. 42.
“(3.) If his resignation is not accepted as aforesaid the liquidator shall report to the Court the result of the meeting or meetings as the case may be, and thereupon the Court may, upon the application of the liquidator, determine whether or not the resignation of the liquidator shall be accepted, and may give such directions and make such orders as in its opinion shall be necessary or expedient.
“(4.) In a winding-up by the Court an application for release by a liquidator who has resigned shall be made in accordance with the provisions of Rule 196.
“(5.) Upon the resignation of a liquidator in a winding-up by the Court another liquidator shall be appointed by the Court in his place upon a summons which shall be taken out by the resigning liquidator or may be taken out by any creditor or contributory of the company who has not less than four days before the return day of the summons, published in a prescribed newspaper notice of his intention so to apply.
“(6.) A liquidator who resigns shall within the time limited by section 281 of the Act lodge in triplicate with the Registrar of Companies in the prescribed form and verified by statutory declaration an account of his receipts and payments and a statement of the position in the winding-up and in a winding-up by the Court shall also file a copy of the said verified account and statement in the Registrar’s Office.
N.S.W. r. 90.
“81.—(1.) If a sequestration order in bankruptcy is made against a liquidator, or if he enters into a composition or arrangements with his creditors or executes a deed of arrangement or assignment under Part X. of the
Bankruptcy Act 1966, or under any enactment or enactments amending re-enacting consolidating or replacing such Parts respectively:(
a )he shall thereby vacate his office and for the purposes of the application of the Ordinance and Rules shall be deemed to have been removed; and(
b )another liquidator shall be appointed by the Court in his place upon a summons taken out by the person deemed to have been removed as liquidator as aforesaid or by any creditor or contributory of the company who has not less than four days before the return day of the summons, published in a prescribed newspaper notice of his intention so to apply.“(2.) A liquidator who has vacated his office and deemed to have been removed as aforesaid shall within the time limited by section 281 of the Ordinance lodge in triplicate with the Registrar of Companies in the prescribed form and verified by statutory declaration an account of his receipts and payments and a statement of the position in the winding-up and in a winding-up by the Court shall also file a copy of the said verified account and statement in the Registrar’s Office.
N.S.W. r. 91.
“82. In the case of the death of a liquidator another shall be appointed by the Court in his place whether upon a summons taken out by another creditor or contributory of the company or otherwise.
N.S.W. r
“83.—(1.) Except where and so far as the nature of the subject-matter or the context may otherwise require, the Rules as to meetings hereinafter set out shall apply to meetings of creditors and contributories including meetings directed to be held by the Court under section 289 of the Ordinance, but so nevertheless that the said Rules shall take effect subject to any directions of the Court or the Registrar.
“(2.) The liquidator may himself from time to time summon, hold and conduct meetings of the creditors or contributories for the purpose of ascertaining their wishes in any matter relating to the winding-up.
N.S.W. r. 93.
“84.—(1.) The person summoning a meeting of creditors or contributories shall not less than seven days before the day appointed for the meeting send by post in the case of a meeting of creditors to every person appearing by the company’s books or otherwise to be a creditor of the company notice of the meeting of creditors, and in the case of a meeting of contributories to every person appearing by the company’s books or otherwise to be a contributory of the company notice
of the meeting of contributories. The notice shall be in Form No. 43. The person summoning the meeting shall also cause notice of the meeting to be advertised once in a prescribed newspaper not less than seven days before the day appointed for the meeting and such notice shall be in Form No. 44.
“(2.) Where a meeting of creditors is summoned by a liquidator, the liquidator shall send to each creditor whose debt or claim has not been admitted by him, with the notice of the meeting, a notice informing the creditor that his debt or claim has not been admitted and, if the liquidator considers it appropriate to do so, also containing particulars of the steps that it is necessary for the creditor to take in order that his debt or claim may be considered by the liquidator before the date of the meeting.
N.S.W. r. 94.
“85. The person summoning a meeting of creditors or contributories may also give each of the directors and other officers of the company who in his opinion ought to attend the meeting not less than seven days’ notice of the time and place appointed for the meeting. The notice may either be delivered personally or sent by prepaid post. The notice shall be in Form No. 45. It shall be the duty of every director or officer who receives notice of such meeting to attend if so required by the person summoning the meeting, who, if any such director or officer fails to attend, shall report such failure to the Court.
N.S.W. r. 95.
“86. An affidavit by the person summoning a meeting or his clerk or his solicitor or the clerk of his solicitor that the notice of meeting has been duly posted shall be sufficient evidence of such notice having been duly sent to the person to whom the same was addressed. The affidavit shall be in Form No. 46.
N.S.W. r. 96.
“87. Every meeting shall be held at such place as in the opinion of the person convening the same is most convenient for the majority of the creditors or contributories or both. Different times or places or both may if thought expedient be named for the meetings of creditors and for the meetings of contributories.
N.S.W. r. 97.
“88. The costs of summoning a meeting of creditors or contributories at the instance of any person other than the liquidator shall be paid by the person at whose instance it is summoned, who shall, before the meeting is summoned, deposit with the liquidator such sum as may be required by the liquidator as security for the payment of such costs.
N.S.W. r. 98.
“89. Where a meeting is summoned by the liquidator he or someone authorised by him shall be chairman of the meeting. At every other meeting of creditors or contributories the chairman shall be such person as the meeting by resolution shall appoint.
N.S.W. r. 99.
“90.—(1.) At a meeting of creditors a resolution shall be deemed to be passed when a majority in number and value of the creditors present personally or by proxy and voting on the resolution have voted in favour of the resolution, and at a meeting of the contributories a resolution shall be deemed to be passed when a majority of the votes cast bythe contributories present personally or by proxy and voting on the resolution are in favour of the resolution, the voting power of the contributories being determined according to the regulations of the company.
