Rules of the Supreme Court of the Australian Capital Territory (Amendment) (Cth)
We, Judges
appointed under subsection 7 (1) of the
Dated 17 December 1990.
JEFFREY MILES
Chief Justice
T. J. HIGGINS
Judge
A. G. TOWILL
Registrar
—————
1.1 These Rules commence on 1 January 1991.
2.1 The Rules of the Supreme Court of the Australian Capital Territory are amended as set out in these Rules.
3.1 Insert the following definitions:
4.1 Add at the end:
“2. This Order does not apply to the commencement of proceedings under the ASC Law or the Corporations Law.”.
5.1 After Order 2 insert:
“1. (1) Subject to these Rules, all proceedings in the Court’s original jurisdiction under the ASC Law or the Corporations Law must be commenced by filing an application in, or substantially in, Form 5 in Schedule 12.
“(2) An application under this Order must specify the section or sections of the ASC Law or the Corporations Law under which the proceedings are brought.
“2. (1) A party claiming relief must be called an applicant.
“(2) A party against whom relief is claimed must be called a respondent.
“3. (1) The application must state specifically the relief claimed by the applicant.
“(2) Where the claim for relief includes a claim for the determination or direction of the Court on any question, the application must state the question.
“(3) Costs need not be specifically claimed.
“(4) Exemplary damages must be specifically claimed.
“4. (1) An application must contain:
(a) the name and address of the applicant; and
(b) where a party sues in a representative capacity—a statement of that fact; and
(c) where the applicant sues by a solicitor—the name, address and telephone number of the solicitor; and
(d) where the applicant sues by solicitor and that solicitor has another solicitor as agent for him or her in the proceeding— the name, address and telephone number of the agent; and
(e) an address for service.
“(2) Where it appears from an application that the applicant sues by a solicitor:
(a) the solicitor must, on request in writing by a respondent, declare in writing whether the application was filed by him or her; and
(b) if the solicitor declares in writing that the application was not filed by him or her—the Court may, on application by a respondent, stay the proceeding.
“5. Where there is a respondent, an application must bear a note that:
(a) if there is no attendance before the Court by the respondent or his or her counsel or solicitor at the time and place stated in the application, the proceeding may be heard and the respondent will be liable to suffer judgment or an order against him or her; and
(b) before any appearance at that time the respondent must enter an appearance in the Registrar’s office.
“6. (1) The applicant must file and serve with the application an affidavit.
“(2) The affidavit must show:
(a) the nature of the applicant’s claim; and
(b) the material facts on which it is based.
“7. (1) On an application and affidavit being filed, the Registrar on the applicant’s request must sign and seal with the seal of the Court a sufficient number of copies of the application for service and proof of service.
“(2) The serial number of the proceeding must be endorsed on each document.
“8. Subject to rule 9, an application must state a date for a directions hearing.
“9. (1) Where by his or her application, an applicant seeks interlocutory relief, the applicant must make a distinct claim for that relief.
“(2) A date for the hearing of the claim for interlocutory relief must be endorsed on the application.
“(3) Where a date for hearing is endorsed on the application under subrule (2), a separate date for a directions hearing must not also be endorsed on the application.
“(4) At the hearing of the claim for interlocutory relief the Court may give such directions as it thinks fit as on a directions hearing.
“10. (1) The date for a hearing under rule 8 or 9 to be endorsed on the application must be obtained from the Registrar’s office.
“(2) Where the Court has made an order abridging time, the application must bear a note of the order made.
“11. An application and affidavit must, unless the Court otherwise orders, be served on the respondent in accordance with Order 10, not less than 5 days before the date appointed for hearing under rule 8 or 9.
“12. (1) Where a date for hearing has been obtained or made, the Court or the Registrar may alter the date to a later date and may authorise the solicitor for a party to make corresponding alterations in any copy for service of any application or note.
“(2) The Registrar may give authority by telephone or by such other means as the Registrar thinks fit.
“13. (1) Where an application and affidavit have been served on the respondent named in the application less than 5 days before the date for hearing endorsed on the application under rule 8 or 9, the Court or the Registrar may alter the date to a later date and may authorise the solicitor for a party to give notice to that respondent of that altered date by posting an altered copy of the application by registered post to the usual or last known place of business or abode of
the respondent or to the place at which the application was served if appropriate.
“(2) The Registrar may give authority by telephone or by such other means as the Registrar thinks fit.
“14. (1) Subject to subrule (2) and to Order 19, rules 16 to 21 (inclusive), any person may proceed in the Court by solicitor or in person.
“(2) Except as provided by or under any Act, a corporation may not, without the leave of the Court, commence or carry on any proceeding otherwise than by a solicitor.”.
6.1 Subrule 1 (1):
Omit “in the last preceding Order”, substitute “in Orders 2 and 2a”.
7.1 Subrule 6 (1):
After “Order 75”, insert “or Order 75b”.
7.2 Subrule 6 (1):
After paragraph 6 (1) (a), insert:
“(ab) by leaving a copy of the document with some person apparently an officer of or in the service of the corporation and apparently of or above the age of 16 years:
(i) at the registered office of the corporation; or
(ii) if there is no registered office, at the principal place of business or the principal office of the corporation; and”.
7.3 Add at the end:
“(3) In spite of subrule (1), for the purposes of Order 75b, personal service may be effected:
(a) on a company, as defined in section 9 of the
Corporations Act 1989 of the Commonwealth or corresponding legislation of a State or Territory(“the Corporations Law”), in any manner permitted by section 220 of the Corporations Law; and(b) on the liquidator of a company, in the manner permitted by subsection 220 (5) of the Corporations Law; and
(c) on an official manager of a company, in the manner permitted by subsection 220 (6) of the Corporations Law.
