Supreme Court (Corporations) Rules 2013 (Vic)
Version No. 011
Supreme Court (Corporations) Rules 2013
S.R. No. 112/2013
Version incorporating amendments as at
2 July 2018
TABLE OF PROVISIONS
Rule Page
Order 1—Preliminary
1.1Title and objects
1.2Authorising provisions, commencement and revocation
1.3Application of these Rules and other rules of the Court
1.4Expressions used in the Corporations Act
1.5Definitions for these Rules
1.6Reference to rules and forms
1.7Substantial compliance with forms
1.8Court's power to give directions
1.9Calculation of time
1.10Extension and abridgment of time
Order 2—Proceedings generally
2.1Title of documents in a proceeding—Form 1
2.2Originating process and interlocutory process—Forms 2 and 3
2.3Fixing of hearing
2.4Supporting affidavits
2.4AApplication for order setting aside statutory demand (s. 459G of the Corporations Act)
2.5Affidavits made by creditors
2.6Form of affidavits
2.7Service of originating process or interlocutory process and supporting affidavit
2.8Notice of certain applications to be given to ASIC
2.9Notice of appearance (s. 465C of the Corporations Act)—Form 4
2.10Intervention in proceeding by ASIC (s. 1330 of the Corporations Act)—Form 5
2.11Publication of notices
2.12Proof of publication
2.13Leave to creditor, contributory or officer to be heard
2.14Inquiry in relation to corporation's debts etc.
2.15Meetings ordered by the Court
Order 3—Compromises and arrangements in relation to Part 5.1 bodies
3.1Application of Order 3
3.2Nomination of chairperson for meeting
3.3Order for meetings to identify proposed scheme
3.4Notice of hearing (ss 411(4), 413(1) of the Corporations Act)—Form 6
3.5Copy of order approving compromise or arrangement to be lodged with ASIC
Order 4—Process for seeking an inquiry or order in relation to controller, registered liquidator or external administration
4.1Inquiry into conduct of controller (s. 423 of the Corporations Act)
4.2Order or inquiry in relation to a registered liquidator or external administration of a company
Order 5—Winding up proceedings (including oppression proceedings where winding up is sought)
5.1Application of Order 5
5.2Affidavit accompanying statutory demand (s. 459E(3) of the Corporations Act)—Form 7
5.3Application for leave to apply for winding up in insolvency (s. 459P(2) of the Corporations Act)
5.4Affidavit in support of application for winding up (ss 459P, 462, 464 of the Corporations Act)
5.5Consent of liquidator (s. 532(9) of the Corporations Act)—Form 8
5.6Notice of application for winding up
5.7Applicant to make copies of documents available
5.8Discontinuance of application for winding up
5.9Appearance before Associate Judge or judicial registrar
5.10Order substituting plaintiff in application for winding up (s. 465B of the Corporations Act)—Form 10
5.11Notice of winding up order and appointment of liquidator
Order 6—Provisional liquidators (Part 5.4B of the Corporations Act)
6.1Appointment of provisional liquidator (s. 472 of the Corporations Act)—Form 8
6.2Notice of appointment of provisional liquidator
Order 7—Liquidators
7.2Vacancy in office of liquidator (Corporations Act s. 473A and s. 499(3) and Insolvency Practice Schedule (Corporations) s 90-15)
7.3Report to liquidator as to company's affairs (s. 475 of the Corporations Act)
7.4Liquidator to file certificate and copy of settled list of contributories (s. 478 of the Corporations Act)
7.5Release of liquidator and deregistration of company (ss 480(c) and (d) of the Corporations Act)
7.6Objection to release of liquidator—Form 13
7.7Report on accounts of liquidator (s. 481 of the Corporations Act)
7.8Application for payment of call (s. 483(3)(b) of the Corporations Act)—Form 14
7.9Distribution of surplus by liquidator with special leave of the Court (s. 488(2) of the Corporations Act)—Form 15
7.10Powers delegated to liquidator by the Court (s. 488 of the Corporations Act)
7.11Appointment of reviewing liquidator (Insolvency Practice Schedule (Corporations) s. 90-23(8))
Order 8—Special managers (Part 5.4B of the Corporations Act)
8.1Application for appointment of special manager (s. 484 of the Corporations Act)
8.2Security given by special manager (s. 484 of the Corporations Act)
8.3Special manager's receipts and payments (s. 484 of the Corporations Act)
Order 9—Remuneration of office-holders
9.1Remuneration of receiver (s. 425(1) of the Corporations Act)—Form 16
9.2Determination of remuneration of external administrator (Insolvency Practice Schedule (Corporations) s. 60-10(1)(c) and (2)(b))—Form 16
9.2AReview of remuneration determination for external administrator (Insolvency Practice Schedule (Corporations) s. 60-11(1)
9.3Remuneration of provisional liquidator (Insolvency Practice Schedule (Corporations) s. 60-16)—Form 16
9.5Remuneration of special manager (s. 484(2) of the Corporations Act)—Form 16
Order 10—Winding up generally
10.1Determination of value of debts or claims (s. 554A(2) of the Corporations Act)
10.2Disclaimer of contract (s. 568(1A) of the Corporations Act)
10.3Winding up Part 5.7 bodies (ss 583, 585 of the Corporations Act) and registered schemes (s. 601ND of the Corporations Act)
Order 11—Inquiries, examinations, investigations and orders against person concerned with corporation
11.1Definition for Order 11
11.2Inquiries, examinations and investigations under section 411(9)(b) or 423(3) of the Corporations Act or Subdivision B of Division 90 of the Insolvency Practice Schedule (Corporations)
11.3Application for examination summons (ss 596A, 596B of the Corporations Act)—Form 17
11.4Service of examination summons
11.5Discharge of examination summons
11.6Filing of record of examination (s. 597(13) of the Corporations Act)
11.7Authentication of transcript of examination (s. 597(14) of the Corporations Act)
11.8Inspection of record or transcript of examination or investigation under ss 411 or 423 of the Corporations Act or Subdivision B of Division 90 of the Insolvency Practice Schedule (Corporations)
11.9Entitlement to record or transcript of examination held in public
11.10Default in relation to examination
11.11Service of application for order in relation to breaches etc. by person concerned with corporation (s. 598 of the Corporations Act)
Order 11A—Warrants (Corporations Act section 486B and Part 5.4B, Division 3, Subdivision B)
11A.01Arrest of person (Corporations Act s. 486B)—Form 17A
Order 12—Takeovers, acquisition of shares etc. (Chapters 6 to 6D of the Corporations Act) and securities (Chapter 7 of the Corporations Act)
12.1Service on ASIC in relation to proceedings under Chapter 6, 6A, 6B, 6C, 6D or 7 of the Corporations Act
12.1AReference to Court of question of law arising in a proceeding before Takeovers Panel (s. 659A of the Corporations Act)
12.1BNotification to Court where proceeding is commenced before end of takeover bid period (s. 659B of the Corporations Act)
12.2Application for summons for appearance of person (s. 1071D(4) of the Corporations Act)—Form 18
12.3Application for orders relating to refusal to register transfer or transmission of securities etc. (s. 1071F of the Corporations Act)
Order 13
Order 14—Appeals authorised by the Corporations Act
14.1Appeals against acts, omissions or decisions
Order 15—Proceedings under the ASIC Act
15.1Reference to Court of question of law arising at hearing of ASIC (s. 61 of the ASIC Act)
15.3Application for inquiry (ss 70, 201, 219 of the ASIC Act)
Order 15A—Proceedings under the Cross-Border Insolvency Act
15A.1Application of this Order and other rules of the Court
15A.2Expressions used in the Cross-Border Insolvency Act
15A.3Application for recognition
15A.4Application for provisional relief under article 19 of the Model Law
15A.5Registered liquidator's consent to act
15A.6Notice of filing of application for recognition
15A.7Notice of order for recognition, discontinuance etc.
15A.8Relief after recognition
15A.9Application to modify or terminate an order for recognition or other relief
Order 16—Powers of Associate Judges
Part 1—General
16.1Powers of Associate Judges
16.2Reference by Associate Judge
16.3Matters within Associate Judge's jurisdiction not to be brought before Judge of the Court except in certain cases
16.4Associate Judge not to hear complaint for offence
16.5Appeals
Part 2—Meetings
16.6Inquiry and order by Associate Judge as to meetings
Part 3—Winding up
16.7Application of Part
16.8Application to Associate Judge or judicial registrar
16.9Consideration by Associate Judge or judicial registrar
16.10Filing of documents
Order 16A—Proceedings under the Federal Courts (State Jurisdiction) Act 1999
16A.1Form for initiating proceeding
Order 16B—Powers of Judicial Registrars
16B.1Powers of Associate Judges not limited by powers of judicial registrars
16B.2Powers of judicial registrars
16B.3Matters within judicial registrars' jurisdiction not to be brought before Judge of the Court except in certain cases
16B.4Judicial registrar may constitute Court
16B.5Judicial registrar not to hear complaint for offence
16B.6Appeal of decision of judicial registrar
Order 17—Costs
17.1Submission of bill of costs to liquidator
17.2Request for bill for taxation—Form 18A
17.3Lodgement of bill for taxation and appointment to tax
17.4Liquidator's certificate as to special terms of remuneration
17.5No allowance for performance by others of liquidator's or special manager's duties
17.6Application for costs after proceeding concluded
17.7Costs of winding up application—short form bills
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Schedules
Schedule 1—Forms
Schedule 2—Powers of the Court that may be exercised by an Associate Judge
Schedule 2AA—Insolvency Practice Schedule (Corporations)
Schedule 2A—Powers of the Court that may be exercised by a Judicial Registrar
Schedule 3—Notes to these Rules
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Endnotes
1 General information
2 Table of Amendments
3 Amendments Not in Operation
4 Explanatory details
Version No. 011
Supreme Court (Corporations) Rules 2013
S.R. No. 112/2013
Version incorporating amendments as at
2 July 2018
The Judges of the Supreme Court make the following Rules:
ORDER 1—PRELIMINARY
1.1Title and objects
(1)These Rules constitute Chapter V of the Rules of the Supreme Court and are entitled the Supreme Court (Corporations) Rules 2013.
(2)The object of these Rules is to provide for rules in relation to Corporations matters in harmony with like rules in all other States and Territories.
1.2Authorising provisions, commencement and revocation
(1)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.
(2)These Rules come into operation on 24 September 2013.
(3)The following Rules are revoked—
(a)the Supreme Court (Corporations) Rules 2003[1];
(b)the Supreme Court (Chapter V Amendment No. 1) Rules 2005[2];
(c)the Supreme Court (Chapter V Amendment No. 2) Rules 2006[3];
(d)the Supreme Court (Chapter V Amendment No. 3) Rules 2007[4];
(e)the Supreme Court (Chapter V Amendment No. 4) Rules 2007[5];
(f)the Supreme Court (Chapter V Amendment No. 5) Rules 2008[6];
(g)the Supreme Court (Chapter V Amendment No. 6) Rules 2009[7];
(h)the Supreme Court (Chapter V Amendment No. 7) Rules 2010[8].
1.3Application of these Rules and other rules of the Court
(1)Unless the Court otherwise orders—
(a)these Rules apply to a proceeding in the Court under the Corporations Act or the ASIC Act; and
(b)Order 15A applies to a proceeding in the Court under the Cross-Border Insolvency Act.
(2)The other Rules of the Court apply, so far as they are relevant and not inconsistent with these Rules—
(a)to a proceeding in the Court under the Corporations Act or the ASIC Act; and
(b)to a proceeding in the Court under the Cross-Border Insolvency Act that is commenced on or after the commencement of the Supreme Court (Chapter V Amendment No. 6) Rules 2009.
(3)Unless the Court otherwise orders, the Supreme Court (Corporations Law) Rules 1999 continue to apply to a proceeding under the Corporations Law or the ASIC Law.
Note
By virtue of the definition of this Act in section 9 of the Corporations Act, a reference to the Corporations Act includes a reference to the Corporations Regulations.
1.4Expressions used in the Corporations Act
(1)Unless the contrary intention appears, an expression used in these Rules and in the Corporations Act has the same meaning in these Rules as it has in the Corporations Act.
Note
Expressions used in these Rules (including the notes to these Rules) that are defined in the Corporations Act include—
ABN—see section 9;
ACN—see section 9;
ARBN—see section 9;
ASIC—see section 9;
body—see section 9;
body corporate—see section 9;
books—see section 9;
company—see section 9;
corporation—see section 57A;
daily newspaper—see section 9;
foreign company—see section 9;
Gazette notice—see section 9;
officer—see section 9;
* * * * *
Part 5.1 body—see section 9;
Part 5.7 body—see section 9;
register—see section 9;
registered liquidator—see section 9;
registered office—see section 9;
statutory demand—see section 9.
(2)Unless the contrary intention appears, an expression used in the Rules and in the Insolvency Practice Schedule (Corporations) has the same meaning in these Rules as it has in that Schedule.
