Supreme Court Amendment Rules (No. 4) 1994 (WA)
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WESTERN 3047 AUSTRALIAN
GOVERNMENTt t
G aze e
28 June 19941 GOVERNMENT GAZETTE, WA 3049 1
SUPREME COURT ACT 1935
SUPREME COURT AMENDMENT RULES (NO. 4) 1994
Made by the Judges of the Supreme Court.
Citation
1. These rules may be cited as the Supreme Court Amendment Rules
(No. 4) 1994.
Commencement
2. These rules come into operation on 1 August 1994.
Principal rules
| 3. | In these rules the Rules of the Supreme Court 1971* | are referred to as |
the principal rules.
[* Reprinted in the Gazette of 29 March 1986 at pp. 779-1100. For amendments to 30 May 1994 see 1993 Index to Legislation of Western Australia, Table 4, pp. 267-9, and Gazette of 1 March 1994.)
Order 1 amended
4. Order 1 Rule 3 of theprincipal rules is amended in item 1 of the Table
to paragraph (2) by deleting "Proceedings in" and substituting the
following -
Subject to Order 81G Rule 25 (1) proceedings in
Order 81G inserted
5. After Order 81F of the principal rules the following order is inserted -
CORPORATIONS RULES
Interpretation
1. (1) Subject to this rule words and expressions defined in the Corporations Law and used in this order have the same respective meaning as in the Corporations Law.
3050 GOVERNMENT GAZETTE, WA [28 June 1994 (2) In this order, unless the contrary intention appears
"Code" means the Companies (Western Australia) Code;
"Corporations Law" means the Corporations Law of Western Australia;
"Commission" means the Australian Securities Commission established by the Australian Securities
Act 1989 of the Commonwealth;
"form" means a form referred to in Part 1 of the Seventh
Schedule;
"liquidator" includes a provisional liquidator;
"section" means a section of the Corporations Law;
"solicitor", in relation to a party to proceedings under these Rules, includes any solicitor acting as agent for the solicitor in the proceedings and includes his Perth agent acting in the matter.
Forms
2. (1) A form in Part 1 of the Seventh Schedule shall be completed substantially in accordance with the directions specified in or relating to the form. used for the purposes to which they are respectively applicable, (2) The forms in Part 1 of the Seventh Schedule shall be with variations as circumstances require, but a failure to use or a defect, irregularity or deficiency in the use of a form shall not or a document unless the Court, on the application of a person affect, prejudice or invalidate a proceeding, a step in a proceeding
concerned, so orders.
28 June 19941 GOVERNMENT GAZETTE, WA 3051
PART 2 - JURISDICTION
Court's jurisdiction under the Corporations Law to be exercised in accordance with the Rules
3. The jurisdiction conferred on the Court by the Corporations Law or the ASC Law shall be exercised in accordance with the provisions of these Rules.
Jurisdiction of Master
4. (1) Subject to Rule 29 and to paragraphs (2) and (3)7 a Master may hear and determine any application under or arising out of any provision of the Corporations Law, the ASC Law or these Rules other than those referred to in column 1 of Part 2 of the Seventh Schedule.
With the consent of all parties any application under or arising out of anyprovision referred to in column 1 of Part 2 of the Seventh Schedule may be heard and determined by a Master.
(2)
relief under section 1322 of the Corporations Law which is (3) A Master may hear and determine any application for
incidental to and arises out of an application otherwise within the
jurisdiction of the Master.The descriptions in column 2 of Part 2 of the Seventh affect the operation of this Order.
Schedule are inserted for convenience of reference only and do not (4)
the Court or a Judge in respect of every application entertained (5) A Master may exercise any of the powers conferred on by him under this Order.
3052 GOVERNMENT GAZETTE, WA [28 June 1994 4
PART 3— PROCEEDINGS GENERALLY
Rules and general practice to apply
5. Subject to this Order and the Corporations Law the general practice of the Court applies in relation to proceedings to which this Order applies. Process 6. Subject to this Order all applications required or permitted by the Corporations Law to be made to the Court shall be -
(a) by application, in the case of an originating proceeding; and
(b) by summons, if made in any proceeding already commenced in the Court.
Proceedings in chambers in first instance
7. Every application and summons to which this Order applies shall in the first instance be heard in chambers but the Court may, at any stage of the proceedings, order that an application be heard and determined in open court.
Title of proceedings - (Form 1) Applications - (Form 2)
8. (1) All documents in a proceeding to which this Order applies shall be entitled as in Form 1 "In the Supreme Court of Western Australia" and "In the Matter of..." the section of the Corporations Law under which the proceeding is brought and "In
the Matter of..." the corporation or person to which the proceeding relates (specifying the corporation's Australian Company Number or Australian Registered Body Number) together with where applicable, the addition of the words "(in liquidation)" "('receiver
appointed)" "(receiver and manager appointed)", (controller acting)", "(administrator appointed)" or (subject to deed of company arrangement)". (2) Every application shall be in Form 2 and shall state specifically the relief claimed. Application to be supported by affidavit 9. (1) Every application shall be supported by affidavit, and
where a copy of the application is required to be served, a copy of
the affidavit shall be served with it.(2) An affidavit in support of an application made without notice to any person shall show the parties interested and their interests.
28 June 1994] GOVERNMENT GAZETTE, WA 3053 5
(3) The affidavit shall show -
(a) the nature of the applicant's claim; (b) the grounds relied upon for the relief sought; and (c) the facts material to the grounds relied upon. Filing of documents
10. (1) Every application, summons and other notice to which this Order applies shall be filed.
later time the Registrar on the request of the person filing it shall (2) On the filing of an application or summons or at any
seal with the seal of the Court a sufficient number of copies for
service and proof of service.
Law shall be filed within the time fixed by this Order, and where (3) All documents in a proceeding under the Corporations
no time for filing is expressly fixed they shall, unless the Court otherwise permits, be filed before the commencement of the hearing to which they relate.
Service of documents
11. (1) Unless the Court otherwise orders a copy of every application, summons and other notice to which this Order applies shall as soon as practicable, after the original has been filed, be served on every person against whom any order or relief is sought and upon the corporation to which the application relates.
In the case of an application referred to in paragraph (1) on or notice of a proceeding be given to, any person who might be (3) The Court may at any time direct that service be effected
personal service is required. (2) afiected by the order or relief sought and may at any time direct the manner in which service be effected or notice be given, and
Mode of service any person so served or notified shall be entitled to be heard. 12. Unless the Corporations Law or this Order otherwise provides or the Court otherwise orders -
(a) all notices and other documents except those of which left at or sent by pre-paid post to the last known
personal service is required are sufficiently served if
any) at which the person has authorized service on him to be effected, and unless the contrary is proved address of the person to be served or the address (if the notice or document if so sent shall be considered to be served at the time it ought to be delivered in the ordinary course of post;
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(b) service is not invalid only because the name or any of the names, other than the surname of the person to be served has been omitted from the document containing his name if the Court is satisfied that in other respects service of the document has been sufficient;
(c) service of a document on behalf of that person and when a solicitor for a person to be served accepts endorses the original or a copy to that effect that
service is sufficient.Time for service
13. Unless this Order otherwise provides or the Court
otherwise orders every application shall be served not less than 7
days before the return of the application.
Notice of address for service (Form 3)
14. (1) A person served with an application shall, before
taking any step in the proceeding or being heard by the Court,
file and serve a notice of address for service in Form 3.
the applicant not less than 2 days before the return day of the (2) A notice referred to in paragraph (1) shall be served on application.
Gazettal and advertisement
15. Unless this Order otherwise provides or the Court otherwise orders -
(a) all matters required to be gazetted shall be published once in the Commonwealth of Australia Gazette;
(b) all matters required to be gazetted shall be published once in a Perth daily newspaper;
(c) order shall be gazetted by the liquidator; all matters required to be gazetted after a winding up (d) matter which has been gazetted or advertised has where any winding up order is amended, or where a been amended or altered, or a matter has been wrongly or inaccurately gazetted or advertised, the order or matter shall be re-gazetted or re-advertised with the necessary amendments or alterations.
28 June 19941 GOVERNMENT GAZETTE, WA 3055 Memorandum of gazettal and advertisement
16. Unless this Order otherwise provides or the Court
otherwise orders, where any matter is gazetted or advertised in
connection with any proceeding under the Corporations Law -
(a) a memorandum referring to and annexing a copy of advertisement, signed by the person responsible for the gazettal or advertisement, or his solicitor, shall be filed -
and specifying the date of the published gazettal or
(i) if the gazettal or advertisement relates to proceedings in connection with a winding up by
the Court, by the liquidator; and
(ii) in any other case, by the party responsible for
the gazettal or advertisement;
or
(b) the memorandum is prima fade evidence that the gazettal or advertisement to which it refers was duly effected.
Notice of intention to attend (Form 4)
17. (1) Every person intending to attend on the hearing of an application that has been gazetted or advertised under this Order
shallgive to the applicant or his solicitor notice in Form 4 of his
intention.
the person giving it, or his solicitor, and give the address for (2) A notice referred to inparagraph (1) shall be signed by
service of the person signing it and be served, or if sent by post shall be posted, in such time as in the ordinary course of post to reach the address no later than 4.00 p.m. on the day before the day appointed for the hearing of the application, or, if that day is a Monday or Tuesday following a public holiday, not later than 4.00 p.m. on the Friday before that day.
without leave of the Court, attend on the hearing of the (3) A person who fails to comply with this Rule shall not, application.
applicant or by a person who has been served with the (4) Nothing in the Rule requires notice to be given by the application.
Court to do so, produce for inspection any notice given pursuant (5) The applicant or his solicitor shall, when required by the to this Rule.
List of persons intending to attend (Form 5)
18. (1) The applicant or his solicitor shall prepare a list in Form 5 of the names and addresses of the persons who have
3056 GOVERNMENT GAZETTE, WA (28 June 1994 given notice pursuant to Rule 18 of their intention to attend and
of their respective solicitors.
is heard a fair copy of the list, or if a notice of intention to attend (2) On the day of the hearing of the application and before it
has not been given a statement to that effect, shall be handed by the applicant or his solicitor to the associate to the Judge or the Master appointed to hear the matter.
Directions at hearing
19. On the hearing of an application the Court may give appropriate directions, including directions as to notice to be given by advertisement or otherwise to persons interested, and may adjourn the application to enable them to attend.
Leave to creditor etc. to be heard - representation of creditors or contributories, etc.
20. (1) In any proceeding under the Corporations Law the Court may grant leave on appropriate terms to any person who is, or claims to be, a creditor, contributory or officer of the corporation, or is otherwise interested in the proceedings, to be heard in the proceeding without becoming a party, and may at any time revoke that leave.
to whom leave has been granted under paragraph (1) has (2) If the Court considers that the attendance of any person
occasioned additional costs to any party or to the corporation which ought to be borne by him, it may direct such costs, or a gross sum in lieu of such costs, to be paid by him, and he shall not be entitled to be heard further in the proceeding until he has duly paid those costs or that sum.
may order that any person who claims to be a creditor, (3) In any proceeding under the Corporations Law the Court
contributory or officer of the corporation, or is otherwise interested in the proceedings, be added as a respondent and give directions as to the further conduct of the proceeding.