“(2.) When at a meeting of the contributories the number of votes cast in favour of the resolution is equal to those cast against it, the Judge or where the Registrar has jurisdicton the Registrar shall have a casting vote, which he shall exercise if requested so to do by any party interested, and for the purpose of enabling him to determine how he should cast such vote the Judge or the Registrar shall be at liberty to hear such parties, take such evidence and make such inquiries as he may think proper.
26656/68—4
N.S.W. r. 100.
“91. The liquidator in a winding-up by the Court shall file in the Registrar’s Office a copy certified by him of every resolution of a meeting of creditors or contributories. The certificate shall be in the Form No. 41.
N.S.W. r. 101.
“92. Where a meeting of creditors or contributories is summoned by notice in writing the proceedings and resolutions at the meeting shall unless the Court or the Registrar otherwise orders be valid notwithstanding that some creditors or contributories may not have received the notice sent to them.
N.S.W. r. 102.
“93. The chairman may with the consent of the meeting adjourn it from time to time and from place to place but the adjourned meeting shall be held at the same place as the original meeting unless in the resolution for adjournment another place is specified or unless the liquidator or the Court or the Registrar otherwise determines.
N.S.W. r. 103.
“94.—(1.) A meeting may not act for any purpose except the election of a chairman, the proving of debts, and the adjournment of the meeting, unless there are present or represented thereat at least three creditors entitled to vote or two contributories or all the creditors entitled to vote or all the contributories if the number of creditors entitled to vote or the contributories as the case may be shall not exceed three.
“(2.) A meeting shall be sufficiently constituted if one person only is present thereat whether or not such person is a creditor or contributory or the liquidator or the chairman of the meeting or any other person provided that such person represents personally or by proxy or otherwise a number of persons otherwise sufficient to constitute a quorum.
“(3.) If within half an hour from the time appointed for the meeting a quorum of creditors or contributories is not present or represented, the meeting shall be adjourned to the same day in the following week, at the same time and place, or to such other day or time or place as the chairman may appoint, but so that the day appointed shall be not less than seven or more than twenty-one days from the day from which the meeting was adjourned.
N.S.W. r. 104.
“95. A person shall not be entitled to vote as a creditor at a meeting of creditors unless (a) he has duly lodged with the liquidator a proof of the debt which he claims to be due to him from the company and such proof has been admitted wholly or in part before the date on which the meeting is held; or (b) his debt or claim has been otherwise admitted by the liquidator.
N.S.W. r. 105.
“96. A creditor shall not vote in respect of any unliquidated or contingent debt, or any debt the value of which is not ascertained, nor shall a creditor vote in respect of any debt on or secured by a current bill of exchange or promissory note held by him unless he is willing to treat the liability to him thereon of every person who is liable thereon antecedently to the company, and against whom a sequestration order in bankruptcy has not been made, as a security in his hands, and to estimate the value thereof, and (for the purposes of voting, but not for the purposes of dividend), to deduct it from his proof.
N.S.W. r. 106.
“97. For the purpose of voting a secured creditor shall unless he surrenders his security state in his proof the particulars of his security, the date when it was given and the value at which he assesses it, and shall be entitled to vote only in respect of the balance (if any) due to him after deducting the value of his security. If he votes in respect of his whole debt he shall be deemed to have surrendered his security, unless the Court or the Registrar on application is satisfied that the omission to value the security has arisen from inadvertence.
N.S.W. r. 107.
“98. The liquidator may, within twenty-eight days after a proof estimating the value of a security as aforesaid has been used in voting at a meeting, require the creditor to give up the security for the benefit of the creditors generally on payment of the value so estimated: Provided that where a creditor has valued his security he may with the leave of the liquidator at any time before being required to give it up correct the valuation by a new proof and deduct the new value from his debt.
N.S.W. r. 108.
“99. The liquidator shall have power to admit or reject a proof for the purpose of voting but his decision shall be subject to appeal to the Court or the Registrar. If he is in doubt whether a proof shall be admitted or rejected he shall mark it as objected to and allow the creditor to vote subject to the vote being declared invalid in the event of the objection being sustained.
N.S.W. r. 109.
“100.—(1.) The chairman shall cause minutes of the proceedings at the meeting to be drawn up and fairly entered in the book or file referred to in Rule 176, and the minutes shall be signed by him or by the chairman of the next ensuing meeting.
“(2.) A list of creditors and contributories present at every meeting shall be made and kept as in Form No. 47.
N.S.W. r. 110.
“101. Subject to the Ordinance a creditor or a contributory may vote either in person or by proxy. Where a person is authorised in manner provided by sub-section (3.) of section 140 of the Ordinance to represent a corporation at any meeting of creditors or contributories such person if requested by the chairman of the meeting shall produce to him a copy of the resolution so authorising him. Such copy must be either under the seal of the corporation or must be certified to be a true copy by the secretary or a director of the corporation.
N.S.W. r. 111.
“102. Every proxy shall be in Form No. 48.
N.S.W. r. 112.
“103. Forms of proxy shall be sent to the creditors and contributories with the notice summoning the meeting, and neither the name nor description of the liquidator or any other person shall be printed or inserted in the body of any instrument of proxy before it is so sent.
N.S.W. r. 113.
“104. A creditor or a contributory may appoint the liquidator or the chairman of the meeting or any other person to act as his proxy.
N.S.W. r. 114.
“105. Where it appears to the satisfaction of the Court or the Registrar that any solicitation has been used by or on behalf of a liquidator in obtaining proxies or in procuring his appointment as liquidator except by the direction of a meeting of creditors or contributories, the Court or the Registrar if it or he thinks fit may order that no remuneration be allowed to the person by whom or on whose behalf the solicitation was exercised or that the remuneration be reduced as the Court or the Registrar thinks fit notwithstanding any resolution of the committee of inspection of the creditors or contributories to the contrary.
N.S.W. r. 115.
“106. No person acting under a proxy shall vote in favour of any resolution which would directly or indirectly place himself his partner or employer in a position to receive any remuneration out of the estate of the company otherwise than as a creditor rateably with the other creditors of the company.