Note
Definitions of expressions used in the Insolvency Practice Schedule (Corporations) are set out in Division 5 of that Schedule.
1.5Definitions for these Rules
In these Rules, unless the contrary intention appears—
applicant means a person claiming interlocutory relief in a proceeding;
ASIC Act means the Australian Securities and Investments Commission Act 2001 of the Commonwealth;
Corporations Act means the Corporations Act 2001 of the Commonwealth;
Corporations List Judge means a Judge of the Court nominated by the Chief Justice as a Corporations List Judge;
Corporations Regulations means the Corporations Regulations 2001 of the Commonwealth;
Cross-Border Insolvency Act means the Cross-Border Insolvency Act 2008 of the Commonwealth, including, unless the contrary intention appears, the Model Law;
defendant means a person against whom relief (except interlocutory relief) is claimed under the Corporations Act, the ASIC Act or the Cross-Border Insolvency Act, whether in the originating process or not;
Insolvency Practice Schedule (Corporations) means Schedule 2 to the Corporations Act;
interlocutory process means an interlocutory process in accordance with Form 3;
Model Law means the Model Law on Cross-Border Insolvency of the United Nations Commission on International Trade Law, the English text of which is set out in Schedule 1 to the Cross-Border Insolvency Act, with the modifications set out in Part 2 of that Act;
originating process means an originating process in accordance with Form 2 or Form 2A;
plaintiff means a person claiming relief (except interlocutory relief) under the Corporations Act, the ASIC Act or the Cross-Border Insolvency Act, whether in the originating process or not;
RedCrestmeans the electronic filing system in operation in the Court from time to time;
* * * * *
respondent means a person against whom interlocutory relief is claimed in a proceeding.
1.6Reference to rules and forms
In these Rules, unless the contrary intention appears—
(a)a reference to a Rule is a reference to a Rule in these Rules; and
(b)a reference to a form followed by a number is a reference to the form so numbered in Schedule 1 to these Rules.
1.7Substantial compliance with forms
(1)It is sufficient compliance with these Rules in relation to a document that is required to be in accordance with a form in Schedule 1 if the document is substantially in accordance with the form required or has only such variations as the nature of the case requires.
(2)Without limiting paragraph (1), the Prothonotary must not reject a document for filing only because a term used to describe a party in the document differs from the term used in these Rules.
1.8Court's power to give directions
The Court may give directions in relation to the practice and procedure to be followed in a proceeding if it is satisfied, in the circumstances of the proceeding, that—
(a)the provisions of the Corporations Act, the ASIC Act, or the rules of this Court do not adequately provide for the practice and procedure to be followed in the proceeding; or
(b)a difficulty arises, or doubt exists, in relation to the practice and procedure to be followed in the proceeding.
1.9Calculation of time
(1)If, for any purpose, these Rules—
(a)prohibit, permit or require an act or thing to be done within, by, or before the end of; or
(b)otherwise prescribe, allow or provide for—
a period of time before or after a particular day, act or event, the period is to be calculated without counting that day, or the day of the act or event, as the case may be.
(2)Without limiting paragraph (1), in calculating how many days a particular day, act or event is before or after another day, act or event, only the first day, or the day of the first act or event, is to be counted.
(3)If the last day of any period prescribed or allowed by these Rules for an act or thing to be done falls on a day that is not a business day in the place where the act or thing is to be or may be done, the act or thing may be done on the first business day in the place after that day.
(4)In calculating a period of time for the purposes of these Rules, the period beginning on 25 December in a year and ending at the end of 1 January in the next year is not to be counted.
1.10Extension and abridgment of time
Unless the Corporations Act, the ASIC Act, or these Rules otherwise provide, the rules of this Court that provide for the extension or abridgment of a period of time fixed for the doing of any act or thing in relation to a proceeding apply to a proceeding to which these Rules apply.
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ORDER 2—PROCEEDINGS GENERALLY
2.1Title of documents in a proceeding—Form 1
The title of a document filed in a proceeding must be in accordance with Form 1.
* * * * *
2.2Originating process and interlocutory process—Forms 2 and 3
(1)Unless these Rules otherwise provide, a person must make an application required or permitted by the Corporations Act to be made to the Court—
(a)if the application is not made in a proceeding already commenced in the Court—by filing an originating process; and
(b)in any other case, and whether interlocutory relief or final relief is claimed—by filing an interlocutory process.
(2)Unless the Court otherwise directs, a person may make an application to the Court in relation to a proceeding in respect of which final relief has been granted by filing an interlocutory process in that proceeding.
(3)An originating process must—
(a)be in accordance with Form 2; and
(b)state—
(i)each section of the Corporations Act or the ASIC Act, or each regulation of the Corporations Regulations, or each provision of the Insolvency Practice Schedule (Corporations) under which the proceeding is brought; and
(ii)the relief sought.
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 completing Part C of Form 2 as shown in Schedule 3—Notes to these Rules.
(4)An interlocutory process must—
(a)be in accordance with Form 3; and
(b)state—
(i)if appropriate, each section of the Corporations Act or the ASIC Act, or each regulation of the Corporations Regulations, or each provision of the Insolvency Practice Schedule (Corporations) or each rule of Court under which the application is made; and
(ii)the relief sought.
2.3Fixing of hearing
On receiving an originating process or interlocutory process, the Prothonotary—
(a)must fix a time, date and place for hearing and endorse those details on the originating process or interlocutory process; and
(b)may seal a sufficient number of copies for service and proof of service.
2.4Supporting affidavits
(1)Unless the Court otherwise directs, an originating process, or interlocutory process, must be supported by an affidavit stating the facts in support of the process.
(2)Subject to Rule 2.4A, an affidavit in support of an originating process must annex a record of a search of the records maintained by the ASIC, in relation to the company that is the subject of the application to which the originating process relates, carried out no earlier than 7 days before the originating process is filed.
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 shown in Schedule 3—Notes to these Rules.
2.4AApplication for order setting aside statutory demand (s. 459G of the Corporations Act)
(1)This Rule applies, and Rule 2.4(2) does not apply, to an application by a company under section 459G of the Corporations Act for an order setting aside a statutory demand served on the company.
(2)The plaintiff may file with the originating process seeking the order a copy of the statutory demand and a copy of any affidavit that accompanied the statutory demand.
(3)The plaintiff must—
(a)no earlier than 7 days before the originating process is filed, and no later than the day before the hearing of the application, carry out a search of the records maintained by the ASIC in relation to the plaintiff; and
(b)either—
(i)annex the record of the search to the affidavit in support of the originating process; or
(ii)file the record of the search before or tender it on the hearing of the application.
2.5Affidavits made by creditors
Subject to Rule 5.4, an affidavit that is to be made by a creditor may be made—
(a)if the creditor is a corporation—by a director, secretary, or other principal officer of the corporation, or by a person employed by the corporation who is authorised to make the affidavit on its behalf; or
(b)if the creditor is a company to which a liquidator, provisional liquidator, receiver, administrator or controller has been appointed—by that person; or
(c)in any other case—by the creditor or a person authorised by the creditor to make the affidavit on behalf of the creditor.
2.6Form of affidavits
An affidavit must be in a form that complies with—
(a)the rules of the Court; or
(b)the rules of the Supreme Court of the State (if any) or Territory (if any) where the affidavit was sworn or affirmed; or
(c)the rules of the Federal Court of Australia.
2.7Service of originating process or interlocutory process and supporting affidavit
(1)As soon as practicable after filing an originating process and, in any case, at least 5 days before the date fixed for hearing, the plaintiff must serve a copy of the originating process and any supporting affidavit on—
(a)each defendant (if any) to the proceeding; and
(b)if the corporation to which the proceeding relates is not a party to the proceeding—the corporation.
(2)As soon as practicable after filing an interlocutory process and, in any case, at least 3 days before the date fixed for hearing, the applicant must serve a copy of the interlocutory process and any supporting affidavit on—
(a)each respondent (if any) to the application in the interlocutory process; and
(b)if the corporation to which the application in the interlocutory process relates is not a party to the application in the interlocutory process—the corporation.
2.8Notice of certain applications to be given to ASIC
(1)This Rule has effect in addition to the requirements of the Corporations Act that, in relation to a proceeding—
(a)particular documents are to be served on the ASIC; or
(b)notice of particular matters is to be given to the ASIC.
(2)This Rule does not apply to a person making an application if the person is—
(a)the ASIC; or
(b)a person authorised by the ASIC.
(3)Unless the Court otherwise orders, if a person makes an application under a provision of the Corporations Act mentioned in column 2 of the item of the following Table, the person must serve on the ASIC, a reasonable time before the hearing of the application, a copy of—
(a)the originating process or interlocutory process; and
(b)the supporting affidavit in respect of the application.
TABLE
Column 1 Column 2 Column 3
Item
ProvisionDescription of application 1. Section 480 For the release of a liquidator of a company and the deregistration of the company 2. Section 482(1) For the stay or termination of a winding up 3. Section 509(2) For the deregistration of a company * * * * *
5. Section 601AH(2) To reinstate the registration of a company 6. Section 601CC(8) To restore the name of an Australian body to the register 7. Section 601CL(9) To restore the name of a foreign company to the register 8. Chapter 6, 6A, 6B, 6C, 6D or 7 Any application under these Chapters 9. Sections 1317S(2), (4) and (5) For relief from liability for contravention of a civil penalty provision. 10. Section 45-1(3) of the Insolvency Practice Schedule (Corporations) For an order under section 45-1(1) of the Insolvency Practice Schedule (Corporations) 11. Section 90-10(1) of the Insolvency Practice Schedule (Corporations) For an inquiry into the external administration of a company 12. Section 90-20 of the Insolvency Practice Schedule (Corporations) For an order under section 90-15 of the Insolvency Practice Schedule (Corporations) in relation to the external administration of a company.
2.9Notice of appearance (s. 465C of the Corporations Act)—Form 4
(1)A person who intends to appear before the Court at the hearing of an application must, before appearing—
(a)file—
(i)a notice of appearance in accordance with Form 4; and
(ii)if appropriate—an affidavit stating any facts on which the person intends to rely; and
(b)serve on the plaintiff a copy of the notice of appearance and any affidavit not later than—
(i)if the person is named in an originating process—3 days before the date fixed for hearing; or
(ii)if the person is named in an interlocutory process—1 day before the date fixed for hearing.
(2)If the person intends to appear before the Court to oppose an application for winding up, the person may include in the notice of appearance the notice of the grounds on which the person opposes the application required by section 465C of the Corporations Act.
(3)The period prescribed for filing and serving the notice and affidavit required by section 465C of the Corporations Act is the period mentioned in paragraph (1)(b)(i).
Note
Under section 465C of the Corporations Act, a person may not, without the leave of the Court, oppose an application for winding up unless, within the period prescribed by the rules (see paragraph (3) of this Rule), the person has filed, and served on the plaintiff, notice of the grounds on which the person opposes the application and an affidavit verifying the matters stated in the notice.
2.10Intervention in proceeding by ASIC (s. 1330 of the Corporations Act)—Form 5
(1)If the ASIC intends to intervene in a proceeding, the ASIC must file a notice of intervention in accordance with Form 5.
(2)Not later than 3 days before the date fixed for the hearing at which the ASIC intends to appear in the proceeding, the ASIC must serve on the plaintiff and on any other party to the proceeding—
(a)a copy of the notice; and
(b)any affidavit on which it intends to rely.
2.11Publication of notices
If a rule requires a notice in relation to a body to be published in accordance with this Rule, the notice must be published once in a daily newspaper circulating generally in the State or Territory where the body has its principal, or last known, place of business.
Note
Under the Corporations Act, certain notices may also be required to be published in the Gazette. Nothing in this Rule is intended to affect the operation of any provision of the Corporations Act that requires publication of a notice in the Gazette.
2.12Proof of publication
(1)This Rule applies in relation to any matter published in connection with a proceeding.
(2)Unless these Rules otherwise provide or the Court otherwise orders, the person responsible for the publication of the matter or the person's legal practitioner must file—
(a)an affidavit made by the person or the person's legal practitioner that states the date of publication and to which is annexed a copy of the published matter; or
(b)a memorandum signed by the person or the person's legal practitioner that states the date of publication and refers to and annexes a copy of the published matter.
(3)The affidavit or memorandum is prima facie evidence that the publication took place on the date and otherwise as stated in the affidavit or memorandum.
2.13Leave to creditor, contributory or officer to be heard
(1)The Court may grant leave to be heard in a proceeding without becoming a party to the proceeding to any person who is, or who claims to be—
(a)a creditor, contributory or officer of a corporation; or
(b)an officer of a creditor, or contributory, of a corporation; or
(c)any other interested person.
(2)If the Court considers that the attendance of a person to whom leave has been granted under paragraph (1) has resulted in additional costs for any party, or the corporation, which should be borne by the person to whom leave was granted, the Court may—
(a)direct that the person pay the costs; and
(b)order that the person not be heard further in the proceeding until the costs are paid or secured to the Court's satisfaction.