(4) Leave may be granted to a person under paragraph (1), and an order may be made adding a person under paragraph (3)
on application by the person or by any party or of the Court s own
motion. more of the creditors or contributories to represent before the (5) The Court may from time to time appoint any one or Court, at the expense of the corporation, all or any class of the creditors or contributories on any question or in relation to any proceeding before the Court and may remove any person so appointed.
paragraph (5) to represent one class, the persons appointed shall (6) If more than one person is appointed under employ the same solicitor to represent them.
28 June 19941 GOVERNMENT GAZETTE, WA 3057 Inquiry as to debts, etc.
21. (1) The Court may direct an inquiry as to any or any
class of debts, claims or liabilities affecting any corporation to
which any proceeding under the Corporations Law relates.
(2) Where the Court directs an inquiry under paragraph (1), Rules 42 to 51 apply, with any necessary modification, as they apply where the Court directs that a list of creditors be settled.
Reports
22. (1) Where by a provision of the Corporations Law or of the Corporations Regulations or of this Order or by any order of the Court a report, or a copy of a report, is required to be made or furnished and no other method of making or furnishingit is specified, the report or copy shall be made or furnished by filing it.
(2) A report made under section 411 (9), 423 (2), 452 (4) or 536 (2) of the Corporations Law shall not be inspected or used except by leave of the Court.
Meetings ordered by the Court
23. Subject to the Corporations Law and to anydirections of the Court, regulations 5.6.12 to 5.6.36A of the Corporations Regulations apply so far as they are capable of application to and in respect of a meeting ordered by the Court.
Inquiry and certificate by the Registrar as to meetings
24. (1) Where an order has been made for the convening of a meeting to consider a resolution the party obtaining the order or his solicitor shall after the meeting has been held, attend before a Registrar on a date to be appointed by a Registrar.
(2) The Registrar shall inquire whether the meeting was duly convened and held and whether the resolution was duly
passed at the meeting in accordance with the terms of the order.
(3) The Registrar shall certify to the Court -
(a) whether the meeting was duly convened and held and the resolution was duly passed; and (b) if in his opinion any irregularity occurred in the convening or holding of the meeting or in the passing of the resolution, the nature and extent of the
irregularity.
(4) An order based on any resolution mentioned in paragraph (1) shall not be made until a certificate of the Registrar in accordance with this Rule has been filed.
$058 GOVERNMENT GAZETTE, WA [28 June 1994 10
PART 4— SPECIAL REQUIREMENTS IN PARTICULAR MATFERS Matters to be gazetted and advertised and evidence provided (Form 6)
25. (1) This Rule applies to an application for an order under
any of the provisions of the Corporations Law referred to in
column 1 of the Table to this paragraph.
TABLE
Column 1 Column 2 Provision Description
Section 167 Cancellation etc. of change of status of
company etc.Section 168 Cancellation etc. of change from public to
proprietary company etc.Section 172
Cancellation etc. of alteration of the memorandum of a company Section 190 Confirmation of issue of shares at a
discountSection 194 (1) Validation of issue or allotment of shares Section 197 (4) abrogation of rights of holders of shares
Cancellation etc. of variation or in a class of shares Section 198 (6) abrogation or alteration of rights attached
Cancellation etc. of variation or to shares Section 199 (6) abrogation or alteration of special rights
Cancellation etc. of variation or of a member
Section 202 Approving payment of interest out of
capitalSections 411 (1A) Application for approval of scheme (4) and (6) and 413(l) Section 1074 (5) Confirmation of resolution to wind up a
scheme
(2) The descriptions in column 2 of the Table in do not affect the operation of this Rule.
paragraph (1) are inserted for convenience of reference only and
28 June 19941 GOVERNMENT GAZETrE, WA 3059 11
an application to which this Rule applies, siall, not later than 7 (3) Unless the Court otherwise orders notice in Form 6 of
days before the date appointed for the hearing to be gazetted and
advertised.
applies shall include - (4) Evidence in support of an application to which this Rule
(a) a statement of the statute under which the corporation was incorporated;
(b) a statement of the date of incorporation; (c) corporation, including a copy certified by the proof of the situation of the registered office of the
Commission under section 1274 (5) of the last or only notice lodged with the Commission in relation to the corporation under section 218 (1) and (3) (or corresponding provisions of the Code); and
(d) a statement of the capacity in which the applicant makes the application.
Applications of which notice to be given to the
Commission26. (1) This Rule applies to an application for an order under any of the provisions of the Corporations Law referred to in qualification there expressed. column 1 of the Table to this paragraph, subject to any
TABLE
Column 1 Column 2 Provision Description Section 194 Application to validate issue or allotment
of shares.Section 195 Reduction of share capital Section 229 and Management of certain bodies corporate 230 Section 243ZD Application for declaration of substantial
complianceSection 266 (4) Application registration of charge
to extend time for
Section 342 (8) Application for restoration of name of
registered foreign company to registerSection 471B
Application to commence or proceed With action etc. against company where winding up order made or provisional liquidator appointed
3060 GOVERNMENT GAZETTE, WA [28 June 1994 12
Section 473 (2) Application by provisional liquidator or and (3) liquidator for remuneration Section 482 (1) Application for stay of compulsory
winding upSection 500 (2)
Application to proceed with or commence action etc. after commencement of voluntary winding up
Section 503 Removal of a liquidator Section 511 (1) Application for stay of voluntary winding (b) (where the up application is for the exercise of
the power that
would be exercisable under section 482 (1) if
the company were being wound
up by the Court)
Section 447E Supervision
companyof an administrator of a
Section 449E Removal of an administrator of a company
Section 532 Application to be appointed or act as
liquidatorSection 571
Application for declaration that dissolution of company void Section 574 (3) Application registration of company
for reinstatement of
Section 1322 (4) Application to rectify irregularities in proceedings
(1) are inserted for convenience of reference only and do not affect (2) The descriptions in column 2 of the Table in paragraph the operation of this Rule.
serve on the Commission, a reasonable time before the application (3) Unless the Court otherwise orders the applicant shall
is heard, a copy of the application and of each supporting
affidavit.
Commission to receive notice of certain proceedings under
Chapter 6 of the Corporations Law27. Where the Commission is not a party to an application made under Chapter 6 of the Corporations Law, the applicant
28 June 19941 GOVERNMENT GAZETTE, WA 3061 13
shall serve or cause to be served on the Commission, a reasonable time before the application is heard, a copy of the application and each supporting affidavit
Order confirming issue of shares at discount
28. Unless the Court otherwise orders an order confirming the issue of shares at a discount shall contain a direction that an office copy of the order be lodged with the Commission for registration within 7 days after the order or within such time as the Court allows and that the order shall not take effect until after the office copy has been so lodged.
3062 GOVERNMENT GAZETI'E, WA [28 June 1994 14
PART 5— APPEALS AND INQUIRIES
Appeals to be heard and determined by a Judge
29. All appeals to the Court authorized by the Corporations and these Rules, be heard and determined by a Judge.
Law shall, subject to section 43 of the Supreme Court Act 1935
Notice of appeal 30. All appeals shall be brought by application and, except in relation to an appeal under section 909 of the Corporations Law, shall state whether the whole or part only and, if part only, which part of the decision is complained of and also state concisely but specifically the ground of the complaint and the order sought on the appeal.
Filing and service of notice
31. The appellant shall institute the appeal by filing the application -
(a) within the time (if any) prescribed by the Corporations Law; and (b)
other period as the Court on application made by if no time is so prescribed, within 21 days (or such summons allows) after the day on which the decision complained of was made,
and shall thereupon serve a copy on all the persons directly
affected by the appeal.
Appeal not stay
32. An appeal does not operate as a stay of proceedings unless the Court so orders.
Summons for directions 33. (1) Within 7 days of filing the application under this Part the appellant shall file a summons seeking directions as to the manner in which evidence in respect of the appeal should be given and as to the fixing of a day for the hearing of the appeal and setting out the directions sought.
specified time and place. (2) Every summons shall be returnable before a Judge at a
Part or at any other time, give directions - (3) The Judge may, on the return of a summons under this
(a) as to the manner in which evidence in respect of the appeal should be given including a direction that the
28 June 19941 GOVERNMENT GAZETTE, WA 3063 15
evidence be given on affidavit and directions with respect to the time and manner of filing and serving affidavits;
(b) as to the time and place of hearing the appeal; (c) generally as to the conduct of the appeal.
Amendment of grounds
34.
grounds of the appeal. Subject to Rule 35 the Court may grant leave to amend the Appeals- fro Judges or Masters
35. This Part does not apply to an appeal from an order of a
Judge or Master.
Inquiries
36. All inquiries authorized by the Corporations Law shall, application setting out the nature of the relief sought.
subject to this Order be made by the Court and be instituted by
3064 GOVERNMENT GAZETTE, WA [28 June 1994 16
PART 6— REDUCTION OF CAPITAL
Application of this Part
37. This Part applies to an application by a company pursuant
to section 195 for the confirmation by the Court of a resolution to
reduce its share capital.
Summons for directions
38. After the application has been filed a summons for
directions as to the proceedings to be taken shall forthwith in
every case be issued returnable before a Master.
Order on summons for directions (Form 7)
39. On the hearing or any adjourned hearing of the summons for directions, or on any subsequent application for directions, the Master may make orders as he thinks appropriate and give directions as to all proceedings to be taken and in particular as to the following matters -
directing the application to be heard by the Court on
(a) a day and at a place to be fixed by the Master; (b) directing that, having regard to any special circumstances, all or any of the provisions of section 195 (3) shall not apply in respect of any specified
class of creditors;(c) the publication of notices; (d) fixing the date with reference to which the lis of t
where settlement of a list of creditors is requir ed, creditors is to be made out and generally fixing a time for and giving directions generally as to the inquiry to be made and all other necessary and proper steps in the matter, whether expressly
mentioned in these Rules or not. Service on Commission
40. The applicant shall serve or cause to be served on the Commission not less than 5 days before the day appointed for the hearing of the application a copy of the application and of each supporting affidavit.
Contributories, members and creditors entitled to material
41. Every contributory, member or creditor of the company is entitled to be furnished by the company or its solicitor with a copy of the application and of each affidavit in support within 48 hours after requesting it on payment of the rate prescribed in the Fifth Schedule.
28 June 19941 GOVERNMENT GAZETTE, WA 3065 17
Preparation and verification of list of creditors (Form 8)
42. (1) Where settlement of a list of creditors is required the company shall, within 7 days after the date with reference to which the list is to be made out, or within such other time as the Master orders, file an affidavit in Form 8 made by some officer of the company competent to make it verifying a list of creditors made out in accordance with paragraph (2).
(2) The list shall contain
(a) so far as possible, the names and addresses of the creditors of the company to whom the inquiry
extends;
(b) any debts, claims or liabilities to which the inquiry the amounts due to those creditors respectively for extends or, in the case of any debt payable on a contingency or not ascertained or any unascertained claim or liability its value so far as can be justly estimated.
(3) The list shall be filed with the affidavit.
(4) The person making the affidavit shall dispose to his belief that the list is correct and that there was not at the date with reference to which the list 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 the list and any debts, claims or liabilities to which the inquiry does not extend.