N.S.W. r. 116.
“107.—(1.) A proxy intended to be used at a meeting of creditors or contributories, or an adjournment thereof, shall be lodged with the person named in the notice convening the meeting to receive the same not later than four o’clock of the day before the meeting or adjourned meeting, or not later than such other time of the said day or any other day as the liquidator, the Court or the Registrar may direct.
“(2.) No person shall be appointed a proxy who is a minor.
N.S.W. r. 117.
“108. Where a liquidator who holds any proxies cannot attend the meeting for which they are given, he may, in writing, authorise some person to use the proxies on his behalf.
N.S.W. r. 118.
“109. The proxy of a creditor or contributory blind or incapable of writing may be accepted, if such creditor or contributory has attached his signature or mark thereto in the presence of a witness, who shall add to his signature his description and address: Provided that all insertions in the proxy are in the handwriting of the witness, and such witness shall have certified at the foot of the proxy that all such insertions have been made by him at the request and in the presence of the creditor or contributory before he attached his signature or mark.
N.S.W. r. 119.
“110.—(1.) The Judge may make an order under section 250 of the Ordinance directing any person or persons to attend for public examination. The order shall be in Form No. 49.
“(2.) The examination shall be held before the Judge provided that the Judge may direct that the whole or any part of the examination of such person or persons be held before the Registrar.
“(3.) Where the examination is held before the Registrar, the Registrar may if he thinks fit adjourn the examination of any person or any part of the examination to be held before the Judge.
“(4.) The Judge may give directions at any time as to the special matters on which any such person is to be examined.
N.S.W. r. 120.
“111. Notice of the day, time and place appointed for holding the public examination shall be given by the liquidator to the person who is to be examined by serving such notice personally on such person. The notice shall be in Form No. 50.
N.S.W. r. 121.
“112.—(1.) The liquidator shall give notice of the day, time and place appointed for holding a public examination to the creditors and contributories by advertisement once in the
Gazette and once in a prescribed newspaper unless the Court otherwise orders. The notice shall be in Form No. 51.“(2.) Where an adjournment of the public examination has been directed notice of the adjournment shall not unless otherwise directed by the Court be advertised in any newspaper but it shall be sufficient to publish in the
Gazette a notice of the time and place fixed for the adjourned examination.
N.S.W. r. 122.
“113.—(1.) The notes of a public examination shall after being signed as required by sub-section (7.) of section 250 of the Ordinance be filed in the Registrar’s Office.
“(2.) The notes of a public examination when filed may be inspected at all reasonable times by any creditor or contributory and by the person examined his counsel solicitor the Registrar of Companies or any duly authorized officer of the Registrar of Companies.
“(3.) The liquidator shall furnish a person who has been publicly examined or his solicitor if requested with copies of the notes or parts of notes of the public examination of such person at a reasonable cost.
N.S.W. r. 123.
“114.—(1.) The liquidator or any creditor whose debt or claim has been admitted wholly or in part or any contributory may apply to the Judge or, where the Registrar has jurisdiction, to the Registrar, for an order that any person or persons be summoned before the Court for examination pursuant to section 249 of the Ordinance and, in a proper case, requiring such person or persons (and each of them) to produce all books and papers which he or they and each of
them respectively have in their custody or power relating to the
company. In a winding-up by the Court the liquidator may apply
4. I have, in the seventh and eighth columns of the first part of the First Schedule hereto and in the eighth and ninth columns of the second part of the said schedule, set forth opposite the names of each of the said persons respectively the amount called up at the date of the commencement of the winding-up and the amount paid up at such date in respect of their shares [or interest].
5. Before settling the said list, I was satisfied by the affidavit of clerk to , filed with the proceedings herein, that notice was duly sent by post to each of the persons mentioned in the said list, informing him that he was included in such list in the character and for the shares or interest stated therein, and of the day appointed for finally settling the said list.
First Schedule Above Referred to.
First Part.—Contributories in their own right.
Serial No. | Name | Address | Description | Number of shares (or extent of interest) | Date when included in the list | Amount called up at date of commencement of winding-up | Amount paid up at date of commencement of winding-up |
Second Part.—Contributories as being Representatives of, or Liable for the Debt of Others.
Serial No. | Name | Address | Description | In what character included | Number of shares (or extent of interest) | Date when included in the list | Amount called up at date of commencement of winding-up | Amount paid up at date of commencement of winding-up |
Second Schedule Above Referred to.
Serial No. | Name | Address | Description | In what character proposed to be included | Number of shares (or extent of interest) | Date when excluded from the list |
Dated this day of , 19 .
[
Liquidator.
No. 67 (Rule 131).
PROVISIONAL SUPPLEMENTARY LIST OF CONTRIBUTORIES.
[
1. The following is a list of persons whom since making out the list of contributories herein, dated the day of , 19 , I have ascertained are, or have been, holders of shares in [
or members of] the abovenamed company, and who to the best of my judgment are contributories of the said company.2. The said supplementary list contains the names of such persons, together with their respective addresses and the number of shares [
or extent of interest] and the amount called up at the commencement of the winding-up and the amount paid up at such date in respect of the shares [or interest] to be attributed to each.3. In the first part of the said list such of the said persons as are contributories in their own right are distinguished.
4. In the second part of the said list such of the said persons as are contributories as being representatives of, or being liable for the debts of, others are distinguished.
[
The supplementary list is to be made out in the same form as the original list. Form No. 63.]
No. 68 (Rule 131).
CERTIFICATE OF LIQUIDATOR OF SETTLEMENT OF SUPPLEMENTARY LIST OF CONTRIBUTORIES.
Pursuant to the
Companies Ordinance 1962-1969, and to the Rules, I, the undersigned Liquidator of the abovementioned Company hereby certify that the result of the settlement of the provisional supplementary list of contributories of the abovenamed Company made out by me on the day of , 19 , is as follows:—[
Here continue the Certificate and Schedules as in Form No. 66.]
