Supreme Court (Corporations) (WA) Amendment Rules 2021 (WA)
13 July 2021 GOVERNMENT GAZETTE, WA 3031 JUSTICE
JU301
Supreme Court Act 1935
Corporations (Ancillary Provisions) Act 2001
Corporations Act 2001 (Commonweakh)
Supreme Court (Corporations) (WA)
Amendment Rules 2021
SL 2021/121
Made by the judges of the Supreme Court.
1. Citation
These rules are the Supreme Court (Corporations) (WA)
Amendment Rules 2021.
2. Commencement
These rules come into operation as follows —
(a)
rules 1 and 2 — on the day on which these rules are published in the Gazette;
(b) the rest of the rules — on the day after that day.
3. Rules amended These rules amend the Supreme Court (Corporations) (WA)
Rules 2004.
4. Rule 1.5 amended
In rule 1.5(1) insert in alphabetical order:
Insolvency Practice Schedule or IPS means the
Corporations Act Schedule 2;
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5. Rule 1.7 amended
In rule 1.7(2) delete "a registrar" and insert:the Principal Registrar
6. Rule 2.8 amended
In rule 2.8(3)inthe Table:
(a) in item 3 in the 21( cohimn delete "s. 509(6)" and insert: s.509(2)
(b) delete item 4; (c) after item 9 insert:
10. IPS s. 45-1(3) For an order under IPS s. 45-1(1) in
relation to a registered liquidator11. IPS s. 90-10(1) For an inquiry into the external
administration of a company
12. IPS s. 90-20 For an order under IPS s. 90-15 in
relation to the external administration
of a company7. Rule 3.4 amended
In rule 3.4(2) delete "application." and insert:
application -
(a) for an application in relation to one Part 5.1
generally in the State or Territory where the body - in a daily newspaper circulating Part 5.1 body has its principal, or last known, place of business; or
(b) for an application in relation to 2 or more circulating generally in each State or Territory where any of the Part 5.1 bodies has its principal, or last known, place of business.
13 July 2021 GOVERNMENT GAZETTE, WA 3033 8. Rule 4.2 inserted
At the end of Part 4 insert:
4.2. Order or inquiry in relation to registered liquidator
or external administration of companyAn application to the Court -
(a)
under the Insolvency Practice Schedule section 45-1 for an order in relation to a registered liquidator; or
(b)
under the Insolvency Practice Schedule section 90- 10 for an inquiry into the external administration of a company; or
(c)
under the Insolvency Practice Schedule section 90-20 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.
Note: An application for an orderor inquiry in relation to the
external administration ofa com panyordered to be wound up bya court is norm allymadetothe court that made the winding-up order.
9. Rule 5.5 amended
(1) In rule 5.5(2) delete "an official liquidator" and insert:
a registered liquidator (2) In rule 5.5(3)(a) delete "an official liquidator" and insert: a registered liquidator 10. Rule 5.6 replaced
Delete rule 5.6 and insert:
5.6. Notice of application for winding-up (Form 9) (1) If a person applies for a company to be wound up and
the application is not made under the Corporations Act
section 459P, 462 or 464, the person must, unless the
Court otherwise orders, cause a notice of the
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application 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. The notice must be in accordance withForm 9.
Note: If a person applies under the Corporations Act
section 459P, 462 or 464 for a corn panyto be wound up,
the person rnustcause a notice, setting out the information
prescribed bythe Corporations Regulations
regulation 5.4.01A, to be published in the manner provided
by the Corporations Act section 1 367A and the
Corporations Regulations regulation 5.6.75: see theCorporations Act section 465A(1).
(2) A notice under subrule (I), or under the Corporations
Act section 465A( 1 )(c), 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.
11. Rule 5.9 amended
(1) In rule 5.9:
(a) delete "After" and insert: (1) After
(b) in paragraph (a) - (i) delete "the Principal Registrar" and insert:
a master
(ii) delete "Principal Registrar; and" and insert:
Principal Registrar, or another officer of the delegated this function; and
(c) in paragraph (b) delete "the Principal Registrar" and
insert:the master
(2) At the end of rule 5.9 insert:
(2) For the purposes of these rules, a function performed
by a delegate of the Principal Registrar under
13 July 2021 GOVERNMENT GAZETTE, WA 3035 subrule (1)(a) is taken to be a function performed by
the Principal Registrar.
Note: The heading to amended rule 5.9 is to read:
Appearance before master
12. Rule 5.10 amended
Delete rule 5.10(2)(b) and insert:
(b) unless otherwise directed by the Court,
published -
(i) the hearing of the application; and
at least 7 days before the date fixed for generally in the State or Territory where the company has its principal, or last known, place of business.