Publication of list of creditors
43. (1) Copies of the list of creditors referred to in Rule 42 containing their names and addresses and the total amount due to them, including the total amount of any estimated debts, claims or liabilities, but omitting the amount due to them respectively, or, if the Master directs, complete copies of the list,
office of the solicitor for the company pending the hearing and shall be kept at the registered office of the company and at the determination of the application. (2) Any person may at any time during ordinary business hours inspect copies so kept and take extracts.
Notice of application and list of creditors etc. (Forms 9 and 10)
44. (1) Within 7 days after the filing of the affidavit required by Rule 42, or within such other time and in such manner as the Master orders, the company shall gazette and advertise in Form 9 notice of the filing of the application.
3066 - GOVERNMENT GAZETI'E, WA [28 June 1994 18
the proposed reduction of capital the places where copies of the (2) A notice under paragraph (1) shall state the amount of
list of creditors may be inspecte& the time fixed by the Master within which creditors of the company who are not, but are entitled to be, entered on the list and are desirous of being entered must furnish their names, addresses and particulars of their debts or claims and the names and addresses of their solicitors, if any, to the company or its solicitor.
entered in the list of creditors a notice in Form 10 stating the (3) The company shall send to each person whose name is
amount of the proposed reduction in capital, the effect of the order directing the inquiry and the amount or estimated value of the debt or the contingent debt or claim or liability or both for which the creditor is entered in the list, and the time fixed by the Master within which, if he claims to be entitled to be entered as a creditor for a larger amount, he is to furnish to the solicitor of the company his name and address and the particulars of his debt or claim and the name and address of his solicitor, if any.
Barring of late claims
45. (1) After the time fixed to furnish particulars of his debt or claim no claim by any person to be a creditor, or to be a creditor lor an amount larger than that for which he is entered in the list, shall be received unless with leave of a Master, which the Master may grant on appropriate terms and conditions as to costs and otherwise.
affidavit setting forth the facts on which the creditor relies and a (2) The summons seeking leave shall be supported by copy of each shall be served on the company.
Verification of claims (Form 11)
46. (1) The company shall, within 7 days after the time fixed by the Master for creditors to furnish particulars of their debts or claims, or within such other time as the Master directs, file an affidavit in Form 11 made by the company's solicitors stating the
result of the notices gazetted, advertised and sent in accordance with Rule 44 and verifying a list to be filed with the affidavit containing, in alphabetical order the names and addressees of the persons who have furnished particulars of their debts or claims in pursuance of those notices and the amounts of their debts or claims.
in the affidavit and shall distinguish in the list which (if any) of the debts and claims are wholly or partly admitted by the (2)
A competent officer or officers of the company shall join company and which (if any) are alleged by the company to be wholly or partly excluded from the inquiry. company and which (if any) are wholly or partly disputed by the lists of creditors, made out in alphabetical order, and showing the (3) The company shall file with the affidavit the following address of each creditor and the amount or estimated value of the
28 June 19941 GOVERNMENT GAZETTE, WA 3067 19
debt or claim for which each is entered either in the list kept pursuant to Rule 43 or that made out pursuant to paragraph (1) -
(a) a list of all creditors who have been paid or who have consented to the proposed reduction in capital, which list shall be verified by an affidavit made by a competent officer or officers of the company exhibiting the receipts and, where necessary the invoices showing the payments made and, in the case of each creditor consenting, a consent in writing signed by him or by a member of the firm, if the creditor is a firm, under the seal of the corporation if the creditor is a corporation; and
a list of all creditors whose debts or claims the
(b) company does not admit at their full amount but is willing to appropriate as the Master directs.
Settlement of list of creditors (Form 12)
47. (1) If the company has filed any list of creditors consenting to the proposed reduction, or of creditors whose debts or claims the company is willing to appropriate as the Master directs, or if any debt or claim the particulars of which have been furnished to the company is not admitted by the company at tis full amount and the company is not willing to appropriate the full amount claimed as the Master directs or if any debt or claim is alleged by the company to be not wholly included in the inquiry, the company shall forthwith apply to a Master by summons without notice to any person for directions.
affidavit verifying consent shall be sufficient proof of consent, or (2) The Master may order on the application that the
may require further proof, and may Øve appropriate directions for securing in the manner mentioned in section 195 (3) payment of the debt or claim of any creditor who does not consent to the
proposed reduction and for that purpose may require evidence as may be necessary and give any other directions that appear to him to be desirable.
be entered in the list of creditors in respect of any debt or claim, (3) If the company contends that a person is not entitled to whether admitted or not, or if any debt or claim the particulars of which have been furnished is not admitted by the company at its full amount, then and in every case unless the company is willing toappropriate as the Master directs the full amount of the debt or claim the company shall, if the Master directs, serve on the creditor a notice in Form 12 that he is required, by a stated day not less than 5 days after the notice, and being the time appointed by the Master for the purpose to establish his entitlement to be entered on the list or, as the case may be to prove his debt or claim to the extent that it is not admitted by the company.
3068 GOVERNMENT GAZETTE, WA [28 June 1994 20
Creditor to prove debt
48. Every creditor who has received notice that he is required to establish his entitlement to be entered on the list or to prove any part of his debt or claim shall file an affidavit verifying his debt or claim and shall on the day fixed attend before the Master and there produce all documents necessary to prove his debt or substantiate his claim.
particulars Adjournment of hearing, investigation and further 49. The Master may from time to time adjourn the hearing of proof of debts and claims and may on the hearing or any adjourned hearing direct an investigation of any of the claims and require further particulars, information or evidence as he thinks fit and may hear evidence and disallow any debt or claim wholly or in part or fix the amount at which the debt or claim is to be allowed. Creditor's costs 50. (1) A creditor who has established his debt or claim shall
be entitled to the costs of doing so unless the Master considers
that in the circumstances his costs ought not to be allowed.the amounts of the costs so fixed or taxed shall be added to the (2) The Master may fix the costs or direct their taxation and established debt or claim. Master's order 51. (1) The Master shall by order declare the result of the
settlement of the list of creditors.
(2) The order shall state -
(a) the company; the debts or claims admitted at the full amount by
(b) the debts or claims the full amount of which the company is willing to appropriate; (c) the names of the creditors who have sought to establish their entitlements to be entered on the list of creditors, distinguishing those whose debts or claims have been disallowed by the Master and those the amounts of whose debts or claims have been fixed by the Master and showing the amounts so fixed;
(d) company does not admit or is not willing to the debts or claims the full amount of which the appropriate or which have been disallowed or whose
amounts have not been fixed by the Master;
28 June 19941 GOVERNMENT GAZETTE, WA 3069 21
(e) by the company as consenting to the proposed the names of the creditors appearing on the list flied reduction of capital and the total amount of the debts
due to them; and(f)
the total amount of the debts or claims the payment of which has been secured in the manner provided by section 195 (3) and the persons to or by whom they are due or claimed.
claims to which the inquiry did not extend. (3) Reference need not be made in the order to any debts or Creditors wrongly listed as consenting
52. The Master may before, or the Court may on, the hearing of the application, on the application of a creditor appearing on any list as having consented to the proposed reduction of capital, if satisfied that the creditor has not consented or that the circumstances of his consent were such as to make it proper to do so, order that the creditor be at liberty to appear at the hearing and oppose the proposed reduction of capital and for that purpose the Master or the Court may direct any investigation and require any particulars or information or hear evidence as he or it thinks fit.
Date for hearing application (Form 13)
53. (1) The Master shall fix and state in his order made
under Rule 51 a date not less than 14 days after the filing of the
order, and a time and place, for the hearing of the application.
(2) The company shall not less than 5 days before the day fixed gazette arid advertise notice in Form 13 of the day, time and place fixed for the hearing.
Dissenting creditor may appear to oppose
54. (1) Any person appearing from the Master's order to be a reduction of capital and whose debt or claim has not been secured
creditor of the company who has not consented to the proposed
in full may, unless the company is willing to appropriate his debt or claim in such manner as the Court directs or his debt or claim on the hearing and oppose the application. has been discharged or determined, and subject to Rule 17 attend
(2) A dissenting creditor who attends on the hearing of the application under section 195 shall be entitled to costs unless the Court otherwise orders.
Directions as to payment of claims of dissenting creditors 55. On the hearing of the application the Court may give directions for securing in the manner mentioned in section 195 (3)
3070 GOVERNMENT GAZETTE, WA [28 June 1994
22
to the proposed reduction and for that or any other purpose may payment of the debt or claim of any creditor who does not consent require evidence and give further directions as may be necessary.
Contents of order confirming reduction (Form 14)
56. An order confirming a reduction (Form 14) shall show the
particulars required to be shown by section 195 (5) and shall
contain certain directions -
as to the time within which an office copy of the order
(a) is to be lodged with the Commission; and (b) order is to be gazetted and advertised after the office as to the manner and mode in which notice of the copy of the order has been lodged with the
Commission.
28 June 19941 GOVERNMENT GAZETTE, WA 3071 23
PART 7— OPPRESSION OR PREJUDICE - SECTION 260
Application for an order under section 260
57. (1) This Rule applies to an application for an order or orders under section 260. the relief sought, the grounds on which it is claimed and the (2) An application under this Rule shall state the nature of subparagraph of section 260 (1) on which the applicant relies.
affidavit setting out the matters specified in and otherwise (3) Every applicant under this Rule shall be supported by an complying with the requirements of Rule 73.
of his own knowledge to at least some of the grounds relied upon (4) The affidavit must be made by a person who can depose in support of the application.
affidavit in support thereof and in any event not less than 14 (5) As soon as practicable after filing the application and the 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.
260 include an order that the company be wound up, the (6) If the remedies sought in the application under section applicant must -
(a) at the same time as filing the application and any affidavit in support thereof, apply to the Registrar for the nomination of an official liquidator who will be
appointed as liquidator if an order for the winding u
of the company is made, unless the Court is satisfie
that some other official liquidator shall be appointed;
and
within 14 days of filing the application obtain and file
(b) the consent in writing of the official liquidator so nominated.
(7) Unless the Court otherwise orders, notice of the application in, or substantially in, Form 14 (specifying that an
order is being sought under section 260 and, where a winding u
order is sought stating that fact) shall be gazetted and advertise
and the provisions of Rule 73 and (where a winding up order is sought), Rule 76 shall apply.
3072 GOVERNMENT GAZETTE, WA [28 June 1994 24
PART 8— COMPROMISES AND SCHEMES OF
ARRANGEMENT
Application of this Part
58. This Part applies to applications under Part 5.1 of the Corporations Law.
Mode of application for order for meetings
59 . An application under section 411 (1) or 411 (IA) shall be supported by affidavit exhibiting a copy of the proposed compromise arrangement.
Lodgement of copy documents with the Commission
60. A copy of the application and of such supporting affidavit
and of the exhibits shall be served on the Commission forthwith
after the application is filed.
Order for meetings to schedule scheme
61. An order acceding to the application shall set forth a
schedule or otherwise identify a copy of the proposed compromise
arrangement.
Mode of application for approval
62. An application for an order under section 411 (4) and (6) or
413 (1) shall be by summons in the proceeding in which an order
under section 411 (1) or CiA) was obtained.
