Explanatory Statement
Statutory Rules 1990 No. 453
Issued by the authority of the Judges of the Federal Court of Australia
AMENDMENT OF THE RULES OF THE FEDERAL COURT OF AUSTRALIA
Section 59 of the Federal Court of Australia Act 1976 (the Act) empowers the Judges of the Court (of whom there are thirty two (32) including the Chief Justice) or a majority of them to make Rules of the Court, not inconsistent with the Act, making provision for or in relation to the practice and procedure to be followed in the Court, and for and in relation to all matters and things incidental to any such practice or procedure, or necessary or convenient to be prescribed for the conduct of any business of the Court. Subsection 59 (3) of the Act provides that Rules of Court made under s59 have effect subject to any provision made by another Act, or by rules or regulations under another Act, with respect to practice and procedure in particular matters. Section 59 (4) of the Act provides that sections 48, 48A, 48B, 49 and 50 of the Acts Interpretation Act 1901 apply in relation to these Rules of Court made under section 59 of the Act as if references in those sections of Acts Interpretation Act to regulations were references to Rules of Court.
The present Federal Court Rules came into operation on 1 August 1979. They have been reviewed regularly since then.
Subsection 60 (1) of the Corporations Act 1989, as amended, (Corporations Act) provides that the power to make Rules of Court conferred under s59 of the Act extends to making rules of court, not inconsistent with the Corporations Law of the Capital Territory, with respect to proceedings and the practice and procedure of the Federal Court under the Corporations Law of the Capital Territory; with respect to matters required or permitted to be prescribed by rules under the Corporations Law
of the Capital Territory, or which it is necessary or convenient be prescribed by rules for carrying out or giving effect to Corporations Law; and with respect to costs and rules as to meetings ordered by the Court.
Subsection 60(2) of the Corporations Act provides that the Court must apply the rules of court made under s60(1), with such alterations as are necessary, when the Court exercises jurisdiction with respect to matters arising under the Corporations Law of a State or Territory which is conferred on the Court by a law of the State or Territory corresponding to Division 1 of Part 9 of the Corporations Act of the Capital Territory. Accordingly, Order 71 of the Federal Court Rules will apply to proceedings which arise under the Corporations Law of a State or Territory and are heard by the Court in the exercise of jurisdiction conferred under that law.
Rule 1
Provides that the Rules now made come into operation on 1 January 1991.
Rule 2
Provides that the Federal Court Rules are amended as set out in the Rules as made.
Rule 3: METHOD OF SERVICE
Order 7 of the Federal Court Rules is to be amended by introducing subrule 2(4), which recognises that personal service may be effected for the purposes of Order 71:
• on a company, as defined in s9 of the Corporations Law, in any manner permitted by s220 of the Corporations Law;
• on the liquidator of a company, in the manner permitted by s220(5); and
• on an official manager of a company, in the manner permitted by s220(6).
At the same time, subrule 2(5) is to be introduced with effect that a document served on a company at its registered office of the company; on a liquidator at the last address of the office of the liquidator notified to the Commission; or an official manager is taken to be served on the seventh day after posting for the purposes of Order 71. Each of the methods of service specified in rule 2(5) is a method permitted under s220 of the Corporations Law.
Rule 4
Introduces Order 71 being the Corporations Rules. Order 71 is comprised of the following rules:
DIVISION 1 PRELIMINARY
Rule 1: Citation
This Rule provides for citation of Order 71 as the Corporation Rules
Rule 2: Interpretation
Defines various terms used in Order 71 and includes the following terms. The more important are:
“corporation” is defined for the purposes of Order 71 in rule 2(1) as having the same meaning as it has in section 9 of the Corporations Law.
liquidator” is defined in subrule 2(1) to include a provisional liquidator, adopting a meaning consistent with s9 of the Corporations Law.
“office copy” is defined in subrule 2(1) as a copy of an order made by the Court and furnished by the Registrar under Order 36 rule 11.
“officer” is defined in subrule 2(1), in relation to a body corporate, as having the same meaning as it has in section 9 of the Corporations Law.
“prescribed information” is defined in subrule 2(1) and specifies certain categories of information which will assist the Court in determining proceedings arising under the Corporations Law. This term is used in a number of rules. Form 128 is a form of affidavit setting out the prescribed information.
“prescribed newspaper” is relevant to the publication requirements imposed under Order 71 rule 104. Paragraph (a) of that definition has effect that, where the prescribed office (as defined) of the body corporate to which proceedings relate is within 100 kilometres of the Registry in the proper place of the proceedings, a prescribed newspaper is a daily newspaper circulating generally in the proper place of the proceedings. Paragraph (b) of the definition of “prescribed newspaper” applies where a body corporate does not have a prescribed office. Paragraph (c) requires publication of a notice in a regional newspaper where the prescribed office or principal place of business of a body corporate is not within 100 kilometres of the Registry in the proper place of the proceedings.
Rule 3:
Rule 3 provides that Order 71 and all other Orders in the Rules apply to proceedings in the Court arising under the Corporations Law and under ASC Law.
Rule 4: Form of Documents
Rule 4 requires documents filed in proceedings arising under the Corporations Law or under the ASC Law to be headed as in Form 75 or Form 76, as appropriate.
Rule 5: Commencement of Proceedings
Subrule 5(1) provides that all proceedings, other than proceedings within the scope of rule 6, which are in the Court’s original jurisdiction and which arise under the Corporations Law or under the ASC Law are to be commenced by filing an application in Form 5. This requirement corresponds to the procedure established by Order 4 subrule 1(1) of the Rules, which provides that proceedings in the Court’s original jurisdiction are commenced by filing an application in Form 5 of the First Schedule.
Rule 6: Commencement of proceedings by a person aggrieved under ss 350, 574, 777, 1082, 1140 and 1323
The Corporations Law allows standing to a person aggrieved to bring a variety of proceedings. Subrule 6(1) specifies the particular applications which fall within the scope of the rule, which include, for example, an application for an order reinstating the registration of a company under s 574; for an order giving directions concerning compliance with the business rules or listing rules of a securities exchange under s777; and for an order under s1082(2) relating to orders made where a person was convicted of an offence under Division 6 of Part 7.12 of the Corporations Law.
Subrule 6(2) requires that an application within the scope of rule 6 be commenced by filing an application in Form 77, together with an affidavit in support of the application.
Rule 7: Powers of Registrars
Rule 7(1) provides that a Registrar may exercise those powers of the Court under the sections of the Corporations Law, the ASC Law and under the rules of Order 71 which are specified in the Third Schedule of the Rules, if the Court or a Judge so directs. The Federal Court’s power to authorise Registrars to exercise specified
powers of the Court, derives from s 35A(1) of the Federal Court Act 1976.
Subrule 7(3) provides that an application for the review of a decision, direction or act of a registrar under Order 71 must be made within 14 days after the decision, direction or act complained of or within such further time as the Court allows. In reviewing a Registrar’s decision made under Order 71, the Court is constituted by a single judge.
Rule 8: Reference of Application to Court
This rule requires a Registrar who hears an application under Order 71 to refer that application to the Court at the request of a party to the application.
Rule 9: Power to direct that notice be given
This rule authorises the Court to direct that notice be given, that a document be served, and to give such further directions with respect to such a matter or document as the Court thinks fit.
Rule 10: Leave to creditor, contributory or officer to be heard
Subrule 10(1) authorises the Court to grant leave to a creditor, contributory or officer of a body corporate, an officer of a creditor, or an officer of a contributory to be heard in proceedings under the Corporations Law, without becoming a party to those proceedings.
Subrule 10(3) authorises the Court to direct that a person who is granted leave to be heard pay any additional costs of a party to the proceedings (including the body corporate to which the proceedings relate) resulting from that person’s appearance. The Court is empowered to order that such a person not be heard until those costs are paid or secured to the Court’s satisfaction.
Rule 11: Inquiry as to creditors
This rule allows the Court to direct an inquiry as to debts, claims or liabilities of or affecting a body corporate to which a proceeding under the Corporations Law relates. Subrules 13(4) - 13(8) (which deal with procedures for settling a list of creditors in a reduction of capital under s195 of the Corporations Law) apply to such an inquiry.