No. 69 (Rule 132).
NOTICE TO CONTRIBUTORY OF FINAL SETTLEMENT OF LIST OF CONTRIBUTORIES OF THE INCLUSION OF HIS NAME.
[
Take notice that I, the liquidator of the abovenamed company on the day of , 19 , finally settled the list of contributories of the said company, and that you are included in such list. The character and the number of shares [
or extent of interest] in and for which you are included and the amounts called up, paid up and unpaid in respect of such shares [or interest] are stated below.Any application by you to vary the said list of contributories, or to remove your name therefrom, must be made by you to the Court by summons within twenty-one days from the service on you of this notice, or the same will not be entertained.
The said list may be inspected by you at the office of the Liquidator at [
address ]from Monday to Friday inclusive between the hours of 9 a.m. and 5 p.m.Dated this day of , 19 .
[
Liquidator.
To [
Name and address of contributory or his solicitor. ]
Serial No. | Name | Address | Description | In what character included | Number of shares (or extent of interest) | Amount called up at date of commencement of winding-up | Amount paid up at date of commencement of winding-up | Amount unpaid at date of commencement of winding-up |
No. 70 (Rule 132).
AFFIDAVIT OF SERVICE OF NOTICE TO CONTRIBUTORY.
[
[
1. I did, on the day of , 19 , serve a true copy of the notice hereunto annexed and marked “A”, upon each of the respective (persons named in the First Schedule to the list of contributories of the said company made out by the liquidator of the said company on the day of , 19 , and now on the file of proceedings of the said company. In the tabular form at the foot of such copies respectively I inserted the same particulars under the respective headings as are set forth in the said Schedule.
2. I served the said respective copies by putting them into envelopes addressed to the said persons severally according to their respective names and addresses appearing in the said schedule, and by placing the same prepaid in the post office at before the hour of o’clock in the noon of the day first mentioned in paragraph 1 hereof.
Sworn, etc.
No. 71 (Rule 133).
ORDER ON APPLICATION TO VARY LIST OF CONTRIBUTORIES.
[
UPON THE APPLICATION of W.N., by summons dated day of , 19 , for an order that the list of contributories of the company and the liquidator’s certificate finally settling the same be varied by excluding the name of the applicant therefrom [
or, as the case may be ], AND UPON HEARING, &c., AND UPON READING, &c. IT IS ORDERED that the list of contributories of the company and the liquidator’s certificate finally settling the same be varied by excluding the name of the said W.N. from the said list of contributories, or by including the name of the said W.N. as a. contributory in the said list for shares [or, as the case may be ][or the Court does not think fit to make any order on the said application, except that the said W.N. do pay to A.B., the liquidator of the said company, his cost of this application, such costs to be taxed].
By the Court,
Registrar.
No. 72 (Rule 135).
NOTICE TO EACH MEMBER OF COMMITTEE OF INSPECTION OF MEETING FOR SANCTION OF PROPOSED CALL.
[
Take notice that a meeting of the Committee of Inspection of the above Company will be held at on the day of , 19 , at o’clock in the noon, for the purpose of considering and obtaining the sanction of the Committee to a call of $ per share proposed to be made by the Liquidator on the contributories.
Annexed hereto is a statement showing the necessity for the proposed call and the amount required.
Dated this day of , 19 .
[
Liquidator.
[Note:—
The date of the meeting should be not less than seven days from the date when the notice will in course of post reach the person to whom it is addressed. ]To [
Name ][
Address ]
STATEMENT.
1. The amount due in respect of proofs admitted against the Company, and the estimated amount of the costs, charges and expenses of the winding-up, form in the aggregate $ or thereabouts.
2. The assets of the Company are estimated to realize $ . There are no other assets, except amounts due from certain contributories unlikely to realize more than $ .
3. The list of contributories has been duly settled, and persons have been settled on the list in respect of the total number of shares.
4. To satisfy the debts and liabilities of the Company, and pay the costs, charges and expenses of the winding-up, I estimate that $ will be required in addition to the proceeds of the realization of the Company’s assets hereinbefore mentioned.
5. To provide the said sum of $ it is necessary to make a call on the contributories amounting to $ per share.
[
Annex tabular statements showing amounts of debts, costs, &c, and of assets. ]
No. 73 (Rule 135).
ADVERTISEMENT OF MEETING OF COMMITTEE OF INSPECTION TO SANCTION
PROPOSED CALL.
[
Notice is hereby given that the undermentioned Liquidator of the abovenamed Company proposed that a call should be made on all the contributories of the said Company [
or as the case may be ], of $ per share, and that he has summoned a meeting of the Committee of Inspection of the Company, to be held at on the day of , 19 , at o’clock in the noon, to obtain their sanction to the proposed call.Each contributory may attend the meeting, and be heard or make any communication in writing to the Liquidator or the members of the Committee of Inspection in reference to the intended call.
A statement showing the necessity of the proposed call and the purpose for which it is intended may be obtained on application to the Liquidator at his office at [
address ]. Dated this day of ,19 .
[
Liquidator.
No. 74 (Rule 135).
RESOLUTION OF COMMITTEE OF INSPECTION SANCTIONING CALL.
[
Resolved, that a call of $ per share be made by the Liquidator on all the contributories of the Company [
or, as the case may be ]. Dated this day of , 19 .
[
Members of the Committee of Inspection.
No. 75 (Rule 136).
SUMMONS FOR LEAVE TO MAKE A CALL.
[
Let the several persons whose names and addresses are set forth in the second column of the schedule hereto, being contributories of the abovenamed company, as shown in the third column of the said schedule, attend at the Supreme Court of the Australian Capital Territory, Canberra, before the Honourable Mr. Justice , on , the day of , 19 , at o’clock in the noon, on the hearing of an application on the part of the liquidator of the company for an order that he may be at liberty to make a call to the amount of $ per share on all the contributories [
or, as the case may be ] of the said company.Dated this day of , 19 .
