Supreme Court (Chapter v Amendment No. 4) Rules 2002 (Vic)

Supreme Court (Chapter V Amendment No. 4)

Rules 2002

S.R. No. 122/2002

TABLE OF PROVISIONS

Rule Page

1.	Object	1
2.	Authorising provisions	1
3.	Commencement	1
4.	Principal Rules	1
5.	Originating process	1
6.	Supporting affidavits	2
7.	Amendment to Form 2	2
8.	Amendment to Form 2 and revocation of Form 2A	3
9.	Master's powers	3

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ENDNOTES 5

i

STATUTORY RULES 2002

S.R. No. 122/2002

Supreme Court Act 1986

Corporations (Ancillary Provisions) Act 2001

Supreme Court (Chapter V Amendment No. 4)

Rules 2002

The Judges of the Supreme Court make the following Rules:

1. Object

The object of these Rules is to make
miscellaneous amendments to the Supreme Court

(Corporations Law) Rules 1999.

2. Authorising provisions

These Rules are made under section 25 of the
Supreme Court Act 1986, section 23 of the
Corporations (Ancillary Provisions) Act 2001

and all other enabling powers.

3. Commencement

These Rules come into operation on 1 January

2003.

4. Principal Rules

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

5. Originating process2

At the foot of Rule 2.2 of the Principal Rules insert—

"Note:  In an application for winding up in insolvency on the ground that the company has failed to comply with a statutory demand, the applicant should consider

Supreme Court (Chapter V Amendment No. 4) Rules 2002

S.R. No. 122/2002 r. 6

completing Part C of Form 2 as shown in the endnotes

to these Rules.".

6. Supporting affidavits3

(1) In Rule 2.4 of the Principal Rules, paragraph (3) is

revoked.

(2) At the foot of Rules 2.4 and 5.4(2) respectively

insert—

"Note:  An example of the affidavit in support of an
application for winding up in insolvency for failure to
comply with a statutory demand is in the endnotes to
these Rules.".

7. Amendment to Form 2

In Form 2 in Schedule 1 to 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

Act)]

[Set out particulars of service of the statutory demand on the

company and of the failure to comply with the demand]

[Attach to this originating process a copy of the statutory
demand and, if the demand has been varied by an order
made under sub-section 459H(4) of the Corporations Act
because of a dispute or offsetting claim, a copy of the order

made under that sub-section.]

[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.]".

Supreme Court (Chapter V Amendment No. 4) Rules 2002

r. 8 S.R. No. 122/2002

8. Amendment to Form 2 and revocation of Form 2A

In Schedule 1 to the Principal Rules—

(a) at the foot of Form 2 insert—

"Note 1: In an application for winding up in insolvency

on the ground that the company has failed to
comply with a statutory demand, the applicant
should consider completing Part C of Form 2 as

shown in the endnotes to these Rules.

Note 2:	An example of the affidavit in support of an application for winding up in insolvency for failure to comply with a statutory demand is in
the endnotes to these Rules.";

(b) Form 2A is revoked.

9. Master's powers

In Schedule 2 to the Principal Rules, after—

"s. 470(2)(b)	To serve a copy order on another person.";
insert—
"s. 471A	For approval by the Court to perform or exercise a function or power as an officer of the company.".

Dated: 28 November 2002

J. H. PHILLIPS, C.J.
JOHN WINNEKE, P.
W. F. ORMISTON, J.A.
JOHN D. PHILLIPS, J.A.
STEPHEN CHARLES, J.A.
J. M. BATT, J.A.
PETER BUCHANAN, J.A.
ALEX CHERNOV, J.A.
G. M. EAMES, J.A.
BERNARD G. TEAGUE, J.

Supreme Court (Chapter V Amendment No. 4) Rules 2002

S.R. No. 122/2002

DAVID ASHLEY, J.
JOHN COLDREY, J.
DAVID BYRNE, J.
D. L. HARPER, J.
H. R. HANSEN, J.
ROSEMARY BALMFORD, J.
E. W. GILLARD, J.
M. L. WARREN, J.
BERNARD D. BONGIORNO, J.
R. S. OSBORN, J.
GEOFFREY NETTLE, J.

K. WILLIAMS, J.

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Supreme Court (Chapter V Amendment No. 4) Rules 2002

Endnotes S.R. No. 122/2002

ENDNOTES

1 Rule 4: S.R. No. 134/1999. Reprint (No. 1) incorporating amendments as at

6 June 2002.

2 Rule 5: Insert the following endnote—

"C.	APPLICATION FOR WINDING UP ON GROUND OF
INSOLVENCY

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

2.   The demand was [or The demand and an accompanying affidavit were] served by X.Y. who delivered it [or them] to the registered office of the defendant at [insert address] on [insert date] [or, if service was by post, who posted it [or 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 Act was finally
determined or otherwise disposed of] [or if the period for
compliance with the demand was extended by order within the
period specified in the order of the [insert name of Court] on
[insert date of order or, if more than one order, the date of the last
such order] as the period for compliance with the demand. A copy
of the order, marked C, is attached to this originating process.]

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

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

Supreme Court (Chapter V Amendment No. 4) Rules 2002

S.R. No. 122/2002

3 Rule 6: Insert the following endnote—

"Affidavit in Support of Application for winding up in insolvency

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

1. or if the applicant is a corporation

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

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

3.      [Where the defendant is registered or taken to be registered in another State or a Territory, state any facts—apart from the defendant's principal place of business—which bear upon jurisdiction being exercised in Victoria rather than in another State or Territory.]

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

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

sum was then due and payable.

6.      The demand, a copy of which is attached to the originating process, was signed by or on behalf of the plaintiff. I served the demand [or the demand and the accompanying affidavit] as referred to in the originating process [or X.Y. has been instructed to make an affidavit of service of the demand [or the demand and the accompanying affidavit]].

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

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

Sworn, etc. ".