DIVISION 2 SPECIFIED APPLICATIONS
Rule 12: Applications under ss 167, 168, 172, 194, 197, 198, 199, 202 and 1074
The procedures specified in rule 12 relate to a range of applications set out in subrule 12(1), namely:
• an order for the cancellation of a change of status of a company under s167;
• an order for the cancellation of a change from a public company to a proprietary company or from a proprietary company to a public company under s168;
• an order for the cancellation of an alteration of the memorandum of a company under s172;
• an order validating a purported issue or allotment of shares or confirming the terms of a purported issue or allotment of shares under s194;
• an order setting aside a variation or abrogation of rights under ss 197, 198 or 199;
• an order approving the payment of interest out of capital under s202; and
• an order confirming a resolution that an undertaking, scheme, enterprise or arrangement be wound up under s1074.
DIVISION 3 - REDUCTION OF CAPITAL, ISSUE OF SHARES AT A DISCOUNT, FINANCIAL ASSISTANCE, BUY BACKS
Rule 13: Order confirming issue of shares at a discount (s190(3))
This rule deals with applications to the court for an order confirming the issue of shares at a discount.
Unless the Court orders to the contrary, subrule 13(5) requires that notice of the application in Form 78 be published in accordance with rule 104. A person on whom the application has not been served who intends to appear at the hearing is required to file a notice of appearance in Form 79 and to serve that notice of appearance on the applicant not later than 2 days before the date appointed for directions under Order 4 rule 8. The Court may direct the applicant or its solicitors to prepare and file a list of the persons who have given notice of their intention to appear in the proceedings.
Subrule 13(8) provides that, unless the Court orders to the contrary, an office copy of an order confirming the issue of shares at a discount is to be lodged with the Commission within 14 days after the order is made, or within any other time specified by the Court in the order, and the order does not take effect until after that office copy has been lodged.
Rule 14: Application for order confirming reduction of capital (s195)
This rule applies to an application for an order confirming a reduction of the share capital of a company under s195 of the Corporations Law.
Subrule 14(2) indicates the range of orders which may be made by the Court in a directions hearing in proceedings under s195.
Subrules 14(4) - 14(13) apply where the Court requires settlement of a list of creditors.
Subrule 14(15) requires that, unless the Court orders to the contrary, notice of the hearing of the application be published in Form 86 and in the manner prescribed by rule 104 not less than 5 days before the date appointed for the hearing of the application. Subrule 14(15) also requires the company, unless the Court orders to the contrary, to serve a copy of the application and of each supporting affidavit on the Commission not less than 5 days before the date appointed for the hearing. A person, whose name appears on the list of creditors settled by the Court as entitled to object to the proposed reduction of capital, who intends to appear at the hearing and oppose the application is required to file a notice of appearance in Form 79 and any affidavit on which he will rely at the hearing and to serve that notice of appearance and affidavit on the company not later than 2 days before the date appointed for the hearing.
Rule 15
This rule provides for service and advertising of an order confirming a reduction of capital.
Rule 16: Application opposing giving of financial assistance (s205(12)) This rule applies to an application under s205(12) opposing the giving by a company of financial assistance for the purpose of or in connection with an acquisition or proposed acquisition of shares or units of shares in the company or in a holding company of a company, where the giving of financial assistance has been approved by members of the company by special resolution under s205(10)(a).
Rule 17: Application by creditor in relation to a proposed buy-back scheme or buy-back (s206LD)
This rule applies to an application by a creditor under 206LD for an order prohibiting the making of offers in relation to a proposed buy-back scheme or the entering into of a proposed buy-back.
Subrule 17(2) requires that an application by a creditor under s206LD be accompanied by an affidavit setting out the prescribed information (as defined in
subrule 2(1)) and an affidavit setting out a statement of the grounds of the application and annexing a copy of the notice relating to the proposed buy-back scheme or buy-back published by the company under s206LC.
DIVISION 4 - OFFICERS (PART 3.2), OPPRESSION PROCEEDINGS (PART 3.4), CHARGES (PART 3.5)
Rule 18: Grant of leave to manage a corporation (s229)
This rule applies to an application under s229(1) or s229(3) for leave to manage a corporation. Subrule 18(3) requires that the applicant serve the application and the affidavit required by subrule 18(2) on the corporation concerned and on the Commission as soon as practicable after filing the application, and in any event not later than 14 days after the date of filing the application.
Rule 19: Order prohibiting person from managing a corporation (s230)
This rule applies to an application for an order under s230 prohibiting a person from managing a corporation. Section 230 provides that, on the application of the Commission, the Court may order that persons who are officers of a body corporate which has repeatedly breached the Corporations Law or who have themselves repeatedly breached the Corporations Law are prohibited from managing a corporation.
Rule 20: Application for orders in cases of oppression or injustice (s260)
This rule applies to an application for an order or orders under s260, which provides that if the affairs of a company are being conducted in a manner which is oppressive, an application may be made to the Court for various orders, for example an order for the winding up of the company or for the compulsory purchase of a member’s shares.
Rule 21: Application for leave to enforce a charge (s267(3))
This rule deals with applications for leave to enforce a charge under s267(3). Such an
application must be supported by an affidavit setting out the prescribed information, which may be in Form 128; and an affidavit setting out the evidence on which the applicant relies to establish that the company which created the charge was solvent immediately before the charge was granted and any other matters relevant to the application.
DIVISION 5 - ARRANGEMENTS AND RECONSTRUCTIONS (PART 5.1)
Rules 22-23: Applications relating to compromises with creditors or members (ss411, 413)
This rule applies to an application under s411(1) for approval of a compromise or arrangement in relation to a Part 5.1 body and to an application under s413 in respect of the reconstruction or amalgamation of a Part 5.1 body. Rule 22 also applies to an application for an order under ss411(1A) or 411(1B) of the Corporations Law, as amended by the Amendment Act, for an order that a meeting or meetings of creditors of a holding company and each of its wholly-owned subsidiaries be held on a consolidated basis. The term “Part 5.1 body” is defined in s9 of the Corporations Law.
Subrule 22(3) requires a number of matters to be dealt with in an affidavit in support of an application for an order that a meeting be convened under s411(1). A copy of the proposed compromise or arrangement and the draft explanatory statement in relation to the proposed compromise or arrangement is to be annexed to that affidavit.
Subrule 22(4) sets out the evidence to be brought in support of an application for an order that a meeting or meetings of creditors of a holding company and each of its wholly-owned subsidiaries be held on a consolidated basis.
Subrule 22(7) requires publication, not more than 5 days before the hearing date, of a notice in Form 91 of an application for an order approving a compromise or arrangement under s411(4) or of an application for an order in respect of the
reconstruction or amalgamation of a Part 5.1 body under s413(1).
Subrule 22(8) requires that a copy of the application and of any affidavits in support of the application be served on the Commission, as soon as practicable after the application is filed and in any event not later than 14 days after the date of filing.
Rule 23
This rule deals with lodgement of an order of the Court under ss411 or 413 with the Commission and with service of that order on a person appointed to administer the compromise or arrangement. Upon lodgement, the order takes effect from the date of lodgement or such earlier date as is specified in the order of the Court.
Rule 24: Inquiry as to conduct of person administering a compromise or arrangement (s411(9))
This rule deals with inquiries under s411(9) as to conduct of a person administering a compromise or arrangement and with applications for an order that a person administering a compromise or arrangement or any other person be examined under s411(9). Rule 24 adopts the same approach as rule 73, which deals with inquiries into the conduct of liquidators under s 536. These proceedings are brought by notice of motion in the proceedings in which the compromise or arrangement was approved by the Court.
Subrule 24(2) provides that a report to the Court by the Commission in respect of this conduct may be made by filing a notice of motion which seeks orders in respect of the report, together with an affidavit setting out the relevant circumstances or seeking orders in respect of the report, in the proceeding in which the compromise or arrangement was approved. A report filed under subrule 24(2) is not permitted to be inspected or used except with the leave of the Court.
Subrule 24(4) allows an application under s411(9) for an order for the examination of a person administering a compromise or arrangement or any other person to be made by the Commission, a creditor or contributory or by a person aggrieved by the conduct of that person. Such an application may be made by notice of motion in the
proceeding in which the compromise or arrangement was approved.
Rule 25 Application to restrain proceedings against Part 5.1 body (s411(16))
This rule provides that an application under s411(16) to restrain further proceedings in any action or civil proceeding against a Part 5.1 body may be made by notice of motion in those proceedings.
Rule 26: Review of remuneration of person administering compromise or arrangement
This rule deals with the Court’s power to fix or review the remuneration of the administrator of a compromise or arrangement approved by the Court under s411.