Registrar.
This summons was taken out by , of , Solicitor for [
name ] of [address ] the liquidator.Note:—If you do not attend either in person or by your solicitor, at the time and place abovementioned, such order will be made and proceedings taken as the Court may think just and expedient.
Schedule.
Serial No. | Name and Address | In what character included | Amount due |
No. 76 (Rule 136).
ADVERTISEMENT OF APPLICATION FOR LEAVE TO MAKE A CALL.
[
Notice is hereby given that an application will be made to the Supreme Court on the day of , 19 , at o’clock in the noon, at Court, , for leave to make a call on all the contributories of the said company [
or, as the case may be ],and that the liquidator of the said company proposes that such call shall be for $ per share. All persons interested are entitled to attend at such day, hour, and place to offer objections, to such call.Dated this day of , 19 .
[
Liquidator.
No. 77 (Rule 136).
AFFIDAVIT OF LIQUIDATOR IN SUPPORT OF PROPOSAL FOR CALL.
[
[
1. In the schedule annexed hereto and marked “A”, I set forth a statement showing the amount due in respect of the debts proved and admitted against the said company, and the estimated amount of the costs, charges, and expenses of and incidental to the winding-up of the affairs thereof, which several amounts form in the aggregate $ , or thereabouts.
2. I also set forth in schedule “A” a statement of the assets in hand belonging to the said company, which amount to $ . There are no other assets belonging to the company, except amounts due from certain of the contributories thereof and I believe that these will realise $ , or thereabouts.
3. [
Number ]persons have been settled by me on the list of contributories of the said company in respect of the total number of shares.4. To satisfy the debts and liabilities of the company and pay the costs, charges, and expenses of and incidental to its winding-up, I believe $ will be required in addition to the proceeds of the realization of the assets of the said company mentioned in schedule “A” and the amounts referred to in paragraph 2 hereof.
5. To provide $ [
as in 4], it is necessary to make a call upon the persons settled on the list of contributories, and, having regard to the probability that some of such contributories will partly or wholly fail to pay the amount of such call, I believe that a call of $ per share should be made.Sworn, etc.
No. 78 (Rule 136).
ORDER GIVING LEAVE TO MAKE A CALL.
[
UPON APPLICATION by the liquidator of the abovenamed company made this day, AND UPON READING the summons filed herein on the day of , 19 , the order to wind-up the said company, the list of contributories of the said company and the liquidator’s certificate of the final settlement of the same dated , 19 , the affidavit of the said liquidator, sworn the day of , 19 , and the exhibit marked “A” therein referred to, and the affidavit of sworn the day of , 19 .
IT IS ORDERED that leave be given to the liquidator to make a call of $ per share on all the contributories of the said company [
or, as the case may be ]. AND IT IS FURTHER ORDERED that each such contributory do, on or before the day of , 19 , pay into the [
insert name of Bank ]to the account of the liquidator of the company [or, as the case may be ]the amount which will be due from him or her in respect of such call.
By the Court,
Registrar.
No. 79 (Rule 136).
DOCUMENT MAKING A CALL.
[
I, the liquidator of the abovenamed company, in pursuance
of [an order of Court
Dated this day of , 19 .
[
Liquidator.
No. 80 (Rule 137).
NOTICE OF CALL SANCTIONED BY COMMITTEE OF INSPECTION TO BE SENT TO CONTRIBUTORY.
[
Take notice that the committee of inspection, in the winding-up of this company, have sanctioned a call of $per share on all the contributories of the company.
The amount due from you in respect of the call is $ . This sum should be paid by you into the [
insert name of Bank ] to my account as liquidator of the company [or, as the case may be ]on or before the day of 19 .Dated this day of , 19 .
[
Liquidator.
To Mr [
Name ][
Address ]Note:—If you do not pay the sum due from you by the date mentioned, interest will be claimed on such sum at the rate of 4 per cent. per annum from the said date until payment.
No. 81 (Rule 137).
NOTICE TO BE SERVED WITH THE ORDER SANCTIONING A CALL.
[
Take notice that the amount due from you in respect of the call made pursuant to leave given by the within order is $ , which is to be paid by you into the [
insert name of Bank ] to my account as liquidator of the company [or, as the case may be ]. In default of payment, interest at the rate of 4 per cent. per annum will be charged upon the amount unpaid from the day of , 19 , until payment.
Dated this day of , 19 .
[
Liquidator.
To [
Name ][
Address ]
No. 82 (Rule 138).
AFFIDAVIT IN SUPPORT OF APPLICATION FOR ORDER FOR PAYMENT OF CALL.
[
1. None of the contributories of the said company, whose names are set forth in the schedule hereto annexed, marked “A”, has paid or caused to be paid the sum set opposite their respective names in the said schedule, which sums are the amounts now due from them respectively under the call of $ per share, dated the day of , 19 , duly made under the
Companies Ordinance 1962-1969, in pursuance of the order of the Court [or resolution of the Committee of Inspection] made [or passed] herein on the day of , 19 .2. The amounts set opposite the names of such contributories respectively in such schedule are the true amounts due and owing by such contributories respectively under the said call.
3. I estimate the amount properly due from each contributory for the costs of this application and carrying it into effect to be the amount set opposite his name in the last column of the schedule hereto, and in so doing I have apportioned the general costs of the application equally among all the contributories.
Sworn, etc.
“A.”
The Schedule above Referred to.
Serial No. | Name | Address | Description | In what character included | Amount due | Proportion of costs |
Notes—
In addition to the above affidavit, proof of due compliance with Rules 134and 135will be required in cases in which the committee of inspection has authorized a call to be made.
No. 83 (Rule 139).
ORDER FOR PAYMENT OF CALL DUE FROM A CONTRIBUTORY.