Copy orders to be lodged with the Commission
63. A copy of any order obtained under section 411 (1) or (IA), 411 (4) and (6) or 413 (1) shall be lodged with the Commission
Remuneration of scheme manager etc. within 14 days after it is made. 64. The Court may, on the application of any person whose rights are affected by a compromise or arrangement approved under section 411 (4) and (6), fix or review the remuneration of the person appointed to administer the compromise or arrangement. Application for directions 65. A trustee or manager under or any member or creditor bound by a compromise or arrangement may apply to the Court by summons under this Rule for directions in relation to any matter arising in the course of its administration.
28 June 19941 GOVERNMENT GAZETTE, WA 3073 25
PART 9— APPLICATION FOR WINDING UP BY TEF
COURT
Application of Part
66. This Part applies -
(a) to applications by any person for a winding up order under section 459P, 462 or 464; and
(b) with any necessary modification, in relation to body to which Part 5.7 of the Corporations Law applies as
it applies in relation to a company.
Form of affidavit in support of statutory demand - section 459E
67. (1) An affidavit required by section 459E (3) of the Corporations Law must contain the following:
Important Note
This affidavit accompanies a statutory demand under section 459E of the Corporations Law. This affidavit has not been filed in the Supreme Court nor have any proceedings been commenced in respect of the debt to which the affidavit relates. Any inquiries as to the affidavit or the debt should be directed to the person making the demand or his solicitor and not to the Court.
(2) An affidavit referred to in paragraph (1) -
(a) is not to contain the number of the proceedings in the Supreme Court; and
(b) must not be filed with the Supreme Court unless
winding up proceedings have been commenced in respect of the matter to which it relates.
(3) Unless the Supreme Court orders to the contrary, an affidavit referred to in paragraph (1) must be made by a person
who can depose to the indebtedness of the company from his own
knowledge. Winding up applications 68. (1) on the filing of an application described in Rule 66 the Registrar shall endorse on the application and on any copy
the date and time of filing.
3074 GOVERNMENT GAZETTE, WA [28 June 1994 26
(2) The Registrar on the filing of the application -
(a) and shall appoint a date, time and place for the hearing; (b) and place so appointed. under paragraph (1) a statement of the date, time shall insert in the application and any copy endorsed
application has been gazetted and advertised, may alter the date, (3) The Court by order made at any time before the time or place appointed and appoint another time, date or place.
Form and contents of application (Form 15)
69. An application under this Part -
(a) may be in or substantially in Form 15; and (b) shall state the nature of the relief sought and the grounds on which it is claimed.
Winding up of a company in insolvency under section 459P
- section 459Q 70. (1) An affidavit required by section 459Q (c) of the Corporations Law must set out -
(a) a statement of the debt alleged and details of how and when it was incurred; and
(b) a statement that the debt is due and payable to the applicant.
(2) affidavit referred to in paragraph (1) must be made by a person
Unless the Supreme Court orders to the contrary, an who can depose to the indebtedness of the company to his
knowledge.
affidavit required under Rule 72. (3) The affidavit required by this Rule is in addition to the Service of applications and affidavits (Form 16)
course of being wound up shall, if the application is not made by 71. (1) Service in relation to a company which is in the the liquidator, be effected by service on the liquidator.
(2) An affidavit of service may be in Form 16.
28 June 19941 GOVERNMENT GAZETTE, WA 3075 27
Verifying affidavit
72. Every application under this Part shall be verified by
affidavit made -
not earlier than 7 days before the application is filed
(a) and shall be filed with the application; (b) by the applicant or by one of the applicants if more than one; and
(c) where the applicant is a corporation, by a director, secretary or other person who -
(1)
is able to depose of his own knowledge to most of the facts material to the ground relied on for the relief sought in the application and otherwise states the sources and grounds of any statements of information or belief; and
(ii) is authorized by the applicant to make the affidavit on its behalf.
Form and contents of verifying affidavit (Form 17)
73. An affidavit verifying an application under this Part - (a) may be in Form 17;
(b) shall depose to and only to the facts material to the application and justifying the granting of that relief;
grounds relied on for the relief sought in the
(c) in respect of an applicant which is a corporation shall case may be, of formation and the enactment (if any) pursuant to which it was incorporated or formed;
state the date and place of incorporation or, as the
(d) in respect of a company incorporated in Western Australia shall, in addition to any other material
facts, state - (i) that the company was so incorporated; and
(ii) the date of incorporation and the Act, Code or
Law under which it was incorporated;
(e) in respect of a company which is registered or deemed
another State or the Capital Territory shall, in
addition to any other material facts, state -to be registered under the Corporations Law of
(i) the date and place of its incorporation;
(ii) the enactment pursuant to which it was incorporated; and
3076 GOVERNMENT GAZETI'E, WA [28 June 1994 28
(iii) the facts which warrant the Court's exercising jurisdiction under that Law with respect to the company; and
(f) in respect of a Part 5.7 body shall, in addition to any
other material facts, state -
(i)
the date and place of incorporation or of formation, as the case may be, and the incorporated or formed; and enactment (if any) pursuant to which it was
(ii) whether or not it is registered under Division 1 or Part 2 of Part 4.1 of the Corporations Law.
Prima facie evidence
74. An affidavit complying with Rules 72 and 73 and of which a copy is served in accordance with Rule 71 is prima facie evidence of the facts relied on for the application in support of which it is
flied.
Nomination of official liquidator
Registrar shall nominate in writing the official liquidator who is 75. (1) Upon the filing of an application under this Part the
entitled to be appointed as liquidator if an order for the winding
up of a company is made.The Registrar may from time to time as circumstances
shall obtain and file the consent in writing of the official
liquidator so nominated.
require make further nominations. (2) application for the winding up order the applicant or his solicitor (3) Not less than 12 days before the date of hearing of the
Gazettal and advertisement (Form 18) 76. (1) An application under this Part shall be gazetted and advertised in Form 18 not earlier than 3 days after the application was served on the company and not less than 14 days before the hearing.
(2) The advertisement shall state -
(a) the day on which the application was filed; (b) the date, time and place appointed for the hearing; (c) the name and address of the applicant and of his solicitor and Perth agent, if any;
28 June 19941 GOVERNMENT GAZETTE, WA 3077 29
(d) liquidator whose appointment is sought; and firm, the firm's name) and the business address of the the name (and if he is a member or employee of a (e) statements to the effect of the notes at the foot of Form 18.
comply with the requirements of paragraph (2) is irregular. (3) An advertisement of an application which does not Notice of grounds of opposition - section 465C 77. (1) A notice ofgrounds of opposition to an application under this Part, verified by affidavit as required by section 465C shall be filed and served on the applicant or his solicitor at least 7 days before the time appointed for the hearing of the application.
an application (including a further affidavit in support of any of (2) Any affidavit in reply to an affidavit filed in opposition to before the time appointed for the hearing of the application and a the facts alleged in the application) shall be filed at least 3 days copy of the affidavit in reply shall be served forthwith on the person by whom the affidavit in opposition was filed or his solicitor.
Contributories, members and creditors entitled to material 78. Every contributory, member or creditor of the company is entitled to be furnished by the applicant or his solicitor with a copy of the application and of each affidavit in support within 48 hours after requesting it on payment of the rate prescribed in the Fifth Schedule.
Registrar's certificate of compliance (Form 19) 79. (1) After the application has been filed the applicant or his solicitor shall, not less than 12 days before the date of the
accordance with Form 19, deposing that all necessary formalities hearing of the application, file an affidavit of due compliance in and requirements of the Rules have been complied with. (2) The Registrar on being satisfied that -
the application has been duly gazetted and
(a) advertised; (b) the prescribed affidavit verifying the application arid the affidavit of service if any, have been duly filed, together with any afTdavit required under section
459Q;(c) lodged with the Commission in compliance with notice of the filing of the winding up application as
section 470 (1) (a);
3078 GOVERNMENT GAZETTE, WA [28 June 1994 30
the consent in writing of the official liquidator
(d) nominated by the Registrar has been obtained and filed; and
the provisions of the Rules as to applications have
(e) been duly complied with by the applicant,
shall issue his certificate and cause it to be forwarded to the
applicant or his solicitor.
Registrar may issue requisitions
80. Where the Registrar is not satisfied that all the necessary formalities have been complied with he may -
(a) issue such requisitions as he may think fit; or (b) attend on him at a time and place appointed. require the applicant or the applicant's solicitor to
Restriction on certain orders
81. No order other than an order for the dismissal or of any applicant who has not, prior to the hearing of the
adjournment of the application shall be made on the application
application, obtained a certificate referred to in Rule 79. Directions 82. (1) Any party to an application under this Part may, upon a summons served on all other parties before the application has been gazetted and advertised under Rule 76 apply to the Court for directions in the matter.
directions with respect to the following matters - (2) On the hearing of the summons the Court may give
(a) the azettal and advertisement of the application or
requiring the applicant to refrain from gazetting or advertising it and instead to notify members and creditors of the company that the application has been made, and of their right to Support or oppose it;
(b) service of the application on any person in addition to the company; (c) affidavits in support of or in opposition to the the filing of, or dispensing with the filing of, application, other than an affidavit required under
Rule 70 or 72;(d) applicant, the company or any party to the the delivery of pleadings or particulars by the
application;
28 June 19941 GOVERNMENT GAZETTE, WA 3079 31
(e) the filing and exchange of affidavits and documents, the inspection of documents and the administration
and answering of interrogatories;
(f) the hearing of the application, including the variation of any date previously appointed for the hearing; and
(g) any other steps which may under the Rules be necessary or desirable for the purpose of bringing the
application to trial and having it determined.
(2) The directions may be varied by subsequent order.
Substitution of applicant - section 465B (Form 20)
83. An order under section 465B may -
(a) include an order in or substantially in Form 20 substituting the person who applied for the orders for the person who was formerly the applicant in the
proceedings; and
(b) if the Court sees fit, include an order requiring further advertisement and a fresh Registrar's
certificate under Rule 79.
Steps to be taken following making of a winding up order
(Forms 21 and 22)
84.
applicant shall forthwith inform the liquidator of that fact and
(1) When a winding up order (Form 21) is made the within 14 days after the making of the order -
(a) gazette and advertise a notice in Form 22 of the making of the order; and
(b) serve on the liquidator a copy of the notice.
(2) section 470 (2) to be served on the company may be served on the secretary or principal executive officer of the company either
The office copy of the winding up order required by
personally or by pre-paid letter addressed to the secretary or that
officer at the registered office of the company.
orders, contain at its foot a notice stating that it is the duty of (3) Ever,' winding up order shall, unless the Court otherwise
such of the persons who are liable to make out or concur in making out the report as to the affairs of the company as the liquidator requires to assist the liquidator within the time required and give him all the information he may request.
3080 GOVERNMENT GAZETTE, WA [28 June 1994 32
PART 10— PROVISIONAL LIQUIDATORS
Appointment of provisional liquidator - section 472
(Form 23)85. (1) At any time after the filing of an application for a winding up order the Court may, on application of any creditor or contributory or of the company or of the Commission, and on proof of sufficient ground for the appointment of a provisional liquidator, appoint a provisional liquidator provisionally on appropriate terms, which may include an undertaking as to damages.
shall be served on the company before it is heard, unless the (2) The summons for appointment of a provisional liquidator
application is made by the company or it appears that there are circumstances of urgency or otherwise making it impracticable to serve the company before the application is served.
