CORPORATIONS LAW RULES 2000
NORTHERN TERRITORY OF AUSTRALIA
CORPORATIONS LAW RULES 2000
As in force at 22 November 2017
Table of provisions
Division 1 Preliminary
1.1 Citation ............................................................................................ 1
1.2 Commencement .............................................................................. 1
1.3 Application of these Rules and other rules of the Court ................... 1
1.4 Expressions used in the Corporations Act ....................................... 2
1.5 Definitions for these Rules ............................................................... 2
1.6 References to rules and forms......................................................... 3
1.7 Substantial compliance with forms .................................................. 3
1.8 Court's power to give directions ....................................................... 4
1.9 Calculation of time ........................................................................... 4
1.10 Extension and abridgment of time ................................................... 4
Division 2 Proceedings generally
2.1 Title of documents in a proceeding – Form 1................................... 5
2.2 Originating process and interlocutory process – Forms 2 and 3 ...... 5
2.3 Fixing of hearing .............................................................................. 6
2.4 Supporting affidavit .......................................................................... 6
2.4A Application for order setting aside statutory demand
(Corporations Act s 459G) ............................................................... 6
2.5 Affidavits made by creditors............................................................. 7
2.6 Form of affidavits ............................................................................. 7
2.7 Service of originating process or interlocutory process and
supporting affidavit .......................................................................... 8
2.8 Notice of certain applications to be given to ASIC ........................... 8
2.9 Notice of appearance (Corporations Act s 465C) – Form 4 ............. 9
2.10 Intervention in proceeding by ASIC (Corporations Act
s 1330) – Form 5 ........................................................................... 10
2.11 Publication of notices ..................................................................... 10
2.12 Proof of publication ........................................................................ 10
2.13 Leave to creditor, contributory or officer to be heard ..................... 11
2.14 Inquiry in relation to corporation's debts etc .................................. 12
2.15 Meetings ordered by the Court ...................................................... 12
Division 3 Compromises and arrangements in relation to
Part 5.1 bodies
3.1 Application of Division 3 ................................................................ 12
3.2 Nomination of chairperson for meeting .......................................... 12
3.3 Order for meetings to identify proposed scheme ........................... 13
-- 1 of 94 --
Corporations Law Rules 2000 ii
3.4 Notice of hearing (Corporations Act s 411 (4), s 413 (1)) –
Form 6 ........................................................................................... 13
3.5 Copy of order approving compromise or arrangement to be
lodged with ASIC ........................................................................... 14
Division 4 Receivers and other controllers of corporation
property (Corporations Act Part 5.2)
4.1 Inquiry into the conduct of controller (Corporations Act s 423) ...... 14
Division 5 Winding up proceedings (including
oppression proceedings where winding up is
sought)
5.1 Application of Division 5 ................................................................ 14
5.2 Affidavit accompanying statutory demand (Corporations Act
s 459E(3)) – Form 7 ...................................................................... 15
5.3 Application for leave to apply for winding up in insolvency
(Corporations Act s 459P(2)) ......................................................... 15
5.4 Affidavit in support of application for winding up (Corporations
Act s 459P, s 462, s 464) .............................................................. 15
5.5 Consent of liquidator (Corporations Act s 532 (9)) – Form 8 ......... 16
5.7 Applicant to make copies of documents available ......................... 16
5.8 Discontinuance of application for winding up ................................. 16
5.9 Appearance before Registrar......................................................... 16
5.10 Order substituting plaintiff in application for winding up
(Corporations Act s 465B) – Form 10 ............................................ 17
5.11 Notice of winding up order and appointment of liquidator –
Form 11 ......................................................................................... 17
Division 6 Provisional liquidators (Corporations Act
Part 5.4B)
6.1 Appointment of provisional liquidator (Corporations Act
s 472) – Form 8 ............................................................................. 18
6.2 Notice of appointment of provisional liquidator – Form 12 ............. 18