[
UPON THE APPLICATION of [
insert name ]the liquidator of the abovenamed company AND UPON READING the summons herein dated the day of , 19 , and the affidavit of the liquidator, sworn the day of , 19 , AND UPON HEARING, &c., IT IS ORDERED that C.D., of, &c. [or E.F., of, &c., , the legal personal representative of L.M., late of, &c., , (deceased)], one of the contributories of the said company [or if against several contributories, the several persons named in the second column of the schedule to this order, being respectively contributories of the said company], do, on or before the day of , 19 , or subsequently within four days after service of this order, pay into the [insert name of Bank ]to the account of the said [insert name ] as liquidator of the company [or, as the case may be ] the sum of $ [if against a legal personal representative add, out of the assets of the said L.M., deceased, in his hands as such legal personal representative as aforesaid, to be administered in due course of administration, if the said E.F. has in his hands so much to be administered,or, if against several contributories, the several sum of money set opposite to the respective names in the sixth column of the said schedule hereto], such sum [or sums] being the amount [or amounts] due from the said C.D. [or L.M.or the said several persons respectively] in respect of the call of $ per share duly made, dated the day of , 19 .AND IT IS ORDERED that the said several persons do, within the like period, pay into the said [
Bank ]to the said account interest at the rate of eight dollars per centum per annum on the amounts specified in the sixth column of the said schedule from the to the date of payment.
AND IT IS ORDERED
that the said several persons do within the like period, pay into the said [
[
Add appropriate paragraphs as to amounts payable by legal personal representatives (if any ).]
The Schedule Referred to in the Foregoing Order.
Serial No. | Name | Address | Description | In what character included | Amount due | Proportion of costs | Total amount payable exclusive of interest | ||
$ | c | $ | c | ||||||
Note:—
The copy for service of the above order must be indorsed as follows: —If you, the undermentioned A.B., neglect to obey this order by the time mentioned therein you will be liable to process of execution, for the purpose of compelling you to obey the same.
By the Court,
Registrar.
No. 84 (Rule 141).
NOTICE TO SEND IN CLAIMS.
[
Creditors of the abovementioned company, which is being wound-up, are required on or before the day of , 19 , to send their names and addresses and particulars of their debts or claims and of any security held by them to the undersigned and, if subsequently required by notice in writing from the liquidator, shall formally prove their debts or claims and establish any title they may have to priority by affidavit as required by any such notice. In default of complying with any such notice they will be excluded from the benefit of any distribution made before such debts or claims are proved or such priority is established and from objecting to any such distribution.
Dated this day of , 19 .
[
Liquidator.
[
No. 85 (Rule 143.).
NOTICE INVITING PROOF OF DEBT OR CLAIM.
[
The creditors of the abovenamed company are required on or before the day of , 19 , to prove their debts or claims and to establish any title they may have to priority be delivering or sending through the post to the liquidator at the undermentioned address an affidavit verifying their respective debts or claims. In default they will be excluded from the benefit of any distribution made before such debts or claims are proved or such priority is established and from objecting to any such distribution. Form of proof may be obtained from the undersigned.
Dated this day of , 19 .
[
Liquidator.
[
No. 86 (Rule 145).
PROOF OF DEBT.
[
On the day of One thousand nine hundred and of in the State of being duly sworn makes oath and says:
1 . The abovenamed Company was at the day of , 19 , and still is justly and truly indebted to of in the sum of dollars and cents ($ c ) particulars whereof are:
Date | Consideration | Amount | Details of vouchers | |
$ | c | |||
2.The said creditor has not nor has any person by the said creditor’s order to my knowledge or belief had or received any manner of satisfaction or security whatsover for the said sum or any part thereof save and except the following:
3. The said creditor by whom I am employed has duly authorized me in writing to make this affidavit.
[
3. I am the said creditor’s agent duly authorized in writing to make this affidavit and it is within my own knowledge that the aforesaid debt was incurred and for the consideration stated and such debt to the best of my knowledge and belief still remains unpaid and unsatisfied.
Sworn, etc.
INSTRUCTIONS FOR COMPLETING THIS PROOF.
1. The proof is liable to be rejected unless fully completed. Please refer to the marginal notes hereunder.
2. This form when completed should be returned to [
name and address of liquidator ], and not to the Court.
Note A. Complete date and deponent’s full name.
Note B. Complete address and deponent’s occupation.
Note C. Insert date of Court order in winding-up by the Court, or date of resolution to wind-up, if a voluntary winding-up.
Note D. Full name and address of creditor and total amount of debt. If creditor is a partnership state name of partneri.
Note E. Under “Consideration” state how the debt arose; for example, “goods sold and delivered to the Company between the dates of ...”, “moneys advanced in respect of the undermentioned Bill of Exchange”.
Note F. Give details of any payment received on account, and of any securities held. Where the securities are on the property of the debtor Company assess and state their value. Where bills or other negotiable securities are held give details (production will also be required before the proof can be admitted). Where there is any set-off credit should be given for contra accounts provided there was a debt of a mutual nature before liquidation. Preference claimed under section 291 or 292 of theCompanies Ordinance 1962-1969 should be stated here with the grounds of the claim.
Note G. If proof made by creditor personally strike out the two paragraphs numbered 3.
Note H. This paragraph to be used where proof made by creditor’s employee.
Note I. This paragraph to be used where proof made by creditor’s agent.
No. 87 (Rule 149).
NOTICE AS TO REJECTION OF PROOF.
[
To A.B., of
Your claim against the abovenamed company as set forth in the affidavit of C.D., sworn herein on the day of , has been
wholly disallowed by me,
[
or disallowed by me to the extent of
or allowed by me in the sum of $
or allowed by me to the extent of your claim for ]
upon the
following grounds (
Take notice that if you are dissatisfied with my determination as above mentioned you must within days from the service of this notice appeal against the same in the following manner:—
(
a ) Issue a summons from the office of the Registrar of the Supreme Court of the Australian Capital Territory, Supreme Court Building, Canberra, to be heard before a Judge or the Registrar of the Supreme Court, stating the grounds of your objection to my determination; and(
b )serve upon me a copy of the summons and all affidavits filed in support thereof; and thereafter duly prosecute such appointment. In default your claim will be assessed in accordance with my determination.Dated this day of , 19 .