Rule 27: Application for directions in relation to compromise or arrangement
This rule allows a trustee or manager under a scheme or arrangement or any member bound by a scheme or arrangement to apply to the Court for directions in relation to a matter arising in the administration of the scheme or arrangement. The Court is empowered to direct that notice of the application be given by advertisement or otherwise to such persons or classes of persons as the Court determines.
DIVISION 6 - RECEIVERS AND MANAGERS (PART 5.2)
Rule 28: Power to make order relieving person from liability if not properly appointed as receiver (s 419(3))
This rule applies to an application for an order under s 419(3)(d) relieving a person of liability where that person was not properly appointed as receiver and entered into or assumed control of property of a corporation; and to an application for an order under s419(3)(e) in respect of a person who purported to appoint the first person as receiver. Such an application may be made by notice of motion in civil proceedings which arise from an act alleged to have been done by the person who entered into or assumed control of the property of the corporation.
Rule 29: Inquiry as to conduct of a receiver (s423)
This rule deals with inquiries by the Court as to the conduct of a receiver under s423 and with applications for an order that a receiver of property of a corporation or any other person be examined under s423(3).
Where a receiver was appointed under an instrument, an application must be made by an application in Form 5 seeking an inquiry in respect of the complaint. Where a receiver was appointed by the court, application may be made by notice of motion in the proceeding in which the receiver was appointed.
Rule 30: Application by receiver for directions (s424)
This rule requires that an application by a receiver of property of a corporation under s424 indicate the matter in respect of which the receiver seeks the directions of the Court, and allows the Court to direct that notice of the application be given by advertisement or otherwise to such persons or classes of persons as the Court determines.
DIVISION 7 - OFFICIAL MANAGEMENT (PART 53)
Rule 31: Stay of proceedings where company is under official management (s444)
This rule deal with applications for leave to begin or carry on civil proceedings against a company under official management. Subrule 30(1) permits an application for leave to continue a civil proceeding to be made by notice of motion in that proceeding. Under subrule 30(2), an application for leave to begin such a proceeding must be made by application in Form 5.
Subrule 30(3) deals with applications for a stay of proceedings where a company has convened a meeting of its creditors for the purpose of placing the company under official management, which may be made by notice of motion in those proceedings.
Rule 32: Inquiry as to conduct of official manager (s452(4))
This rule deals with inquiries by the Court as to the conduct of an official manager and with applications for an order that an official manager of a company or any other person be examined under s423(4).
Rule 33: Application for variation or cancellation of resolution to place company under official management (s454)
This rule applies to an application under s454 for the variation or cancellation of a resolution determining that a company be placed under official management. Where the Court makes an order cancelling a resolution, s454(2) authorises the Court to make such directions as it considers necessary for resumption of the management and control of the company by persons who are officers of the company immediately before it was placed under official management.
Rule 34: Release of official manager (s456)
This rule requires a person who applies for an order of release under s456(19) or s456(20) to give notice of that application to each creditor who has proved his debt and to each creditor who is mentioned in the report as to the affairs of the company prepared under s436(4), who has not proved his debt.
DIVISION 8 WINDING UP BY THE COURT (PART 5.4)
Rule 35: Address for service in winding up applications
Subrule 35(1) excludes the application of Order 7 subrule 6(1) in relation to documents filed by a solicitor in proceedings for the winding up of a company under ss460 or 461.
Subrule 35(2) allows the address for service of a party to the winding up proceedings to be the address of a solicitor within the District in which the winding up application is filed.
Rule 36: Application for a winding up order under s461
This rule applies to an application for a winding up order under s461, other than an application where rule 37 applies. The procedures established by Order 4 apply and a winding up application should be made in Form 5, which specifies the date of the first directions hearing in the matter.
Subrule 36(2) specifies the evidence in support of the application and that the affidavits containing that evidence must be made not earlier than 7 days before the application is filed.
Subrule 36(4) requires the applicant to serve that application and affidavits on the company in a manner permitted under s 220 of the Corporations Law as soon as practicable and in any event not later than 14 days after the filing of the application. The applicant is also required to serve the application and affidavits on the liquidator of the company if it is in the course of a voluntary winding up.
Subrule 36(5) provides that unless the Court orders to the contrary, notice of the application is required to be published not earlier than 3 days after the date the application was served on the company and not later than 7 days before the date appointed for directions under Order 4 rule 8.
Subrule 36(6) requires the applicant to apply to the Registrar in Form 88 for the nomination of an official liquidator at the same time as filing the winding up application and any supporting affidavits. The nominated official liquidator will be appointed as liquidator if a winding up order is made, unless the Court is satisfied that another official liquidator should be appointed.
Subrule 36(7) provides that the Court may hear and determine an application for winding up at a directions hearing in the proceedings.
Subrule 36(10) provides that the Registrar must permit inspection by a contributory, member, creditor or officer of the company of an application for a winding up order and of any affidavits in relation to the application which are in his custody. On
payment of the prescribed fee, the Registrar will provide a copy of that application and those affidavits to a contributory, member, creditor or officer of the company. Those rights of inspection and copying are expressed as not limiting any right of inspection otherwise available under Order 46 rule 6.
Rule 37: Winding up of a company under s 460 or s461(a)
This rule applies to applications under s460 for a winding up order on the ground that a company is unable to pay its debts; and to applications under s461(a) for a winding up order where a company has resolved by special resolution that it be wound up, if an officer of the company files an affidavit deposing that the company is unable to pay its debts as they become due.
Subrules 37(2) and 37(3) require that evidence in support of the winding up application include an affidavit setting out a statement by a person who has searched the company records maintained by the Commission not earlier than 3 days before the date on which the affidavit is made as to whether any winding up application is pending or any winding up order has been made against the company; and an affidavit setting out the prescribed information (as defined in subrule 2(1)), in Form 128; and, if applicable, an affidavit in Form 94 proving service of a notice under s 460(2) requiring payment of the debt within 21 days.
The applicant is also required to file and serve an affidavit made by a person who can depose to the indebtedness of the company to his or her own knowledge, and setting out specified information. The information required to be set out in that affidavit includes details of the alleged debt; details of any judgment obtained by the applicant against the company; and a statement of the grounds relied upon to show that the company is unable to pay its debts. That affidavit must be made on the day on which the application is filed or the immediately preceding day.
Subrule 37(4) requires the applicant to serve a sealed copy of the winding up application and affidavits in support on the company in a manner permitted by s220 of the Corporations Law, and on the liquidator if the company is in the course of a
voluntary winding up. Service must take place as soon as is practicable after filing the application and affidavits in support of the application, and in any event not later than 14 days after the date of filing the application.
Subrule 37(5) requires notice of the winding up application in Form 93 to be published not earlier than 3 days after the date the application was served on the company and not later than 7 days before the date appointed for directions under Order 4 rule 8.
Subrule 37(6) requires the applicant, at the same time as filing the winding up application, to apply to the Registrar for the nomination of an official liquidator to be appointed as liquidator of the company if an order for winding up of the company is made, unless the Court is satisfied that another official liquidator should be appointed.
Subrule 37(7) corresponds to subrule 36(7), and provides that the Court may hear and determine an application for winding up at a directions hearing.
Subrule 37(10) requires the Registrar to allow inspection of and to provide copies of a winding up application and any affidavits in relation to the application to a contributory, member, creditor or officer of the company. This provision adopts the same approach as subrule 36(10).
Rule 38: Filing of documents in support of application under rules 36 and 37
Subrule 38(1) requires the applicant to file and serve, at least 3 days before the hearing date (or the date appointed for directions) of a winding up application under rules 36 or 37:
• a written acknowledgement in Form 89 signed by the official liquidator nominated by the Registrar;
• an affidavit proving service upon the company of the application and the affidavit in support of the application, proving that notice of the winding up application was lodged with the Commission under s470, and proving publication of notice of the application;
• where an application is within the scope of rule 33, an affidavit in Form 95 stating that the respondent has not paid, secured or compounded for the debt to the reasonable satisfaction of the applicant, which must be sworn not earlier than 2 days before the date of service;
• a draft winding up order in Form 96; and
• a draft notice of the appointment of a liquidator in Form 99.
If the applicant seeks the making of a winding up order at the directions hearing, subrule 38(2) requires the documents referred to in subrule 38(1) to be filed and served at least 3 days before the date of the directions hearing.
