Supreme Court (Corporations) (WA) Amendment Rules 2009 (WA)
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JUSTICE
JU301*
Supreme Court Act 1935
Corporations (Ancillary Provisions) Act 2001
Corporations Act 2001 (Commonwealth)
Supreme Court (Corporations) (WA)
Amendment Rules 2009
Made by the Judges of the Supreme Court.
1. Citation
These rules are the Supreme Court (Corporations) (WA)
Amendment Rules 2009.2. Commencement
These rules come into operation as follows —
(a) regulations 1 and 2 — on the day on which these regulations are published in the Gazette; (b) the rest of the regulations — on the day after that day. 3. Rules amended
These rules amend the Supreme Court (Corporations) (WA)
Rules 2004.4. Rule 1.3 amended
Delete rule 1.3(1) and (2) and insert:
(1) Unless the Court otherwise orders —
(a) these rules apply to a proceeding in the Court under the Corporations Act, or the ASIC Act, that is commenced on or after the commencement of these rules; and
(b)
Part 15A applies to a proceeding in the Court under the Cross-Border Insolvency Act.
(2) The other rules of the Court apply, to the extent that
they are relevant and not inconsistent with these
Rules —
(a)
to a proceeding in the Court under the Corporations Act, or the ASIC Act, that is
13 February 2009 GOVERNMENT GAZETTE, WA 303 commenced on or after the commencement of
these Rules; and
(b) to a proceeding in the Court under the Cross- Border Insolvency Act that is commenced on or after the commencement of Part 15A.
5. Rule 1.5 amended
(1) In rule 1.5(1) insert in alphabetical order: Cross-Border Insolvency Act means the Cross-Border
Insolvency Act 2008 (Commonwealth) including,unless the contrary intention appears, the Model Law;
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 InsolvencyAct, with the modifications set out in Part 2 of that Act.
(2) In rule 1.5(1) in the definition of defendant delete
“Corporations Act or the ASIC Act,” and insert:Corporations Act, the ASIC Act or the Cross-Border
Insolvency Act,
(3) In rule 1.5(1) in the definition of plaintiff delete “Corporations
Act or the ASIC Act,” and insert:Corporations Act, the ASIC Act or the Cross-Border
Insolvency Act,
6. Part 15A inserted
After Part 15 insert:
Part 15A — Proceedings under the
Cross-Border Insolvency Act
15A.1 Application of this Part and other rules of court Unless the Court otherwise orders —
(a)
this Part applies to a proceeding in the Court, under the Cross-Border Insolvency Act, involving a debtor other than an individual; and
(b)
the rules in the other Parts of these rules, and the other rules of the Court, apply to a proceeding in the Court under the Cross-Border Insolvency Act if they are relevant and not inconsistent with this Part.
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15A.2 Expressions used in the Cross-Border Insolvency
Act(1) Unless the contrary intention appears, an expression
that is used in this Part and in the Cross-Border
Insolvency Act, whether or not a particular meaning is
given to the expression by the Cross-Border Insolvency
Act, has the same meaning in this Part as it has in the
Cross-Border Insolvency Act.Note: The following expressions used in this Part (including in the notes to
this Part) are defined in the Model Law as having the following
meanings:establishment means any place of operations where the debtor
carries out a non-transitory economic activity with human means and
goods or services;foreign court means a judicial or other authority competent to control
or supervise a foreign proceeding;foreign main proceeding means a foreign proceeding taking place in
the State where the debtor has the centre of its main interests;foreign non-main proceeding means a foreign proceeding, other than a foreign main proceeding, taking place in a State where the debtor has an establishment within the meaning of subparagraph (f) of
the present article; foreign proceeding means a collective judicial or administrative
proceeding in a foreign State, including an interim proceeding,
pursuant to a law relating to insolvency in which proceeding the assets
and affairs of the debtor are subject to control or supervision by a
foreign court, for the purpose of reorganization or liquidation;foreign representative means a person or body, including one
appointed on an interim basis, authorized in a foreign proceeding to
administer the reorganization or the liquidation of the debtor’s assets
or affairs or to act as a representative of the foreign proceeding.(2) This Part is to be interpreted in a manner that gives
effect to the Cross-Border Insolvency Act.15A.3 Application for recognition (1) An application by a foreign representative for
recognition of a foreign proceeding under article 15 of
the Model Law must be made by filing an originating
process in accordance with Form 2.(2) The originating process must —
(a) be accompanied by the statements referred to in of the Cross-Border Insolvency Act; and
(b)
name the foreign representative as the plaintiff and the debtor as the defendant; and
(c)
be accompanied by an affidavit verifying the matters mentioned in paragraphs 2 and 3 of article 15 of the Model Law and in section 13 of the Cross-Border Insolvency Act.