Form 23 and briefly describe the property of which he is ordered (3) to take possession and state the duties to be performed by him.
An order appointing a provisional liquidator shall be in
Notice of appointment of provisional liquidator (Form 24)
86. On the making of an order appointing a provisional liquidator, the applicant shall forthwith inform the company and the person appointed of that fact and lodge with the Commission a notice in Form 24 and cause the notice to be gazetted and advertised.
Expense of compliance
87. The expense of complying with Rule 86 shall, unless the Court otherwise orders, be a charge on the assets of the company.
Lodgement and service of order of appointment 88. The applicant for an order for appointment of a provisional liquidator shall, as soon as practicable after the order is entered, lodge an office copy with the Commission and serve a copy on the company and the person appointed and any other person on whom the Court directs service to be effected.
Powers of provisional liquidator 89. For the purpose of enabling the provisional liquidator to take out letters of administration or recover monies as mentioned in section 477 (2) (h) the money due shall be deemed to he due to the provisional liquidator himself.
28 June 19941 GOVERNMENT GAZETTE, WA 3081 33
Remuneration of provisional liquidator
shall, on accounting to any liquidator, be entitled to be paid out of 90. Subject to any order of the Court the provisional liquidator
the property of the company all costs, charges and expenses properly incurred by him and remuneration as may be authorized by the order appointing him, or any subsequent order, and may retain out of that property the amount of his costs, charges, expenses and remuneration.
3082 GOVERNMENT GAZETTE, WA [28 June 1994 34
PART 11— LIQUIDATORS
Status of liquidator
91. (1) All official liquidators registered as such by the Commission under the Corporations Law are officers of the Court. person by the Commission as an official liquidator. (2) Judicial notice shall be taken of the registration of any Liquidator to file certified copy of resolutions 92. A liquidator appointed by the Court shall, if so required by the Court, after the passing of any resolution of a meeting of creditors, contributories, or both or of the committee of inspection, file a copy certified by him as a true copy of the resolution.
Liquidator need not attend proceedings in certain cases 93. Where the attendance of the liquidator's solicitor is required on any proceeding, the liquidator need not attend in person except in cases where his presence is necessary or the Court directs him to attend.
Report as to company's affairs
94. (1) In this Rule "liquidator" includes a provisional liquidator. submit and verify a report as to the affairs of the company shall (2) Every person who by or under section 475 is required to be furnished by the liquidator with forms and instructions for the
preparation of the report.
submitting the report as to the affairs of the company, he shall (3) apply to the liquidator who may, for special reasons at any time
When any person requires an extension of time for
and from time to time, give a written certificate extending the time which, if filed with the proceedings in the winding up, shall render an application to the Court unnecessary.
(4) section 475 (7) (a), shall be a copy certified in writing by the
The copy report required to be filed with the Court under liquidator to be a true copy of the original report.
Delivery of property to liquidator (Form 25)
95. (1) The powers conferred on the Court by section 483 (1) shall be exercised by the liquidator. may be in Form 25. (2) A requirement by the liquidator under section 483 (1)
28 June 19941 GOVERNMENT GAZETTE, WA 3083 35
contributories, and any trustee, receiver, banker, agent or officer (3) Any contributory for the time being on the list of
of a company which is being wound up shall, on notice from the liquidator and within such time as he by notice in writing requirespay, deliver, convey, surrender or transfer to or into the hands o the liquidator any money or property or books or papers entitled and the Court may on application of the liquidator order which are in his hands and to which the company, is prima facie
payment, delivery, conveyance, surrender or transfer.
Application for order for payment of call -section 483
(Forms 26 and 27)
96. (1) Where a liquidator applies for an order under section the application must include an affidavit in Form 26. 483 (3) (b) for payment of a call, the evidence bought in support of may be in Form 27. (2) An order for payment of a call under section 483 (3) (b) Complaint about liquidator
97. (1) In this Rule "liquidator" includes a provisional liquidator.
(2) A complaint to the Court under or by virtue of inquiry under the subsection in respect of the matter complained section 536 (1) shall be outlined in the application claimin& an of.
Disclaimer of contract - section 568
98. (1) An application by a liquidator under section 568 (lA) for leave to disclaim a contract (other than an unprofitable contract or a lease of land) may be made by summons in the proceedings for the winding up order. (2) A liquidator who has been required to apply to the Court for leave to disclaim a contract under section 568 (lA) must file an affidavit stating - theparties to the contract and any persons who are,
(a) to the liquidators knowledge, interested in the contract; and
(b)
disclaim. the reasons why it is said to be just to grant leave to
the parties to the contract and any person interested in the (3) An affidavit filed under paragraph (2) must be served on contract.
3084 GOVERNMENT GAZETTE, WA (28 June 1994 36
Notice of liquidator's intention to apply for release (Forms
28,29 and 30)99. (1) Except where the Court otherwise orders, a liquidator, before making application for his release, shall give notice in Form 28 of his intention to do so to all creditors who have proved their debts and to all the contributories, and shall send with the notice a copy of the application in Form 29 and a statement in Form 30 showing the position of the company at the date of filing the summons.
Corporations Law provides" and then state the substance of that (2) The notice shall bear a note "Section 481 (3) of the provision.
Distribution of surplus - section 488 (2) - (Form 31) 100. (1) This Rule applies to an application for leave to distribute a surplus under section 488 (2).
affidavit specifying the manner in which the liquidator proposes (2) An application under this Rule must be supported by an
that the surplus be distributed, including the names and addresses of each person to whom any part of the surplus would be distributed.
in Form 31 not later than 14 days before the date set for hearing (3) of the application.
Notice of the application must be given by advertisement
28 June 19941 GOVERNMENT GAZETTE, WA 37
PART 12— SPECIAL MANAGERS
Mode of application for appointment of special
managers - section 484 101. An application by the liquidator for the appointment of a
special manager -
(a) to be wound up shall be supported by a report of the in relation to a company that the Court has ordered liquidator which shall be placed on the file of proceedings in which the winding up order was made; and
in relation to any other company shall be made by
(b) application.
Material in support of application
102. The material supportinq the application shall state the
powers which in the liquidators opinion should be entrusted tothe special manager and either -
(a) the amount of remuneration which in the opinion of the liquidator ought to be allowed to the special
manager; or
(b) that in the opinion of the liquidator it is desirable that the fixing of remuneration should be deferred.
103. The remuneration of a special manager shall, unless a
Remuneration of special manager but a Master may at any subsequent time for good cause shown make an order increasing, reducing or otherwise altering the remuneration.
Special manager to account (Form 32) 104. (1) Every special manager shall account to the
liquidator.(2) The special manager's account shall be verified by statutory declaration in Form 32 and, when approved by the liquidator, the totals of the receipts and payments shall be added by the liquidator to his accounts.
Security by special manager (Form 33) 105. The following provisions as to security apply to a special
manager:
(a) Security shall be given to the satisfaction of a Master
or as the Court from time to time directs.
3086 GOVERNMENT GAZE'rrE, WA (28 June 1994 38
(b) Security in each separate winding up need not be given, but security may be given either specially in a particular winding up orgenerally to be available in any winding u in which the person giving security is appointed special manager.
(c) A Master shall fix the amount and nature of the security and may from time to time increase or reduce the amount of special or general security which has been given and the special manager shall accordingly give additional security within the time the Masterprescribes or may reduce the amount of security, as the case may be.
(d) An order of a Master in Form 33 declaring that a special manager has given security to his satisfaction
shall be lodged by the special manager with the
Commission.(e) The cost of furnishing the required security by a special manager, including premiums paid by him, 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.
Failure to give or keep security
106. (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 the failure to a Master, who may thereupon rescind the order appointing the special manager and make an, order as to costs.
If a special manager fails to keep up his security the
remove the special manager and make an order as to costs.
person, on being satisfied that the condition of any bond given as (3) A Master may, on application made without notice to any
security by a special manager has been broken, order the bond to
liquidator shall report the failure to a Master who may thereupon (2) be assigned to some person named in the order and that person
his executors or administrators shall thereupon be entitled to sueon the bond in his own name as if the bond had been originally given to him and shall be entitled to recover thereon as trustee for all persons interested in the full amount recoverable in respect of any breach of the condition.
Default of special manager
107. (1) Where the special manager is required by these Rules or any order or direction of the Court to do anything and does not carry out the requirement, the liquidator shall apply to the Court for directions in relation to the default and the Court may make and give appropriate orders and directions.
28 June 19941 GOVERNMENT GAZETTE, WA 3087 39
is required by any order or direction of the Court to pay into (2) Without limiting paragraph (1), where a special manager
Court any sum shown by his account as due from him, and does not comply with the requirement, the Court may charge him with interest at an appropriate rate on that sum while it remains in his possession as special manager.
enforcement of orders or as to punishment for contempt. (3) This Part does not limit the powers of the Court as to
3088 GOVERNMENT GAZETTE, WA [28 June 1994 40
PART 13— EXAMINATIONS
Issue of summons for examination - sections 596A and 596B (Form 34) 108. (1) An application for the issue of a summons under section 596A or 596B must be accompanied by -
(a) a draft of the summons in Form 34; and (b) an affidavit in support of the issue of the summons.
set out the material facts on which the applicant relies to (2) An affidavit in support of the issue of a summons must establish that -
the applicant is an eligible applicant for the purposes
(a) of section 596A (a); and (b) in the case of an application -
(i) summons is to be issued is or was an under section 596A, the person to whom the examinable officer of the corporation for the
purposes of section 596A (b); andunder section 5968, the person to whom the
(ii) summons is to be issued -
(I) has taken part or been concerned in examinable affairs of the corporation and has been, or may have been, guilty of misconduct in relation to the corporation; or
(II) examinable affairs of the corporation. may be able to pve information about the
(3) An application for the issue of a summons under
section 596A or 596B and affidavit in support of that application
marked "Application for issue of summons for examination under may at the option of the applicant, be filed in a sealed envelope section 596A of the Corporations Law" or "Application for issue of summons for examination under section 596A of the Corporations Law", as the case may be.
section 596A or 596B which may be in or substantially in Form (4) The Court may issue a summons for examination under 34.
summons issued under this Part must be - (5) At least 8 days before the date set for the examination, a (a) personally served on the person who is to be
examined; or
(b) served in such other manner as the Court may direct.
28 June 19941 GOVERNMENT GAZETTE, WA 3089 41
may apply to discharge that summons by filing, within 3 days of (6) A person served with a summons issued under this Part service of- the summons
(a) a chamber summons in the proceedings in which the summons was issued seeking an order that the order be discharged; and (b) an affidavit setting out the material facts and matters relied on by the person seeking to discharge
the summons for examination.
forthwith be served on - (7) A summons and affidavit filed under paragraph (6) must
(a) the person who applied for the examination; or (b) if a person authorized by the Commission applied for examination, the Commission.
Conduct of examination under Part 5.9 Division 1
109. (1) An application under section 597 (4) for a direction that an examination be held in private may be made at the commencement or in the course of the examination.
record be kept of the questions put to a person and of his answers (2) If under section 597 (13) the Court orders that a written at an examination -
(a) the applicant must file that written record in the Court; and
(b)
if the Court has so required under section 597 (13), that written record must be signed by the person who was examined, at such time as the Court directs.
in writing to the Registrar to be provided with a copy of the (3) A person who is examined under section 597 may apply written record of the examination, and must be given such a copy
on payment of the prescribed fee. examination may be authenticated by a certificate signed by - (4) For the purposes of section 597 (14), a transcript of an
(a) the person who made the transcript; or (b) a responsible officer of the organization which is authorized to provide transcription services at the
examination,
certifying the transcript to be a correct record of the examination.