“(4) For the purposes of Order 75b, a document served by sending it by pre-paid post addressed to:
(a) a company at the registered office of the company; or
(b) a liquidator at the last address of the office of the liquidator notice of which has been lodged; or
(c) an official manager at the last address of the office of the official manager notice of which has been lodged;
is taken to be served on the seventh day after posting.”.
8.1 Add at the end:
“14. (1) The Registrar shall, on the request of a party, furnish that party with a certified or office copy of the order entered in the proceeding.
“(2) The Registrar may, on payment of the prescribed fee, furnish to any person appearing to have a sufficient interest in the order entered in any proceeding a certified or office copy of the order.”.
9.1 Omit “5 per cent”, substitute “10%”.
10.1 After Order 61, rule 3 insert:
“3a. Where the jurisdiction of the Court is to be, or is being, exercised in a particular case by the Registrar, a Judge may:
(a) on the application of a party to the proceedings; and
(b) at any time before the conclusion of the proceedings before the Registrar;
order that the jurisdiction of the Court in the case be exercised by the Court constituted by a Judge.”.
11.1 After Order 75a, insert:
“1. This Order may be cited as the Corporations Rules.
“2. (1) In this Order, unless the contrary intention appears:
(a) a statement of:
(i) the statute under which the company was incorporated; and
(ii) the date of the company’s incorporation; and
(iii) the general nature of any business carried on or previously carried on by the company at any relevant time; and
(b) unless the company to which the proceedings relate is the applicant, a statement of the capacity in which the applicant makes the application; and
(c) unless the company to which the proceedings relate is the applicant or has entered an appearance in proceedings:
(i) a statement of the address of the company’s registered office as disclosed in the most recent of:
(A) a notice of address in respect of the company under subsection 218 (1) or 359 (1) of the Corporations Law or a provision of a previous law of a State or Territory that corresponds to those subsections; or
(B) a notice of change of address in respect of the
company under subsection 218 (3) or 359 (3) of the Corporations Law or a provision of a previous law of a State or Territory that corresponds to those subsections;
lodged with the Commission, the National Companies & Securities Commission or a delegate of the National Companies & Securities Commission, as determined by a search made not earlier than 3 days before the application was filed; and
(ii) a statement of the date on which the relevant notice of address or notice of change of address was lodged; and
(iii) if an annual return of the company under subsection 335 (1) of the Corporations Law or a provision of a previous law of a State or Territory that corresponds to that subsection:
(A) has a more recent date than the most recent notice of address or notice of change of address lodged by the Company; and
(B) states an address for the registered office of the Company which differs from the address shown in the most recent notice of address or notice of change of address;
a statement of that other address and of the date of that annual return;
(a) where the proceedings relating to a body corporate and the prescribed office of that body corporate is within 100 kilometres of the Registrar’s office in the proper place of the proceedings, a daily newspaper circulating generally in the proper place of the proceedings; or
(b) where the proceedings relate to a body corporate which does not have a prescribed office, and if the principal place of business or the last known principal place of business of the body corporate is or was within 100 kilometres of the Registrar’s office in the proper place of the proceedings, a daily newspaper circulating generally in the proper place of the proceedings; or
(c) where the proceedings relate to any other body corporate:
(i) if the body corporate has a prescribed office, a newspaper circulating generally in the district in which the prescribed office of the body corporate is situated; or
(ii) if the body corporate does not have a prescribed office, a newspaper circulating generally in the district in which the principal place of business or the last known principal place of business of the body corporate is or was situated;
(a) where a body corporate is a company, its registered office for the purposes of section 217; or
(b) where a body corporate is registered under Division 1 or Division 2 of Part 4.1 of the Corporations Law, its registered office for the purposes of section 359.
“(2) In this Order, unless the contrary intention appears:
(a) a reference to a section, subsection or paragraph in this Order is a reference to a section, subsection or paragraph of the Corporations Law; and
(b) a reference to a form by number is a reference to the form in the Schedule 12 which has that number.
“(3) In this Order, unless the contrary intention appears, a word or phrase defined for the purposes of the Corporations Law has the same meaning as in the Corporations Law.
“3. (1) This Order applies to all proceedings arising under the Corporations Law or under the ASC Law, whether or not expressly referred to in this Order.
“(2) Subject to this Order and to any law of the Commonwealth, the provisions of the other Orders of these Rules apply, so far as is practicable, to proceedings arising under the Corporations Law or under the ASC Law.
“4. (1) Subject to subrule (2), all documents (including an application under rule 5 or rule 6), filed in proceedings arising under the Corporations Law or under the ASC Law, whether or not expressly referred to in this Order, must be headed as in Form 75.
“(2) Except in the case of:
(a) an originating process; or
(b) a document to be served on a person not a party to a proceeding; or
(c) a final order;
a document may bear a heading in Form 76 abbreviating the title of the proceeding in a manner sufficient to identify the proceeding.
“(3) All documents (including an application under rule 5 or rule 6), filed in proceedings arising under the Corporations Law or under the ASC Law must specify the name and (if applicable) the Australian Company Number of the corporation which is the subject of the proceedings.
“(4) The words
“5. (1) All proceedings (other than proceedings within the scope of rule 6) in the Court’s original jurisdiction arising under the Corporations Law or under the ASC Law, whether or not expressly referred to in this Order, must be commenced by filing an application in or substantially in Form 5.
