Supreme Court (Chapter v Amendment No. 1) Rules 2000 (Vic)

Supreme Court (Chapter V Amendment No. 1)

Rules 2000

S.R. No. 121/2000

TABLE OF PROVISIONS

Rule Page

1.	Object	1
2.	Authorising provisions	1
3.	Commencement	1
4.	Principal Rules	1
5.	Supporting affidavits	1
6.	Appeals	2
7.	Amendment of Form 2	2
8.	New Form 2A inserted	3

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ENDNOTES 7

i

STATUTORY RULES 2000

S.R. No. 121/2000

Supreme Court Act 1986

Corporations (Victoria) Act 1990

Supreme Court (Chapter V Amendment No. 1)

Rules 2000

The Judges of the Supreme Court make the following Rules:

1. Object

The object of these Rules is to amend the rules relating to appeals from Masters and to provide more detailed forms for an application for winding

up in insolvency.

2. Authorising provisions

These Rules are made under section 25 of the enabling powers.

Supreme Court Act 1986, section 51 of the

3. Commencement

These Rules come into operation on 1 January

2001.

4. Principal Rules

In these Rules, the Supreme Court (Corporations Law) Rules 19991 are called the Principal Rules.

5. Supporting affidavits

In Rule 2.4 of the Principal Rules, after sub-rule
(2) insert—

Supreme Court (Chapter V Amendment No. 1) Rules 2000

S.R. No. 121/2000 r. 6

"(3) In the case of an application for winding up

in insolvency, the affidavit in support may be

in Form 2A.".

6. Appeals

(1) In Rule 16.5 of the Principal Rules, for "An"

substitute "Subject to paragraphs (2) and (3), an".

(2) In Rule 16.5 of the Principal Rules, at the end of

the Rule insert—
"(2) No order of a Master made on an application

referred to the Master by a Judge shall be subject to an appeal except by leave of a Judge.

(3) Without limiting the discretion to grant or

refuse leave, leave may be granted if the
Judge is satisfied, whether with or without
oral argument, that the decision of the

Master is arguably affected by error.".

7. Amendment of Form 2

In Form 2 of the Principal Rules, for Part C substitute—

"C.	APPLICATION FOR WINDING UP ON GROUND OF
INSOLVENCY

[Complete this section if this originating process is seeking an
order that a company be wound up in insolvency on the ground
that the company has failed to comply with a statutory demand

(see section 459Q of the Corporations Law)]

[Set out particulars of service of the statutory demand on the
company and of the failure to comply with the demand, as
follows—

1.  The plaintiff relies on failure by the defendant to comply with a statutory demand. A copy of the demand, marked A, is attached to this originating process.

2. affidavit were] served by X.Y. who delivered it [or them] to

The demand was [or The demand and an accompanying [insert date] [or, if service was by post, who posted it [or

Supreme Court (Chapter V Amendment No. 1) Rules 2000

r. 7 S.R. No. 121/2000

them] by ordinary prepaid post to the registered office of the
defendant at [insert address] on [insert date]]. [If
applicable, A copy of the accompanying affidavit, marked
B, is attached to this originating process.]

3.  The defendant failed to pay the amount of the debt demanded [or the total of the debts demanded] or to secure or compound for that amount [or that total] to the plaintiff's reasonable satisfaction within 21 days after the demand was served on the defendant [or within 7 days after [insert date] when an application by the defendant under section 459G of the Corporations Law was finally determined or otherwise disposed of] [or if the period for compliance with the demand was extended by order within the period specified in the order of the [insert name of Court] on [insert date of order or, if more than one order, the date of the last such order] as the period for compliance with the demand. A copy of the order, marked C, is attached to this originating process.]

[If the demand was varied by order under sub-section 459H(4) of
the Corporations Law—]

4.   The demand was varied by order of the [insert name of Court] on [insert date of order]. A copy of the order, marked D [or as the case may be], is attached to this originating process.]

[The affidavit in support of this originating process must—

(a)	verify service of demand on the company; and
(b)	verify the failure of the company to comply with the demand; and
(c)	state whether and, if so, to what extent the debt, or each of the debts, to which the demand relates is still due and payable at the date when the affidavit is made.

The affidavit in support may be in Form 2A.]".

8. New Form 2A inserted

After Form 2 of the Principal Rules insert—

Supreme Court (Chapter V Amendment No. 1) Rules 2000

S.R. No. 121/2000

"Rule 2.4 FORM 2A

AFFIDAVIT IN SUPPORT OF APPLICATION FOR WINDING

UP OF DEFENDANT IN INSOLVENCY

[Title]

I, [name] of [address and occupation], *say on oath/*affirm [or *make oath and say/*solemnly and sincerely declare and affirm]—

1. or if the applicant is a corporation
am a [or the] director of the above-named plaintiff which is

I am the above-named plaintiff [, I duly authorised to make this affidavit on its behalf]. Now produced and shown to me and marked A is a copy of the originating process to be filed in the proceeding.

2.      Annexed to this affidavit is a current and historical extract of the records maintained by the Commission with respect to the defendant.

3.      [Where the defendant is registered or deemed to be registered under the Corporations Law of another State or a Territory, state any facts— apart from the defendant's principal place of business—which warrant the Court exercising jurisdiction under the Corporations Law of that State or Territory.]

4.      The following facts are within my own personal knowledge save as otherwise stated.

5.      The defendant was on [state date of statutory demand or other relevant date] indebted to the plaintiff in the sum of $ for [state concisely the consideration, for example, goods sold and delivered etc.] which

sum was then due and payable.

6. signed by or on behalf of the plaintiff. I served the demand [or the
demand and the accompanying affidavit] as referred to in the

The demand, a copy of which is attached to the originating process, was service of the demand [or the demand and the accompanying affidavit]].

7.      The matters stated in the originating process concerning the demand and failure of the defendant to comply with it are true and correct.

8.      The sum demanded remains due and payable by the defendant to me [or the plaintiff].

*Sworn/*affirmed at: [place of swearing or affirmation] on [date]

OR

Supreme Court (Chapter V Amendment No. 1) Rules 2000

r. 8 S.R. No. 121/2000

*Sworn/*affirmed by the above-named deponent at: [place of swearing or

affirmation] this date of [month] [year]

.......................................................

Signature of deponent

Before me:

................................................................ before whom deponent swears or affirms affidavit

* Omit if not applicable".

Dated: 30 November 2000

J. H. PHILLIPS, C.J.
ROBERT BROOKING, J.A.
R. C. TADGELL, J.A.
W. F. ORMISTON, J.A.
JOHN D. PHILLIPS, J.A.
STEPHEN CHARLES, J.A.
J. M. BATT, J.A.
PETER BUCHANAN, J.A.
BARRY BEACH, J.
F. H. R. VINCENT, J.
BERNARD G. TEAGUE, J.
P. D. CUMMINS, J.
ALLAN W. McDONALD, J.
T. H. SMITH, J.
DAVID ASHLEY, J.
JOHN J. HEDIGAN, J.
JOHN COLDREY, J.

Supreme Court (Chapter V Amendment No. 1) Rules 2000

S.R. No. 121/2000 r. 8

DAVID BYRNE, J.
H. R. HANSEN, J.
PHILIP MANDIE, J.
ROSEMARY BALMFORD, J.
E. W. GILLARD, J.

M. L. WARREN, J.

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Supreme Court (Chapter V Amendment No. 1) Rules 2000

Endnotes S.R. No. 121/2000

ENDNOTES

1 Rule 4: S.R. No. 134/1999.