(3)The Court may order that a person who is, or who claims to be, a creditor, contributory or officer of a corporation be added as a defendant to the proceeding.
(4)The Court may grant leave to a person under paragraph (1), or order that a person be added as a defendant to a proceeding under paragraph (3)—
(a)on application by the person or a party to the proceeding; or
(b)on the Court's own initiative.
(5)The Court may—
(a)appoint a creditor or contributory to represent all or any class of the creditors or contributories on any question, or in relation to any proceeding, before the Court, at the expense of the corporation; and
(b)remove any person so appointed.
2.14Inquiry in relation to corporation's debts etc.
The Court may direct an inquiry in relation to the debts, claims or liabilities, or a class of debts, claims or liabilities, of or affecting a corporation to which a proceeding relates.
2.15Meetings ordered by the Court
Subject to the Corporations Act, these Rules and any direction of the Court to the contrary, regulations 5.6.11 to 5.6.36A of the Corporations Regulations apply to meetings ordered by the Court.
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ORDER 3—COMPROMISES AND ARRANGEMENTS IN RELATION TO PART 5.1 BODIES
3.1Application of Order 3
This Order applies if an application is made to the Court for approval of a compromise or arrangement between a Part 5.1 body and its creditors or members, or any class of its creditors or members.
3.2Nomination of chairperson for meeting
Before the hearing of an application under section 411(1), (1A) or (1B) of the Corporations Act, the plaintiff must file an affidavit stating—
(a)the names of the persons who have been nominated to be the chairperson and alternate chairperson of the meeting;
(b)that each person nominated—
(i)is willing to act as chairperson;
(ii)has had no previous relationship or dealing with the body, or any other person interested in the proposed compromise or arrangement, except as disclosed in the affidavit; and
(iii)has no interest or obligation that may give rise to a conflict of interest or duty if the person were to act as chairperson of the meeting, except as disclosed in the affidavit;
(c)the name of the person (if any) proposed to be appointed to administer the proposed compromise or arrangement; and
(d)that the person does not fall within paragraphs (a) to (f) of section 411(7) of the Corporations Act, except as disclosed in the affidavit.
3.3Order for meetings to identify proposed scheme
(1)An order under section 411(1) or (1A) of the Corporations Act ordering a meeting or meetings in relation to a proposed compromise or arrangement must set out in a schedule, or otherwise identify, a copy of the proposed compromise or arrangement.
(2)Unless the Court otherwise orders, a meeting of members ordered under section 411 of the Corporations Act must be convened, held and conducted in accordance with—
(a)the provisions of Part 2G.2 of the Corporations Act that apply to the members of a company; and
(b)the provisions of the plaintiff's constitution that apply in relation to meetings of members and are not inconsistent with Part 2G.2 of the Corporations Act.
(3)Unless the Court otherwise orders, a meeting of a class of holders of convertible securities ordered under section 411 of the Corporations Act must be convened, held and conducted as if—
(a)the holders were a separate class of members; and
(b)the meeting were a meeting of members convened, held and conducted under paragraph (2)—
but in accordance with, and subject to, the applicable provisions of the instrument under which the securities were issued.
(4)An order under section 411(1) of the Corporations Act shall require that the explanatory statement or a document accompanying the explanatory statement prominently display a notice in the following form or to the following effect—
"IMPORTANT NOTICE ASSOCIATED WITH COURT ORDER UNDER SECTION 411(1) OF THE CORPORATIONS ACT 2001
The fact that under section 411(1) of the Corporations Act 2001 the Court has ordered that a meeting be convened and has approved the explanatory statement required to accompany the notices of the meeting does not mean that the Court:
(a)has formed any view as to the merits of the proposed scheme or as to how members/creditors should vote (on this matter members/creditors must reach their own decision); or
(b)has prepared, or is responsible for, the content of the explanatory statement.".
3.4Notice of hearing (ss 411(4), 413(1) of the Corporations Act)—Form 6
(1)This Rule applies to—
(a)an application under section 411(4) of the Corporations Act for an order approving a proposed compromise or arrangement in relation to a Part 5.1 body; and
(b)an application under section 413(1) of the Corporations Act for an order in relation to the reconstruction of a Part 5.1 body, or Part 5.1 bodies, or the amalgamation of 2 or more Part 5.1 bodies.
(2)Unless the Court otherwise orders, the plaintiff must publish a notice of the hearing of the application.
(3)The notice must be—
(a)in accordance with Form 6; and
(b)published in accordance with Rule 2.11 at least 5 days before the date fixed for the hearing of the application.
3.5Copy of order approving compromise or arrangement to be lodged with ASIC
If the Court makes an order under section 411(1), (1A) or (4) or 413(1) of the Corporations Act, the plaintiff must, as soon as practicable after the order is made—
(a)have the order authenticated;
(b)lodge an office copy of the order with the ASIC; and
(c)serve an office copy of the order on any person appointed to administer the compromise or arrangement.
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ORDER 4—PROCESS FOR SEEKING AN INQUIRY OR ORDER IN RELATION TO CONTROLLER, REGISTERED LIQUIDATOR OR EXTERNAL ADMINISTRATION
4.1Inquiry into conduct of controller (s. 423 of the Corporations Act)
(1)A complaint to the Court under section 423(1)(b) of the Corporations Act about an act or omission of a receiver, or a controller appointed by the Court, must be made by an originating process seeking an inquiry in relation to the complaint.
(2)The complaint may be made by a person referred to in any paragraph of Rule 11.2(1)(a) to (d).
4.2Order or inquiry in relation to a registered liquidator or external administration of a company
An application to the Court—
(a)under section 45‑1 of the Insolvency Practice Schedule (Corporations) for an order in relation to a registered liquidator; or
(b)under section 90‑10 of that Schedule for an inquiry into the external administration of a company; or
(c)under section 90‑20 of that Schedule
for an order in relation to the external administration of a company—
must be made—
(d)in the case of a winding up by the Court—by an interlocutory process seeking the inquiry or order; or
(e)in any other case—by an originating process seeking the inquiry or order.
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ORDER 5—WINDING UP PROCEEDINGS (INCLUDING OPPRESSION PROCEEDINGS WHERE WINDING UP IS SOUGHT)
5.1Application of Order 5
This Order applies to the following applications for the winding up of a company—
(a)an application for an order under Part 2F.1 of the Corporations Act;
(b)an application under Part 5.4 or Part 5.4A of the Corporations Act.
5.2Affidavit accompanying statutory demand (s. 459E(3) of the Corporations Act)—Form 7
For the purposes of section 459E(3) of the Corporations Act, the affidavit accompanying a statutory demand relating to a debt, or debts, owed by a company must—
(a)be in accordance with Form 7 and state the matters mentioned in that Form;
(b)be made by the creditor or by a person with the authority of the creditor or creditors; and
(c)not state a proceeding number, or refer to a Court proceeding, in any heading or title to the affidavit.
5.3Application for leave to apply for winding up in insolvency (s. 459P(2) of the Corporations Act)
An application for leave to apply to the Court for an order that a company be wound up in insolvency may be made at the same time as the application for an order that the company be wound up in insolvency is made.
5.4Affidavit in support of application for winding up (ss 459P, 462, 464 of the Corporations Act)
(1)The affidavit in support of an originating process seeking an order that a company be wound up must be made by the plaintiff or by a person with the authority of the plaintiff or plaintiffs.
(2)If the application is made in reliance on a failure by the company to comply with a statutory demand, the affidavit must—
(a)verify service of the demand on the company;
(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 by the company at the date when the affidavit is made.
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 shown in Schedule 3—Notes to these Rules.
(3)If the application is made in reliance on the ground mentioned in section 461(1)(a) of the Corporations Act, the affidavit must—
(a)state whether the company is able to pay all its debts as and when they become due and payable; and
(b)refer to the company's most recent balance sheet and profit and loss statement as an exhibit to the affidavit, or explain their absence.
(4)The affidavit must be made within 7 days before the originating process is filed.
5.5Consent of liquidator (s. 532(9) of the Corporations Act)—Form 8
(1)In this Rule—
liquidatordoes not include a provisional liquidator.
(2)For the purposes of section 532(9) of the Corporations Act, the consent of a registered liquidator to act as liquidator of a company must be in accordance with Form 8.
(3)In an application for an order that a company be wound up, the plaintiff, upon the filing of the originating process, may file the consent mentioned in paragraph (2) of a registered liquidator who would be entitled to be appointed as liquidator of the company.
(4)If the plaintiff does not file a consent in accordance with paragraph (3), the Prothonotary shall nominate in writing the registered liquidator who is entitled to be appointed as liquidator if an order for the winding up of the company is made.
(5)If the application is for the winding up in insolvency of 2 or more companies as joint debtors, the Prothonotary shall nominate with respect to each such company successively the registered liquidator who is entitled to be appointed as liquidator if an order for the winding up of that company is made.
(6)The Prothonotary, from time to time as circumstances require, may make further nominations.
(7)Before the hearing of the application the plaintiff must obtain and file the consent in writing of the registered liquidator so nominated.
5.6Notice of application for winding up
(1)If a person applies for a company to be wound up and the application is not made under section 459P, 462 or 464 of the Corporations Act, the person must, unless the Court otherwise orders, cause a notice of the application, in accordance with Form 9, to be published in a daily newspaper circulating generally in the State or Territory where the company has its principal, or last known, place of business.
Note
If a person applies under section 459P, 462 or 464 of the Corporations Act for a company to be wound up, the person must cause a notice, setting out the information prescribed by regulation 5.4.01A of the Corporations Regulations, to be published in the manner provided by section 1367A of the Corporations Act and regulation 5.6.75 of the Corporations Regulations: see subsection 465A(1) of the Corporations Act.
(2)A notice under paragraph (1), or under section 465A(1)(c) of the Corporations Act, of an application for a company to be wound up must be published—
(a)at least 3 days after the originating process is served on the company; and
(b)at least 7 days before the date fixed for the hearing of the application.
5.7Applicant to make copies of documents available
A copy of any document filed in a proceeding to which this Order applies must be available at the plaintiff's address for service for inspection by a creditor, contributory or officer of the company, or an officer of a creditor or contributory of the company.
5.8Discontinuance of application for winding up
An application for an order that a company be wound up may not be discontinued except with the leave of the Court.
5.9Appearance before Associate Judge or judicial registrar
After filing an originating process seeking an order that a company be wound up, the plaintiff must, if required—
(a)appear before an Associate Judge or a judicial registrar on a date to be appointed by the Associate Judge or the judicial registrar, as the case requires; and
(b)satisfy the Associate Judge or the judicial registrar, as the case requires that the plaintiff has complied with the Corporations Act and these Rules in relation to applications for a winding up order.
Note
See also Order 16 Part 3.
5.10Order substituting plaintiff in application for winding up (s. 465B of the Corporations Act)—Form 10
(1)If the Court makes an order under section 465B of the Corporations Act, the Court may also order that the substituted plaintiff or plaintiffs publish a notice stating that the substituted plaintiff or plaintiffs intend to apply for an order that the company be wound up.
(2)The notice must be—
(a)in accordance with Form 10; and
(b)published—
(i)in accordance with Rule 2.11 at least 7 days before the date fixed for the hearing of the application; or
(ii)as otherwise directed by the Court.
5.11Notice of winding up order and appointment of liquidator
(1)This Rule applies if the Court orders that a company be wound up and a registered liquidator be appointed as liquidator of the company.
(2)Not later than the day after the order is made, the plaintiff must inform the liquidator of the appointment.
(3)If the winding up order results from an application other than an application under section 459P, 462 or 464 of the Corporations Act, the liquidator must cause a notice of the winding up order and the liquidator's appointment, in accordance with Form 11, to be published in a daily newspaper circulating generally in the State or Territory where the company has its principal, or last known, place of business.
Note
If the winding up order results from an application under section 459P, 462 or 464 of the Corporations Act, the liquidator must cause a notice, setting out the information prescribed by regulation 5.4.01B of the Corporations Regulations, to be published in the manner provided by section 1367A of the Corporations Act and regulation 5.6.75 of the Corporations Regulations: see subsection 465A(2) of the Corporations Act.
(4)A notice under paragraph (3), or under section 465A(2) of the Corporations Act, of a winding up order must be published as soon as practicable after the liquidator is informed of the appointment.
(5)In this Rule—
liquidator does not include a provisional liquidator.
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ORDER 6—PROVISIONAL LIQUIDATORS (PART 5.4B OF THE CORPORATIONS ACT)
Note
See also Rule 7.3 (report to liquidator as to company's affairs under section 475 of the Corporations Act).
6.1Appointment of provisional liquidator (s. 472 of the Corporations Act)—Form 8
(1)An application for a registered liquidator to be appointed, under section 472(2) of the Corporations Act, as a provisional liquidator of a company must be accompanied by the written consent of the registered liquidator.