“(2) An application under this rule must specify the section or sections of the Corporations Law or ASC Law under which the proceedings are brought.
“6. (1) This rule applies to an application for:
(a) an order that the name of a foreign company be restored to the register under section 350; and
(b) an order for the reinstatement of the registration of a company under section 574; and
(c) an order giving directions concerning compliance with the business rules or listing rules of a securities exchange under section 777, if that application is made by a person who claims to be aggrieved by the non-compliance; and
(d) an order under subsection 1082 (2) relating to orders made or directions given where a person was convicted of an offence in respect of an invitation or offer in contravention of Division 6 of Part 7.12 of the Corporations Law; and
(e) an order giving directions concerning compliance with the business rules of a futures exchange, of a clearing house for a futures exchange or of a futures association under section 1140, if that application is made by a person who claims to be aggrieved by the non-compliance; and
(f) an order prohibiting the payment or transfer of money, securities, futures contracts or other properties or any other order under section 1323, if that application is made by a person claiming to be a person aggrieved.
“(2) An application under this rule must:
(a) be commenced by filing an application in or substantially in Form 77, together with an affidavit in support of the application; and
(b) specify the section or sections of the Corporations Law or ASC Law under which the proceedings are brought.
“(3) As soon as practicable after filing an application under this rule, and in any event not later than 14 days after the date of filing the application, the applicant must serve the application and the affidavit in support of the application upon:
(a) the other parties to the proceedings; and
(b) the company to which the proceedings relate, if it is not a party to the proceedings.
“(4) If another party to the proceedings objects to the competency of the application, it must file and serve a notice of objection to competency, stating briefly the grounds of its objection, within 14 days of service of the application upon it.
“(5) In addition to the powers of the Court under Order 33 and this Order, the Court may give directions in relation to an application under this rule:
(a) that a party give notice of the application to such persons or classes of persons in such a manner as the Court directs; and
(b) where a notice of objection of competency has been filed by a party to the proceedings, that the objection be determined before the application to which the objection relates is determined.
“7. (1) The Registrar may exercise the jurisdiction of the Court:
(a) under a provision specified in column 2 or 3 of an item in Schedule 13; or
(b) under subsection 79 (4) of the ASC Law.
“(2) Where a form specified or referred to in a rule is to be used in a proceeding before a Registrar, the form may be altered in such manner as the circumstances require to make the form applicable to that proceeding.
“(3) An application for the review of a decision, direction or act of a Registrar made, given or done under this Order, must be made within 14 days after the decision, direction or act complained of, or within such further time as the Court allows.
“(4) For the purposes of review of a Registrar’s decision under this rule, the Court is to be constituted by a single judge.
“(5) A decision or direction of a Registrar made in Chambers may be reviewed by a Judge sitting in Chambers and any other decision or direction of a Registrar may be reviewed by a Judge sitting in Court, subject to any contrary direction by the Court or a Judge.
“8. (1) If a Registrar or a party to the application made to a Registrar under this Order seeks to have that application determined by the Court, the Registrar must refer the application for hearing and determination by the Court.
“(2) If an application is referred to the Court under subrule (1), each party must comply with any directions given by the Registrar as to notification to any other party to the application of the date, time and place at which the application will be heard by the Court.
“9. Without limiting any other power of the Court, at any stage of a proceeding under the Corporations Law the Court may:
(a) direct that notice of any matter be given to any person; and
(b) direct that a document be served on any person; and
(c) give such further directions with respect to such a matter or document as the Court thinks fit.
“10. (1) The Court may grant leave to any person who is or claims to be:
(a) a creditor, contributory or officer of a body corporate; or
(b) an officer of a creditor of a body corporate; or
(c) an officer of a contributory of a body corporate;
to be heard in proceedings under the Corporations Law without becoming a party to those proceedings.
“(2) Leave may be granted under subrule (1) on conditions, and may be revoked by the Court at any time.
“(3) If the Court considers that the attendance of a person to whom leave has been granted under subrule (1) has resulted in additional costs for any party to the proceedings (including the body corporate to which the proceedings relate) which should be borne by the person to whom leave was granted, the Court may direct that those costs be paid by that person and may order that that person is not entitled to be heard in the proceedings until those costs are paid or secured to the Court’s satisfaction.
“(4) The Court may order that a person who is or claims to be a creditor, contributory or officer of the body corporate be added as a respondent in proceedings under the Corporations Law, and may impose conditions on such an order.
“(5) Leave may be sought under subrule (1) or an order may be made under subrule (3) on:
(a) a notice of motion brought in the proceedings by a party to the proceedings; or
(b) a notice of motion brought in the proceedings by a person having an interest in the proceedings; or
(c) on the Court’s own motion.
“11.(1) The Court may direct an inquiry as to any debts, claims or liabilities or any class of debts, claims or liabilities of a body corporate to which a proceeding under the Corporations Law relates, or which affects such a body corporate.
“(2) Where the Court directs an inquiry under subrule (1), subrules 13 (4) to 13 (8) (inclusive) apply, with such modifications as may be necessary, as though the Court had directed that a list of creditors be settled.