3090 GOVERNMENT GAZETTE, WA [28 June 1994 42
PART 14—COSTS
Submission of bill of costs by employees of liquidator for taxation
110. A liquidator may request any solicitor, manager, auctioneer, broker or other person employed by him in a winding up by the Court to deliver to him a bill of costs, charges or expenses for the purposes of taxation.
Request for bill for taxation (Form 35)
111. (1) A request under Part 14 may be in Form 35 and shall be made a sufficient time before the declaration of a dividend in the winding up.
(2) If the request is not met within the time stated in the request, or within any extended time allowed by a Master, the liquidator may declare and distribute the dividend without regard to the claim of the person to whom the request was made and unless the Court otherwise orders, the claim shall be forfeited.
Lodgement of bill for taxation and appointment to tax
112. (1) The liquidator shall lodge with the taxing officer for taxation a bill delivered pursuant to a request made under Rule 110.
endorsed on it a notice of appointment. (2) Every bill of costs which is lodged for taxation shall have given by the liquidator by whom, and the person to whom, the bill (3) Two clear days notice of taxing the bill of costs shall be is to be paid.
Liquidator's certificate as to special terms of remuneration
113. Where the bill lodged for taxation under Rule 112 (1) is to be paid out of the assets of the company, a certificate in writing signed by the liquidator shall be produced to the taxing officer on the taxation setting forth any special terms of remuneration that have been agreed.
Issue of allowance or certificate of taxation 114. On the completion of the taxation, the taxing officer shall issue to the liquidator and to the person whose bill has been taxed his allowance or certificate of taxation.
28 June 19941 GOVERNMENT GAZETTE, WA 3091 43
No allowance for performance by others of liquidator's or special manager's duties
115. (1) Where a liquidator or special manager, in a winding up by the Court receives remuneration for his services as such, nodayment shah be allowed in his accounts in respect of the peormance by any other person of the ordinary duties which are required by law to be performed by the liquidator or special manager as the case may be.
the remuneration for his services as liquidator shall include all (2) Where a liquidator is a solicitor, he may contract that professional services.
Application for costs after proceeding concluded
116. Where any party to or person affectedby any proceeding desires to apply for an order that he be allowed his costs or any part of them incident to the proceeding and the application is not made at the time of the proceeding -
the party or person shall serve notice of his intended
(a) application on the company or, if the company is in liquidation, on the liquidator;
the company or the liquidator may appear on the
(b) application; and (c) allowed to the applicant unless the Court is satisfied no costs of or incidental to the application shall be that the application could not have been made at the
time of the hearing of the proceeding.
3092 GOVERNMENT GAZETTE, WA L28 June 1994 44
PART 15— REPEAL AND SAVING PROVISIONS
Repeal
117. The Supreme Court (Corporations Law) (Transitional)
Rules 1991 are repealed.
Savings
118. Notwithstanding Rule 117 the Supreme Court (Corporations Law) (Transitional) Rules 1991 shall continue to apply to all proceedings under the Corporations Law or the Code
commenced before the coming into operation of this Order.
Seventh Schedule added
6. After the Sixth Schedule to the principal rules the following Schedule is
added -
SEVENTH SCHEDULE
PART 1 - FORMS
Form 1
0.81G. R.8 (1)
TITLE OF PROCEEDING
IN THE SUPREME COURT OF
WESTERN AUSTRALIA AT PERTHNo. IN THE MATTER OF section the Corporations Law of Western Australia (or as the case may be)
IN THE MATTER OF (state full name of corporation)
ACNNo
BETWEEN AB Applicant and
LCO Respondent (NOTE:
The words "(in liquidation)", "(receiver appointed)", "(receiver and manager appointed)" or "(controller acting)", "(administrator appointed)" or "(subject to deed of company arrangement)" must be added to the name of a corporation where applicable.)
28 June 19941 GOVERNMENT GAZETTE, WA 45
Form 2
0.81G, R.8 (2)
APPLICATION
(Title)
On the grounds appearing in the accompanying affidavit the applicant claims (where appropriate)
1.
2.
etc.
Dated the day of 19 (signed, applicant or his solicitor)
To the Respondent CD of (address)
This application will be heard by the Court at the time and place
specified below. If you do not attend either personally or by your
counsel or solicitor, the application may be dealt with and
judgment may be given or an order made in your absence. Before
any attendance you must file a Notice of Address for Service at
the Central Office of the Supreme Court, Perth and serve a copy
28 June 19941 GOVERNMENT GAZETTE, WA 3111 63
the Applicant (OR the Applicant's solicitors) ascertained from records maintained by the Australian Securities Commission that the registered office of (name of company) ("the Company") was then situated at (address of registered office). On (date) a statutory demand in the form annexed and marked "A" was left at the registered office of the company with (name of person, if known),
OR
(If notice was served at the registered office of the company and no
officer or employee received the notice)
(3)
On (date) the Applicant (OR the Applicant's solicitors) ascertained from records maintained by the Australian Securities Commission that the registered office of (name of company) ("the Company") was situated at (address of registered office). On (date) a statutory demand in the form annexed and marked "A" was left at the registered office of the Company at which it appeared the Company was still carrying on business because (specify reason) (OR with which it appeared the Company had the following connection, namely that (specify connection)).
(if notice was served by post)
(3) On (date) the Applicant (OR the Applicant's solicitors)
Securities Commission that the registered office of (name ascertained from records maintained by the Australian of company) ("the Company") was situated at (address of registered office). On (date) a statutory demand in the form annexed and marked "A" was posted by pre-paid mail addressed to the Company at its registered office. That notice has not been returned to the Applicant or its solicitors by Australia Post as unclaimed.
3112 GOVERNMENT GAZETTE, WA [28 June 1994 64
(4) (If the demand has been varied by an Order under subsection 459H (4) of the Corporations Law.) Annexed and marked "B" is a copy of an Order made by the Supreme Court on (date) which varied the statutory demand which is annexure "A" under subsection 459H (4)
of the Corporations Law. (5)
the Company did not comply with the requirements of the statutory demand which is Annexure "A" (OR the statutory demand which is Annexure "A", as varied by the order which is Annexure "B") within the period for compliance, being the period of 21 days after the demand was served (OR the period specified in an order made by the Court on (date) extending the period for compliance (OR the period ending 7 days after an application to set aside the statutory demand was finally determined or otherwise disposed of).
OR
(INSERT THE FOLLOWING ONLY IF THE WINDING UP
APPLICATION RELIES ON INSOLVENCY AND DOES NOT
RELY ON A FAILURE TO COMPLY WITH A STATUTORYDEMAND)
(3) The grounds on which the Applicant relies to allege that the company is insolvent are (specify grounds). The applicant will rely in support of this application on the
affidavit of Lstate name of deponent] sworn on 19 and filed with this application and (where applicable) on the said affidavit(s) on
affidavit of etc.
Dated 19 (signature of applicant or of applicant's solicitor)
28 June 19941 GOVERNMENT GAZETTE, WA 3113
T .
This application was filed by [state name of applicant or his
solicitor] whose address for service is [state address].The Corporations Rules 1993 provide that -
(a)
Before a person served with this notice takes any step in this proceeding or may be heard by the Court that person must file and serve a notice of address for service in Form 3 not less than 2 days before the hearing; and
(b)
any affidavit in opposition to this application shall be filed and a copy served on the applicant or his solicitor at least 7 days before the hearing.
To: [state name and address of the company and of any other
respondent].
3114 GOVERNMENT GAZETI'E, WA [28' June 1994 66
Form 16
0.81G, R.71 (2)
AFFIDAVIT OF SERVICE OF APPLICATION FOR
WINDING-UP
(Title)
In the matter of an application for winding up order filed on [state date of filing] I,
of
make oath and say -
(1) On 19 I left at [Or sent by prepaid post to the above company at ] a copy of the application duly sealed with the seal of the Court and a copy of an
affidavit of [state name of dpnent] sworn on 19 • Now produced and shown to me and marked "A" and "B"
are true copies of the documents served.
OR
(1) [In the case of service on a director]
On 19 , I served on EXY], a copy of the
application duly sealed with the seal of the Court and a
copy of an affidavit of [state name of deponent] sworn on19 by delivering them to him personally at
a.m. [p.m.] at . Now produced and shown to
documents served. me and marked "A" and "B" are true copies of the (2)
At the time of service I asked the person served, "are you [XY], a director of [insert name of company], to which he replied "Yes" [r, as the case may be, showing how the identity and office of the person 'served were ascertained].
28 June 19941 GOVERNMENT GAZETTE, WA 3115 67
Form 17
0.81G, R.73 (a)
AFFIDAVIT VERIFYING APPLICATION FOR WINDING-UP
ORDER
(Title)
I, of make oath and say
(1)
I am the abovenamed applicant (or if the applicant is a corporation] I am a director [or as the case may be of the abovenamed applicant which is incorporated under the law of . I am duly authorized to make this affidavit on its behalf].
(2)
[State name of the company in respect of which the order is sought] was incorporated in Western Australia [or as the case may be on 19 under [state enactment under which incorporated). No order has been made that the said company be wound up.
(3)
[Where the company is registered or deemed to be registered under the Corporations Law of another State or a Territory, state the company's principal place of business and any other facts which warrant the Court's exercising jurisdiction].
(4) The registered office of the company is at (state the full
address of the registered office and the grounds for so stating]. (5)
I depose to the above facts to be the best of my knowledge, information and belief [state source and grounds or, if the deponent has other knowledge; specify it].
(6) The following facts are within my own personal knowledge
save as otherwise stated.
[Set out the facts material to the grounds relied on for the
relief sought and justifying the granting of the relief].Sworn, etc.
3116 GOVERNMENT GAZETTE, W& 128 June 1994 68
Form 18
0.81G, R.76 (1)
ADVERTISEMENT OF APPLICATION FOR WINDING-UP
IN THE SUPREME COURT OF WESTERN AUSTRALIA AT
PERTHNo.
In the matter of (name of company) ACN Notice is hereby given that an application for the winding up (state whether or not in insolvency) of the abovenamed company by the Supreme Court of Western Australia was on 19 filed by [name of applicant and, if a company, state its ACNJ. The application is to be heard before a Master in chambers at the
Supreme Court at Perth at a.m. [or p.m.] on 19 The liquidator whose appointment is sought is [state name of nominated liquidator] of the firm of [state the name of the firm, if any, of which the nominated liquidator is a member of employee] of [state business address of nominated liquidator).
Any creditor or contributory of the company desiring to support or oppose the making of an order on the application may appear at
the time of hearing by himself or his counsel for that purpose.