(3)
When filing the originating process, the foreign representative must file, but need not serve, an
13 February 2009 GOVERNMENT GAZETTE, WA 305 interlocutory process seeking directions as to service, and the Court may give any directions about service, and make any incidental orders, that it thinks just.
(4) The plaintiff must serve a copy of the originating
process and the other documents mentioned in
subrule (2) —
(a)
unless the Court otherwise orders, in accordance with rule 2.7(1); and
(b)
on any other persons the Court may direct at the hearing of the interlocutory process.
(5)
A person who intends to appear before the Court at the hearing of an application for recognition must file and serve the documents mentioned in rule 2.9.
15A.4 Application for provisional relief under article 19 of
the Model Law(1)
Any application by the plaintiff for provisional relief under article 19 of the Model Law must be made by filing an interlocutory process in accordance with
Form 3. (2) Unless the Court otherwise orders, the interlocutory
process and any supporting affidavit must be served in
accordance with rule 2.7(2).15A.5 Official liquidator’s consent to act If the relief sought in an application under article 15 of
the Model Law includes an application for an order
under article 19 or 21 to entrust the distribution of the
debtor’s assets to a person designated by the Court
(other than the foreign representative) then, unless the
Court otherwise orders, that person must —
(a) be an official liquidator; and (b)
have filed a Consent to Act, in accordance with Form 19, that specifies an address for service for the person within the State.
15A.6 Notice of filing of application for recognition (1) Unless the Court otherwise orders, the plaintiff in a
proceeding mentioned in rule 15A.3 must —
(a)
send a notice of the filing of the application in accordance with Form 20 to each person whose claim to be a creditor of the defendant is known to the plaintiff; and
(b)
publish a notice of the filing of the application for recognition of a foreign proceeding in accordance with Form 20, in accordance with rule 2.11.
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(2) The Court may direct the plaintiff to publish a notice in
accordance with Form 20 in a daily newspaper
circulating generally in any State or Territory not
described in rule 2.11.15A.7 Notice of order for recognition, withdrawal etc. (1) If the Court makes an order for recognition of a foreign
proceeding under article 17 of the Model Law, or
makes any order under article 19 or 21 of the Model
Law, the plaintiff must, as soon as practicable after the
order is made, do all of the following —(a) have the order entered;
(b)
serve a copy of the entered order on the defendant;
(c)
send a notice of the making of the order in accordance with Form 21 to each person whose claim to be a creditor of the defendant is known to the plaintiff;
(d)
publish a notice of the making of the order in accordance with Form 21, in accordance with rule 2.11.
(2) The Court may direct the plaintiff to publish the notice
in accordance with Form 21 in a daily newspaper
circulating generally in any State or Territory not
described in rule 2.11.(3) If the application for recognition is withdrawn or
dismissed, the plaintiff must, as soon as practicable, do
all of the following —
(a)
for a dismissal, have the order of dismissal entered;
(b)
serve a copy of the entered order of dismissal or notice of the withdrawal, on the defendant;
(c)
send a notice of the dismissal or withdrawal in accordance with Form 22 to each person whose claim to be a creditor of the defendant is known to the plaintiff;
(d)
publish a notice of the dismissal or withdrawal in accordance with Form 22, in accordance with rule 2.11.
(4) The Court may direct the plaintiff to publish the notice
in accordance with Form 22 in a daily newspaper
circulating generally in any State or Territory not
described in rule 2.11.15A.8 Relief after recognition (1) If the Court has made an order for recognition of a
foreign proceeding, any application by the plaintiff for
13 February 2009 GOVERNMENT GAZETTE, WA 307 relief under paragraph 1 of article 21 of the Model Law
must be made by filing an interlocutory process, andany supporting affidavit, in accordance with Form 3.
(2) Unless the Court otherwise orders, an interlocutory
process under subrule (1) and any supporting affidavit
must be served, in accordance with rule 2.7(2), but on
the following persons —(a) the defendant;
(b)
any person that the Court directed be served with the originating process by which the application for recognition was made;
(c) any other person that the Court directs.