“12. (1) This rule applies to an application for:
(a) an order for the cancellation of a change of status of a company under section 167; and
(b) an order for the cancellation of a change from a public company to a proprietary company or from a proprietary company to a public company under section 168; and
(c) an order for the cancellation of an alteration of the memorandum of a company under section 172; and
(d) an order validating a purported issue or allotment of shares or confirming the terms of a purported issue or allotment of shares under section 194; and
(e) an order setting aside a variation or abrogation of rights attached to shares or an alteration of the memorandum or articles of a company, where the company has a share capital divided into classes of shares, under section 197; and
(f)an order setting aside a variation or abrogation of rights attached to shares or an alteration of the memorandum or articles of a company, where the company has a share capital that is not divided into classes of shares, under section 198; and
(g) an order setting aside a variation or abrogation of rights of members of a company included in a class of members or an alteration of the memorandum or articles of a company, where the company does not have a share capital, under section 199; and
(h) an order approving the payment of interest out of the capital of a company under section 202; and
(i) an order confirming a resolution that an undertaking, scheme, enterprise or arrangement be wound up under section 1074.
“(2) Except where an application is brought under section 1074, evidence brought by the applicant in support of an application must include an affidavit setting out:
(a) the prescribed information; and
(b) the amounts of the authorised and issued share capital of the company, and the classes, if any, of the issued shares;
which may be in or substantially in Form 128.
“(3) Where an application is brought under section 1074, evidence brought by the applicant in support of an application must include:
(a) an affidavit setting out the prescribed information in relation to the management company under an approved deed, which may be in or substantially in Form 128; and
(b) an affidavit setting out details of the undertaking, scheme, enterprise of arrangement to which the application relates.
“(4) As soon as practicable after filing an application under this rule, and in any event not later than 14 days after the date of filing the application, the applicant (if it is not the company to which the proceedings relate) must serve that application and the affidavit in support of the application on the company to which the proceedings relate.
“(5) Unless the Court orders to the contrary, notice in Form 78 of an application to which this rule applies must be published in the manner prescribed by rule 104 not later than 5 days before the date appointed for directions under Order 2a, rule 8.
“(6) If a person on whom the application has not been served intends to appear on the date appointed for directions under Order 2a, rule 8, he or she must:
(a) file a notice of appearance in Form 79; and
(b) serve that notice of appearance on the applicant;
not later than 2 days before the date appointed for directions.
“(7) At the first directions hearing or any subsequent directions hearing, the Court may direct the applicant or its solicitors to prepare and file a list in Form 80 of the names and addresses of persons who have given notice of their intention to appear in the proceedings.
“13. (1) This rule applies to an application for an order confirming the issue of shares at a discount under subsection 190 (3).
“(2) Evidence brought by the applicant in support of an application must include an affidavit setting out:
(a) the prescribed information; and
(b) the amounts of the authorised and issued share capital of the company, and the classes, if any, of the issued shares;
which may be in or substantially in Form 128.
“(3) As soon as practicable after filing an application under this rule, and in any event not later than 14 days after the date of filing the application, the applicant (if it is not the company to which the proceedings relate) must serve that application and the affidavit in support of the application on the company to which the proceedings relate.
“(4) Unless the Court orders to the contrary, notice in Form 78 of an application to which this rule applies must be published in the manner prescribed by rule 104 not later than 5 days before the date appointed for directions under Order 2a, rule 8.
“(5) If a person on whom the application has not been served intends to appear on the date appointed for directions under Order 2a, rule 8, he or she must:
(a) file a notice of appearance in Form 79; and
(b) serve that notice of appearance on the applicant;
not later than 2 days before the date appointed for directions.
“(6) At the first directions hearing or any subsequent directions hearing, the Court may direct the applicant or its solicitors to prepare and file a list in Form 80 of the names and addresses of persons who have given notice of their intention to appear in the proceedings.
“(7)” Unless the Court orders to the contrary, an office copy of an order confirming the issue of shares at a discount must be lodged with the Commission within 14 days after the order is made, or within any other time specified by the Court in the order, and the order will not take effect until after that office copy has been lodged.
“14. (1) This rule applies to an application for an order confirming a reduction of the share capital of a company under section 195.
“(2) In a directions hearing in proceedings under this rule, the Court may:
(a) determine whether all or any of the provisions of subsection 195 (3) are to apply; and
(b) where settlement of a list of creditors is required, fix a date with reference to which the list of creditors is to be made out for the purposes of paragraph 195 (3) (a); and
(c) fix the date by which a creditor must furnish particulars of his or her claim for the purposes of paragraph 195 (3) (b); and
(d) give directions as to the publication of advertisements for the purposes of section 195 or this rule; and
(e) give directions as to the compliance with any other requirements of section 195 or this rule; and
(f) set a date for the hearing of the application.
“(3) Subrules (4) to (11) (inclusive) apply where the Court fixes a date for the purposes of paragraph 195 (3) (a).
“(4) Within 7 days after the date fixed by the Court for the purposes of paragraph 195 (3) (a), the company must:
(a) make out a list of the creditors of the company on that date; and
(b) file an affidavit in Form 81 annexing that list of creditors and verifying the truth of that list.
“(5) A list of creditors made out under subrule (4) must contain:
(a) so far as practicable, the names and addresses of the creditors of the company; and
(b) the amount due to each creditor for any debt, claim or liability within the scope of the inquiry; and
(c) if a debt is payable on a contingency or is not ascertained, or if a claim or liability is not ascertained, an estimate of the value of that debt, claim or liability.
“(6) A copy of the list of creditors made out under subrule (4) must be kept at the company’s registered office and at the office of its solicitors in the proceedings and must be made available for inspection at all times during which the company’s office is required to be open and accessible to the public under section 217.
“(7) A list of creditors made available for inspection under subrule (6) must show:
(a) the names and addresses of creditors; and
(b) a figure for the total amount due to creditors, including the total value of any estimated debts, claims or liabilities;
and, unless the Court orders to the contrary, the amount due to particular creditors must not be shown on that list.