The applicant's address is [or if a solicitor is acting, The
applicant's solicitor is of
[whose Perth agent is I. NOTE: (1) Any person who intends to appear on the hearing of the application must serve on or send by post to the abovenamed (solicitor or applicant as the case may be) notice in writing of that intention. The
28 June 19941 GOVERNMENT GAZETTE, WA 3117 69
notice must state the name and address of the person or, if a firm, the name and address of the firm, and must be signed by the person or firm, or their solicitor (if any), and must be served or, if posted, must be sent by post in sufficient time to be received not later than 4 p.m. on 19 [the day before the hearing date of the application or, if the day appointed is a Monday or a Tuesday following a public holiday, the Friday preceding the day appointed].
(2) A person may not, without leave of the Court, oppose the application unless, at least 7 days before the hearing date, the person has filed and served on the applicant -
(a) notice of the grounds of opposition; and (b)
an affidavit verifying the matters stated in the notice.
3118 GOVERNMENT GAZETTE, WA [28 June 1994 70
Form 19
0.81G, R.79 (1)
AFFIDAVIT OF COMPLIANCE
(Title)
I of make oath and say that —
(1)
The application is in order and in accordance with Form 14 (or Form 2 as appropriate) and sets out correctly -
(a) the nature of the relief sought; and (b) the grounds on which it is claimed.
(2)
The application is supported by a verifying affidavit made by (name of deponent) pursuant to Rule 72 and (where section 459Q applies) by an affidavit made by (name of deponent) pursuant to Rule 70.
(3) The verifying affidavit sets out correctly -
(a)
the facts material to the grounds relied on;
(b)
the date and place of incorporation of the applicant;
(c)
the date and place of incorporation of the company to be wound up and the law under which it was incorporated (and if
incorporated outside Western Australia the facts warranting the exercise of
jurisdiction).(4)
The application and all supporting affidavits have been duly served (state precisely the facts relied upon to establish service).
(5) Notice of the filing of the winding up application was
lodged with the Commission on the day of 19
at a.m. in compliance with section 470 (1) (a).
28 June 19941 GOVERNMENT GAZETTE, WA 3119 71
(6)
The application has been duly advertised and gazetted pursuant to Rule 14,.Rule 76 and in accordance with Form 17, and both the advertisement and the gazett.al are Correct as to -
(a) the name of the company; (b) the number of the company; (c)
the return date and the place of hearing; and
(d) the contents in the footnote,
and exhibited hereto and marked " - " is a memorandum
of advertisement and gazettal pursuant to Rule 16.
(7) (a) An application for nomination of a liquidator has
been filed on the day of 19
(b) has been nominated by the Registrar as the liquidator.
(c)
the consent of the liquidator has been obtained, and exhibited hereto and marked " are the nomination of the liquidator by the Registrar and the consent of the liquidator.
(8) I have on the day of 19 filed a Rule 79 certificate for the signature of the Registrar and request
that the certificate be issued.
(9) 1 have on the day of 19 filed a minute of proposed orders for the winding up of the company.
(10) All necessary formalities and requirements of the rules have been complied with.
Sworn at, etc.
3120 GOVERNMENT GAZETTE, WA [28 June 1994 72
Form 20
0.81G, R.83 (a)
ORDER SUBSTITUTING APPLICANT
THE COURT ORDERS THAT -
(1) is substituted as applicant. (2) The substituted applicant forthwith amend the application
accordingly.(3)
The substituted applicant by 4.00 p.m. on 19 serve on the company by delivering or posting to it at
and on personally a copy of this order and of
the amended application and of any affidavit on which he
proposes to rely in support of the application.(4)
The substituted applicant comply with the requirement of the Corporations Rules 1993 (insofar as they have not been complied with) as if he were the original applicant.
(5) Further advertisement and/or fresh Registrar's certificate
be dispensed with (if applicable).(6)
The hearing of the application is adjourned to
at 10.30 a.m. before the Master.19 (7) The substituted applicant's costs of proceedings on the
application shall include the costs of this application.
28 June 19941 GOVERNMENT GAZETTE, WA 3121 73
Form 21
0.81G, R.84 (1)
THE COURT ORDERS THAT
(1) be wound up by the Court under the provisions of the Corporations Law of Western Australia.
(2) of (address) is appointed liquidator for the purposes of the winding up.
(3) The Bank in which the liquidator is to open a trust
account is the(4) The costs of the application be taxed and paid out of the
assets of the company.NOTE:
It is the duty of such of the persons who are liable to make out or concur in making out the report as to the affairs of the company as the liquidator requires to assist the liquidator within the time required and give him all information he may request.
3122 GOVERNMENT GAZETTE, WA [28 June 1994 74
Form 22
0.81G. R.84 (1) (a)
NOTICE OF WINDING UP ORDER
IN THE SUPREME COURT OF WESTERN AUSTRALIA AT
PERTH
No.
In the matter of Ltd. (ACN No. On (date) the Supreme Court of Western Australia in proceedings No. of ordered the winding up of (name of company) and appointed (name of liquidator) of (address) as the liquidator of that company.
Name and Address of Liquidator.
Applicant or his Solicitor
28 June 19941 GOVERNMENT GAZETTE, WA 3123 75
Form 23
0.81G, R.85 (3)
ORDER APPOINTING PROVISIONAL LIQUIDATOR
(Title)
IT IS ORDERED THAT -
"(1) A-B-C of be appointed the provisional liquidator of (the company) until the making of a winding-up order herein or until further order.
(2) The duties to be performed by the liquidator are as
follows -
(a)
To take possession of, collect and protect the assets of the company;
(b)
To receive and collect the debts due to the company;
(c)
To discharge rents, wages, salaries and other current expenses, but so far only as may be necessary for the purpose of preserving the company or for the purposes of sub-paragraph (d) hereof;
(d)
To carry on the business of the company and of its subsidiaries until further order
but only so far as is necessary for the rearrangement, beneficial disposal or
winding up of that business;
(e)
To generally exercise such of the powers conferred on the provisional liquidator by Section 477 (2) (a) (Ic) as may be necessary for the foregoing purposes.
(Delete or vary any of the above as may
be necessary).
3124 GOVERNMENT GAZETTE, WA [28 June 1994 76
(3)
The nature and description of the property of the company of which the provisional liquidator is to take possession is as follows - (all the assets and property of the company).
(4) The costs of the application be (costs in the winding up). (5) The provisional liquidator have liberty to apply."
28 June 19941 GOVERNMENT GAZETTE, WA 3125 77
Form 24
081G, R.86
NOTICE OF APPOINTMENT OF PROVISIONAL
LIQUIDATOR
Corporations Law
IN THE SUPREME COURT OF WESTERN AUSTRALIA AT
PERTH
No.
In the matter of , Ltd. (ACN No. On (date) the Supreme Court of Western Australia in proceedings No. of appointed (name and address) as provisional liquidator of (name of company).
Applicant or his Solicitor
3126 GOVERNMENT GAZETTE, WA (28 June 1994 78
Form 25
0.81G, R.95 (2)
NOTICE BY LIQUIDATOR REQUIRING PAYMENT OF
MONEY OR DELIVERY OF BOOKS, ETC., TO
LIQUIDATOR
(Title)
Take notice that I, the undersigned
have been appointed liquidator of , and that you, the undermentioned are required, within days after service hereof, to pay to me [or deliver,
of the said company, at my office situated at convey, surrender, or transfer to or into my hands] as liquidator etc., th sum of $ , being the amount of debt due appearing any sum or balance, books, papers, estate or effects, or specifically describe the property] now being in your hands, and to which the to be due from you on your account with the said company for
be]. said company is prima facie entitled [or otherwise as the ease may Name of liquidator.
Insert full name of company.
Name of person to whom notice is addressed.Address of liquidator's office.
28 June 19941 - GOVERNMENT GAZETTE, WA 3127 79
0.81G. R.96 (1)
AFFIDAVIT IN SUPPORT OF APPLICATION FOR ORDER
FOR PAYMENT OF CALL
(Title)
I, of, etc., the liquidator of make oath and say as follows -
(1) On (date) I made a call of $ (amount) per share on all of the contributories of the company (or specify the class marked "A" is a copy of the notice of the call, Each of the contributories on whom the call was made). Annexed and contributories whose names are shown in the Schedule marked "B" was duly served with notice of the call in the form annexed and marked "A".
(2) are set out in the second column of the Schedule marked Each of the contributories of the Company whose names "B" has not paid or caused to be paid to me the sum specified opposite his name in the fifth column of the Schedule, which is due from that contributory under the call.
(3) The amount set out opposite the name of each of the contributories in the sixth column of the Schedule is an estimate of the amount due by that contributory in respect of the costs of applying for and giving effect to the order for payment of the call. The estimate of the costs of applying for and giving effect to the order for payment of the call has been reached by apportioning those costs equally among contributories who have not paid the call.
(4)
The amount set out opposite the name of each of the contributories in the seventh column of the Schedule is the total of the amount due by that contributory in respect of the call as set out in the fifth column and the amount due in respect of costs as set out in the sixth column.
SWORN at before me:
SCHEDULE
Number on Character Proportion Total
Liatof in which Amount of coats of Amount
Contributories Name Address included of call application Payable in list
3128 GOVERNMENT GAZETTE, WA [28 June 1994 80
Form 27
0.81G, R.96 (2)
ORDER FOR PAYMENT OF CALL DUE FROM A
CONTRIBUTORY
(Title)
THE COURT ORDERS THAT -
(1)
Each person named in the second column of the Schedule marked "A" to this order, pay to the liquidator of (insert name of company ("Company") at (address) within (number) days of the date of this order the amount set out opposite his name in the fifth column of the Schedule, which is the amount due from that person under the call of $ (amount of call) per share duly made on (date of call).
(2)
Each person named in the second column of the Schedule to this order pay to the liquidator at the address specified above and within the time specified above the sum set out opposite his name in the sixth column of the Schedule, which is the proportion of the liquidator's costs of the application for this order and of giving effect to that order attributable to that person.
"A"
SCHEDULE
Number on Proportion Tots!
Liot of Name Address Character Amount of coite of Amount
Contributorie, in hich of call application Payable included in hat
NOTE: The copy for service of the above order must be
endorsed as follows -If you, the undermentioned AB, neglect to obey this order within the time mentioned therein, you will be liable to process of execution for the purpose of compelling you to obey the same.
28 June 19941 GOVERNMENT GAZETTE, WA 3129 81
Form 28
0.81G, R99 (1)
NOTICE TO CREDITORS AND CONTRIBUTORIES OF
INTENTION TO APPLY FOR RELEASE
(Title)
Take notice that I the liquidator of ° inthn to apply to a Master in Chambers at the
Supreme Oourt, Perth, at 10.30 a.m. in the forenoon on the
day of , 19 for my release, and further take notice that any objection you may have to the granting of my release should be notified to the Registrar of the Supreme Court and to the undersigned within twenty-one days of the date hereof.
A summary of my receipts and payments as liquidator is hereto annexed.
Dated the day of , 19 Liquidator
To
NOTE: - Section 481 (3) of the Corporations Law provides 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.
Set out name and address.
Insert full name of company.