Subrule 38(3) contemplates that the Court may direct that copies of a winding up order in Form 96 and a notice of the appointment of a liquidator in Form 99 be sealed forthwith after a winding up order is made, if an applicant attends the hearing at which the order is made with a sufficient number of copies of those documents.
Rule 39: Sealing of winding up order and notice of appointment of liquidator
This rule provides that if an applicant attends with sufficient copies of these documents, they may be sealed forthwith upon the making of a winding up order.
Rule 40: Proceedings after winding up order is made
This rule provides that the court proceeding number remain the same in any subsequent documents filed in the proceedings.
Rule 41: Substituted plaintiff in winding up application (ss460, 461)
This rule provides for the substitution of the applicant in proceedings for a winding up order under ss460 or 461 and for the making of ancillary orders in specified circumstances, namely if the applicant fails to take all steps prescribed by Order 71 preliminary to the hearing; seeks leave to discontinue the proceedings; consents to the proceedings being dismissed; does not appear at the hearing of the proceedings; or does not seek or does not obtain a winding up order at the hearing. Paragraph 41(2)(d) provides that the Court may direct publication of notice of the substitution of the creditor in Form 98.
Rule 42: Notice of appointment of liquidator and service of winding up order
Rule 42 specifies the means by which notice of the appointment of a liquidator is given if an order for the winding up of a company is made.
A notice in Form 99 which has been sealed by the Registrar must be served on the liquidator appointed to the company not later than the day after the order was made. A copy of the notice must be served by post on the company concerned, if it was not the applicant in the proceedings, by posting that notice not later than the day after the order was made. Notice of the order must also be published as required by rule 104 as soon as possible after the order was made.
Rule 43: Service of winding up order
This rule requires service of office copies of the sealed order for the winding up of a company on the liquidator, the company and the Commission within 7 days of the making and entry of the winding up order.
Rule 44: Stay of proceedings on winding up application (s467)
If a winding up application has been made in relation to a company and a winding up order has not been made, rule 40 allows an application to the Court for an order staying or restraining further proceedings in a pending proceeding to be made by notice of motion in that proceeding, or by notice of motion in the proceedings for the winding up order.
Rule 45: Validation of disposition of property (s468)
This rule allows an application for an order under s468(3) validating a disposition of property of a company or permitting the business of the company to be carried on to be made by notice of motion in the proceedings for the winding up order.
Rule 46: Application for leave to commence or continue proceeding! against a company (s 471)
If an order has been made for the winding up of a company or a provisional liquidator has been appointed to the company, subrule 46(1) allows an application under s471(2) for leave to continue proceedings against the company to be made by notice of motion in an action or other civil proceeding which was commenced prior to the making of the winding up order or the appointment of the provisional liquidator. Such an application may also be made by notice of motion in the winding up proceedings.
If an order has been made for the winding up of a company or a provisional liquidator has been appointed to the company, subrule 42(2) allows an application for leave to commence an action or civil proceeding against the company to be made by notice of motion in the winding up proceedings.
Rule 47: Reports by liquidator in a winding up by the Court (ss476, 482, 533)
Rule 47 requires that, in a winding up by the Court, the liquidator file in the Registry a copy of any report lodged with the Commission under ss476, 533(1) or 533(2) of the Corporations Law. A report furnished by the liquidator under s482(2) in relation to an application for an order staying or terminating: a. winding; up - must also be filed in the Registry and a copy of that report lodged with the Commission.
Subrule 47(3) provides that a report filed by a liquidator under this rule must not be inspected or used by a person (other than the Commission or a person authorised by the Commission) without leave of the Court
DIVISION 9 - PROVISIONAL LIQUIDATORS
Rule 48: Appointment of provisional liquidator (s472)
Rule 48 deals with an application for the appointment of a provisional liquidator under s472(2).
Subrule 48(2) requires that an application for the appointment of a provisional liquidator be accompanied by
• an affidavit setting out the material facts relied upon to support the application;
• a written consent of an official liquidator;
• a draft notice of appointment of the provisional liquidator in Form 99; and
• a draft order appointing the provisional liquidator including a short description of the property of which the provisional liquidator is to take possession, the duties he or she is to perform and the powers sought to be conferred on him or her.
The written consent to which subrule 48(2) refers is to be given in Form 89. That form requires the official liquidator to state to the best of his/her knowledge, information and belief that neither he/she nor any member or senior employee of his/her firm has had any social or professional association with the company concerned or any of its present or past officers other than as disclosed, and that no conflict of interest exists which would make it improper for him/her to act as provisional liquidator, other than as disclosed.
Subrule 48(4) allows the Court to require an applicant for the appointment of a provisional liquidator to give an undertaking as to damages.
Rules 49: Notice of appointment of provisional liquidator
This rule requires an applicant for an order for the appointment of a provisional liquidator, other than the Commission, to attend at the Registry to obtain a sealed copy of a notice in Form 99 not later than the day after the order was made; serve the sealed notice on the provisional liquidator appointed to the company not later than the day after the order was made; and, if the company is not the applicant, to serve a copy of the notice on the company by posting that notice by prepaid post not later than the day after the order was made, The applicant is also required to lodge a copy of the notice with the Commission within 2 business days after the making of the order. Notice of the order in Form 100 is to be published in the manner prescribed by rule 104 as soon as is practicable after the order was made.
Rule 50: Service of order appointing Provisional Liquidator
This rule requires an applicant, other than the Commission, to serve an office copy of the sealed order appointing a provisional liquidator on that provisional liquidator and on the company within 7 days of the making and entry of the order.
Rule 51: Powers of provisional liquidator (s472)
Subrule 51(1) specifies the powers of a provisional liquidator appointed under s472(2), subject to any direction by the Court to the contrary. Subrule 51(3) permits a creditor or contributory of a company to apply to the Court with respect to a provisional liquidator exercise or proposed exercise at his or her powers, by notice of motion it the winding up proceedings.
Rule 52: Remuneration of provisional liquidator 473(2))
This rule deals, with remuneration of a provisional liquidator pursuant to subsection 473(2) of the Corporations Law which provides that a provisional liquidator is entitled to receive such remuneration by way of percentage or otherwise as is determined by the Court
DIVISION 10 - LIQUIDATORS AND SPECIAL MANAGERS
Rule 53: Resignation of liquidator or provisional liquidator appointed by the Court (473(1))
This rule deals with the resignation of a liquidator or provisional liquidator appointed by the Court.
Subrule 53(1) requires a liquidator or provisional liquidator appointed by the Court who seeks to resign his or her office to obtain, if practicable, the written consent of another official liquidator and to call separate meetings of creditors and contributories of the company to determine their view as to whether the resignation should be accepted. The liquidator may then apply for leave of the Court for his or her resignation and for an order appointing another liquidator or provisional liquidator in his or her place. That application is made by notice of motion in the proceedings for the winding up order.
Subrule 53(3) indicates that the Court may grant leave to a liquidator or provisional liquidator to resign, although a meeting of creditors or contributories had previously resolved that his resignation should not be accepted.
Subrule 53(4) authorises the Court to direct the Registrar to nominate an official liquidator to replace an official liquidator who been given leave to resign by the Court, in the event that either the official liquidator who sought to resign was unable to obtain the consent of another official liquidator to act in his place, or the Court reached the view that the person nominated by the official liquidator should not be appointed.
Subrule 53(5) provides that the former liquidator must then either file an acknowledgment of nomination by the nominated liquidator in Form 89; or file an affidavit setting out the reasons why no such acknowledgment could be obtained.
Subrule 53(6) requires the liquidator who has been given leave to resign to give written notice of appointment to the liquidator appointed in his place not later than the day after the order was made; and to publish a notice in Form 101 in the manner prescribed by rule 104 as soon as is practicable after the making of the order.
Rule 54: Filling vacancy in office of liquidator (s 473(7))
This rule provides for the Court to appoint a liquidator if there is no liquidator acting in a liquidation.
Rule 55: Report as to company’s affairs (s 475)
This rule relates to a report as to the affairs of a company under s 475.
Subrule 55(2) requires certain person within the categories specified in s475 to attend at any reasonable time and place appointed by the liquidator for an interview conducted for the purpose of investigating a company’s affairs and to give the liquidator such information as he or she requires.