(2)The consent must be in accordance with Form 8.
(3)If—
(a)an order is made appointing a provisional liquidator; and
(b)the order provides that the provisional liquidator may take into the provisional liquidator's custody part only of the property of the company—
the order must include a short description of the part of the property of the company that the provisional liquidator may take into custody.
(4)The Court may require the plaintiff to give an undertaking as to damages.
6.2Notice of appointment of provisional liquidator
(1)This Rule applies if the Court orders that a registered liquidator be appointed as a provisional liquidator of a company.
(2)Not later than the day after the order is made, the plaintiff must—
(a)except if the plaintiff is the ASIC—lodge an office copy of the order with the ASIC;
(b)serve an office copy of the order on the company (except if the plaintiff is the company) and on any other person as directed by the Court; and
(c)give to the provisional liquidator an office copy of the order and a written statement that the order has been served as required by paragraph (b).
(3)If the order results from an application other than an application under section 459P, 462 or 464 of the Corporations Act, the provisional liquidator must cause a notice of the provisional liquidator's appointment, in accordance with Form 12, to be published in a daily newspaper circulating generally in the State or Territory where the company has its principal, or last known, place of business.
Note
If the order results from an application under section 459P, 462 or 464 of the Corporations Act, the provisional liquidator must cause a notice, setting out the information prescribed by regulation 5.4.01B of the Corporations Regulations, to be published in the manner provided by section 1367A of the Corporations Act and regulation 5.6.75 of the Corporations Regulations: see subsection 465A(2) of the Corporations Act.
(4)A notice under paragraph (3), or under subsection 465A(2) of the Corporations Act, of a provisional liquidator's appointment must be published as soon as practicable after the relevant order is made.
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ORDER 7—LIQUIDATORS
* * * * *
7.2Vacancy in office of liquidator (Corporations Act s. 473A and s. 499(3) and Insolvency Practice Schedule (Corporations) s 90-15)
If, for any reason, there is no liquidator of a company under external administration, the Court may appoint a registered liquidator whose written consent in accordance with Form 8 has been filed.
Note
The Court may make the appointment—
(a)on its own initiative, during proceedings before the Court; or
(b)on application under section 90‑20 of the Insolvency Practice Schedule (Corporations).
See section 90-15(2) of that Schedule.
7.3Report to liquidator as to company's affairs
(s. 475 of the Corporations Act)(1AA)In this Rule—
liquidator includes a provisional liquidator.
(1)If a person is required under section 475 of the Corporations Act to submit and verify a report as to the affairs of a company, the liquidator must give to the person the appropriate forms and instructions for the preparation of the report.
(2)Except by order of the Court, no person is to be allowed out of the property of a company any costs or expenses incurred in relation to the preparation of the report that have not been—
(a)sanctioned by the liquidator before being incurred; or
(b)taxed or assessed.
(3)The liquidator must report to the Court any default in complying with the requirements of section 475 of the Corporations Act.
(4)Unless the Court otherwise orders, a report filed by a liquidator under section 475(7) of the Corporations Act is not available for inspection by any person.
Note
A report filed by a liquidator under section 475(7) of the Corporations Act may include commercial-in-confidence information that may not be inspected: see section 1274(4G) of the Corporations Act.
7.4Liquidator to file certificate and copy of settled list of contributories (s. 478 of the Corporations Act)
If, in a winding up by the Court, a liquidator has settled and certified a list, or supplementary list, of contributories, the liquidator, within 14 days after doing so, must file the certificate and a copy of the list.
7.5Release of liquidator and deregistration of company (ss 480(c) and (d) of the Corporations Act)
(1)This Rule applies to an application by the liquidator of a company—
(a)for an order that the liquidator be released; or
(b)for an order that the liquidator be released and that the ASIC deregister the company.
(2)The interlocutory process seeking the order must include—
(a)a notice stating that any objection to the release of the liquidator must be made by filing and serving a notice of objection, in the prescribed form, within 21 days after the date of service of the interlocutory process; and
(b)a statement setting out the terms of section 481(3) of the Corporations Act.
Note
Section 481(3) of the Corporations Act provides that an order of the Court releasing a liquidator discharges the liquidator from all liability in respect of any act done or default made by the liquidator in the administration of the affairs of the company, or otherwise in relation to the liquidator's conduct as liquidator, but any such order may be revoked on proof that it was obtained by fraud or by suppression or by concealment of any material fact.
(3)The supporting affidavit must include details of the following matters—
(a)whether the whole of the company's property has been realised or whether so much of the company's property has been realised as, in the liquidator's opinion, can be realised without needlessly protracting the winding up;
(b)any calls made on contributories in the course of the winding up;
(c)any dividends paid in the course of the winding up;
(d)whether the committee of inspection (if any) has passed a resolution approving the liquidator's release;
(e)whether ASIC has caused books in relation to the company to be audited under section 70-15 of the Insolvency Practice Schedule (Corporations);
(f)whether the Court has ordered a report on the accounts of the liquidator to be prepared;
(g)whether any objection to the release of the liquidator has been received by the liquidator from—
(i)an auditor appointed by the ASIC or by the Court; or
(ii)any creditor, contributory or other interested person;
(h)whether any report has been submitted by the liquidator to the ASIC under section 533 of the Corporations Act;
(i)whether the liquidator considers it necessary to report on the affairs of the company or any of its officers;
(j)any property disclaimed in the course of the winding up;
(k)any remuneration paid or payable to the liquidator and how such remuneration was determined;
(l)any costs, charges or expenses payable by the liquidator if the Court grants the liquidator's release;
(m)if the application is made under section 480(d) of the Corporations Act—the facts and circumstances by reason of which it is submitted that the company should not be deregistered.
(4)The liquidator must include in the supporting affidavit the statements set out in paragraphs (a) and (b), including, if appropriate, the words in brackets—
(a)"To the best of my belief, there has been no act done or default made by me in the administration of the affairs of the subject corporation or otherwise in relation to my conduct as liquidator which is likely to give rise to any liability to the subject corporation or any creditor or contributory (except as disclosed in this affidavit)";
(b)"I am not aware of any claim made by any person that there has been any such act or default (except as disclosed in this affidavit)".
(5)The liquidator must file with the supporting affidavit—
(a)a statement of the financial position of the company at the date when the interlocutory process seeking release was filed; and
(b)a summary of the liquidator's receipts and payments in winding up the company.
(6)Unless the Court otherwise orders, the liquidator must serve by prepaid post, on each creditor who has proved a debt in the course of the winding up, and on each contributory, a copy of the interlocutory process accompanied by—
(a)a copy of the summary of the liquidator's receipts and payments in winding up the company; and
(b)a copy of the statement of the financial position of the company at the date when the interlocutory process seeking release was filed.
7.6Objection to release of liquidator—Form 13
(1)A creditor or contributory of a company who wishes to object to the release of the liquidator of the company must, within 21 days after the date of service of the interlocutory process seeking release—
(a)file—
(i)a notice of objection in accordance with Form 13; and
(ii)if appropriate, an affidavit stating any facts relied on; and
(b)serve a copy of the notice and the affidavit (if any) on the liquidator.
(2)If the liquidator is served with a notice of objection by a creditor or contributory, the liquidator must, within 3 days after being served, serve on the creditor or contributory a copy of the affidavit supporting the interlocutory process.
7.7Report on accounts of liquidator (s. 481 of the Corporations Act)
(1)If the Court orders that a report on the accounts of a liquidator be prepared under section 481(1) of the Corporations Act, the liquidator must give to the auditor appointed to prepare the report all information, books and vouchers required to prepare the report.
(2)On completing the report, the auditor must—
(a)file a copy of the report in a sealed envelope that is marked with the title and number of the proceeding and the words "Auditor's report under subsection 481(1) of the Corporations Act 2001";
(b)serve a copy of the report on the liquidator; and
(c)lodge a copy of the report with the ASIC.
(3)Except with the leave of the Court, a report is not available for inspection by any person except the liquidator or the ASIC.
7.8Application for payment of call (s. 483(3)(b) of the Corporations Act)—Form 14
The affidavit in support of an application by the liquidator of a company under section 483(3)(b) of the Corporations Act for an order for the payment of a call must be in accordance with Form 14.
7.9Distribution of surplus by liquidator with special leave of the Court (s. 488(2) of the Corporations Act)—Form 15
(1)The affidavit in support of an application for special leave to distribute a surplus must state how the liquidator intends to distribute the surplus including the name and address of each person to whom the liquidator intends to distribute any part of the surplus.
(2)At least 14 days before the date fixed for hearing of the application, the liquidator must publish a notice of the application.
(3)The notice must be—
(a)in accordance with Form 15; and
(b)published in accordance with Rule 2.11.
7.10Powers delegated to liquidator by the Court (s. 488 of the Corporations Act)
Subject to the Corporations Act, the Corporations Regulations, these Rules, and any order of the Court, the powers and duties conferred or imposed on the Court by Part 5.4B of the Corporations Act in respect of the matters mentioned in section 488(1) of the Corporations Act may be exercised or performed by a liquidator appointed by the Court as an officer of the Court and subject to the control of the Court.
7.11Appointment of reviewing liquidator (Insolvency Practice Schedule (Corporations) s. 90-23(8))
(1)An application to the Court under section
90‑23(8) of the Insolvency Practice Schedule (Corporations) to appoint a registered liquidator to carry out a review into a matter relating to the external administration of a company must be made—
(a)in the case of a winding up by the Court—by filing an interlocutory process seeking the relevant orders; or
(b)in the case of a voluntary winding up—by filing an originating process seeking the relevant orders.
(2)The application must be accompanied by the written declaration made by the proposed reviewing liquidator under section 90-18 of the Insolvency Practice Rules (Corporations) 2016 of the Commonwealth.
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ORDER 8—SPECIAL MANAGERS (PART 5.4B OF THE CORPORATIONS ACT)
8.1Application for appointment of special manager (s. 484 of the Corporations Act)
(1)An application by a liquidator for the appointment of a special manager in relation to a company must state the powers which, in the liquidator's opinion, should be entrusted by the Court to the special manager.
(2)The supporting affidavit must state—
(a)the circumstances making it proper that a special manager be appointed;
(b)details of the remuneration proposed to be paid to the special manager; and
(c)whether any committee of inspection in the winding up, or a meeting of creditors, has approved the appointment of a special manager.
8.2Security given by special manager (s. 484 of the Corporations Act)
(1)The Court may, from time to time, direct that the amount of security given by a special manager be varied.
(2)Unless the Court otherwise directs, the costs of furnishing the security given by a special manager in respect of a particular winding up—
(a)are the personal expenses of the special manager; and
(b)must not be charged against the property of the company as an expense incurred in the winding up.
8.3Special manager's receipts and payments (s. 484 of the Corporations Act)
(1)A special manager must give to the liquidator—
(a)an account of the special manager's receipts and payments; and
(b)a statutory declaration verifying the account.
(2)If the liquidator approves the account, the liquidator must include the total amounts of the special manager's receipts and payments in the liquidator's accounts.
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ORDER 9—REMUNERATION OF OFFICE-HOLDERS
9.1Remuneration of receiver (s. 425(1) of the Corporations Act)—Form 16
(1)This Rule applies to an application by a receiver of property of a corporation for an order under section 425(1) of the Corporations Act fixing the receiver's remuneration.
Notes
1 Under section 425(2)(b) of the Corporations Act, the Court may exercise its power to make an order fixing the remuneration of a receiver appointed under an instrument even if the receiver has died, or has ceased to act, before the making of the order or the application for the order.
2 The amendment to section 425 of the Corporations Act made by the Corporations Amendment (Insolvency) Act 2007 of the Commonwealth applies in relation to a receiver appointed on or after 31 December 2007—see Corporations Act, section 1480(5).
(2)At least 21 days before filing an originating process, or interlocutory process, seeking the order, the receiver must serve a notice in accordance with Form 16 of the receiver's intention to apply for the order, and a copy of any affidavit on which the receiver intends to rely, on the following persons—
(a)the person who appointed the receiver;
(b)any creditor holding security over all or any of the same property of the corporation (except if the creditor is the person who appointed the receiver);
(c)any administrator, liquidator or provisional liquidator of the corporation;
(d)any administrator of a deed of company arrangement executed by the corporation;
(e)if there is no person of the kind mentioned in paragraph (c) or (d)—
(i)each of the 5 largest (measured by amount of debt) unsecured creditors of the corporation; and
(ii)each member of the corporation whose shareholding represents at least 10 per cent of the issued capital of the corporation.
(3)Within 21 days after the last service of the documents mentioned in paragraph (2), any creditor or contributory, or any person mentioned in paragraph (2)(c), (d) or (e), may give to the receiver a notice of objection to the remuneration claimed, stating the grounds of objection.