(3) A person who intends to appear before the Court at the
hearing of an application under subrule (1) must file
and serve the documents mentioned in rule 2.9.15A.9 Application to modify or terminate an order for
recognition or other relief(1) This rule applies to —
(a)
an application under paragraph 4 of article 17 of the Model Law for an order modifying or terminating an order for recognition of a foreign proceeding; and
(b)
an application under paragraph 3 of article 22 of the Model Law for an order modifying or terminating relief granted under article 19 or 21 of the Model Law.
(2) An application mentioned in subrule (1) must be made
by filing an interlocutory process in accordance with
Form 3.(3) An interlocutory process for an application under
subrule (1) and any supporting affidavit must be served
on —
(a)
for an application under subrule(1)(a) — the defendant and other persons who were served with, or filed a notice of appearance in relation to, the application for recognition; and
(b)
for an application under subrule (1)(b) — the defendant and other persons who were served with, or filed a notice of appearance in relation
to, the application for relief under article 19
or 21.
(4) Unless the Court otherwise orders, a plaintiff who
applies for an order under subrule (1) must —
(a)
send a notice of the filing of the application in accordance with Form 23 to each person whose
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claim to be a creditor of the defendant is known
to the plaintiff; and
(b)
publish a notice of the filing of the application in accordance with Form 23, in accordance with rule 2.11.
(5) The Court may direct the applicant to publish the
notice in accordance with Form 23 in a daily
newspaper circulating generally in any State or
Territory not described in rule 2.11.(6) A person who intends to appear before the Court at the
hearing of an application under subrule (1) must file
and serve the documents mentioned in rule 2.9.7. Schedule 1 amended
(1) In Schedule 1 Form 2 delete “rule 2.2” and insert: rules 2.2 and 15A.3 (2) In Schedule 1 Form 2 delete “This application is made under *section/*regulation [number] of the *Corporations Act/*ASIC
Act/*Corporations Regulations.” and insert:This application is made under *section/*regulation [number] of the
*Corporations Act/*ASIC Act/*Cross-Border Insolvency Act/*Corporations Regulations.
(3) In Schedule 1 Form 3 delete “rule 2.2” and insert: rules 2.2, 15A.4, 15A.8 and 15A.9 (4) In Schedule 1 Form 3 delete “This application is made under *section/*regulation [number] of the *Corporations Act/*ASIC
Act/*Corporations Regulations.” and insert:This application is made under *section/*regulation [number] of the
*Corporations Act/*ASIC Act/*Cross-Border Insolvency Act/
*Corporations Regulations.
13 February 2009 GOVERNMENT GAZETTE, WA 309
(5) After Schedule 1 Form 18 insert: Form 19
rule 15A.5
Consent to act as designated person
[Title]
I, [name], of [address], an official 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 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 hourly 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 hourly rates.
Date:................................................. Signature of official liquidator
* Omit if not applicable Schedule
[description of hourly rate(s)]
Form 20
rule 15A.6
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 (Commonwealth) for recognition of a foreign proceeding in relation to [name of company] was commenced by the plaintiff,
will be heard by .............................................................................
at [address of Court] at ............*am/*pm on .................................[name of plaintiff], on [date of filing of originating process] and address for service.
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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
Form 21
rule 15A.7
Notice of making of order under the Cross-Border Insolvency
Act 2008 (Commonwealth)
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 (Commonwealth) 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
13 February 2009 GOVERNMENT GAZETTE, WA 311 Form 22
rule 15A.7
Notice of dismissal or withdrawal 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-BorderInsolvency Act 2008 (Commonwealth) 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*/withdrawn* on [date of dismissal/withdrawal]
Date:
Name of person giving notice or of person’s legal practitioner [name]
* Omit if not applicable Form 23
rule 15A.9
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
(Commonwealth) 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
(Commonwealth) 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.
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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 plaintiff or plaintiff’s legal practitioner: [name]
* Omit if not applicable
(6) Amend the forms in Schedule 1 listed in the Table as set out in
the Table.
Table
Form Delete Insert
Form 1 ACN ABN or ACN (each occurrence) Forms 9, 10, 11, 12, ACN ABN or ACN 15 and 16 Forms 9, 10, 11, 12, ACN ABN or ACN 15 and 16 Dated: 9th February 2009.
Judges’ signatures:
W. S. MARTIN C. J. McLURE M. J. MURRAY CAROLYN JENKINS N. J. OWEN RALPH SIMMONDS A. J. TEMPLEMAN P. D. BLAXELL C. WHEELER ANDREW BEECH JOHN McKECHNIE D. W. NEWNES ———————————
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