Subrule 55(4) requires a person who makes or concurs in making a report under s475 to seek the liquidator’s approval of any costs or expenses which he proposes to incur in preparing and making the report. The rule further provides that a person who incurs costs and expenses in preparing and making such a report without the liquidator’s approval is not to be paid those costs and expenses out of the assets of the company under s475(8) except with the leave of the Court.
Rule 56: Settlement of list of contributories (s478)
This rule requires that, in a winding up by the Court, a liquidator file a copy of a list of contributories settled under s478 and of any supplementary list of contributories with the Registry within 14 days after it is settled.
Rule 57: Resolutions of meetings of creditors or contributories
This rule requires a liquidator appointed by the Court to file with the Registry a copy of any resolution of a meeting of creditors, contributories or both or of a committee of inspection.
Rule 58: Release of liquidator (s480)
This rule relates to an application by a liquidator, at the conclusion of his duties or on his resignation or removal, for an order of release or an order that he be released and the company be dissolved.
Subrule 58(3) requires that notice of the liquidator’s application for release be given to each creditor who has proved his debt in the winding up and to each contributory and that notice of that application also be published in the Gazette.
Rule 59: Report on accounts of liquidator (s481)
This rule deals with a report on the accounts of the liquidator under s481, which specifies the orders which may be made by the Court in relation to release of a liquidator and dissolution of the company.
Rule 60: Liquidator’s power to require payment of money or transfer of property (s483)
This rule provides that a liquidator, as an officer of the Court and subject to the control of the Court, may exercise the powers conferred on the Court by s483(1), to require persons associated with the company to deliver up money, property or books of the company to a liquidator, by serving them with a notice in Form 105.
Rule 61: Calls upon contributories with the sanction of a committee of inspection (ss483, 488)
This rule applies to the making of a call upon a contributory with the sanction of the
committee of inspection under s 488(2)(a).
Subrule 61(2) specifies the steps which must be taken by the liquidator in seeking the sanction of a committee of inspection to the making of a call, which include sending a statement in support of the proposal for the call to every member of the committee of inspection and publishing notice of the meeting as specified. However, paragraph (c) of subrule 61(2) expressly requires that the liquidator make the statement in support of the proposal for the call available to any contributory of the company, on that contributory request.
Subrule 61(3) specifies the contents of a statement provided to the members of the committee of inspection under subrule 61(2). The matters required to be included in that statement are:
• the amount due in respect of the debts proved and admitted against the company, the estimated amount of the costs, charges and expenses of and incidental to the winding up of the company, and the total of those amounts;
• the amount likely to be realised from the assets of the company;
• any amounts due from previous calls upon contributories and the amount likely to be realised from those calls;
• the number of persons contained in the list of contributories of the company and the total number of shares held by those persons;
• the liquidator’s estimate of the amount required to satisfy the debts and liabilities of the company and the costs, charges and expenses of the winding up; and
• the amount of the call per share which the liquidator believes should be made to provide that amount, taking into account the probability that some of the contributories will partly or wholly fail to pay the amount of the call.
Subrule 61(8) permits the Court to direct that a resolution of the committee of inspection approving the making of a call be advertised.
Rule 62: Calk upon contributories by leave of the Court (ss483, 488)
This rule applies to the making of a call upon a contributory by leave of the Court under s 488(2)(a). Subrule 62(2) specifies the matters which must be included in an application to the Court for leave to make a call and that application is required to be supported by an affidavit In Form 111.
Subrule 62(3) requires that a copy of the application for leave to make the call be served on each contributory on whom the call is to be made, showing the amount of the call proposed to be made on that contributory, unless the Court directs that notice may be given by advertisement.
Subrule 62(9) requires that notice of the call be given to the contributory in Form 114, annexing a copy of the order of the Court granting leave to make the call.
Rule 63: Application for order far payment of call (s483)
This rule deals with applications by a liquidator for an order under s483(3)(b) for payment of a call.
Rule 64: Powers delegated to liquidator by the Court (t488)
This rule specifies those of the powers and duties conferred on the Court which may be exercised by the liquidator pursuant to subsection 488(1). Those powers relate to the conduct of meetings to determine the wishes of creditors and con tributaries; the payment, delivery, conveyance, surrender or transfer of money, property or books; the making of calls and the adjustment of the rights of contributories among themselves and the distribution of any surplus among the persons entitled to it; and the fixing of a time within which debts and claims must be proved.
Rule 65: Appointment of temporary joint liquidator
This rule allows the liquidator of a company to apply to the Court by notice of motion for the appointment of another official liquidator as joint liquidator for a limited period. Subrule 65(5) provides that remuneration of a joint liquidator appointed under rule 65 is dealt with as part of the remuneration of the appointed liquidator.
Rule 66: Taxation of cost of agents and persons employed by liquidator
This rule authorises the Court to tax costs incurred by agents of and persons employed by a liquidator in a winding up ordered by the Court, including the costs, charges and expenses of solicitors, special managers, auctioneers and brokers. Subrule 66(1) requires the taxation of costs, charges and expenses exceeding $7500 in a winding up by the Court, unless the Court orders to the contrary. The Court may require that notice of an application under subrule 66(2) be published by advertisement or otherwise, and may adjourn the hearing of the application to allow publication to take place.
Subrule 66(5) has the effect that a liquidator may, but need not require taxation of costs, charges or expenses which do not exceed $7500.
Subrule 66(6) has effect that any request by a liquidator that a bill of costs be delivered in taxable form must be made a reasonable time before the declaration of a dividend in the winding up. Subrule 66(8) provides that, if a person who provided services to the liquidator does not furnish a bill of costs, charges or expenses in taxable form within the time specified in the notice given by the liquidator, or within an extension of that time given by the Court, the liquidator may disregard that person’s claim in declaring and distributing a dividend in the winding up.
Subrules 66(9) - 66(13) specify the procedural steps involved in taxation of a bill of costs under this rule. Subrule 66(14) indicates that every taxation of costs and every decision of a taxing officer under rule 66 is subject to review by a Judge. Subrule
66(17) provides that Order 62 of the Federal Court Rules, which deals with costs generally, applies so far as practicable and with such adaptations as may be necessary to taxation of costs under rule 66.
SPECIAL MANAGERS
Rule 67: Appointment of special manager (s484)
This rule requires that an affidavit setting out specified matters be filed in support of a notice of motion seeking the appointment of a special manager.
Subrule 67(3) provides that the Court may deal with security to be given by a special manager and costs of furnishing such security.
Rule 68: Accounts of special manager (s484)
This rule provides that, subject to any order of the Court to the contrary, the special manager must furnish accounts to the liquidator. Those accounts must be verified by a statutory declaration in the prescribed form. After the accounts of the special manager have been approved by the liquidator, the total of receipts and payments by the special manager must be included in the liquidator’s accounts.
Rule 69: Default by special manager
Subrules 69(1) and 69(2) require a liquidator to apply to the Court, by filing a notice of motion in the winding up proceedings, for directions in respect of specified defaults by a special manager, including a failure to comply with a requirements of Order 71 or with any order or direction of the Court; a breach of any condition upon which the special manager was appointed or gave security; or a material diminution of the value of any security given by the special manager. Subrule 69(4) allows a special manager to be charged interest on an amount shown by his account to be due and not paid into Court, at the rate prescribed for payment of interest by a receiver under Order
26 rule 6.
PART 5.5; VOLUNTARY WINDING UP
Rule 70: Proceedings against company after commencement of voluntary winding up (a500)
Rule 70 specifies the means of making an application for leave under $500 to commence or continue proceedings against a company.
Rule 71: Appointment or removal of liquidator in the course of voluntary winding up (ss502, 503)
Subrule 71(1) provides that a member, creditor or officer of the company or the Commission may apply for the appointment of a liquidator under s502 or the removal of a liquidator for cause and the appointment of another liquidator under s503.
Rule 72: Application to Court to have question determined or power exercised (s511)
Subrules 72(1) and 72(2) require an application for the determination of a question arising in the voluntary winding up of a company under s511(1)(a) or for the exercise of a power by the Court under s511(1)(b) to indicate the question which is sought to be determined or the power which is sought to be exercised and to be accompanied by an affidavit setting out the prescribed information and any other material matters known to the applicant.
Subrule 72(3) indicates that the Court may direct that notice of the application be given by advertisement or otherwise to such persons or classes of persons as the Court determines.