13. Rule 5.11 amended
(1) In rule 5.11 (1) delete "an official liquidator" and insert: a registered liquidator (2) Delete rule 5.11(3) and (4) and insert:
(3) If the winding-up order results from an application
other than an application under the Corporations
Act section 459P, 462 or 464, the liquidator must cause
a notice of the winding-up order and the liquidator's
appointment 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. The notice must be in accordance with
Form II.Note: If the winding-up order results from an application under the Corporations Act section 459P, 462 or 464, the liquidator
mustcause a notice, setting out the information prescribed
by the Corporations Regulations regulation 5.4.01 B, to be
published in the manner provided by the Corporations Act
section 1 367Aarid the Corporations Regulationsregulation 5.6.75: seethe Corporations Act section 465A(2).
(4)
A notice under subrule (3), or under the Corporations Act section 465A(2), of a winding-up order must be published as soon as practicable after the liquidator is
informed of the appointment.
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14. Rule 6.1 amended
In rule 6.1(1)—
(a) delete "an official liquidator" and insert: a registered liquidator
(b) delete "official liquidator." and insert: registered liquidator.
15. Rule 6.2 amended
(1) In rule 6.2(1) delete "an official liquidator" and insert: a registered liquidator (2) Delete rule 6.2(3) and (4) and insert:
(3) If the order results from an application other than an application under the Corporations Act section 459P, 462 or 464, the provisional liquidator must cause a notice of the provisional liquidator's appointment 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. The notice
must be in accordance with Form 12.
Note: If the order results from an application under the
Corporations Act section 459P, 462 or 464, the provisional
liquidator mustcause a notice, setting outthe information
prescribed bythe Corporations Regulations
regulation 5.4.01B,to be published in the manner providedby the Corporations Act section 1 367A and the
Corporations Regulations regulation 5.6.75: seethe Corporations Act section 465A(2).
(4) A notice under subrule (3), or under the Corporations
Act section 465A(2), of a provisional liquidator's
appointment must be published as soon as practicable
after the relevant order is made.16. Rule 7.1 deleted
Delete rule 7.1.
13 July 2021 GOVERNMENT GAZETTE, WA 3037
17. Rule 7.2 replaced
Delete rule 7.2 and insert:
7.2. Vacancy in office of liquidator (Corporations Act
s. 473A and 499(3) and Insolvency Practice
Schedule 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 underthe Insolvency Practice Schedule section 90-20.
See the Insolvency Practice Schedule section 90-15(2).
18. Rule 7.3 amended
(1) Before rule 7.3(1) insert: (1A) In this rule -
liquidator includes a provisional liquidator.
(2) Delete rule 7.3(4) and insert:
(4) Unless the Court otherwise orders, a report filed by a
liquidator under the Corporations Act section 47 5(7) is
not available for inspection by any person.Note: A report filed by a liquidator under the Corporations Act
section 475(7) mayinclude commercial-in-confidence
information that may not be inspected: see the Corporations Act section 1274(4G).
19. Rule 7.5 amended
Delete rule 7.5(3)(e) and insert:
(e) whether ASIC has caused books in relation to
the company to be audited under the Insolvency
Practice Schedule section 70-15;
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20. Rule 7.7 amended
(1) In rule 7.7(2)(a)(i) delete 'Principal Registrar" and insert: Principal Registrar, or another officer of the Court to whom the
Principal Registrar has delegated this function,(2) After rule 7.7(3) insert:
(4) For the purposes of these rules, a function performed
by a delegate of the Principal Registrar under
subrule (2)(a)(i) is taken to be a fUnction performed by
the Principal Registrar.21. Rule 7.9 amended
In rule 7.9(2) delete "application." and insert:application in a daily newspaper circulating generally in the or last known, place of business.
22. Rule 7.11 replaced
Delete rule 7.11 and insert:
7.11. Appointment of reviewing liquidator (Insolvency
Practice Schedule s. 90-23(8))(1)
An application to the Court under the Insolvency Practice Schedule section 90-23(8) 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 the Insolvency Practice Rules
(Corporations) 2016 (Coninonwealth) section 90-18.
13 July 2021 GOVERNMENT GAZETTE, WA 3039 23. Rule 9.2 replaced
Delete rule 9.2 and insert:
9.2. Determination of remuneration of external
administrator (Insolvency Practice Schedule
s. 60-10(1)(c) and (2)(b)) (Form 16)(1) This rule applies in relation to an application for a
determination under the Insolvency Practice Schedule section 60-10(1 )(c) or (2)(b) 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: The Insolvency Practice Schedule section 60-10 does not
apply in relation to the remuneration of a provisional liquidatorora liquidator appointed byASlC underthe Corporations ?t section 489EC: see the Insolvency Practice Schedule section 60-2.