“(8) Within 7 days of filing the affidavit required under subrule (4), the company must:
(a) publish a notice in Form 82 in the manner prescribed by rule 104; and
(b) serve a notice in Form 83 on each creditor whose name is contained in the list of creditors made out under subrule (4).
“(9) A notice published or served under subrule (8) must specify the date by which a creditor must furnish particulars of his or her
claim which was fixed by the Court for the purposes of paragraph 195 (3) (b).
“(10) Within 7 days after any date fixed by the Court under paragraph 195 (3) (b) as being the final day on which creditors whose names are not entered on the list of creditors may claim to be so entered, the company must file:
(a) a notice of motion in the proceedings seeking directions from the Court; and
(b) an affidavit in Form 84 which must be made by the company secretary, the company’s solicitor and a managing director, director or other responsible officer of the company and must annex:
(i) a copy of the notice published by the company under subrule (8) (a); and
(ii) a copy of the notice served by the company on each creditor under subrule (8) (b); and
(iii) the list of creditors made out by the company under subrule (4); and
(iv) lists in alphabetical order of the persons who have sent in particulars of their debts or claims set out as in Schedules D and E to Form 84; and
(c) a list in alphabetical order of all creditors who have been paid or who have consented to the proposed reduction of capital, verified by an affidavit by a responsible officer or officers of the company; and
(d) a list in alphabetical order of all creditors whose debts or claims the company does not admit at their full amount but is willing to provide for at their full amount, verified by an affidavit by a responsible officer or officers of the company.
“(11) In a directions hearing in relation to a motion for directions under subrule (10), the Court may:
(a) order that the company serve a notice in Form 85 upon a person claiming to be a creditor of the company in an amount other than that admitted by the company, specifying the date on which that person’s claim to be a creditor will be heard; or
(b) direct that any claim of that person be investigated in such manner as the Court thinks fit; or
(c) require the claimant to provide particulars or evidence of his or her claim or to produce any security relating to the claim; or
(d) allow the claim in whole or in part and fix the amount of the claim or disallow the claim in whole or in part; or
(e) give such directions as it thinks proper for securing the claim in the manner specified in paragraph 195 (3) (c).
“(12) After hearing the claim of any person claiming to be a creditor of a company other than that admitted by the company, the Court may settle a list of persons entitled to object to the application under subsection 195 (3).
“(13) The Court may disallow a claim in whole or in part or limit the amount of that claim to the amount set out beside the claimant’s name in the list of creditors filed by the company under subrule (4) if the claimant does not:
(a) comply with a notice served under subrule (11) by filing an affidavit setting out all relevant information and serving that affidavit on the company before the time specified in that notice; and
(b) attend at the hearing of his or her claim at the time specified in that notice; and
(c) produce any securities or documents relating to the claim.
“(14) Following settlement of a list of the names of creditors entitled to object under section 195 (3) (b), the Court may appoint a date for hearing the application for an order confirming the reduction of the share capital of the company under section 195 (5).
“(15) Unless the Court orders to the contrary, the company must:
(a) publish notice in Form 86 of the hearing of the application in the manner prescribed by rule 104 not later than 5 days before the date appointed for the hearing of the application; and
(b) serve a copy of the application and of each affidavit on which it intends to rely at the hearing of the application on the Commission not later than 5 days before the date appointed for the hearing of the application.
“(16) Subject to subrule (17), any creditor of the company:
(a) who has not consented to the proposed reduction of capital; and
(b) whose debt or claim has not been discharged or secured in full;
may appear at the hearing and oppose the application, unless the company has indicated that it is willing to appropriate the amount of that debt or claim in such a manner as the Court directs.
“(17) Unless the Court orders to the contrary, a creditor who appears pursuant to subrule (16) is entitled to his or her costs of doing so.
“(18) A person whose name appears on the list of creditors settled by the Court as entitled to object to the application, and who intends to appear at the hearing of the application, must:
(a) file a notice of appearance in Form 79 together with any affidavit on which he or she intends to rely; and
(b) serve that notice of appearance and any such affidavit on the company;
not later than 2 days before the date appointed for the hearing of the application.
“(19) The company or its solicitors must prepare a list in Form 80 of the names and addresses of persons who have given notice of their intention to appear under subrule (18) and must file that list in Court at the time the application is heard.
“(20) Evidence brought by the company in support of an application to which this rule relates must include an affidavit setting out:
(a) the prescribed information; and
(b) the amounts of the authorised and issued share capital of the company, and the classes, if any, of the issued shares;
which may be in or substantially in Form 128.
“(21) On hearing the application, the Court may:
(a) give directions under paragraph 195 (3) (c) to secure payment of the debt or claim of a creditor who does not consent to a proposed reduction of the capital of the company; and
(b) may require such further evidence and give such further directions as are necessary for that purpose.
“(22) In a directions hearing under this rule or on hearing the application, the Court may:
(a) order that a creditor shown on the list filed under subrule (10) as consenting to the proposed reduction of capital be permitted to appear at the hearing of the application and oppose that application, if the Court is satisfied that the creditor did not consent or that the circumstances of his or her consent were such that an order should be made; and
(b) for the purposes of this subrule, direct such investigation, require such information and hear such evidence as it thinks fit.
“(23) An order confirming a reduction of capital must contain the particulars required under subsection 195 (6).
“15. Within 7 days after an order confirming a reduction of capital is made, or within any other time specified by the Court in the order,
the company must:
(a) lodge an office copy of the order with the Commission; and
(b) publish a notice in Form 87:
(i) once in the
Gazette ; and(ii) once in a prescribed newspaper; and
(iii) in such other publications as the Court directs.