(4)If the receiver does not receive a notice of objection within the period mentioned in paragraph (3)—
(a)the receiver may file an affidavit, made after the end of that period, in support of the originating process, or interlocutory process, seeking the order stating—
(i)the date, or dates, when the notice and affidavit required to be served under paragraph (2) were served; and
(ii)that the receiver has not received any notice of objection to the remuneration claimed within the period mentioned in paragraph (3);
(b)the receiver may endorse the originating process, or interlocutory process, with a request that the application be dealt with in the absence of the public and without any attendance by, or on behalf of, the receiver; and
(c)the application may be so dealt with.
(5)If the receiver receives a notice of objection within the period mentioned in paragraph (3), the receiver must serve a copy of the originating process, or interlocutory process, seeking the order on each creditor or contributory, or other person, who has given a notice of objection.
(6)An affidavit in support of the originating process, or interlocutory process, seeking the order must—
(a)include evidence of the matters referred to in section 425(8) of the Corporations Act;
(b)state the nature of the work performed or likely to be performed by the receiver;
(c)state the amount of remuneration claimed;
(d)include a summary of the receipts taken and payments made by the receiver;
(e)state particulars of any objection of which the receiver has received notice; and
(f)if the receivership is continuing, give details of any matters delaying the completion of the receivership.
9.2Determination of remuneration of external administrator (Insolvency Practice Schedule (Corporations) s. 60-10(1)(c) and (2)(b))—Form 16
(1)This Rule applies in relation to an application for a determination under section 60-10(1)(c) or (2)(b) of the Insolvency Practice Schedule (Corporations) specifying remuneration that an external administrator of a company is entitled to receive for necessary work properly performed by the external administrator in relation to the external administration.
Note
Section 60-10 of the Insolvency Practice Schedule (Corporations) does not apply in relation to the remuneration of a provisional liquidator or a liquidator appointed by ASIC under section 489EC of the Corporations Act: see section 60-2 of the Insolvency Practice Schedule (Corporations).
(2)At least 21 days before filing an originating process, or interlocutory process, seeking the determination, the external administrator must serve a notice, in accordance with Form 16, of the external administrator's intention to apply for the determination, and a copy of any affidavit on which the external administrator intends to rely, on the following persons—
(a)each creditor who was present, in person or by proxy, at any meeting of creditors;
(b)each member of any committee of inspection;
(c)if there is no committee of inspection, and no meeting of creditors has been convened and held—each of the 5 largest (measured by amount of debt) creditors of the company;
(d)each member of the company whose shareholding represents at least 10% of the issued capital of the company.
(3)Within 21 days after the last service of the documents referred to in paragraph (2), any creditor or contributory may give to the external administrator a notice of objection to the remuneration claimed, stating the grounds of objection.
(4)If the external administrator does not receive a notice of objection within the period referred to in paragraph (3)—
(a)the external administrator may file an affidavit, made after the end of that period, in support of the originating process, or interlocutory process, seeking the determination stating—
(i)the date, or dates, when the notice and affidavit required to be served under paragraph (2) were served; and
(ii)that the external administrator has not received any notice of objection to the remuneration claimed within the period referred to in paragraph (3); and
(b)the external administrator may endorse the originating process, or interlocutory process, with a request that the application be dealt with in the absence of the public and without any attendance by, or on behalf of, the external administrator; and
(c)the application may be so dealt with.
(5)If the external administrator receives a notice of objection within the period referred to in paragraph (3), the external administrator must serve a copy of the originating process, or interlocutory process, seeking the determination on each creditor or contributory who has given a notice of objection.
(6)An affidavit in support of the originating process, or interlocutory process, seeking the determination must—
(a)include evidence of the matters referred to in section 60-12 of the Insolvency Practice Schedule (Corporations); and
(b)state the nature of the work performed or likely to be performed by the external administrator; and
(c)state the amount of remuneration claimed; and
(d)include a summary of the receipts taken and payments made by the external administrator; and
(e)state particulars of any objection of which the external administrator has received notice; and
(f)if the external administration is continuing—give details of any matters delaying the completion of the external administration.
9.2AReview of remuneration determination for external administrator (Insolvency Practice Schedule (Corporations) s. 60-11(1)
(1)This Rule applies in relation to an application under section 60-11(1) of the Insolvency Practice Schedule (Corporations) for a review of a remuneration determination for an external administrator of a company.
Notes
1 Section 60-11 of the Insolvency Practice Schedule (Corporations) does not apply in relation to the remuneration of a provisional liquidator or a liquidator appointed by ASIC under section 489EC of the Corporations Act: see section 60-2 of the Insolvency Practice Schedule (Corporations).
2 An application may not be made under subsection 60‑11(1) of the Insolvency Practice Schedule (Corporations) for a review of a remuneration determination made by the Court under section 60-10(1)(c) or (2)(b) of that Schedule: see section 60-11(5) of that Schedule.
* * * * *
(3)At least 21 days before filing the originating process, or the interlocutory process, applying for a review, the plaintiff or applicant must serve a notice of intention to apply for the review, in accordance with Form 16A, and a copy of any affidavit on which the plaintiff or applicant intends to rely (other than an affidavit required by paragraph (9)), on the following persons—
(a)if there is a committee of inspection, each member of the committee;
(b)if the remuneration of the external administrator was determined by the creditors, each creditor who was present, in person or by proxy, at the meeting of creditors at which the remuneration was determined;
(c)each member of the company whose shareholding represents at least 10 per cent of the issued capital of the company.
(4)Within 21 days after the last service of the documents referred to in paragraph (3), any person on whom the notice has been served may serve on the plaintiff or applicant a notice—
(a)stating the person's intention to appear at the hearing of the application for review; and
(b)setting out the issues that the person seeks to raise before the Court.
(5)A person referred to in paragraph (3) is entitled to be heard on the application for review, but only (unless the Court otherwise orders) if the person has served on the plaintiff or applicant a notice in accordance with paragraph (4).
(6)If the plaintiff or applicant is served with a notice in accordance with paragraph (4), the plaintiff or applicant must serve a copy of the originating process, or interlocutory process, applying for review on each person who has served such a notice.
(7)The external administrator must file an affidavit stating the following matters—
(a)the matters referred to in section 60-12 of the Insolvency Practice Schedule (Corporations);
(b)the nature of the work performed or likely to be performed by the external administrator;
(c)the amount of remuneration claimed by the external administrator if that amount is different from the amount of remuneration that has been determined;
(d)a summary of the receipts taken and payments made by the external administrator;
(e)particulars of any objection to the remuneration as determined, of which the external administrator has received notice; and
(f)if the external administration is continuing, details of any matters delaying the completion of the external administration.
* * * * *
(9)The plaintiff or applicant must—
(a)file an affidavit stating whether any notice or notices under paragraph (4) has or have been served; and
(b)annex or exhibit to the affidavit a copy of any such notice.
9.3Remuneration of provisional liquidator (Insolvency Practice Schedule (Corporations) s. 60-16)—Form 16
(1)This Rule applies in relation to an application
by a provisional liquidator of a company for a determination under subsection 60-16(1) of the Insolvency Practice Schedule (Corporations) of the remuneration the provisional liquidator is entitled to receive.
(2)The application must be made by interlocutory process in the winding up proceeding.
(3)At least 21 days before filing the interlocutory process seeking the determination, the provisional liquidator must serve a notice in accordance with Form 16 of the provisional liquidator's intention to apply for the determination, and a copy of any affidavit on which the provisional liquidator intends to rely, on the following persons—
(a)any liquidator (except the provisional liquidator) of the company;
(b)each member of any committee of inspection or, if there is no committee of inspection, each of the 5 largest (measured by amount of debt) creditors of the company;
(c)each member of the company whose shareholding represents at least 10 per cent of the issued capital of the company.
(4)Within 21 days after the last service of the documents mentioned in paragraph (3), the liquidator, or any creditor or contributory, may give to the provisional liquidator a notice of objection to the remuneration claimed, stating the grounds of objection.
(5)If the provisional liquidator does not receive a notice of objection within the period mentioned in paragraph (4)—
(a)the provisional liquidator may file an affidavit, made after the end of that period, in support of the interlocutory process seeking the determination stating—
(i)the date, or dates, when the notice and affidavit required to be served under paragraph (3) were served; and
(ii)that the provisional liquidator has not received any notice of objection to the remuneration claimed within the period mentioned in paragraph (4);
(b)the provisional liquidator may endorse the interlocutory process with a request that the application be dealt with in the absence of the public and without any attendance by, or on behalf of, the provisional liquidator; and
(c)the application may be so dealt with.
(6)If the provisional liquidator receives a notice of objection within the period mentioned in paragraph (4), the provisional liquidator must serve a copy of the interlocutory process seeking the determination—
(a)on each creditor or contributory who has given a notice of objection; and
(b)on the liquidator (if any).
(7)An affidavit in support of the interlocutory process seeking the determination must—
(a)state the nature of the work performed or likely to be performed by the provisional liquidator;
(b)state the amount of remuneration claimed;
(c)include a summary of the receipts taken and payments made by the provisional liquidator;
(d)state particulars of any objection of which the provisional liquidator has received notice; and
(e)if the winding up proceeding has not been determined, give details of—
(i)any reasons known to the provisional liquidator why the winding up proceeding has not been determined; and
(ii)any reasons why the provisional liquidator's remuneration should be determined before the determination of the winding up proceeding.
(8)The affidavit must also provide evidence of the matters referred to in section 60-12 of the Insolvency Practice Schedule (Corporations)—
(a)to the extent that they may be relevant to a provisional liquidator; and
(b)as if references in that subsection to "external administrator" were references to "provisional liquidator".
* * * * *
9.5Remuneration of special manager (s. 484(2) of the Corporations Act)—Form 16
(1)This Rule applies to an application by a special manager of the property or business of a company for an order under section 484(2) of the Corporations Act fixing the special manager's remuneration.
(2)The application must be made by interlocutory process in the winding up proceeding.
(3)At least 21 days before filing the interlocutory process seeking the order, the special manager must serve a notice in accordance with Form 16 of the special manager's intention to apply for the order, and a copy of any affidavit on which the special manager intends to rely, on the following persons—
(a)the liquidator of the company;
(b)each member of any committee of inspection or, if there is no committee of inspection, each of the 5 largest (measured by amount of debt) creditors of the company;
(c)each member of the company whose shareholding represents at least 10 per cent of the issued capital of the company.
(4)Within 21 days after the last service of the documents mentioned in paragraph (3), the liquidator, or any creditor or contributory, may give to the special manager a notice of objection to the remuneration claimed, stating the grounds of objection.
(5)If the special manager does not receive a notice of objection within the period mentioned in paragraph (4)—
(a)the special manager may file an affidavit, made after the end of that period, in support of the interlocutory process seeking the order stating—
(i)the date, or dates, when the notice and affidavit required to be served under paragraph (3) were served; and
(ii)that the special manager has not received any notice of objection to the remuneration claimed within the period mentioned in paragraph (4);
(b)the special manager may endorse the interlocutory process with a request that the application be dealt with in the absence of the public and without any attendance by, or on behalf of, the special manager; and
1.[Name of substituted plaintiff], who was, by order of the [name of Court], substituted as a plaintiff, will apply to the Court at *am/*pm on at [address of Court] for an order that the above company be wound up.
2.The address for service of the substituted plaintiff is [address of substituted plaintiff's legal practitioner or of substituted plaintiff].
3.Any person intending to appear at the hearing must file a notice of appearance, in accordance with the prescribed form, together with any affidavit on which the person intends to rely, and serve a copy of the notice and any affidavit on the substituted plaintiff at its address for service at least 3 days before the date fixed for the hearing.
Date:
Name of substituted plaintiff or substituted plaintiff's
legal practitioner: [name].
* Omit if not applicable.
_______________
Rule 5.11 | FORM 11 |
NOTICE OF WINDING UP ORDER AND OF APPOINTMENT OF LIQUIDATOR
IN THE [name of Court]
AT [location of Court]
IN THE MATTER OF [name of company to which the proceeding relates]
ABN or ACN: [ABN or ACN of company to which proceeding relates]
On [date], the [name of Court] in Proceeding No. of [year], ordered the winding up of [name of company] and I was appointed as liquidator of the company.
Date:
Name and address of liquidator: [name and address].
_______________
| Rule 6.2 | FORM 12 |
NOTICE OF APPOINTMENT OF PROVISIONAL LIQUIDATOR
IN THE [name of Court]
AT [location of Court]
IN THE MATTER OF [name of company to which the proceeding relates]
ABN or ACN: [ABN or ACN of company to which proceeding relates]
On [date], in Proceeding No. of [year], heard by the [name of Court], I was appointed as the provisional liquidator of the above company.
Date:
Name and address of provisional liquidator: [name and address].