[
Liquidator.
[
No. 88 (Rule 160).
PROOF OF DEBT OF EMPLOYEES.
[
On the etc. [
full name, address and occupation of deponent ]on behalf of the workmen and others employed by the abovenamed company being duly sworn makes oath and says as follows:—
That the abovenamed company was, on the * day of , 19 , and still is justly and truly indebted to the several persons whose names, addresses and descriptions appear in the schedule hereto in the sums severally set against their names in the sixth column of such schedule for wages [
or salariesor annual leaveor long service leave] due to them respectively as workmen or others in the employ of the company in respect of services rendered by them respectively to the company [in the case of annual leave or long service claim insert description of the claim ]during such periods as set out against their respective names in the fifth column of such schedule, for which said sums, or any part thereof, I say that they have not, nor has any of them, had or received any manner of satisfaction or security whatsoever.
Schedule.
1. | 2. | 3. | 4. | 5. | 6. |
No. | Full name of workman | Address | Description | Period over which wages (or salary or annual leave or long service leave) due | Amount due |
Sworn, etc.
No. 89 (Rule 164).
LIST OF CLAIMS AND PROOFS TO BE FILED UNDER RULE 164.
[
I hereby certify that the following is a correct list of all claims and proofs tendered to me in the above matter between the day of ,19 , and the day of , 19 .
Dated this day of , 19 .
[
Liquidator.
[
Name of creditor | Claims and Proofs Tendered | ||||
Amount of claim or proof | Whether admitted, rejected, or standing over for further consideration | If admitted, amount | |||
$ | c | $ | c | ||
No. 90 (Rule 166).
ADVERTISEMENT OF INTENTION TO DECLARE A DIVIDEND.
[
A [“first”
or “second”or, as the case may be ]dividend is intended to be declared in the above matter.If persons claiming to be creditors have not proved their debts or had their debts admitted by the liquidator by the day of , 19 , they will be excluded from this dividend.
Dated this day of , 19 .
[
Liquidator.
[
No. 91 (Rule 166).
NOTICE TO CREDITORS OF INTENTION TO DECLARE DIVIDEND.
[
A [“first”
or “second”,or, as the case may be ]dividend is intended to be declared in the above matter. You are mentioned as a creditor in the statement of affairs, but you have not yet proved your debt.If you do not prove your debt by the day of , 19 , you will be excluded from this dividend.
Dated this day of , 19 .
[
Liquidator.
[
To [
Name ][
Address ]
No. 92 (Rule 166).
NOTICE TO PERSONS CLAIMING TO BE CREDITORS OF INTENTION TO DECLARE FINAL DIVIDEND.
[
Take notice that a final dividend is to be declared in the above matter, and that if you do not establish your claim to the satisfaction of the Court or the Registrar of the Court on or before the day of , 19 , or such later date as the Court or the Registrar of the Court may fix, your claim will be expunged, and I shall proceed to make a final dividend without regard to such claim.
Dated this day of , 19 .
[
Liquidator.
[
To [
Name ][
Address ]
No. 93 (Rule 166).
NOTICE OF DIVIDEND.
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Dividend of in the $ .
Notice is hereby given that a dividend of in the dollar has been declared in this matter and cheque numbered is attached in the sum of $ calculated at the beforementioned rate on your debt admitted to rank for dividend in the sum of $
Dated this day of , 19 .
[
Liquidator.
[
To [
Name ][
Address ]
No. 94 (Rule 166).
AUTHORITY TO LIQUIDATOR TO PAY DIVIDENDS TO ANOTHER PERSON.
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To the Liquidator.
Sir,
I (We) hereby authorise and request you to pay to A.B. of [
address ](a specimen of whose signature is given below). all dividends as they are declared in the abovenamed (matter, and which may become due and payable to me (us) in respect of my (our) debt for the sum of $ against the abovenamed company.And I (we) further request that the cheque or cheques drawn in respect of such dividends may be made payable to the order of the said A.B.
It is understood that this authority is to remain in force until revoked by me (us) in writing.
Dated this day of , 19 .
[
Date.
[
Specimen Signature of A.B. ]Witness:
No. 95 (Rule 168).
SCHEDULE OR LIST OF CONTRIBUTORIES HOLDING PAID-UP SHARES TO WHOM A RETURN IS TO BE PAID.*
[
Serial No. in settled list | Name of contributory as in settled list | Address | Number of shares held as per settled list | Total amount called up | Total amount paid up | Arrears of calls at date of return | Previous returns of capital appropriated by liquidator for arrears of calls | Amount of return payable per share | Net return payable | Date and particulars of transfer of interest or other variation in list |
* Where the Articles provide that the amount divisible among members or any class of members shall be divisible in proportion to the amount paid up or which ought to have been paid up at the date of winding-up, or contain any other provision which will necessitate further information before a return can be made, columns should be added showing the amount called up and the amount paid up at such date in respect of shares then held by such members or class of members, or such other facts as may be requisite.
Liquidator.
No. 96 (Rule 168).
NOTICE OF RETURN TO CONTRIBUTORIES.
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Return of $ per share.
Notice is hereby given that a return of per share has been declared in this matter, and cheque numbered is attached in the sum of $ calculated at the beforementioned rate per share on your shares.
Dated this day of , 19 .
[
Liquidator.
[
To [
Name ][
Address ]
No. 97 (Rule 168).
AUTHORITY TO LIQUIDATOR TO PAY RETURNS OF CAPITAL TO ANOTHER PERSON.
[
To the Liquidator.
Sir,
I (We) hereby authorise and request you to pay to A.B. of [
address ](a specimen of whose signature is given below), all returns of capital payable to me (us) in this matter.And I (we) further request that the cheque or cheques drawn in respect of such returns. of capital may be made payable to the order of the said A.B.