DIVISION 12 - WINDING UP GENERALLY (PART 5.6)
Rule 73: Supervision of liquidators by the Court (s536)
Subrule 73(1) provides that a complaint to the Court under s536(1)(b) may be made by filing a notice of motion in the winding up proceedings seeking an inquiry in respect of a complaint regarding the conduct of a liquidator in connection with the performance of his or her duty, accompanied by an affidavit setting out the relevant circumstances.
Subrule 73(2) provides that a report to the Court by the Commission under s536(2) may be made by filing a notice of motion in the winding up proceedings seeking orders in respect of the report, together with an affidavit setting out the relevant circumstances or annexing a copy of the report. Such a report must not be inspected or used except with the leave of the Court.
Subrule 73(4) allows the Commission, a creditor or contributory or a person aggrieved by the conduct of a liquidator to apply for an order that a liquidator or any other person be examined under s536(3).
Rule 74: Meetings of creditors or contributories (s547)
This rule requires publication of notice of a meeting of creditors or contributories convened as directed by the Court under s547(1) and requires a person appointed by the Court as chairman of a meeting of creditors or contributories to report the result of that meeting by filing a report in the prescribed form in the registry. Rule 74 should be read together with rule 103, which applies specified regulations of the Corporations Regulations to meetings ordered by the Court.
Rule 75: Appointment of committee of inspection (s548)
This rule deals with proceedings under s548(2) to resolve a difference between the determinations of meetings of creditors and of contributories as to whether a
committee of inspection should be appointed and as to the membership of that committee of inspection.
Rule 76: Application by liquidator for direction or permission if no committee of inspection is appointed (s 552)
This rule requires that an application by a liquidator under s552 indicate the matter in respect of which the liquidator seeks the action, direction or permission of the Court. Section 552 empowers the Court to do any thing or to give any permission which a committee of inspection might have done or given under Part 5.6 of the Corporations Law, if no committee of inspection is appointed in a winding up..
Rule 77: Disclaimer of onerous property (s568)
Subrule 77(1) permits certain applications relating to the disclaimer of onerous property under s568 to be made by notice of motion in the winding up proceedings.
Subrule 77(2) requires a liquidator who applies to the Court for leave to disclaim a lease under s568(6) to file an affidavit stating the persons interested in the lease and the nature of their interests and the reasons why it is said to be just to grant leave to disclaim. That affidavit must be served on any person interested in the lease.
Rule 78: Application to Court to declare dissolution of company void (s571)
Subrule 78(1) requires an application for an order declaring the dissolution of a company to have been void to state the nature of the applicant’s interest in the application and the grounds on which it is said that the dissolution should be declared void. Subrule 78(3) requires that notice of an application under s 571 be published in Form 120 in the manner prescribed by rule 104 not later than 7 days before the date appointed for directions under Order 8 rule 4.
Rule 79: Winding up Part S.7 bodies: sections 583, 585
Rule 79 applies Order 71 rules 35-78 to the winding up of a Part 5.7 body, with such adaptations as may be necessary. A Part 5.7 body is defined in s 9 of the Corporations Law, as amended.
Rule 80: Application for leave to commence or continue proceedings against a Part 5.7 body after a winding up order (s587)
Subrule 80(1) applies rule 44, with such adaptations as may be necessary, to an application for an order staying or restraining proceedings under s 467(7), as applied by s 587(1) to an application by a creditor to stay or restrain an action or proceeding against a contributory of the Part 5.7 body. Rule 44 in turn allows an application to the Court for an order staying or restraining further proceedings in a pending proceeding to be made by notice of motion in that proceeding, or by notice of motion in the proceedings for the winding up order.
Subrule 80(2) allows an application for leave to proceed against a contributory of a Part 5.7 body under s587(2) to be made by notice of motion in an action or civil proceeding which was commenced prior to the making of an order for the winding up of the Part 5.7 body, or in the proceedings for the winding up of the part 5.7 body. If an order has been made for the winding up of a Part 5.7 body, subrule 80(3) allows a person to seek leave under s 587(2) to commence an action or civil proceedings against the a contributory of the Part 5.7 body by notice of motion in the proceedings for the winding up order.
DIVISION 13 - MISCELLANEOUS (PART 5.9)
Rule 81: Examinations of persons concerned with corporations (s597)
This rule applies to proceedings in which the applicant seeks an order for the examination of a person under s597. Section 597 empowers the Court to order the
examination of persons who have taken part in the administration of a company and may be guilty of misconduct in relation to the company. Subrule 81(1) provides that an application under s 597 may be made by notice of motion in any winding up proceedings; and in the absence of such proceedings, by application in or substantially in Form 5.
Subrule 81(3) requires that the application must be served upon any liquidator appointed to the corporation, unless the liquidator is the applicant; and on the Commission, unless the Commission is the applicant.
Subrule 81(4) allows an affidavit in support of an application for an order under s597 to be filed in a sealed envelope, at the applicant’s option. Subrule 81(5) requires that notice of an order for an examination in Form 122, together with an office copy of the order under s597(3), be personally served on the person who is to be examined and on any liquidator appointed to the corporation concerned and on the Commission.
Subrule 81(6) requires publication of notice in Form 123 of the time and place of an examination in the manner prescribed by rule 104, unless the Court orders to the contrary.
Subrule 81(7) allows a person served with an order for an examination to apply to discharge that order within 3 days of service of the order upon him.
Subrule 81(9) permits the applicant for an order for an examination, the liquidator of the company and the Commission to attend an examination under s 597 in person or by counsel or solicitor, and to put such questions to the person examined as the Court permits.
Subrule 81(10) allows an application for a direction that an examination be held in private under s 597(4) to be made by written application prior to the commencement of the examination or orally at the commencement of or in the course of the examination.
Subrule 81(17) expressly authorises the exercise by a Registrar of the powers of the Court in respect of an examination under s 597.
Rule 82: Default in relation to an examination under s597
This rule is directed to the situation arising where the Court’s powers under s597 are exercised by a Registrar and a person refuses or fails to attend the examination, in contravention of s597(6); refuses or fails to take the oath, in contravention of s597(7); refuses or fails to answer a question that he is directed by the Registrar to answer, in contravention of s597(8); refuses or fails to produce books, in contravention of s597(9); or refuses to sign a written record of the examination, in contravention of s597(13). In that event, on request, the Registrar is required to give a certificate in Form 125 of that failure or refusal to a person who appeared at the examination.
Subrule 82(4) authorises the Registrar to adjourn an examination for hearing before a Judge if the person who is examined behaves in a manner which, in the opinion of the Registrar, may constitute a contempt of court. For the purposes of subrule 82(4), a written report by the Registrar of any relevant matters arising at the examination is prima facie evidence of those matters in proceedings before the Judge.
Rule 83: Orders under s598 or s599
This rule applies to an application for an order against a person for misconduct specified under s598 and to an application for an order prohibiting a person from managing a corporation under s599. Subrules 83(2) and 83(3) require that affidavits filed in support of the application set out certain matters and that the application be served on:
• the person in relation to whom orders are sought;
• any corporation or company to which the application relates and on any liquidator, provisional liquidator or official manager of such a corporation or company; and
• on the Commission, if the Commission is not the applicant.
DIVISION 14 - CHAPTERS 6 AND 7 OF THE CORPORATIONS LAW
Rule 84: Proceedings under Chapters 6 or 7 of the Corporations Law
This rule applies generally to proceedings under Chapters 6 and 7 of the Corporations Law, and requires the applicant in such proceedings to serve a copy of the application and of any supporting affidavit or statement of claim on the Commission as soon as practicable after filing the application, and in any event not later than 14 days after the date of filing the application.
Rule 85: Orders in respect of agreement, payment or benefit (s740) This rule requires an application under s740 to be accompanied by an affidavit or statement of claim which sets out the grounds upon which it is said that s740 applies to an agreement, payment or benefit entered into, made or provided by a body corporate as being unfair or unconscionable; and, if the applicant is a person referred to in s740(5)(b)(iii), state the number of shares in the body corporate or related body corporate held by that person and the grounds on which it is said the applicant falls within that subparagraph.
Rule 86: Orders in respect of contravention fay substantial shareholder (s741) This rule requires an application under s741 to be accompanied by an affidavit or statement of claim setting out the grounds on which it is said that the person concerned is or was a substantial shareholder of the company for the purposes of Part 6.7; the grounds on which it is said that the person concerned contravened ss709, 710 or 711; and any other material facts to be relied upon by the applicant in support of the application.