3130 GOVERNMENT GAZETI'E, WA (28 June 1994 82
Form 29
0.81G, R.99 (1)
APPLICATION BY LIQUIDATOR TO THE COURT FOR RELEASE (Title)
I, , the liquidator of the abovenamed company do hereby report to til
e as follows (1) That the whole of the property of the company has been realised for the benefit of the creditors and contributories
[and a dividend to the amount of has been paid, as shown by the statement hereunto
cents in the dollar
annexed, and a return of per share has been made to the contributories of the company).
of inspection hereunto annexed in writing under our hands according to the joint opinion of myself and the committee [Or, That so much of the property of the company as can, be realized, without needlessly protracting the liquidation, has been realized, as shown by the statement hereunto annexed, and a dividend to the amount of cents has beenpaid as shown with a return of per share to the contributories of the company];
(a)
(2) contributories the notice required to be given by I have given or caused to be given to all creditors and rule 11 (9). (3) accounts to be prepared, and to grant me a certificate of I therefore request the Court to cause a report on my release.
Dated the day of '19
Liquidator
Add, if necessary, "That the rights of the contributories between themselves have been adjusted".
28 June 19941 GOVERNMENT GAZETTE, WA 3131 83
Form 30
0.81G, R.99 (1)
STATEMENT TO ACCOMPANY NOTICE OF APPLICATION FOR
RELEASE
(Title)
Statement Showing Position of Company at Date of
,Dr Application for Release Estimated to Produce
per Receipta Payments Company's Statement
To total receipts from 8 8 f By fees (including Stationery, Printing, and $
date of winding-up Postage in respect of Contributions, Creditors, (State particulars order, viz: and for Debtors, and fee for audit) under the several
headings specified in
the Statement ofReceipts per trading
Legal Conte of 8 account application Other receipts Legal Costs of
Solicitor to Liquidator
Other Legal costsTotal
Liquidator's remuneration, viz -
$ per cent on$ $
Less: Assets realized Payments to redeem per cent on 8 securities Assets Costs of execution distributed Payments per in dividend trading aunt
$ Shorthand writer's charges
- - Special Manager's charges
Person appointed to assist in preparation
Net realizations 8 of Statement of Affairs
Auctioneers charges as taxed
Cost,, of possession and maintenance of
Amount, received from calls on estate contritiutories macis by Costs of notices in Gazette and other papers the Incidental outlay Liquidator
Total cost and charges $
Creditors, viz - $ (a) Preferential
(b)
Unsecured, Dividend of
in 8
on $ The estimate of amount expect
to rank for
dividendwas 8
Amount returned to
contributories
$ Balance $
3132 GOVERNMENT GAZETTE, WA [28 June 1994 Form 31
0.81G, R.100 (3)
NOTICE OF APPLICATION FOR LEAVE
TO DISTRIBUTE A SURPLUS
IN THE SUPREME COURT OF WESTERN AUSTRALIA AT
PERTH
No.
In the matter of Ltd. (ACN No. On (date) at (time) the Supreme Court of Western Australia (address of Court) will hear an application by the liquidator of (name of company) in Proceedings No. of 19 for leave to distribute a surplus in respect of the liquidation of the Company. Any person intending to appear at the hearing must file a notice of intention to attend together with any affidavit on which he intends to rely and serve that notice and affidavit on the liquidator at the address shown below within the time prescribed by the Rules.
Name of liquidator.
Address of liquidator.
28 June 19941 GOVERNMENT GAZETTE, WA 3133 85
Form 32
0.81G, R.104 (2)
STATUTORY DECLARATION BY SPECIAL MANAGER
VERIFYING ACCOUNT
(Title)
I of , do solemnly and sincerely declare -
(1) The account hereunto annexed marked with the letter produced and shown to me at the time of swearing this declaration, and purporting to be my account as special manager of the estate or business of the abovenamed company, contains a true account of all and every sums and sum of money received by me or by any other person or persons by my order or to my knowledge or belief for my use on account or in respect of the estate or business. (2) The several sums of money mentioned in the account hereby verified to have been paid or allowed have been actually and truly so paid and allowed for the several purposes in the account mentioned. (3) The amount is just and true in all and every of the items and particulars therein contained, according to the best of my knowledge and belief. And I make this solemn declaration conscientiously believing the same to be true and by virtue of section 106 of the Evidence Act 1906.
Declared at, etc.
Insert nature of marking.
3134 GOVERNMENT GAZETTE, W [28 June 1994 86
Form 33
0.81G. R.105 (d)
ORDER THAT SPECIAL MANAGER HAS GWEN
SECURiTY
(Title)
The Court orders that AB of , who was on the
day of , 19 , appointed special manager of the
abovenamed company, has duly given security to the satisfaction
of the Court.
Dated the day of '19
28 June 19941 GOVERNMENT GAZETTE, WA 3135 87
Form 34
0.81G. R.108 (a)
SUMMONS TO ATTEND EXAMINATION UNDER SECTION 596A (OR SECTION 596B) OF THE CORPORATIONS LAW (Title)
To: (Name and address of person to be examined)
SUMMONS TO ATTEND EXAMINATION RELATING TO
(Name of Company in capitals)You are required to attend before the Court at the time and place specified below and from day to day until the conclusion of your examination, to be examined on oath or affirmation on any matters relating to the promotion, formation, management,
your control relevant to those matters. applicable) and to produce any books in your possession or under administration or winding up of (name of company) (insert if
(If applicable) You are required to bring with you and produce at the examination all books in your possession, custody or under your control relating to the above company. Subsection 597 (6) of the Corporations Law provides that a person who is summoned to attend before the Court for an examination must not, without reasonable excuse fail to attend as required by the summons or fail to attend #rom day to day until the conclusion of the examination. Section 597 (7) provides that a person who attends before the Court for an examination must not -
(a) make an affirmation; or without reasonable excuse, refuse or fail to take an oath or
without reasonable excuse, refuse or fail to answer a
(b) question that the Court directs him or her to answer; or (c) make a statement that is false or misleading in a material particular; or
without reasonable excuse, refuse or fail to produce books Subsection 597 (9) provides that the Court may direct a person to produce, at an examination of that person, books that are in his
(d) that the summons requires him or her to produce. or her possession and are relevant to matters to which the examination relates or will relate. Section 86 provides that a thing that is in a person'scustody or is under a person's control is
in that person's possession. Section 597 (9A) provides that a causing the relevant books to be produced at the examination. person may comply with the direction under subsection 597 (9) by
3136 GOVERNMENT GAZETTE, WA [28 June 1994
Section 597 (bA) provides that a person must not, without reasonable excuse, refuse or fail to comply with a direction under subsection 597 (9). Date and time of examination: (Date and time to be entered by
Registrar)Place: (Address of Court)
Dated:
Registrar
Name of application:
Name of applicant's solicitors:Applicant's address for service:
28 June 19941 GOVERNMENT GAZETTE, WA 3137 89
Form 35
0.81G. R.111 (1)
REQUEST TO DELIVER BILL FOR TAXATION
(Title)
I hereby request that you will, within days, or such further time as the Court may allow, deliver to me for taxation by the failing which I shall, in pursuance of the Corporations Rules, proper officer your bill of costs [or charges] as
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 the day of '19 Liquidator
Here state nature of employment
3138 GOVERNMENT GAZETTE, WA (28 June 1994 ME
Part 2
0.81G, R.4
APPLICATIONS FOR WHICH CONSENT IS REQUIRED IF
HEARD BY A MASIER
COLUMN 1 PROVISION
COLUMN 2
DESCRIPTION
ASC Law:
s.61 Reference to the Court of a question of law arising
at a hearing of the ASCs.70 For inquiry into failure to comply with
requirement of inspectors.196
Reference to the Court of a question of law arising at a hearing of the Corporations and Securities Panel
Corporations Law:
s. 170 Application in relation to proprietary company s.172(8) To cancel alteration of memorandum s. 190 To confirm issue of shares at a discount s. 194 To validate issue or allotment of shares s. 197, 198 To set aside variation or abrogation of rights or 199 s.202 For approval to payment of interest out of capital s.211 For order on default in relation to production of
register of members
s.212 To rectify register of members s.224 For leave to be re-appointed director s. 229 For leave to manage a corporation s.230
Orders that a person is not to manage a corporation s.251 For order that a meeting be called other than in
accordance with the articles or the laws.252(6) To dispense with circulation of statement s.260 For relief against oppression or injustice
28 June 19941 GOVERNMENT GAZETTE, WA 3139 91
s.266 Orders in relation to charges and for rectification s.267 of the Register of Charges s.274 s.289(8) available for inspection. For order that company accounting records be s.350(16) winding up of a foreign company
For direction as to disposal of net assets in s.411
For in relation to a compromise or orders
s.412 arrangement etc. s.413 s.414 s.415
Part 5.3A Relating to the administration of a company's (s. 435A- affairs and deeds of company arrangement s. 451D) s.464
For the winding up of a company under investigation s.468 For order to validate disposition of property after
commencement of Court winding ups.474 To vest company property in liquidator s.482 To stay or terminate winding up s.483 For directions or orders that property be delivered
to the liquidator etc.
To direct payment of money due from a contributory s.485(3) charges and expenses in a winding up For order as to priorities in payment of costs, s. 486A Orders to prevent avoidance of liability s. 486B Orders for warrant for arrest s.487 For an order for arrest of absconding contributory s.488 For special leave to distribute any surplus S.500 For orders that company property be delivered to
liquidators.507
To sanction resolution transferring company's business or property where company later wound
up by Court or for directions as to arbitration etc. S.510
For settlement of dispute as to value in an arrangement with creditors or to set aside arrangement
3140 GOVERNMENT GAZETTE, WA {128 June 1994 92
S.511 For the determination of a question or for exercise
by Court of powers in a voluntary winding ups.533 To direct the liquidator to report delinquent officer
or members. 536 Relating to the supervision of a liquidator in a
winding ups.544 To order account of funds in hands of liquidator,
audit or payment of moneys. 564 For order as to distribution of assets where there
have been indemnifying creditorss.565 Undue preferences s. 566 Effect of floating charge s. 567 Liquivators right to recover in respect of certain
transactionss. 570 To set aside rights of liquidator where sheriff
executing judgment on behalf of a creditor s. 571 To declare dissolution of company void s.574 To re-instate registration of company s. 593 For declaration as to personal liability s. 596A For order for the attendance of a person for s. 596B examination a. 598
For orders against person concerned with corporation s. 599 Order that a person is not to manage certain
corporations
s. 1055 For direction that security of certain debentures be enforceable s. 1069 To confirm set aside or vary direction of interest
holdersa. 1074 To confirm resolution to wind up scheme relating
to prescribed interestss. 1092 For order for delivery up of documents to company a. 1303 For order that document be made available for
inspections. 1318 For relief in respect of negligence, default, breach
of trust etc.
28 June 19941 GOVERNMENT GAZETTE, WA 3141 93
s. 1322 For orders with respect to irregularity in
proceedings
Dated the 7th day of June 1994.
D. K MALCOLM.
Judges' Signatures.
W. P. PIDGEON.
B. ROWLAND.
R. D. NICHOLSON.
TERENCE A. WALSH.
D. A. IPP.
M. J. MURRAY.
R. M. ANDERSON.
N. J. OWEN.K WHITE.
| PERTH, TUESDAY, 28 JUNE 1994 No. 91 | SPECIAL |
PUBLISHED BY AUTHORITY G. L. DUFFIELD, GOVERNMENT PRINTER AT 3.45 PM
SUPREME COURT ACT 1935
SUPREME COURT
AMENDMENT RULES (No. 4) 1994
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