Division 7 Liquidators
7.1 Resignation of liquidator (Corporations Act s 473(1)) .................... 19
7.2 Filling vacancy in office of liquidator (Corporations Act
s 473(7), s 502) ............................................................................. 19
7.3 Report to liquidator as to company's affairs (Corporations Act
s 475) ............................................................................................ 19
7.4 Liquidator to file certificate and copy of settled list of
contributories (Corporations Act s 478) ......................................... 20
7.5 Release of liquidator and deregistration of company
(Corporations s 480(c) and (d)) ..................................................... 20
7.6 Objection to release of liquidator – Form 13 .................................. 22
-- 2 of 94 --
Corporations Law Rules 2000 iii
7.7 Report on accounts of liquidator (Corporations Act s 481) ............ 23
7.8 Application for payment of call (Corporations Act
s 483(3)(b)) – Form 14 .................................................................. 23
7.9 Distribution of surplus by liquidator with special leave of the
Court (Corporations Act s 488 (2)) – Form 15 ............................... 23
7.10 Powers delegated to liquidator by the Court (Corporations Act
s 488) ............................................................................................ 24
7.11 Inquiry into conduct of liquidator (Corporations Act s 536(1)
and (2)) .......................................................................................... 24
Division 8 Special managers (Corporations Act Part
5.4B)
8.1 Application for appointment of special manager (Corporations
Act s 484) ...................................................................................... 25
8.2 Security given by special manager (Corporations Act s 484) ........ 25
8.3 Special manager's receipts and payments (Corporations Act
s 484) ............................................................................................ 25
Division 9 Remuneration of office-holders
9.1 Remuneration of receiver (Corporations Act s 425(1)) –
Form 16 ......................................................................................... 26
9.2 Determination by Court of remuneration of administrator
(Corporations Act s 449E(1)(c) and (1A)(c)) – Form 16 ................. 28
9.2A Review of remuneration of administrator (Corporations
Act s 449E(2))................................................................................ 29
9.3 Remuneration of provisional liquidator (Corporations Act
s 473(2)) – Form 16 ....................................................................... 31
9.4 Determination by Court of liquidator’s remuneration
(Corporations Act s 473(3)(b)(ii)) ................................................... 33
9.4A Review of remuneration of liquidator (Corporations Act
s 473(5) and (6) and 504(1)).......................................................... 35
9.5 Remuneration of special manager (Corporations Act s 84(2)) –
Form 16 ......................................................................................... 37
Division 10 Winding up generally
10.1 Determination of value of debts or claims (Corporations Act
s 554A(2)) ...................................................................................... 38
10.2 Disclaimer of contract (Corporations Act s 568(1A))...................... 39
10.3 Winding up Part 5.7 bodies (Corporations Act s 583, s 585)
and registered schemes (Corporations Act s 601ND) ................... 39
Division 11 Examinations and orders (Corporations Act
Part 5.9 Divisions 1 and 2)
11.1 Definition for Division 11 ................................................................ 39
-- 3 of 94 --
Corporations Law Rules 2000 iv
11.2 Application for examination or investigation under s 411(9)(B),
s 423 or s 536 (3) of the Corporations Act ..................................... 39
11.3 Application for examination summons (Corporations Act
s 596A, s 596B) – Form 17 ............................................................ 40
11.4 Service of examination summons .................................................. 41
11.5 Discharge of examination summons.............................................. 41
11.6 Filing of record of examination (Corporations Act s 597(13)) ........ 41
11.7 Authentication of transcript of examination (Corporations Act
s 597(14)) ...................................................................................... 42
11.8 Inspection of record or transcript of examination or
investigation under s 411, s 423 or s 536 of the Corporations
Act ................................................................................................. 42
11.9 Entitlement to record or transcript of examination held in public.... 42
11.10 Default in relation to examination .................................................. 43
11.11 Service of application for order in relation to breaches etc by
person concerned with corporation (Corporations Act s 598) ........ 43
Division 11A Warrants (Corporations Act s 486B and Part
5.4B, Division 3, Subdivision B)
11A.1 Arrest of person (Corporations Act s 486B) – Form 17A ............... 44
Division 12 Takeovers, acquisitions of shares etc.