Rule 87: Powers of Court where contravention due to inadvertence (s743)
Subrule 87(1) requires that the evidence in support of an application for an order declaring an act, document or matter not to be invalid because of a contravention of
Chapter 6 include an affidavit setting out the nature of the contravention of Chapter 6 in relation to which the order is sought; the nature of the applicant’s interest in the matter; the grounds on which it is said that the contravention should be excused, including any matter relevant to s743(3); and any other material facts to be relied upon by the applicant in support of the application.
Rule 88: Application for order varying an agreement with a non-licensee (s799A)
This rule applies to applications for orders under s799A Subrule 88(1) requires such an application to be accompanied by an affidavit setting out:
• details of the agreement between the applicant and a non-licensee which is sought to be varied, and annexing a copy of that agreement;
• evidence that the applicant has given notice to the non-licensee under s798;
• a statement of the identity of any person (other than the non-licensee) who, to the applicant’s knowledge, has acquired a right or estate in property in the manner specified in s799 and details of that right or estate in property; and
• any other material facts to be relied upon by the applicant in support of the application.
Rule 89: Consequential orders and directions under s877
This rule deals with applications under s877 for further orders by a person who is affected by an order under s874 or s 875.
Rule 90: Proceedings against securities exchange to establish claim against fidelity fund (s911)
This rule deals with applications under s911(3) for leave to bring proceedings to establish a claim against the fidelity fund of a securities exchange, where the board of that securities exchange has refused leave to bring proceedings. An application for
leave to bring proceedings must be accompanied by an affidavit setting out any material facts relied upon by the applicant in support of the application for leave, the grounds on which it is said that leave should be granted and annex a copy of any reasons given by the board of the securities exchange for refusing the applicant leave to bring the proceedings.
Subrule 90(2) requires an application commencing proceedings under s911 to establish a claim against the fidelity fund of a securities exchange to be accompanied by an affidavit:
• stating whether the board of the securities exchange has disallowed the claim and annexing any notice of disallowance of the claim given under s911(4);
• identifying any previous exercise by the applicant of a right of action or other legal remedy of the kind referred to in s911(2)(b);
• stating whether the applicant has been given leave by the board of the securities exchange or by the Court to bring proceedings; and
• setting out any material facts to be relied upon by the applicant to establish the claim.
Rule 91: Application for directions by trustee for debenture holders (s1057) This rule requires an application by a trustee for debenture holders for directions under s1057(1)(a) or for the determination of a question in relation to the interests of debenture holders under s1057(1)(b) to indicate the matters as to which directions are sought or the question which is sought to be determined; and to be accompanied by an affidavit made by a responsible officer of the trustee setting out any matters known to the trustee and material to the application.
Rule 92: Summons for appearance of a person (s1092(3))
This rule allows a person to apply to the Court for the issue of a summons under s1092(3) where a person has not complied with a requirment that, inter alia, a share certificate or debenture be presented for cancellation, amendment or transfer. The application need not be served upon any other person. Unless the Court orders to
the contrary, a summons issued under this rule must be in Form 126.
Rule 93: Orders relating to refusal to register transfer or transmission (s1094) This rule deals with applications for an order that a transfer or transmission of shares, debentures or interests made available by a company be registered or for other orders under s1094. The evidence in support of the application is required to include an affidavit setting out, inter alia, the prescribed information and any other material facts relied on by the applicant in support of the application. The application and that affidavit are required to be served on the company and on any person against whom orders are sought in the application.
DIVISION 15: CHAPTER 8 OF THE CORPORATIONS LAW
Rule 94: Appeal against a decision of a futures exchange or futures association (s1135)
This rule allows an appeal under s1135 to be brought by an application in Form 5, as such an appeal from the decision of a futures exchange or futures association under s1135 is heard in the Court’s original jurisdiction. The application must be served on the futures exchange or futures association concerned.
Rule 95: Application for order varying agreement with a non-licensee (s1165A)
This rule applies to applications for orders under s1165A. Subrule 95(1) requires that such an application Be accompanied by an affidavit setting out:
• details of the agreement between the applicant and a non-licensee which is sought to be varied, and annexing a copy of that agreement;
• evidence that the applicant has given notice to the non-licensee under s1164;
• a statement of the identity of any person (other than the non-licensee) who, to the knowledge of the applicant, has acquired a right or estate in property in the manner specified in s1165 and details of that right or estate in property; and
• any other material facts to be relied upon by the applicant in support of the application.
Subrule 91(2) requires that the application and that affidavit be served on the non-licensee and on any person who, to the applicant’s knowledge, has or may have acquired a right or estate in property in the manner specified in s1165.
Rule 96: Orders as to trust account of futures dealer (ss1224, 1226)
This rule deals with service of an application under ss1224 and 1226 which allow the Court to make orders to restrain dealings in respect of bank accounts.
Rule 97: Proceedings against futures organisation to establish claim against fidelity fund (s1243)
Subrule 97(1) requires ain application to the Court under s1243(3) for leave to bring proceedings to establish a claim against the fidelity fund of a futures organisation, where the board of that futures organisation has refused leave to bring proceedings, to be accompanied by an affidavit setting out any facts to be relied upon by the applicant in support of the application for leave; the grounds on which it is said that leave should be granted; and annexing a copy of any reasons given by the board of the futures organisation for refusing leave to bring proceedings.
Subrule 97(2) requires an application commencing proceedings under s1243 to establish a claim against the fidelity fund of a futures organisation to be accompanied by an affidavit stating whether the board of the futures organisation has disallowed the claim and annexing any notice of disallowance of the claim given under s1243(4); identifying any previous exercise by the applicant of a right of action or other legal remedy of the kind referred to in s1243(2)(b); stating whether the applicant has been given leave by the board of the futures organisation or by the Court to bring proceedings; and setting out any material facts to be relied upon by the applicant to establish the claim.
DIVISION 16 - POWERS OF THE COURTS (PART 95)
Rule 98: Appeals from the Administrative Appeals Tribunal (s1317B)
This rule provides that Order 53 of the Federal Court Rules applies to appeals to the Court on a question of law from a decision of the ACT exercising jurisdiction under s1317B of the Corporations Law.
Rule 99: Application for relief under s1318(2)
This rule deals with an application under s1318(2) for relief of a person from liability under certain civil claims and requires that such an application be accompanied by an affidavit setting out, inter alia, the nature of the claim in relation to which the applicant seeks relief; the basis of the applicant’s apprehension that such a claim will or might be made; the persons who are, to the applicant’s knowledge, the possible claimants in any such claim; and the name of the corporation in respect of which the applicant occupied a position specified in s1318(4).
Rule 100: Appeals from decisions of administrator, receiver, official manager, liquidator etc (s1321)
Subrule 100(1) provides that an appeal from an act, omission or decision of an administrator, receiver or official manager must be brought by an application in Form 5 stating the act, omission or decision complained of and stating concisely the grounds of appeal. An appeal under s1321 is in the Court’s original jurisdiction.
Subrule 100(2) requires an appeal under s1321 to be commenced by filing the application within 21 days of the act, omission or decision complained of, unless the Court grants an extension of time to commence the appeal.
Subrule 100(4) requires an administrator, receiver, official manager, liquidator, etc. who has been served with an application appealing against a decision made by him to file an affidavit setting out any material upon which he or she based that act, omission or decision and annexing copies of all relevant documents which have not been put in
evidence by the applicant.
Rule 101: Irregularities (s1322)
This rule deals with an application for an order under s1322, that a proceeding under the Corporations Law or meeting held for the purposes of the Corporations Law is not invalidated by reason of a procedural illegality unless the Court is of the opinion that substantial injustice may result.
Rule 102: Intervention by Commission in proceedings (s1330)
This rule specifies the manner of intervention by the Commission under s1330, and requires the Commission to file a notice of intervention in Form 127 and to serve a copy of that notice on each party to the proceedings.
Rule 103: Meetings ordered by the Court
This rule deals with meetings ordered by the Court and provides that, subject to the Corporations Law, Order 71 and any direction of the Court to the contrary, the provisions of Chapter 5 Part 3 of the Corporations Regulations made under the Corporations Law apply to meetings ordered by the Court.
Rule 104: Publication requirements and proof of publication
This rule specifies the manner of publication of the numerous notices required to be published under Order 71.
In order to comply with rule 104, a notice must be published once in the Gazette, once in a prescribed newspaper (as defined in subrule 2(1)), and once in a daily newspaper circulating generally in each State or Territory in which the applicant has reason to believe that the company has carried on business within the previous 6 months.