“16. (1) This rule applies to an application under subsection 205 (12) opposing the giving by a company of financial assistance for the purpose of or in connection with an acquisition or proposed acquisition of shares or units of shares in the company or in a holding company of the company, where a special resolution has been passed by the company under paragraph 205 (10) (a).
“(2) The application must be accompanied by an affidavit setting out:
(a) the prescribed information; and
(b) a statement of the grounds of the application.
“(3) An affidavit filed under subrule (2) may be in or substantially in Form 128.
“(4) As soon as practicable after filing:
(a) the application; and
(b) the affidavit in support of the application;
and in any event not later than 14 days after the date of filing the application, the applicant must serve the application and that affidavit on the company concerned.
“17. (1) This rule applies to an application by a creditor under section 206ld for an order prohibiting the making of offers in relation to a proposed buy-back scheme or the entering into of a proposed buy-back.
“(2) The application must be accompanied by:
(a) an affidavit setting out the prescribed information which may be in, or substantially in, Form 128; and
(b) an affidavit:
(i) setting out a statement of the grounds of the application; and
(ii) annexing a copy of the notice relating to the proposed buy back scheme or buy-back published by the company in a newspaper under section 206lc.
“(3) As soon as practicable after filing the application and affidavits in support of the application, and in any event not later than 14 days after the date of filing the application, the applicant must serve the application and affidavits on:
(a) the company concerned; and
(b) the Commission.
“18. (1) This rule applies to an application for leave to manage a corporation under subsection 229 (1) or 229 (3).
“(2) The evidence in support of the application must include:
(a) an affidavit made not earlier than 7 days before the application is filed setting out the prescribed information, which may be in or substantially in Form 128; and
(b) an affidavit made not earlier than 7 days before the application is filed setting out any other material facts to be relied on by the applicant in support of the application.
“(3) As soon as practicable after filing the application and the affidavit in support of the application, and in any event not later than 14 days after the date of filing the application, the applicant must serve the application and that affidavit on:
(a) the corporation concerned; and
(b) the Commission.
“19. (1) This rule applies to an application for an order under section 230 prohibiting a person from managing a corporation.
“(2) The evidence in support of the application must include:
(a) an affidavit made not earlier than 7 days before the application is filed setting out the prescribed information, which may be in or substantially in Form 128; and
(b) an affidavit made not earlier than 7 days before the application is filed setting out:
(i) any material facts to be relied upon by the applicant in support of the application; and
(ii) a statement of the grounds of the application and a reference to the paragraph or paragraphs of subsection 230 (1) on which the applicant relies.
“(3) As soon as practicable after filing the application and the affidavit in support of the application, and in any event not later than 14 days after the date of filing the application, the applicant must serve the application and that affidavit on:
(a) the person in relation to whom orders are sought; and
(b) any body corporate to which the application relates and any liquidator, provisional liquidator or official manager of that body corporate; and
(c) if the Commission is not the applicant, on the Commission.
“20. (1) This rule applies to an application for an order or orders under section 260.
“(2) The evidence in support of the application must include:
(a) an affidavit made not earlier than 7 days before the application is filed setting out the prescribed information, which may be in or substantially in Form 128; and
(b) an affidavit made not earlier than 7 days before the application is filed setting out:
(i) any other material facts to be relied upon by the applicant in support of the application; and
(ii) a statement of the grounds of the application and a reference to the subparagraph of subsection 260 (1) on which the applicant relies.
“(3) The affidavit setting out the matters referred to in paragraph (2) (b) must be made by a person who can depose of his or her own knowledge to at least some of the grounds relied upon in support of the application.
“(4) As soon as practicable after filing the application and the affidavit in support of the application, and in any event not later than 14 days after the date of filing the application, the applicant must serve the application and that affidavit on:
(a) the company; and
(b) any person against whom orders are sought in the application.
“(5) If the remedies sought in an application under section 260 include an order that the company be wound up, the applicant must:
(a) at the same time as filing the application and any affidavit in support of the application, apply in Form 88 for the Registrar’s nomination of an official liquidator who will be appointed as liquidator if an order for the winding up of the company is made, unless the Court is satisfied that some other official liquidator should be appointed; and
(b) within 14 days of filing the application, file a written acknowledgement in Form 89 signed by the official liquidator nominated by the Registrar under paragraph (a).
“(6) Unless the Court orders to the contrary, notice of the application in Form 90 must be published in the manner prescribed by rule 104 not earlier than 3 days after the date the application was served on the company and not later than 5 days before the date appointed for directions under Order 4, rule 8.
“(7) If a person on whom the application has not been served intends to appear on the date appointed for directions under Order 2a, rule 8, he or she must:
(a) file a notice of appearance in Form 79; and
(b) serve that notice of appearance on the applicant and on the company concerned;
not later than 2 days before the date appointed for directions.
“(8) At the first directions hearing or any subsequent directions hearing, the Court may direct the applicant or its solicitors to prepare and file a list in Form 80 of the names and addresses of person who have given notice of their intention to appear in the proceedings.
“(9) Without limiting any right of inspection otherwise available under Order 46, rule 6, the Registrar must:
(a) permit a person who is or claims to be a contributory, member, creditor or officer of the company to inspect an application for an order or orders under section 260 and any affidavits in relation to the application which are in the Registrar’s custody; and
(b) on payment of the prescribed fee, provide a person who is or claims to be a contributory, member, creditor or officer of the company with a copy of the application and any affidavits in relation to the application which are in the Registrar’s custody.