(Corporations Act Chapters 6 to 6B) and
Securities (Corporations Act Chapter 7)
12.1 Service on ASIC in relation to proceedings under Chapter 6,
6A, 6B, 6C, 6D or 7 of the Corporations Act .................................. 44
12.1A Reference to Court of question of law arising in proceeding
before Takeovers Panel (Corporations Act s 659A) ...................... 45
12.1B Notification to Court where proceeding is commenced before
end of takeover bid period (Corporations Act s 659B) ................... 45
12.2 Application for summons for appearance of person
(Corporations Act s 1071D(4)) – Form 18 ..................................... 45
12.3 Application for orders relating to refusal to register transfer or
transmission of securities (Corporations Act s 1071F) .................. 46
Division 14 Powers of Courts (Corporations Act Part 9.5)
14.1 Appeal from act, omission or decision of administrator,
receiver or liquidator, etc (Corporations Act s 554A, s 1321)......... 46
Division 15 Proceedings under the ASIC Act
15.1 Reference to Court of question of law arising at hearing of
ASIC (ASIC Act s 61) .................................................................... 47
15.3 Application for inquiry (ASIC Act s 70, s 201, s 219) ..................... 47
-- 4 of 94 --
Corporations Law Rules 2000 v
Division 15A Proceedings under the Cross-Border
Insolvency Act
15A.1 Application of this Division and other rules of the Court ................ 47
15A.2 Expressions used in the Cross-Border Insolvency Act .................. 48
15A.3 Application for recognition ............................................................. 48
15A.4 Application for provisional relief under article 19 of the Model
Law ................................................................................................ 49
15A.5 Official liquidator's consent to act .................................................. 49
15A.6 Notice of filing of application for recognition .................................. 50
15A.7 Notice of order for recognition, withdrawal etc ............................... 50
15A.8 Relief after recognition ................................................................... 51
15A.9 Application to modify or terminate an order for recognition or
other relief...................................................................................... 51
Division 16 Powers of Associate Judge and Registrar
16.1 Powers of Associate Judge ........................................................... 52
16.2 Powers of Registrar ....................................................................... 53
16.3 Appeal ........................................................................................... 53
Division 17 Repeal
17. Repeal ........................................................................................... 53
Schedule 1 Forms
Schedule 2 Notes to these Rules
ENDNOTES
-- 5 of 94 --
-- 6 of 94 --
NORTHERN TERRITORY OF AUSTRALIA
____________________
As in force at 22 November 2017
____________________
CORPORATIONS LAW RULES 2000
Rules under the Corporations Reform (Northern Territory) Act 2001
Division 1 Preliminary
1.1 Citation
These Rules may be cited as the Corporations Law Rules 2000.
1.2 Commencement
These Rules come into operation on a date fixed by the Chief
Justice of the Court by notice in the Gazette.
1.3 Application of these Rules and other rules of the Court
(1) Unless the Court otherwise orders:
(a) these Rules apply to a proceeding in the Court under the
Corporations Act, or the ASIC Act, that is commenced on or
after the commencement of these Rules; and
(b) Division 15A applies to a proceeding in the Court under the
Cross-Border Insolvency Act.
(2) The rules in Chapter 1 of the Supreme Court Rules 1987 apply, to
the extent that they are relevant and not inconsistent with these
Rules:
(a) to a proceeding in the Court under the Corporations Act, or the
ASIC Act, that is commenced on or after the commencement
of these Rules; and
(b) to a proceeding in the Court under the Cross-Border
Insolvency Act that is commenced on or after the
commencement of Division 15A.
(3) Unless the Court otherwise orders, the rules applying to a
proceeding in the Court under the Corporations Act, or the ASIC
Act, as in force immediately before the commencement of these
Rules, continue to apply to a proceeding under the Corporations
-- 7 of 94 --
Division 1 Preliminary
Corporations Law Rules 2000 2
Act, or the ASIC Act, that was commenced before the
commencement of these Rules.
Note
By virtue of the definition of 'this Act' in section 9 of the Corporations Act, a
reference to the Corporations Act includes a reference to the Corporations
Regulations.
1.4 Expressions used in the Corporations Act
Unless the contrary intention appears, an expression used in these
Rules and in the Corporations Act has the same meaning in these
Rules as it has in the Corporations Act.