_______________
Rule 7.6 | FORM 13 |
NOTICE BY CREDITOR OR CONTRIBUTORY OF OBJECTION TO RELEASE OF LIQUIDATOR
[Title]
[Name of creditor/contributory] of [address of creditor/contributory], a creditor of [name of company] for $ [amount], or a contributory of [name of company] holding [number] shares in the company, objects to the grant of a release to [name of liquidator] of [address of liquidator], who is the liquidator of [name of company], on the following grounds—
[set out the grounds upon which the objection is made]
Date:
..........................................................
Signature of objector or
objector's legal practitioner
Name of objector or objector's legal practitioner: [name].
The objector's address for service is [address of objector or objector's legal practitioner].
_______________
Rule 7.8 | FORM 14 |
AFFIDAVIT IN SUPPORT OF APPLICATION FOR ORDER FOR PAYMENT OF CALL
[Title]
I, [name] of [address], liquidator, *make oath and say/*solemnly and sincerely declare and affirm—
1.I am the liquidator of [name of company] (the company).
2.On [date] I made a call of $ [amount] per share on all the contributories of the company [or specify the class of contributories on whom the call was made]. *Exhibited and marked A is a copy of the notice of the call. Each contributory whose name is shown in the Schedule marked B was duly served with notice of the call in the form exhibited and marked A.
3.Each contributory of the company whose name is set out in column 2 of the Schedule marked B has not paid, or caused to be paid, to me the sum specified opposite the contributory's name in column 5 of the Schedule, which is due from that contributory under the call.
4.The amount set out opposite the name of each contributory in column 6 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 amounts so due by the several contributories has been reached by apportioning the costs among the contributories who have not paid the call according to the liability of the respective contributories to contribute.
5.The amount set out opposite the name of each contributory in column 7 of the Schedule is the total of the amount due by that contributory in respect of the call as set out in column 5 and the amount due in respect of costs as set out in column 6.
*Sworn/*Affirmed at: [place of swearing or affirmation] on [date]
..........................................
Signature of deponent
Before me:
.......................................................
Signature and designation of
person before whom deponent
swears or affirms affidavit
* Omit if not applicable.
SCHEDULE B
| Number on list of contributories | Name | Address | Character in which included in the list | Unpaid amount of call | Proportion of costs of application | Total amount payable |
_______________
Rule 7.9 | FORM 15 |
NOTICE OF APPLICATION FOR LEAVE TO DISTRIBUTE A SURPLUS
IN THE [name of Court]
AT
APPLICATION NO.:
IN THE MATTER OF [company name]
ABN or ACN: [ABN or ACN of company to which proceeding relates]
On [date] at *am/*pm, the *Judge of the Court /*Associate Judge at [address of Court] will hear an application by the liquidator of [name of company] in Proceeding
No. of [year] 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 appearance, in accordance with the prescribed form, together with any affidavit on which the person intends to rely, and serve a copy of the notice and affidavit on the liquidator at the address shown below at least 3 days before the date fixed for the hearing.
Name of liquidator: [name].
The liquidator's address for service is [address].
..........................................................
Signature of liquidator
* Omit if not applicable.
_______________
Rule 9.1–9.5 | FORM 16 |
NOTICE OF INTENTION TO APPLY FOR REMUNERATION
IN THE MATTER OF [company name]
ABN or ACN: [ABN or ACN of company to which proceeding relates]
TO: [name and address of person to whom notice is given]
TAKE NOTICE that, not less than 21 days after this notice is served on you, I, [name and address], the *receiver/*external administrator/*liquidator/ *provisional liquidator/*special manager of the above company, intend to apply to the Court to determine my remuneration.
If you object to my application, you must, within 21 days after being served with this notice, serve on me a notice of objection stating the grounds of objection to the remuneration claimed.
Date:
.................................................................
Signature of *receiver/*external administrator/*liquidator/
*provisional liquidator/*special manager
* Omit if not applicable.
_______________
Rule 9.2A | FORM 16A |
NOTICE OF INTENTION TO APPLY FOR REVIEW OF REMUNERATION
IN THE MATTER OF [company name]
ABN or ACN: [ABN or ACN of company to which proceeding relates]
TO: [name and address of person to whom notice is given]
TAKE NOTICE that, not less than 21 days after this notice is served on you, I, [name and address of plaintiff or applicant], the *external administrator/ *liquidator/ of the above company, intend to apply to the Court to review *the remuneration of/*my remuneration as the *external administrator/ *liquidator/ of the above company.
The amount of the remuneration that has been determined or fixed is [state the amount]. The remuneration was determined or fixed by [state who determined or fixed the remuneration] on [state the date when the remuneration was determined or fixed].
I intend to apply for an order to *confirm/*increase/*reduce the remuneration.
[Set out the grounds upon which an order or orders will be sought. If an order to increase or reduce the remuneration is sought, set out the amount by which the remuneration is sought to be increased or reduced.]
If you wish to appear at the hearing of the application, in order to raise any issues before the Court, you must, within 21 days after being served with this notice, serve on me a notice under Rule 9.2A(4) of the Supreme Court (Corporations) Rules 2013 stating your intention to appear at the hearing and setting out the issues that you seek to raise before the Court.
Date:
.................................................................
Signature of plaintiff or applicant
* Omit if not applicable.
__________________
Rule 11.3 | FORM 17 |
SUMMONS FOR EXAMINATION
[Title]
A. DETAILS OF SUMMONS
TO: [name and address of person to be examined]
You are summoned under *section 596A/*section 596B of the Corporations Act to—
(a)attend before at [address of Court] at *am/*pm on and from day to day until excused by the Court, to be examined on oath or affirmation about the examinable affairs of [name of corporation]; and
(b)*to produce at the examination the following books [specify books—include in a schedule if necessary].
Date:
.....................................................................
ProthonotaryB.NOTICE TO PERSON TO BE EXAMINED
The Court may order that the questions put to you and the answers given by you at the examination are to be recorded in writing and signed by you.
If you do not attend the examination in accordance with this summons, without reasonable cause, you may be arrested and imprisoned without further notice.
This summons is issued at the request of [name] whose address for service is [address of person's legal practitioner or of person].
* Omit if not applicable.
_______________
| Rule 11A.01 | FORM 17A |
ARREST WARRANT CORPORATIONS ACT 2001 SECTION 486B
[Title]
TO: All members and special members of the Australian Federal Police and to all officers of the police force of the State or Territory in which [name of person] is to be found, and to the Sheriff of that State or Territory and all of that Sheriff's officers:
WHEREAS:
·*[name of company] (the Company) is being wound up in insolvency; or
·*[name of company] (the Company) is being wound up by the Court; or
·*an application has been made for [name of company] (the Company) to be wound up
AND THE COURT IS SATISFIED THAT [name of person]
(a) *is about to leave this jurisdiction or Australia in order to avoid—
(i)*paying money payable to the Company; or
(ii)*being examined about the Company's affairs; or
(iii)*complying with an order of the Court, or some other obligation, under Chapter 5 of the Corporations Act 2001 of the Commonwealth in connection with the winding up; or
(b) *has concealed or removed property of the Company in order to prevent or delay the taking of the property into the liquidator's custody or control; or
(c)*has destroyed, concealed or removed books of the Company or is about to do so;
THIS WARRANT THEREFORE requires and authorises you to take [name of person] and bring *him/*her before the Court at [address of Court] and to keep *him/*her there pending the making of a further order by the Court.
THIS WARRANT ALSO requires and authorises you to seize any property or books of the Company in the possession of [name of person] and to deliver them into the custody of the Prothonotary or registrar in the office or registry from which the warrant issued to be kept by the Prothonotary or registrar until the Court makes an order for their disposal.
Note
Section 489A of the Corporations Act 2001 provides that if the Court issues a warrant under section 486B for a person to be arrested and brought before the Court, and the person is not in prison, then the person named in the warrant may be arrested by an officer of the police force of the State or Territory in which the person is found, or the Sheriff of that State or Territory or any of the Sheriff's officers, or a member or special member of the Australian Federal Police.
Date:
Signature of Prothonotary
*Omit if not applicable
__________________
| Rule 12.2 | FORM 18 |
SUMMONS FOR APPEARANCE IN RELATION TO REGISTRATION OF TRANSFER OF INTERESTS
[Title]
TO: [name and address]
You are required to appear before the at [address of Court] at *am/*pm on and show cause why the document(s) specified in the Schedule should not be *delivered up/*produced at the office of [name of company] at [address of company] within [period as ordered], as required by the attached notice.
The address for service of the person applying for this summons is [address of person's legal practitioner or of person].
Date:
.........................................................................
Prothonotary
* Omit if not applicable.
SCHEDULE
[description of document(s)]
_______________
| Rule 17.2 | FORM 18A |
REQUEST TO DELIVER BILL FOR TAXATION
[Title]
TO: [name and address of person to whom request is made]
I request that, within days of delivery of this request, you deliver to me for taxation by the proper officer your bill of costs [or charges] [or expenses] as [state nature of employment] employed by me as liquidator in the winding up of the abovenamed company. If this request is not met within the time provided for above, or within any extended time allowed by an Associate Judge of the Supreme Court, I am entitled to declare and distribute a dividend without regard to any claim you may have against the assets of the company and your claim against the assets of the company will be liable to be forfeited.
Date:
Signature of liquidator
__________________
| Rule 15A.5 | FORM 19 |
CONSENT TO ACT AS DESIGNATED PERSON
[Title]
I, [name], of [address], a registered liquidator, consent to be appointed by the Court and to act as the person designated by the Court under *article 19/ *article 21 of the Model Law to *administer/*realise/*distribute the assets of [name of company].
I am not aware of any conflict of interest or duty that would make it improper for me to act as the person designated by the Court.
The time-cost rates currently charged in respect of work done as the person designated by the Court by me, and by my partners and employees who may perform work in this administration, are set out below or in the Schedule which is attached to this Consent.
I acknowledge that my appointment by the Court does not constitute an express or implied approval by the Court of these rates.
Date:
Signature of registered liquidator
*Omit if not applicable
Schedule
[description of time cost rate(s)]
__________________
| Rule 15A.6 | FORM 20 |
NOTICE OF FILING OF APPLICATION FOR RECOGNITION OF FOREIGN PROCEEDING
IN THE [name of Court] No. of [year]
[Name of company]
ABN or ACN: [ABN or ACN of company to which proceeding relates]
TO all the creditors of [name of company].
TAKE NOTICE that:
1.An application under the Cross-Border Insolvency Act 2008 for recognition of a foreign proceeding in relation to [name of company] was commenced by the plaintiff, [name of plaintiff], on [date of filing of originating process] and will be heard by at [address of Court] at *am/*pm on . Copies of documents filed may be obtained from the plaintiff's address for service.
2.The plaintiff's address for service is [name and address of plaintiff's legal practitioner or, if there is no legal practitioner, address of the plaintiff].
3.Any person intending to appear at the hearing must file a notice of appearance, in accordance with the prescribed form, together with any affidavit on which the person intends to rely, and serve a copy of the notice and any affidavit on the plaintiff at the plaintiff's address for service at least 3 days before the date fixed for the hearing.
4.If you are a foreign creditor you must file in the registry of the Court at the address mentioned in paragraph 1 an affidavit setting out the details of any claim, secured or unsecured, that you may have against the company above at least 3 days before the date fixed for the hearing.
Date:
Name of plaintiff or plaintiff's legal practitioner: [name]
*Omit if not applicable
__________________
| Rule 15A.7 | FORM 21 |
NOTICE OF MAKING OF ORDER UNDER THE CROSS-BORDER INSOLVENCY ACT 2008
IN THE [name of Court] No. of [year]
[Name of company]
ABN or ACN: [ABN or ACN of company to which proceeding relates]
TO all the creditors of [name of company].
TAKE NOTICE that:
1.On [date], the [name of Court] in Proceeding No. of [year], commenced by the plaintiff [name of plaintiff], made the following orders under the Cross-Border Insolvency Act 2008 in relation to [name of company]: [insert details of order].
2.The plaintiff's address for service is [name and address of plaintiff's legal practitioner or, if there is no legal practitioner, address of the plaintiff].
3.The name and address of the foreign representative is [insert name and address].
4.The name and address of the person entrusted with distribution of the company's assets is [insert name and address].*
Date:
Name of plaintiff or plaintiff's legal practitioner: [name]
*Omit if not applicable
__________________
| Rule 15A.7 | FORM 22 |
NOTICE OF DISMISSAL OR DISCONTINUANCE OF APPLICATION FOR RECOGNITION OF FOREIGN PROCEEDING
IN THE [name of Court] No. of [year]
[Name of company]
ABN or ACN: [ABN or ACN of company to which proceeding relates]
TO all the creditors of [name of company].
TAKE NOTICE that the application under the Cross-Border Insolvency Act 2008 for recognition of a foreign proceeding in relation to [name of company] commenced by the plaintiff, [name of plaintiff], on [date of filing of originating process] was dismissed*/discontinued* on [date of dismissal/discontinuance].