“(10) The Registrar may prescribe a form of application to be completed by a person who seeks to inspect or be provided with a copy of a document under subrule (9).
“21. (1) Evidence brought by an applicant in support of an application for leave to enforce a charge under subsection 267 (3) must include:
(a) an affidavit setting out the prescribed information, which may be in or substantially in Form 128; and
(b) an affidavit setting out:
(i) the evidence on which the applicant relies to establish that the company which created the charge was solvent immediately after the creation of the charge; and
(ii) any other matters relevant to the application.
“(2) Unless the Court orders to the contrary, notice of an application for an order under subsection 267 (3) need not be published.
“22. (1) This rule applies to an application to the Court to approve a compromise or arrangement in relation to a Part 5.1 body.
“(2) An application relating to a compromise or arrangement under section 411 may be commenced in Form 5. Any further application
relating to that compromise or arrangement may be made by notice of motion in the proceedings.
“(3) Evidence brought by the applicant in support of an application for an order under subsection 411 (1) that a meeting or meetings be convened must include:
(a) an affidavit setting out:
(i) the prescribed information; and
(ii) the amounts of the authorised and issued share capital of the company, and the classes, if any, of the issued shares;
which may be in or substantially in Form 128;
(b) an affidavit setting out:
(i) the names, addresses and amounts owed by the company to each of its creditors; and
(ii) details of any security held by any creditor of the company; and
(iii) details of any priority or preference to which any creditor would be entitled if the company was then to be wound up; and
(iv) details of any prospective or contingent creditor; and
(v) a statement of the sources from which the list of creditors and their addresses has been compiled and a statement as to the likely accuracy and completeness of that list; and
(vi) a statement that, to the best of the knowledge of the person making the statement, there are no prospective, contingent or other creditors of the company or threatened claims against the company other than those which have been disclosed in the information provided under paragraph (b), and setting out the basis of knowledge of the person making the statement; and
(vii) a statement of any Australian State or Territory or any other country in which the company has carried on business or dealings; and
(viii) details of any other compromise or arrangement which has been proposed to be implemented in relation to the company and of any liquidation, official management, receivership or other arrangements between the company and its members or creditors; and
(ix) a statement as to the terms of the proposed compromise or arrangement; and
(x) where the company is already in liquidation or under official management, details of any outstanding steps to be taken in the liquidation or the official management; and
(xi) a statement of any other matters relevant to the application; and
(xii) a copy of the proposed compromise or arrangement and the draft explanatory statement in relation to the proposed compromise or arrangement.
“(4) Subject to any direction by the Court to the contrary, evidence brought by an applicant in support of an application for an order under subsection 411 (1a) or 411 (1b) that a meeting or meetings of creditors of a holding company and each of its wholly-owned subsidiaries be held on a consolidated basis must include:
(a) an affidavit, which may be in or substantially in Form 128, setting out:
(i) the names of the holding company and each of the Part 5.1 bodies which are said to be wholly-owned subsidiaries of the holding company (“the relevant subsidiaries”); and
(ii) the amounts of the authorised and issued share capital of the holding company, and the classes, if any, of the issued shares; and
(iii) the prescribed information in relation to the holding company and each of the relevant subsidiaries;
(b) an affidavit setting out:
(i) a statement of the evidence on which the applicant relies to establish that each of the relevant subsidiaries is a wholly-owned subsidiary of the holding company; and
(ii) a statement as to the terms of the proposed compromise or arrangement; and
(iii) a statement of the matters on which the applicant relies in support of the application, including a statement of the number of meetings between creditors which would be required in the absence of an order under subsection 411 (1a) or 411 (1b); and
(iv) a statement of any other matters relevant to the application; and
(v) a copy of the proposed compromise or arrangement and the draft explanatory statement in relation to the proposed compromise or arrangement.
“(5) If a person making an affidavit or affidavits filed under subrule (3) or subrule (4) cannot depose to all the contents of the affidavit from his or her own kowledge, he or she must specify details of the sources of information contained in the affidavit and state his or her belief in the truth of that information.
“(6) Prior to the hearing of an application under subsection 411 (1), 411 (1a) or 411 (1b), the applicant must file an affidavit stating that:
(a) the person who is nominated to act as chairman or alternate
chairman of a meeting ordered to be convened under subsection 411 (1), 411 (1a) or 411 (1b):
(i) is willing to act in that capacity; and
(ii) does not have and has not previously had any relationship or dealing with the company or any other person interested in the proposed compromise or arrangement, except as disclosed in the affidavit; and
(iii) does not have any interest or obligation which may give rise to a conflict of interest in acting as chairman of the meeting, except as disclosed in the affidavit; and
(b) the person proposed to be appointed to administer the proposed compromise or arrangement does not fall within paragraphs (a) to (f) (inclusive) of subsection 411 (7), except as disclosed in the affidavit.
“(7) Unless the Court orders to the contrary, notice in Form 91 of:
(a) an application for an order approving a compromise or arrangement under subsection 411 (4); or
(b) an application for an order in respect of the reconstruction or amalgamation of a Part 5.1 body or bodies under subsection 413 (1);
must be published in the manner prescribed by rule 104 not later than 5 days before the date appointed for the hearing of the application.
“(8) A copy of an application for an order under subsection 411 (4) or 413 (1) must be served on the Commission, together with copies of any affidavits upon which the applicant intends to rely, as soon as practicable after the notice of motion is filed and in any event not later than 14 days after the date of filing the application.