(2) At least 21 days before filing an originating process, or
interlocutory process, seeking the deternination, 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 coiujiiittee of inspection; (c)
if there is no coiiiwittee 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 mentioned in subrule (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 mentioned in
subrule (3)—
(a)
the external administrator may file an affidavit, made after the end of that period, in support of
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the originating process, or interlocutory
process, seeking the determination stating -
(1) the date, or dates, when the notice and
affidavit required to be served under
subrule (2) were served; and
that the external administrator has not
received any notice of objection to the
remuneration claimed within the period
mentioned in subrule (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 o1 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 mentioned in subrule (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 mentioned in 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
U)
if the external administration is continuing - give details of any matters delaying the completion of the external administration.
13 July 202 1 GOVERNMENT GAZETTE, WA 3041 24. Rule 9.2A amended
(1) Delete rule 9.2A(1) and (2) and insert:
(1) This rule applies in relation to an application under the
Insolvency Practice Schedule section 60-11(1) for a
review of a remuneration determination for an external
administrator of a company.Note 1: The Insolvency Practice Schedule section 60-11 does not
apply in relation to the remuneration of a provisional liquidatorora liquidator appointed bySlC underthe Corporations Act section 489EC: see the Insolvency Practice Schedule section 60-2.
Note 2: An application maynot be made underthe Insolvency
Practice Schedule section 60-11 (1)fora review of a remuneration determination made bythe Court under
section 60-10(1 )(c) or (2)(b) of that Schedule: seesection 60-1 1(5)ofthat Schedule.
(2) In rule 9.2A(3):
(a) in paragraph (a) delete "a coiiuuittee of creditors or"; (b) in paragraph (b) before "administrator" insert: external
(3) In rule 9.2A(7):
(a) before "administrator" insert: external
(b) delete paragraph (a) and insert:
(a) the matters mentioned in the Insolvency
Practice Schedule section 60-12;
(c) in paragraphs (b) to (d) after "by the" (each occurrence) insert: external
(d) in paragraph (e) before "administrator" insert: external
(e) in paragraph (1) before "administration" (each occurrence) insert: external
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(4) Delete rule 9.2A(8). Note: The heading to amended rule 9.2A is to read: Review of remuneration determination for external administrator
(Insolvency Practice Schedule s. 60-11(1))
25. Rule 9.3 amended
(1) Delete rule 9.3(l) and insert:
(1) This rule applies in relation to an application by a
provisional liquidator of a company for a determination
under the Insolvency Practice Schedule
section 60-16(1) of the remuneration the provisional
liquidator is entitled to receive.(2) In rule 9.3(8):
(a) delete "Corporations Act section 473(10) -" and insert: Insolvency Practice Schedule section 60-12—
(b) in paragraph (b) delete ""liquidator" and insert: "external administrator"
(3) In the provisions listed in the Table delete "order" (each
occurrence) and insert:determination Table
rule 9.3(3) rule 9.3(5)(a)
rule 9.3(6) rule 9.3(7) Note: The heading to amended rule 9.3 is to read:
Remuneration of provisional liquidator (Insolvency Practice
Schedule s. 60-16) (Form 16)
26. Rules 9.4 and 9.4A deleted
Delete rules 9.4 and 9.4A.
27. Rule 9.5 amended
In rule 9.5(3)(b) delete "committee of creditors or" (each occurrence).
13 July 2021 GOVERNMENT GAZETTE, WA 3043 28. Part 11 heading replaced
Delete the heading to Part 11 and insert:
Part 11 - Inquiries, examinations,
investigations, and orders against person
concerned with corporation
29. Rule 11.2 replaced
Delete rule 11 .2 and insert:
11.2. Inquiries, examinations and investigations under
Corporations Act s. 411(9)(b) or 423(3) or
Insolvency Practice Schedule Div. 90 Subdiv. B(1) An application for an order for an examination or
investigation under the Corporations Act
section 423(3) in relation to a controller of property ofa corporation may be made by any of the following -
(a)
a person with a financial interest in the administration of the corporation;
(b) an officer of the corporation; (c)
if the committee of inspection (if any) so resolves - a creditor, on behalf of the committee;
(d) ASIC.
Note: An application:
(a)
underthe Corporations Act section 41 1(9)(b)foran inquiry into the administration ofa compromise or arrangementoran examination or investigation in connection with such an inquiry; or
(b) underthe Insolvency Practice Schedule Division 90 Subdivision B for an inquiry into the external administration of a companyor an examination or investigation in connection with such an inquiry,
Practice Schedule section 90-10(2): seethe Corporations
may be made by a person mentioned in the Insolvency section 90-10(1).
(2) The following applications may be made without
notice to any person -
(a)
an application under the Corporations Act section 411(9)(b) for an inquiry into the administration of a compromise or arrangement or an examination or investigation in connection with such an inquiry;
(b)
an application f6r an order for an examination or investigation under the Corporations Act section 423(3);
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(c) an application under the Insolvency Practice Schedule Division 90 Subdivision B for an inquiry into the external administration of a company or an examination or investigation in connection with such an inquiry.