It is understood that this authority is to remain in force until revoked by me (us) in writing.
| day of | , 19 . |
[ | ||
[ | ||
Witness: | ||
No. 98 (Rule 181).
REQUEST TO DELIVER BILL FOR TAXATION.
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I hereby request that you do, within days of this date, or such further time as the Court, the Registrar or I may allow, lodge your bill of costs [
or charges] as [here state nature of employment ]in the Registrar’s Office for taxation by the taxing officer, and within the period aforesaid serve me at the undermentioned address with a copy of such bill with a notice of the appointment for taxation endorsed thereon; failing which, I shall, in pursuance of theCompanies Ordinance 1962-1969, and Rules, proceed to declare and distribute a dividend without regard to any claim which you may have against the assets of the company, and your claim against the assets of the company will be liable to be forfeited.Dated this day of , 19 .
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Liquidator.
[
No. 99 (Rule 192).
REGISTRAR’S CERTIFICATE OF COMPLETION OF WINDING-UP.
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IN PURSUANCE of the Order for winding-up made herein on the day of ,19 , I HAVE BEEN ATTENDED by the solicitor for A.B.C. the liquidator of the abovenamed company [
or, where the Registrar does not require formal attendance by the liquidator or his solicitor, APPLICATION HAS BEEN MADE TO ME by A.B.C. the liquidator of the abovenamed company] AND I HEREBY CERTIFY THAT THE AFFAIRS OF THE SAID COMPANY HAVE BEEN COMPLETELY WOUND-UP.THE EVIDENCE used for the purposes of this Certificate consists of the affidavit of A.B.C. sworn herein on the day of , 19 , together with, etc.
Dated this day of , 19 .
Registrar.
No. 100 (Rule 193).
SUMMONS FOR DISSOLUTION.
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LET all parties concerned attend before the Honourable Mr. Justice a Judge of the Supreme Court at No. Court, Supreme Court, Canberra, on the day of , 19 , at o’clock in the noon or so soon thereafter as Counsel can be heard on the hearing of an Application on behalf of the Liquidator of the abovenamed company that the abovenamed company be dissolved AND THAT the said be at liberty to destroy the books accounts and other documents of the said company and of the said Liquidator other than the file in the proceedings for winding-up of the said company after the expiration of six (6) months AND THAT such further or other order may be made as to His Honour may seem fit.
Dated this day of , 19 .
Registrar.
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No. 101 (Rule 193).
CERTIFICATE OF NO VARIATION OF REGISTRAR’S CERTIFICATE.
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I HEREBY CERTIFY that no application has been made to vary the Registrar’s Certificate of Completion of Winding-up dated the day of ,19 .
Dated this day of , 19 .
Registrar.
No. 102 (Rule 194).
NOTICE TO CREDITORS AND CONTRIBUTORIES OF INTENTION TO APPLY FOR RELEASE.
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Take notice that I the undersigned liquidator of the abovenamed Company, intend to apply to The Honourable Mr. Justice, etc., at No. Court, Supreme Court, Canberra, on the day of , 19 , at o’clock in the noon for my release, and further take notice that if you are desirous of objecting to the granting of my release, you may appear at the time of hearing, in person or by your counsel or solicitor, for that purpose.
A summary of my receipts and payments in the winding-up is hereto annexed.
Dated this day of , 19 .
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Liquidator.
[
Note.—Section 240 (4.) of The Companies Ordinance 1962, enacts that “An order of the Court releasing the liquidator discharges him from all liability in respect of any act done or default made by him in the administration of the affairs of the company or otherwise in relation to his conduct as liquidator, but any such order may be revoked on proof that it was obtained by fraud or by suppression or concealment of any material fact.”
No. 103 (Rule 194).
SUMMARY OF RECEIPTS AND PAYMENTS TO ACCOMPANY NOTICE OF APPLICATION FOR RELEASE.
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Statement showing position of Company at date of application for release.
Receipts | Cr. | Payments | |||||
$ | c | $ | c | $ | c | ||
Estimated to produce as per Company’s Statement of Affairs |
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$ | c | Law costs of petition........ | |||||
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Other law costs................ | |||||||
| Liquidator’s remuneration viz.:— | ||||||
Receipts per trading account..... | Per cent on $ assets realized | ||||||
Other receipts.......................... |
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Shorthand writer’s charges | |||||||
Special manager’s charges | |||||||
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| Auctioneer’s charges as taxed | ||||||
Other taxed costs.............. | |||||||
$ |
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| $ |
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Incidental outlay.............. | |||||||
| Total costs and charges..... | .. | $ | ||||
$ | c | ||||||
Creditors, viz.:— | |||||||
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Amount returned to contributories................ | |||||||
Balance..................................... | $ | ||||||
$ | $ | ||||||
(
Assets not yet realised, including calls, estimated to produce $ [
Add any special remarks the liquidator thinks desirable. ]Creditors can obtain any further information by inquiry at the office of the liquidator.
Dated this day of , 19 .
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Liquidator.
[
No. 104 (Rule 197).
CERTIFICATE OF INSPECTOR UNDER SECTION 171 (4.).
[
I [
insert name of Inspector ] of [insert address ]being an Inspector duly authorised to investigate the affairs of the abovenamed company do hereby certify as follows:—1. [
State in paragraphs consecutively numbered the name and address of the person who has failed or refused to answer any question and the material facts and circumstances constituting the failure or refusal. Annex a copy of any notice issued under sub-section (3.)of section 171of the Companies Ordinance 1962-1969.]
| day of | , 19 . |
[ | ||
Inspector. |
Dated this twenty-seventh day of December, 1969.
R. W. FOX
Judge of the Supreme Court
of the Australian Capital
Territory.
Z. HARTSTEIN
Registrar.
Printed by Authority by the Government Printer of the Commonwealth of Australia
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