Date:
Name of person giving notice or of person's legal practitioner [name]
*Omit if not applicable
__________________
| Rule 15A.9 | FORM 23 |
NOTICE OF FILING OF APPLICATION TO MODIFY OR TERMINATE AN ORDER FOR RECOGNITION OR OTHER RELIEF
IN THE [name of Court] No. of [year]
[Name of company]
ABN or ACN: [ABN or ACN of company to which proceeding relates]
TO all the creditors of [name of company].
TAKE NOTICE that:
*1. An application under the Cross-Border Insolvency Act 2008 for an order *modifying/*terminating an order for recognition of a foreign proceeding in relation to [name of company] was filed by the applicant, [name of applicant], on [date of filing of interlocutory process] and will be heard by at [address of Court] at *am/*pm on . Copies of documents filed may be obtained from the applicant's address for service.
*1. An application under the Cross-Border Insolvency Act 2008 for an order *modifying/*terminating relief granted under *article 19/ *article 21 of the Model Law in relation to [name of company] was filed by the applicant, [name of applicant], on [date of filing of interlocutory process] and will be heard by at [address of Court] at *am/*pm on . Copies of documents filed may be obtained from the applicant's address for service.
2.The applicant's address for service is [name and address of applicant's legal practitioner or of applicant].
3.Any person intending to appear at the hearing must file a notice of appearance (if the person has not already done so), in accordance with the prescribed form, together with any affidavit on which the person intends to rely, and serve a copy of the notice (if applicable) and any affidavit on the applicant at the applicant's address for service at least 3 days before the date fixed for the hearing.
Date:
Name of applicant or applicant's legal practitioner: [name]
*Omit if not applicable
__________________
SCHEDULE 2
Rule 16.1
POWERS OF THE COURT THAT MAY BE EXERCISED BY AN ASSOCIATE JUDGE
| Item No. | Column 1 Provision | Column 2 Description |
| THE ASIC ACT | ||
| 1 | s. 79(4) | To extend time for service of notice. |
| THE CORPORATIONS ACT | ||
| 2 | s. 227 | Declaration that conditions prescribed by Division 3 of Part 2E.1 have been satisfied. |
| 3 | s. 247A | To order inspection of books. |
| 4 | s. 247B | To make ancillary order about inspection of books. |
| 5 | s. 252E | To order meeting of members of registered scheme. |
| * * * * * | ||
| * * * * * | ||
| * * * * * | ||
| 9 | s. 283AE(2) | For appointment of corporation to be trustee. |
| 10 | s. 283EC | To order meeting of debenture holders. |
| 11 | s. 283HA | To give directions and make declarations about trustee's functions or interests of debenture holders. |
| 12 | s. 411(16) | To restrain further proceedings. |
| 12A | ss 415A, 415B | Power to make orders in relation to proposals considered at a meeting of creditors. |
| 13 | s. 418A | Declaration as to validity of controller's appointment and in relation to control of property. |
| 14 | s. 420B | To authorise managing controller to dispose of property despite prior security interest. |
| 15 | s. 420C | To authorise receiver to carry on corporation's business during the winding up. |
| 16 | s. 425 | To fix remuneration of receiver. |
| 17 | s. 429(3) | To extend time for report. |
| 18 | s. 434 | That receiver remedy default. |
| 19 | s. 438D(3) | To direct administrator to lodge a report. |
| 20 | s. 439A(6) | For extension of convening period. |
| 21 | s. 440B | To grant leave to exercise third party property rights. |
| 22 | s. 440D(1)(b) | For leave to begin or proceed with proceeding against company during administration. |
| 23 | s. 440F | For leave to begin or proceed with enforcement process re property of company during administration. |
| 24 | s. 440G(7) | To permit a court officer to take action or make a payment during administration. |
| 25 | s. 440J | To grant leave to take enforcement action under a guarantee. |
| 26 | s. 442C | To grant leave to administrator to dispose of encumbered property. |
| 27 | s. 443B(8) | To excuse administrator from personal liability for rent. |
| 28 | s. 444B(2)(b) | To extend time for company to execute deed. |
| 29 | s. 444E(3)(c) | For leave to person bound by deed to begin or proceed with proceeding against company etc. or enforcement process against company. |
| 30 | s. 447A(1) (where winding up order to be made by an Associate Judge) | To end administration of company. |
| 31 | s. 447C | To declare whether administrator is validly appointed. |
| * * * * * | ||
| 33 | s. 449C(6) | For appointment of an administrator of company under administration when none is acting. |
| 34 | s. 449D(1) | To fill vacancy in office of administrator of deed. |
| 35 | s. 449D(2) | For appointment of an administrator of deed where none is acting. |
| * * * * * | ||
| * * * * * | ||
| 38 | s. 459F(2)(a) | For order extending period for compliance with demand. |
| 39 | s. 459G | For order on application to set aside a demand. |
| 40 | s. 459P(2) | For leave to apply for winding up. |
| 41 | s. 459R | For extension of time for determination of application for winding up in insolvency. |
| 42 | s. 459S | For leave to company to oppose application. |
| 43 | s. 465B(1) | For order substituting applicant. |
| 44 | s. 465C (if the application is pending before an Associate Judge) | For leave to oppose application when there has been failure to file and serve notice of grounds of opposition and verifying affidavit. |
| 45 | s. 467(7) | For stay of proceedings. |
| 46 | s. 468 | For validation of disposition of property, attachments etc. |
| 47 | s. 468A | For order authorising transfer of shares after commencement of winding up. |
| 48 | s. 470(2)(b) | To serve a copy order on another person. |
| 49 | s. 471A | For approval by the Court to perform or exercise a function or power as an officer of the company. |
| 50 | s. 471B | For leave to begin or proceed with a proceeding or begin or proceed with enforcement process against a company being wound up in insolvency or by the Court or in respect of which a provisional liquidator is acting. |
| 51 | s. 472(1) (where winding up order made by an Associate Judge) | For appointment of liquidator. |
| 52 | s. 472(2) | For appointment of provisional liquidator. |
| 53 | s. 472(6) | For order on application with respect to the exercise or proposed exercise of a power of a provisional liquidator. |
| * * * * * | ||
| * * * * * | ||
| 56 | s. 473A(1) | To fill vacancy in office of liquidator. |
| 57 | s. 473A(4) | To declare what may be done by liquidator, where more than one appointed. |
| 58 | s. 474(2) | To vest property in liquidator. |
| 59 | s. 477(2A) | For approval of liquidator's compromising a debt. |
| 60 | s. 477(2B) | For approval of liquidator's entering an agreement which may last or obligations which may be performable more than 3 months later. |
| 61 | s. 477(6) | For order on application with respect to the exercise or proposed exercise of a power by liquidator. |
| 62 | s. 480 | To release liquidator and deregister company. |
| 63 | s. 481 | To order auditor's report and liquidator to make good any loss. |
| 64 | s. 482(1) | To stay or terminate winding up. |
| 65 | s. 483(1) | For delivery of property etc. to liquidator. |
| 66 | s. 483(2) | To direct contributory to pay money. |
| 67 | s. 483(3) | To make calls for payment by contributories and order payment of calls made by court or liquidator. |
| 68 | s. 483(4) | To order payment to bank to the liquidator's account. |
| 69 | s. 484 | To appoint or remove special manager, to fix security or remuneration. |
| 70 | s. 486 | For inspection of books. |
| 71 | s. 488(2) | To grant special leave to distribute a surplus. |
| 72 | s. 490 | For leave to company to resolve that it be wound up voluntarily. |
| 73 | s. 495(4) | As to manner of holding meeting. |
| * * * * * | ||
| 75 | s. 497(3) | For order that list of creditors be sent. |
| 76 | s. 500(2) | For leave to proceed. |
| 77 | s. 500(3) | For delivery of property etc. to liquidator. |
| * * * * * | ||
| * * * * * | ||
| 80 | s. 507(6) | To sanction resolution. |
| 81 | s. 507(9) | For directions for initiation and conduct of arbitration. |
| 82 | s. 507(10) | For approval for exercise of powers. |
| 83 | s. 509(2) | To order deregistration on a specified day. |
| 84 | s. 510(3) | To settle dispute. |
| * * * * * | ||
| 86 | s. 532(2) | To grant leave for person to be appointed as liquidator. |
| 87 | s. 542(3)(a) | As to destruction of books. |
| 88 | s. 543(1) | As to investment of funds. |
| 89 | s. 544 | As to accounts or payment of unclaimed funds. |
| 90 | s. 545(2) | To direct liquidator to incur a particular expense. |
| 91 | s. 547(1) | To direct meeting. |
| * * * * * | ||
| * * * * * | ||
| 94 | s. 554A | To estimate, or determine method to be applied in working out, value of debts and claims of uncertain value in liquidation. |
| 95 | s. 554G | To grant leave to secured creditor to amend valuation of security in proof of debt. |
| 96 | s. 564 | To make an order in favour of certain creditors. |
| 97 | s. 568 | For leave to disclaim. |
| 98 | s. 568B | To set aside disclaimer of property before disclaimer takes effect. |
| 99 | s. 568E | To set aside disclaimer of property after disclaimer has taken effect. |
| 100 | s. 568F | For orders re vesting of disclaimed property. |
| 101 | s. 583 | To wind up Part 5.7 bodies. |
| 102 | s. 587 | To stay proceedings or for leave to commence or proceed. |
| 103 | s. 588FF | To make order about voidable transactions. |
| 104 | s. 588T(2)(b) | For leave to creditor to begin proceeding. |
| 105 | s. 596A | For mandatory examination. |
| 106 | s. 596B | For discretionary examination. |
| 107 | s. 596F(1)(a) | For directions about matters to be inquired into at examination. |
| 108 | s. 596F(1)(b) to (g) | For directions about examination. |
| 109 | s. 597(5B) | To put, or allow to be put, questions to a person being examined. |
| 110 | s. 597(7) | For direction to answer question. |
| 111 | s. 597(9) | For direction to produce books. |
| 112 | s. 597(13) | For order that questions and answers be recorded in writing, and that person sign that written record. |
| 113 | s. 597(15) | For direction for examination to be held before another court. |
| 114 | s. 597(17) | To adjourn the examination from time to time. |
| 115 | s. 597A | For mandatory affidavit. |
| 116 | s. 597B | For costs of unnecessary examination. |
| * * * * * | ||
| * * * * * | ||
| * * * * * | ||
| * * * * * | ||
| 121 | s. 601AH(2) | For reinstatement of the registration of a company. |
| 122 | s. 601BJ | To approve modification of constitution. |
| 123 | s. 601CC(8) | For restoration of name of registered Australian body. |
| 124 | s. 601CL(9) | For restoration of name of registered foreign company. |
| 125 | s. 601FN | For appointment of a temporary responsible entity of a scheme. |
| 126 | s. 1071D | To issue summons and make consequential orders under section 1071D(5). |
| 127 | s. 1071F | For order following failure by directors to register etc. |
| 128 | s. 1071H | To remedy default in issuing certificate. |
| 129 | s. 1274(11) | For order to remedy default. |
| 130 | s. 1303 | To order immediate inspection of books. |
| 131 | s. 1319 | For direction with respect to meeting. |
| * * * * * | ||
| 133 | s. 1322(4) | For order in relation to irregularities etc. |
| 134 | s. 1335 | To order security for costs. |
| 135 | s. 1341(3) | For payment of money. |
| CORPORATIONS REGULATIONS | ||
| 136 | reg. 5.6.06 | For order not to open liquidator's general account. |
| 137 | reg. 5.6.09 | For directions with respect to money or securities and authorisation of payments to special bank accounts. |
| 138 | reg. 5.6.15(2) | For repayment of costs of meeting. |
| 139 | reg. 5.6.16(7) | For declaration that adjourned meeting be taken to be incompetent to act. |
| 140 | reg. 5.6.18(3) | For order as to place of adjourned meeting. |
| 141 | reg. 5.6.24(3) | To determine whether security surrendered. |
| 142 | reg. 5C.2.02 | To appoint a temporary responsible entity of a scheme. |
__________________
SCHEDULE 2AA
Rule 16.1(1.1)
INSOLVENCY PRACTICE SCHEDULE (CORPORATIONS)
| Item No. | Column 1 Provision of the Insolvency Practice Schedule (Corporations) | Column 2 Rule | Column 3 Description |
| 1 | section 20‑70(3) | Power to extend time to apply to ASIC for renewal of a liquidator's registration | |
| 2 | section 40‑5(4)(b) | Power to give a direction to a liquidator to lodge a document or give any information or document | |
| 3 | section 40‑10(4)(b) | Power to direct a liquidator: (a) to confirm to ASIC that information is complete and correct; or (b) to complete or correct information; or (c) to notify any persons specified by ASIC of any additional or corrected information | |
| 4 | section 45‑1(1) | Power to make orders in relation to a registered liquidator | |
| 5 | section 60‑10(1)(c) and (2)(b) | 9.2 | Power to determine an external administrator's remuneration |