Note
Expressions used in these Rules (including the notes to these Rules) that are
defined in the Corporations Act include:
ABN (short for Australian Business Number) – see section 9
ACN (short for Australian Company Number) – see section 9
ARBN (short for Australian Registered Body Number) – see section 9
ASIC – see section 9
body – see section 9
body corporate – see section 9
books – see section 9
company – see section 9
corporation – see section 57A
daily newspaper – see section 9
foreign country – see section 9
futures broker – see section 9
Gazette – see section 9
officer, in relation to a body corporate – see section 82A
official liquidator – see section 9
Part 5.1 body – see section 9
Part 5.7 body – see section 9
register – see section 9
registered liquidator – see section 9
registered office – see section 9
statutory demand – see section 9
1.5 Definitions for these Rules
In these Rules, unless the contrary intention appears:
applicant means a person claiming interlocutory relief in a
proceeding.
ASIC Act means the Australian Securities and Investments
Commission Act 2001 of the Commonwealth.
Corporations Act means the Corporations Act 2001 of the
Commonwealth.
-- 8 of 94 --
Division 1 Preliminary
Corporations Law Rules 2000 3
Corporations Regulations means the Corporations
Regulations 2001 of the Commonwealth.
Cross-Border Insolvency Act means the Cross-Border Insolvency
Act 2008 (Cth) including, unless the contrary intention appears, the
Model Law.
defendant means a person against whom relief (except
interlocutory relief) is claimed under the Corporations Act, the ASIC
Act or the Cross-Border Insolvency Act, whether in the originating
process or not.
interlocutory process means an interlocutory process in
accordance with Form 3.
Model Law means the Model Law on Cross-Border Insolvency of
the United Nations Commission on International Trade Law, the
English text of which is set out in Schedule 1 to the Cross-Border
Insolvency Act, with the modifications set out in Part 2 of that Act.
originating process means an originating process in accordance
with Form 2.
plaintiff means a person claiming relief (except interlocutory relief)
under the Corporations Act, the ASIC Act or the Cross-Border
Insolvency Act, whether in the originating process or not.
respondent means a person against whom interlocutory relief is
claimed in a proceeding.
1.6 References to rules and forms
In these Rules, unless the contrary intention appears:
(a) a reference to a rule is a reference to a rule in these Rules;
and
(b) a reference to a form followed by a number is a reference to
the form so numbered in Schedule 1 to these Rules.
1.7 Substantial compliance with forms
(1) It is sufficient compliance with these Rules in relation to a document
that is required to be in accordance with a form in Schedule 1 if the
document is substantially in accordance with the form required or
has only such variations as the nature of the case requires.
(2) Without limiting subrule (1), the Registrar must not reject a
document for filing only because a term used to describe a party in
the document differs from the term used in these Rules.
-- 9 of 94 --
Division 1 Preliminary
Corporations Law Rules 2000 4
1.8 Court's power to give directions
The Court may give directions in relation to the practice and
procedure to be followed in a proceeding if it is satisfied, in the
circumstances of the proceeding, that:
(a) the provisions of the Corporations Act, ASIC Act, or the rules
of this Court do not adequately provide for the practice and
procedure to be followed in the proceeding; or
(b) a difficulty arises, or doubt exists, in relation to the practice
and procedure to be followed in the proceeding.
1.9 Calculation of time
(1) If, for any purpose, these Rules:
(a) prohibit, permit or require an act or thing to be done within, by,
or before the end of; or
(b) otherwise prescribe, allow or provide for,
a period of time before or after a particular day, act or event, the
period is to be calculated without counting that day, or the day of
the act or event, as the case may be.
(2) Without limiting subrule (1), in calculating how many days a
particular day, act or event is before or after another day, act or
event, only the first day, or the day of the first act or event, is to be
counted.
(3) If the last day of any period prescribed or allowed by these Rules
for an act or thing to be done falls on a day that is not a business
day in the place where the act or thing is to be or may be done, the
act or thing may be done on the first business day in the place after
that day.
(4) In calculating a period of time for the purposes of these Rules, the
period beginning on 25 December in a year and ending at the end
of 1 January in the next year is not to be counted.