(3) The provisions of this Part that apply to an examination
under the Corporations Act Part 5.9 Division 1 apply,
with any necessary adaptations, to an inquiry,
examination or investigation under the Corporations
Act section 411(9)(b) or 423(3) or the Insolvency
Practice Schedule Division 90 Subdivision B.30. Rule 11.8 amended
In rule 11.8(1) delete "section 411,423 or536ofthe
Corporations Ace' and insert:the Corporations Act section 411 or 423 or the Insolvency
Practice Schedule Division 90 Subdivision BNote: The heading to amended rule 11.8 is to read: Inspection of record or transcript of examination or investigation
under Corporations Act s. 411 or 423 or Insolvency PracticeSchedule Div. 90 Subdiv. B
M. Part 14 heading replaced
Delete the heading to Part 14 and insert:
Part 14 - Appeals authorised by the
Corporations Act
32. Rule 15A.5 amended
In rule 1 5A.5(c) delete "an official liquidator; and" and insert:
a registered liquidator; and
Note: The heading to amended rule 15A.5 is to read:
Registered liquidator's consent to act
13 July 2021 GOVERNMENT GAZETTE, WA 3045 33. Schedule 1 amended
(1) In Schedule 1 Form 2:
(a) delete "by ..................................................at I (1C/C/PC'.S'S' of
Court] at ................... .a.m. p.m. on and insert:
by a *judge/*master at the time, on the date and in the place
specified in the attached listing notification.(b) delete section D and insert. D. FILING
This originating process is filed by [name] for the plaintiff.
Date of filing:
(2) In Schedule I Form 3 delete "by ..................................................at
[address of Court] at...................*.n.1/*pm on and insert: by a *judge/*master at the time, on the date and in the place specified
in the attached listing notification.(3) In Schedule 1 Form 8:
(a) delete the reference after the heading and insert: [rules 5.5, 6.1 and 7.2]
(b) delete "an official liquidator," and insert:
a registered liquidator,
(c) delete "hourly" (each occurrence) and insert: time-cost
(d) delete the note and insert: Note: The remuneration that an external administrator is entitled b
receive for necessarywork properly performed by the
external administrator in relation to the external
administration of a company is regulated by the Insolvency
Practice Schedule Division 60.(e) delete "Signature of official liquidator" and insert: Signature ofregistered liquidator
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(f) in the Schedule delete "[description ofhourly rate(s)]" and
insert:[description oftime -cost rate(s)]
(4) In Schedule 1 Form 16 delete the reference after the heading
and insert:[rules 9.1, 9.2, 9.3 and 9.5] (5) In Schedule 1 Form 16A:
(a) delete the reference after the heading and insert: [rule 9.2A]
(b) delete "*[*administrator/* liquidator" and insert: *[*external administrator/*liquidator
(c)
delete "*administrator/*liquidator" and insert: *external administrator/*liquidator
(d) delete "rule *92A(4)/*94A(4)" and insert: rule 9.2A(4)
(6) In Schedule 1 Form 17:
(a) delete "before ..................................................at [address of
Court] at *a.m./*p.m. on ..................... and
insert: before a *judge/*master at the time, on the date and in the
place specified in the attached listing notification,(b) delete "Date:".
(7) In Schedule 1 Form 18:
(a) delete "before the ..................................................at [address
of Court] at.................... • a.m./*p.m. on "and insert:
before a *judge/*master at the time, on the date and in the
place specified in the attached listing notification(b) delete "Date:".
13 July 2021 GOVERNMENT GAZETTE, WA 3047
(8) hi Schedule l Form l9:
(a) delete "an official liquidator," and insert: a registered liquidator,
(b) delete "The hourly rates" and insert: The time-cost rates
(c) delete "these hourly rates." and insert: these time-cost rates.
(d) delete "Signature of official liquidator" and insert: Signature ofregLtered liquidator
(e) in the Schedule delete "[description ofhourly rate(s)]" and insert: [description of time-cost rate(s)]
34. Schedule 2 amended
In Schedule 2:
(a) in item 6 in the 3 rd column delete "(s. 410-415A)" and insert: (s. 410-415F)
(b) delete item 8;
(c) after item 12 insert:
13. IPS s. 45-1 Orders relating to registered liquidators 14. IPS s. 90-10 and Inquiries and orders relating to administration 90-15
Notes:
The heading to rule 12.2 is to read:
Application for summons for appearance of person (Corporations
Acts. 1071 D(4)) (Form 18)
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2. The heading to rule 14.1 is to read:
Appeals against acts, omissions or decisions
The Hon. Chief Justice Peter Quinlan
Chief Justice of Western Australia
Supreme Court of Western Australia
Date 8 July, 2021.
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