| 6 | section 60‑11(3) | 9.2A | Power to review a remuneration determination for an external administrator of a company |
| 7 | section 60‑16(1) | 9.3 | Power to determine a provisional liquidator's remuneration |
| 8 | section 65‑45 | Power to give directions regarding the handling of money and securities by an external administrator | |
| 9 | section 70‑35(3)(c) | Power to give directions in relation to destruction of the books of a company | |
| 10 | section 70‑90 | Power to order an external administrator to give relevant material to a person | |
| 11 | section 75‑41(3) | Power to make orders in relation to proposals considered at a meeting of creditors | |
| 12 | section 75‑42(4) | Power to order that a resolution passed at a meeting of creditors because of a casting vote be set aside or varied and make further orders or give further directions | |
| 13 | section 75‑43(4) | Power to order that a resolution considered at a meeting of creditors is taken to have been passed and make further orders or give further directions | |
| 14 | section 80‑50(2) | Power to approve a committee of inspection incurring expenses in obtaining advice or assistance | |
| 15 | section 80‑55(5)(b) | Power to give leave for a member of committee of inspection to derive a profit or advantage | |
| 16 | section 90‑5(1) | Power to inquire into the external administration of a company | |
| 17 | sections 90‑5(2) and 90‑10(4) | Power to require an external administrator or former external administrator to give information, provide a report or produce a document | |
| 18 | section 90‑15 | 7.2 and 11.8 | Power to make orders in relation to the external administration of a company, including the following: (a) determining a question or questions arising in the external administration; (b) that a person cease to be the external administrator; (c) that another registered liquidator be appointed; (d) in relation to the costs of an action (including court action) taken by the external administrator or another person in relation to the external administration; (e) in relation to any loss that the company has sustained because of a breach of duty by the external administrator; |
| (f) in relation to remuneration, including requiring a person to repay to a company, or the creditors of a company, remuneration paid to the person as external administrator of the company | |||
| 19 | sections 90‑23(6) and (9) | Power to appoint a registered liquidator to carry out a review into a matter that relates to the external administration of a company and to specify the matters which the liquidator is appointed to review and the way in which the cost of carrying out the review is to be determined | |
| 20 | section 90‑28 | Power to make orders in relation to a review by a reviewing liquidator on the application of the reviewing liquidator, a person with a financial interest in the external administration of the company or an officer of the company | |
| 21 | section 90‑35(6) | Power to order the reappointment of a former external administrator |
SCHEDULE 2A
Rule 16B.2
Powers of the Court that may be exercised by a Judicial Registrar
| Item No. | Column 1 Provision | Column 2 Description |
| THE ASIC ACT | ||
| 1 | s. 79(4) | To extend time for service of notice. |
| THE CORPORATIONS ACT | ||
| 2 | s. 247A | To order inspection of books. |
| 2A | s. 247B | To make ancillary order about inspection of books. |
| 2B | s. 425 | To fix remuneration of receiver. |
| 2C | s. 439A(6) | For extension of convening period. |
| 3 | s. 440A | To adjourn winding up application where company under administration. |
| 3A | s. 447A(1) (where winding up order to be made by an Associate Judge) | To end administration of company. |
| 3B | s. 459F(2)(a) | For order extending period for compliance with demand. |
| 3C | s. 459G | For order on application to set aside a demand. |
| * * * * * | ||
| * * * * * | ||
| 6 | s. 459P(2) | For leave to apply for winding up. |
| 7 | s. 459R | For extension of time for determination of application for winding up in insolvency. |
| 8 | s. 459S | For leave to company to oppose application. |
| 9 | s. 465B(1) | For order substituting applicant. |
| * * * * * | ||
| * * * * * | ||
| 12 | s. 482(1) | To stay or terminate winding up. |
| 12A | s. 484(2)(b) | To fix remuneration of a special manager. |
| 12B | s. 532(2) | To grant leave for person to be appointed as liquidator. |
| 12C | s. 583 | To wind up Part 5.7 bodies (other than companies). |
| 13 | s. 596A | For mandatory examination. |
| 14 | s. 596B | For discretionary examination. |
| 15 | s. 596F(1)(a) | For directions about matters to be inquired into at examination. |
| 16 | s. 596F(1)(b) to (g) | For directions about examination. |
| 17 | s. 597(5B) | To put, or allow to be put, questions to a person being examined. |
| 18 | s. 597(7) | For direction to answer question. |
| 19 | s. 597(9) (if examination before the judicial registrar) | For direction to produce books. |
| 20 | s. 597(13) (if examination before the judicial registrar) | For order that questions and answers be recorded in writing, and that person sign that written record. |
| 21 | s. 597(15) (if examination before the judicial registrar) | For direction for examination to be held before another court. |
| 22 | s. 597(17) (if examination before the judicial registrar) | To adjourn the examination from time to time. |
| 23 | s. 597A | For mandatory affidavit. |
| 24 | s. 597B (if examination before the judicial registrar) | For costs of unnecessary examination. |
| 25 | s. 601AH(2) | For reinstatement of the registration of a company. |
| 26 | s. 1322(4) | For order in relation to irregularities etc. |
| 27 | s. 1335 | To order security for costs. |
| INSOLVENCY PRACTICE SCHEDULE (CORPORATIONS AND RULE | ||
| 28 | s. 60‑10(1)(c), (2)(b) rule 9.2 | Power to determine an external administrator's remuneration. |
| 29 | s. 60‑11(3) rule 9.2A | Power to review a remuneration determination for an external administrator of a company. |
| 30 | s. 60‑16(1) rule 9.3 | Power to determine a provisional liquidator's remuneration. |
__________________
SCHEDULE 3
NOTES TO THESE RULES
Note 1—see Rule 2.2 (Form 2 Part C)
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 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.]
Note 2—see Rules 2.4 and 5.4(2)
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.I am the above-named plaintiff [or if the applicant is a corporation, I am a [or the] director of the above-named plaintiff which is registered 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.
Dated: 29 August 2013
M. L. WARREN, C.J.
CHRISTOPHER MAXWELL, P.
MARCIA NEAVE, J.A.
MARK WEINBERG, J.A.
PAMELA TATE, J.A.
R. S. OSBORN, J.A.
PHILLIP PRIEST, J.A.
PAUL COGHLAN, J.A.
J. G. SANTAMARIA, J.A.
K. WILLIAMS, J.
ELIZABETH HOLLINGWORTH, J.
KIM HARGRAVE, J.
ANTHONY CAVANOUGH, J.
ELIZABETH CURTAIN, J.
ROSS ROBSON, J.
JACK FORREST, J.
PETER VICKERY, J.
EMILIOS KYROU, J.
DAVID F. R. BEACH, J.
TERRY FORREST, J.
KARIN EMERTON, J.
CLYDE CROFT, J.
ANNE FERGUSON, J.
M. L. SIFRIS, J.
PETER ALMOND, J.
JOHN DIXON, J.
C. MACAULAY, J.
KATE McMILLAN, J.
GREG GARDE, J.
JAMES D. ELLIOT, J.
T. J. GINNANE, J.
MELANIE SLOSS, J.
M. J. CROUCHER, J.
═══════════════
Endnotes
1 General information
See for Victorian Bills, Acts and current Versions of legislation and up-to-date legislative information.
The Supreme Court (Corporations) Rules 2013, S.R. No. 112/2013 were made on 29 August 2013 by the Judges of the Supreme Court under section 25 of the Supreme Court Act 1986, No. 110/1986 and section 23 of the Corporations (Ancillary Provisions) Act 2001, No. 43/2001 and came into operation on 24 September 2013: rule 1.2(2).
The Supreme Court (Corporations) Rules 2013 will sunset 10 years after the day of making on 29 August 2023 (see section 5 of the Subordinate Legislation Act 1994).
INTERPRETATION OF LEGISLATION ACT 1984 (ILA)
Style changes
Section 54A of the ILA authorises the making of the style changes set out in Schedule 1 to that Act.
References to ILA s. 39B
Sidenotes which cite ILA s. 39B refer to section 39B of the ILA which provides that where an undivided regulation, rule or clause of a Schedule is amended by the insertion of one or more subregulations, subrules or subclauses the original regulation, rule or clause becomes subregulation, subrule or subclause (1) and is amended by the insertion of the expression "(1)" at the beginning of the original regulation, rule or clause.
Interpretation
As from 1 January 2001, amendments to section 36 of the ILA have the following effects:
• Headings
All headings included in a Statutory Rule which is made on or after
1 January 2001 form part of that Statutory Rule. Any heading inserted in a Statutory Rule which was made before 1 January 2001, by a Statutory Rule made on or after 1 January 2001, forms part of that Statutory Rule.
This includes headings to Parts, Divisions or Subdivisions in a Schedule; Orders; Parts into which an Order is divided; clauses; regulations; rules; items; tables; columns; examples; diagrams; notes or forms.
See section 36(1A)(2A)(2B).
• Examples, diagrams or notes
All examples, diagrams or notes included in a Statutory Rule which is made on or after 1 January 2001 form part of that Statutory Rule. Any examples, diagrams or notes inserted in a Statutory Rule which was made before 1 January 2001, by a Statutory Rule made on or after 1 January 2001, form part of that Statutory Rule. See section 36(3A).
• Punctuation
All punctuation included in a Statutory Rule which is made on or after
1 January 2001 forms part of that Statutory Rule. Any punctuation inserted in a Statutory Rule which was made before 1 January 2001, by a Statutory Rule made on or after 1 January 2001, forms part of that Statutory Rule.
See section 36(3B).
• Provision numbers
All provision numbers included in a Statutory Rule form part of that Statutory Rule, whether inserted in the Statutory Rule before, on or after
1 January 2001. Provision numbers include regulation numbers, rule numbers, subregulation numbers, subrule numbers, paragraphs and subparagraphs. See section 36(3C).
• Location of "legislative items"
A "legislative item" is a penalty, an example or a note. As from 13 October 2004, a legislative item relating to a provision of a Statutory Rule is taken to be at the foot of that provision even if it is preceded or followed by another legislative item that relates to that provision. For example, if a penalty at the foot of a provision is followed by a note, both of these legislative items will be regarded as being at the foot of that provision. See section 36B.
• Other material
Any explanatory memorandum, table of provisions, endnotes, index and other material printed after the Endnotes does not form part of a Statutory Rule. See section 36(3)(3D)(3E).
2 Table of Amendments
This publication incorporates amendments made to the Supreme Court (Corporations) Rules 2013 by statutory rules, subordinate instruments and Acts.
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
Supreme Court (RedCrest Electronic Case Management System Amendment) Rules 2014, S.R. No. 48/2014
Date of Making: 29.5.14 Date of Commencement: Rules 23–29 on 1.7.14: rule 3
Supreme Court (Judicial Registrars Amendment) Rules 2015, S.R. No. 10/2015
Date of Making: 26.2.15 Date of Commencement: Rules 14–22 on 1.3.15: rule 3
Supreme Court (Judicial Registrars Further Amendment) Rules 2015, S.R. No. 30/2015
Date of Making: 30.4.15 Date of Commencement: Rule 7 on 4.5.15: rule 3
Supreme Court (Associate Judges Amendment) Rules 2015, S.R. No. 40/2015
Date of Making: 28.5.15 Date of Commencement: Rule 13 on 1.7.15: rule 3
Supreme Court (Chapter V Publication of Notices Amendment) Rules 2016, S.R. No. 140/2016
Date of Making: 24.11.16 Date of Commencement: 1.1.17: rule 3
Supreme Court (E-Filing Amendments) Rules 2017, S.R. No. 15/2017
Date of Making: 30.3.17 Date of Commencement: Rules 22, 23 on 18.4.17: rule 3
Supreme Court (Chapter V Insolvency and Further Powers of Judicial Registrars Amendment) Rules 2018, S.R. No. 56/2018
Date of Making: 17.5.18 Date of Commencement: 1.6.18: rule 3
Supreme Court (E-Filing and Other Amendments) Rules 2018, S.R. No. 58/2018
Date of Making: 17.5.18 Date of Commencement: Rules 31–36 on 2.7.18: rule 3
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
3 Amendments Not in Operation
There are no amendments which were Not in Operation at the date of this publication.
4 Explanatory details
[1] Rule 1.2(3)(a): S.R. No. 107/2003. Reprint No. 1 as at 17 December 2008. Reprinted to S.R. No. 117/2008 and subsequently amended by S.R. Nos 43/2009, 44/2009, 97/2009, 83/2010 and 121/2012.
[2] Rule 1.2(3)(b): S.R. No. 47/2005.
[3] Rule 1.2(3)(c): S.R. No. 44/2006.
[4] Rule 1.2(3)(d): S.R. No. 44/2007.
[5] Rule 1.2(3)(e): S.R. No. 104/2007.
[6] Rule 1.2(3)(f): S.R. No. 117/2008.
[7] Rule 1.2(3)(g): S.R. No. 43/2009.
[8] Rule 1.2(3)(h): S.R. No. 83/2010.
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