1.10 Extension and abridgment of time
Unless the Corporations Act, the ASIC Act, or these Rules
otherwise provide, the rules in Chapter 1 of the Supreme Court
Rules 1987 that provide for the extension or abridgment of a period
of time fixed for the doing of any act or thing in relation to a
proceeding apply to a proceeding to which these Rules apply.
-- 10 of 94 --
Division 2 Proceedings generally
Corporations Law Rules 2000 5
Division 2 Proceedings generally
2.1 Title of documents in a proceeding – Form 1
The title of a document filed in a proceeding must be in accordance
with Form 1.
2.2 Originating process and interlocutory process – Forms 2 and 3
(1) Unless these Rules otherwise provide, a person must make an
application required or permitted by the Corporations Act to be
made to the Court:
(a) if the application is not made in a proceeding already
commenced in the Court – by filing an originating process; and
(b) in any other case, and whether interlocutory relief or final relief
is claimed – by filing an interlocutory process.
(2) Unless the Court otherwise directs, a person may make an
application to the Court in relation to a proceeding in respect of
which final relief has been granted by filing an interlocutory process
in that proceeding.
(3) An originating process must:
(a) be in accordance with Form 2; and
(b) state:
(i) each section of the Corporations Act or the ASIC Act, or
each regulation of the Corporations Regulations, under
which the proceeding is brought; and
(ii) the relief sought.
(4) An interlocutory process must:
(a) be in accordance with Form 3; and
(b) state:
(i) if appropriate, each section of the Corporations Act or
the ASIC Act, or each regulation of the Corporations
Regulations, or each rule of Court under which the
application is made; and
-- 11 of 94 --
Division 2 Proceedings generally
Corporations Law Rules 2000 6
(ii) the relief sought.
Note
In an application for winding up in insolvency on the ground that the company
has failed to comply with a statutory demand, the applicant should consider
completing Part C of Form 2 as shown in Schedule 2 (Notes to these Rules).
2.3 Fixing of hearing
On receiving an originating process or interlocutory process, the
Registrar:
(a) must fix a time, date and place for hearing and endorse those
details on the originating process or interlocutory process; and
(b) may seal a sufficient number of copies for service and proof of
service.
2.4 Supporting affidavit
(1) Unless the Court otherwise directs, an originating process, or
interlocutory process, must be supported by an affidavit stating the
facts in support of the process.
(2) Subject to rule 2.4A, an affidavit in support of an originating process
must annex a record of a search of the records maintained by
ASIC, in relation to the company that is the subject of the
application to which the originating process relates, carried out no
earlier than 7 days before the originating process is filed.
Note
An example of the affidavit in support of an application for winding up in
insolvency for failure to comply with a statutory demand is shown in Schedule 2
(Notes to these Rules).
2.4A Application for order setting aside statutory demand
(Corporations Act s 459G)
(1) This rule applies, and subrule 2.4(2) does not apply, to an
application by a company under section 459G of the Corporations
Act for an order setting aside a statutory demand served on the
company.
(2) The plaintiff may file with the originating process seeking the order
a copy of the statutory demand and a copy of any affidavit that
accompanied the statutory demand.
-- 12 of 94 --
Division 2 Proceedings generally
Corporations Law Rules 2000 7
(3) The plaintiff must:
(a) no earlier than 7 days before the originating process is filed,
and no later than the day before the hearing of the application,
carry out a search of the records maintained by ASIC in
relation to the plaintiff; and
(b) either:
(i) annex the record of the search to the affidavit in support
of the originating process; or
(ii) file the record of the search before or tender it on the
hearing of the application.
2.5 Affidavits made by creditors
Subject to rule 5.4, an affidavit that is to be made by a creditor may
be made:
(a) if the creditor is a corporation – by a director, secretary, or
other principal officer of the corporation, or by a person
employed by the corporation who is authorised to make the
affidavit on its behalf;
(b) if the creditor is a company to which a liquidator, provisional
liquidator, receiver, administrator or controller has been
appointed – by that person; or
(c) in any other case – by the creditor or a person authorised by
the creditor to make the affidavit on behalf of the creditor.