Subrule 104(2) provides that it is sufficient compliance with the requirement that publication be made once in a prescribed newspaper and once in a daily newspaper circulating generally in each State or Territory in which a company has carried on
business within the previous 6 months, if publication is made once in a prescribed newspaper which also circulates generally in every State or Territory in which the company has carried on business within the previous 6 months.
Subrule 104(3) allows publication, advertising or gazettal required by the Corporations Law or by Order 71 to be proved by filing of an affidavit by the person responsible for the gazettal or his solicitor annexing copies of the relevant advertisement or gazettal and stating that publication or gazettal occurred on a date stated in the affidavit
Subrule 104(4) requires a matter to be re-gazetted or re-advertised with the necessary amendments or alterations, if that matter has been amended or altered, or it was wrongly or inaccurately gazetted or advertised.
DIVISION 17 - AUSTRALIAN SECURITIES COMMISSION LAW
Rule 105: Reference to the Court of question of law arising at a hearing of the Australian Securities Commission (ASC Law s61)
This rule provides that Order 50 (which deals generally with cases stated and questions referred to the Court) applies, with such adaptations as may be necessary, to a reference by the Commission of a question of law arising at a hearing before it under s61 of the ASC Law.
Role 106: Proceedings under section 70 of the ASC Law
This rule requires any proceedings under s70 of the ASC Law (under which the Commission is satisfied that a person has, without reasonable excuse, Med to comply with a requirement under Part 3 of the ASC Law) to be commenced by an application in Form 5 claiming an inquiry and orders under that section. Subrule 70(3) requires that the application, the certificate of the Commission under s70(2) and the affidavit or affidavits in support of the application be personally served on the person to whom the certificate relates.
Rule 107: Reference to the Court of question of law arising at a hearing of the Corporations and Securities Panel (s196)
This rule is similar to Rule 105, and provides that Order 50 applies, with such adaptations as may be necessary, to a reference to the Court of a question of law by the Corporations and Securities Panel under s196.
Rule 108: Proceedings under s201 of the ASC Law
This rule is similar to rule 106, and requires proceedings under s201 of the ASC Law (under which the Court may inquire into a case after the Corporations and Securities Panel have certified that a person has failed without reasonable excuse to comply with a summons under s192) to be commenced by an application in Form 5 claiming an inquiry and orders under that section.
Subrule 108(3) requires personal service of the application, the certificate of the Corporations and Securities Panel under s201(2) and any affidavits in support of the application on the person to whom the certificate relates.
Rule 109: Proceedings under s219 of the ASC Law
This rule is similar to rules 106 and 108, and requires proceedings under s219 of the ASC Law to be commenced by an application in Form 5 claiming an inquiry and orders under s219. Again, the application, the certificate of the Companies Auditors and Liquidators Disciplinary Board under s219(6) and the affidavit or affidavits in support of the application must be personally served on the person to whom the certificate relates.
DIVISION 18 - TRANSFER OF PROCEEDINGS
Rule 110: Transfer of Proceedings
This rule of Order 71 of the Federal Court Rules deals with the transfer of proceedings under sS3 of the Corporation Law. An application for the transfer of proceedings, or of an application in the proceedings, from the Court to another court is to be made by notice of motion, and to be heard by a Judge.
Subrule 110(2) requires that such an application be supported by an affidavit setting out the grounds relied upon to support the application; the principal place of business of any body corporate concerned in the proceedings or application; the place or places where the events the subject of the proceedings or application took place; and any other matters relevant to the application.
If an order is made by another court to transfer proceedings to the Federal Court, subrule 110(4) requires the plaintiff or applicant in those proceedings to file a notice of motion seeking directions as to the subsequent conduct of proceedings and to serve that notice of motion on each other party to the proceedings, within 28 days of the date on which the other court made the order transferring the proceedings to the Court.
Rule 5 TABLE OF FORMS
This rule provides for amendments to the Numerical Table of Forms in the First Schedule. They reflect the additional forms inserted into that First Schedule.
Rule 6 FIRST SCHEDULE
This rule amends the First Schedule to the Federal Court Rules and introduces additional forms numbered 75 to 128, being forms prescribed under Order 71.
The forms prescribed under Order 71 are as follows:
Form 75 Head of document
Form 76 Abbreviated head of document
Form 77 Application by person aggrieved
Form 78 Notice of application under sections 167, 168, 172, 190, 194, 197, 202 or 1074 of the Corporations Law
Form 79 Notice of intention to appear at hearing
Form 80 List of persons attending hearing
Form 81 Affidavit verifying list of creditors
Form 82 Notice of application for reduction of capital and for list of creditors
Form 83 Notice to creditors
Form 84 Affidavit as to claims
Form 85 Notice to creditor to prove debts
Form 86 Notice of application under section 195 of the Corporations Law
Form 87 Notice of order confirming reduction of capital
Form 88 Application for nomination of liquidator
Form 89 Acknowledgement by liquidator/Consent of provisional liquidator/Consent of joint liquidator
Form 90 Notice of application under section 260 of the Corporations Law
Form 91 Notice of hearing of application to approve a compromise or an arrangement under section 411 of the Corporations Law
Form 92 Notice of hearing of application to vary or cancel a resolution to place a company under official management under section 454 of the Corporations Law
Form 93 Notice of application under section 460 (section 461) of the Corporations Law
Form 94 Affidavit proving service of a notice under subsection 460(2) of the Corporations Law
Form 95 Affidavit that debt remains unpaid under subsection 460(2) of the Corporations Law
Form 96 Order for winding up
Form 97 Order substituting an applicant in a winding up application
Form 98 Notice of application by substituted applicant under section 460 or section 461 of the Corporations Law
Form 99 Notice to liquidator of appointment
Form 100 Advertisement of winding up order and of appointment of liquidator (provisional liquidator)
Form 101 Advertisement of appointment of liquidator (provisional liquidator) in place of previous liquidator (provisional liquidator)
Form 102 Certificate of liquidator of resolution of meeting of creditors, contributories or committee of inspection.
Form 103 Notice by liquidator of intention to seek release
Form 104 Notice by creditor or contributory of objection to a liquidator’s application for release
Form 105 Requirement to pay money, etc. to liquidator under subsection 483(1) of the Corporations Law
Form 106 Notice of meeting of committee of inspection to sanction the making of a call
Form 107 Notice of meeting of committee of inspection
Form 108 Resolution of committee of inspection sanctioning a call
Form 109 Notice of amount of call per share
Form 110 Notice of call sanctioned by committee of inspection
Form 111 Affidavit in support of application for leave to make a call
Form 112 Notice of application for leave to make a call
Form 113 Order giving leave to make a call
Form 114 Notice of call on contributories
Form 115 Affidavit in support of application for order for payment of call
Form 116 Order for payment of call due from a contributory under paragraph 483(3)(b) of the Corporations Law
Form 117 Request to deliver bill for taxation
Form 118 Statutory declaration by Special Manager verifying his accounts
Form 119 Report by chairman of meeting of creditors or contributories
Form 120 Notice of application under section 571 of the Corporations Law
Form 121 Order for examination under subsection 597(3) of the Corporations Law
Form 122 Notice to attend examination under section 597 of the Corporations Law
Form 123 Notice of examination under subsection 597 of the Corporations Law
Form 124 Certificate authenticating a transcript taken on an examination under section 597
Form 125 Certificate of default in relation to an examination under section 597 of the Corporations Law
Form 126 Summons under subsection 1092(3) of the Corporations Law
Form 127 Notice of intervention by the Commission under section 1330 of the Corporations Law
Form 128 Affidavit of prescribed information
Rule 7 NEW THIRD SCHEDULE
This rule provides for the introduction of a new Third Schedule to the Federal Court Rules. Order 71 Rule 7 provides that a power or function of the Court specified in the Third Schedule may be exercised by a registrar if the Court or a Judge directs. This schedule indicates the maximum range of powers which may be invested in a Registrar. However, a registrar will not be entitled to exercise a power expressed as an item in the schedule unless there has been a direction in respect of that item by a judge.
Part 1 of the Third Schedule itemises those sections of the Corporations Law and any corresponding rule in Order 71 under which a Registrar may exercise the power of the Court if so directed under rule 7
Part 2 of the Third Schedule specifies the section under the ASC Law under which a Registrar may exercise the power of the Court if so directed under rule 7.