“(9) If a person on whom the application has not been served intends to appear at the hearing of the application, he or she must:
(a) file a notice of appearance in Form 79 together with any affidavit on which he or she intends to rely; and
(b) serve that notice of appearance and any such affidavit on the applicant;
not later than 2 days before the date appointed for the hearing of the application.
“(10) If the Commission intends to appear at a hearing of the application seeking approval of the compromise or arrangement and to oppose the grant of that approval, it must:
(a) file a notice of intervention in Form 127 together with any affidavit on which it intends to rely; and
(b) serve that notice of intervention and any such affidavit on the applicant;
not later than 2 days before the date appointed for the hearing of the application.
“(11) At the first directions hearing or any subsequent directions hearing, the Court may direct the applicant or its solicitors to prepare and file a list in Form 80 of the names and addresses of persons who have given notice of their intention to appear in the proceedings.
“23. The applicant must lodge an office copy of an order of the Court under subsection 411 (1), 411 (4), 411 (6) or 413 (1) with the Commission and serve an office copy of the order on any person appointed to administer the compromise or arrangement within 7 days of the date on which the order is made, or within any other time specified by the Court in the order.
“24. (1) A complaint to the Court under subsection 411 (9) may be made by filing a notice of motion seeking an inquiry in respect of the complaint and an affidavit setting out the relevant circumstances in the proceedings in which the compromise or arrangement was approved by the Court.
“(2) A report to the Court by the Commission in respect of the conduct of a person administering a compromise or arrangement may be made by filing:
(a) a notice of motion seeking orders in respect of the report; and
(b) an affidavit setting out the relevant circumstances or annexing a copy of the report;
in the proceedings in which the compromise or arrangement was approved by the Court.
“(3) A report filed under subrule (2) must not be inspected or used except with the leave of the Court.
“(4) The Commission, a creditor or contributory of a Part 5.1 body, or a person aggrieved by the conduct of a person administering a compromise or arrangement may seek an order that the person administering the compromise or arrangement or any other person be examined under subsection 411 (9) by filing a notice of motion in the proceedings in which the compromise or arrangement was approved by the Court.
“(5) Rule 81 applies, with such adaptations as may be necessary, to an examination under subrule (4).
“25. (1) Where a compromise or arrangement has been proposed between a Part 5.1 body and its creditors or any class of them, an application under subsection 411 (16) for an order restraining further proceedings in an action or civil proceeding against that body may be made by notice of motion in the proceedings commenced under subsection 411 (1).
“(2) Unless the Court orders to the contrary, the notice of motion referred to in subrule (1) must be served on the person bringing the action or proceeding against that body.
“26. On the application of a person whose interests are affected by a compromise or arrangement approved by the Court under section 411, the Court may fix or review the remuneration of the person appointed to administer the compromise or arrangement.
“27. (1) A trustee or manager under a compromise or arrangement or any member bound by a compromise or arrangement may apply to the Court by notice of motion for directions in relation to any matter arising in the administration of the compromise or arrangement.
“(2) A notice of motion under subrule (1) must indicate the matter in respect of which directions are sought.
“(3) The Court may direct that notice of an application under subrule (1) be given by advertisement or otherwise to such persons or classes of persons as the Court determines, and may adjourn the application for that purpose.
“28. An application for:
(a) an order under paragraph 419 (3) (d) in respect of a person who entered into or assumed control of property of a corporation and was not properly appointed as receiver; and
(b) an order under paragraph 419 (3) (e) in respect of a person who purported to appoint the first person as receiver;
may be made by notice of motion in the proceedings referred to in paragraph 419 (3) (c).
“29. (1) A complaint to the Court under paragraph 423 (1) (b) or a report to the Court by the Commission under subsection 423 (2) may be made:
(a) in the case of a receiver appointed under an instrument, by filing:
(i) an application in Form 5 seeking an inquiry in respect of the complaint; and
(ii) (A) in the case of a report to the Court by the Commission under subsection 423 (2), an affidavit setting out the relevant circumstances or annexing a copy of the report; or
(B) in any other case, an affidavit setting out the relevant circumstances; or
(b) in the case of a receiver appointed by the Court, by filing:
(i) a notice of motion seeking an inquiry in respect of the complaint in the proceeding in which the receiver was appointed; and
(ii) (A) in the case of a report to the Court by the Commission under subsection 423 (2), an affidavit setting out the relevant circumstances or annexing a copy of the report; or
(B) in any other case, an affidavit or affidavits setting out the relevant circumstances.
“(2) A report by the Commission under subsection 423 (2) must not be inspected or used without the leave of the Court.
“(3) The Commission, a creditor or contributory or a person aggrieved by the conduct of a receiver of property of a corporation may seek an order that the receiver or any other person be examined under subsection 423 (3):
(a) in the case of a receiver appointed under an instrument, by filing an application in Form 5; or
(b) in the case of a receiver appointed by the Court, by filing a notice of motion in the proceeding in which the receiver was appointed.
“(4) Rule 81 applies, with such adaptations as may be necessary, to an examination under subrule (3).
“30. (1) An application to the Court by a receiver of property of a corporation under section 424 must indicate the matter in respect of which the receiver seeks the directions of the Court.
“(2) The Court may direct that notice of an application under section 424 be given by advertisement or otherwise to such persons or
classes of persons as the Court determines, and may adjourn the application for that purpose.
2. Statutory Rules 1937 No. 85 as amended to date. For previous amendments
see Note 2 to Statutory Rules 1990 No. 2 andsee also Statutory Rules 1990 Nos. 2, 129 and 372.
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