2.6 Form of affidavits
An affidavit must be in a form that complies with:
(a) the rules in Chapter 1 of the Supreme Court Rules 1987;
(b) the rules of the Supreme Court of the State (if any) or Territory
(if any) where the affidavit was sworn or affirmed; or
(c) the rules of the Federal Court.
-- 13 of 94 --
Division 2 Proceedings generally
Corporations Law Rules 2000 8
2.7 Service of originating process or interlocutory process and
supporting affidavit
(1) As soon as practicable after filing an originating process and, in any
case, at least 5 days before the date fixed for hearing, the plaintiff
must serve a copy of the originating process and any supporting
affidavit on:
(a) each defendant (if any) to the proceeding; and
(b) if the corporation to which the proceeding relates is not a party
to the proceeding – the corporation.
(2) As soon as practicable after filing an interlocutory process and, in
any case, at least 3 days before the date fixed for hearing, the
applicant must serve a copy of the interlocutory process and any
supporting affidavit on:
(a) each respondent (if any) to the application in the interlocutory
process; and
(b) if the corporation to which the application in the interlocutory
process relates is not a party to the application in the
interlocutory process – the corporation.
2.8 Notice of certain applications to be given to ASIC
(1) This rule has effect in addition to the requirements of the
Corporations Act that, in relation to a proceeding, particular
documents are to be served on ASIC or notice of particular matters
is to be given to ASIC.
(2) This rule does not apply to a person making an application if the
person is ASIC or a person authorised by ASIC.
(3) Unless the Court otherwise orders, if a person makes an application
under a provision of the Corporations Act mentioned in Column 1 of
an item of the following table, the person must serve on ASIC, a
reasonable time before the hearing of the application, a copy of the
originating process, or interlocutory process, and supporting
affidavit in respect of the application.
Column 1 Column 2
Item Provision Description of application
1. Section 480 For the release of a liquidator of a
company and the deregistration of the
company
-- 14 of 94 --
Division 2 Proceedings generally
Corporations Law Rules 2000 9
2. Subsection 482(1) For the stay or termination of a winding
up
3. Subsection 509(6) For the deregistration of a company
4. Subsection 536(1) For an inquiry into the conduct of a
liquidator
5. Subsection 601AH(2) To reinstate the registration of a company
6. Subsection 601CC(8) To restore the name of an Australian
body to the register
7. Subsection 601CL(9) To restore the name of a foreign
company to the register
8. Chapter 6, 6A, 6B, 6C, 6D
or 7
Any application under these Chapters
9. Subsections 1317S(2), (4)
and (5)
For the relief from liability for
contravention of a civil penalty provision
2.9 Notice of appearance (Corporations Act s 465C) – Form 4
(1) A person who intends to appear before the Court at the hearing of
an application must, before appearing:
(a) file:
(i) a notice of appearance in accordance with Form 4; and
(ii) if appropriate – an affidavit stating any facts on which the
person intends to rely; and
(b) serve on the plaintiff a copy of the notice of appearance and
any affidavit not later than:
(i) if the person is named in an originating process – 3 days
before the date fixed for hearing; or
(ii) if the person is named in an interlocutory process – one
day before the date fixed for hearing.
(2) If the person intends to appear before the Court to oppose an
application for winding up, the person may include in the notice of
appearance the notice of the grounds on which the person opposes
the application required by section 465C of the Corporations Act.
-- 15 of 94 --
Division 2 Proceedings generally
Corporations Law Rules 2000 10
(3) The period prescribed for filing and serving the notice and affidavit
required by section 465C of the Corporations Act is the period
mentioned in subparagraph (1) (b) (i).
Note
Under section 465C of the Corporations Act, a person may not, without the leave
of the Court, oppose an application for winding up unless, within the period
prescribed by the rules (see subrule (3) of this rule), the person has filed, and
served on the plaintiff, notice of the grounds on which the person opposes the
application and an affidavit verifying the matters stated in the notice.
2.10 Intervention in proceeding by ASIC (Corporations Act s 1330) –
Form 5
(1) If ASIC intends to intervene in a proceeding, ASIC must file a notice
of intervention in accordance with Form 5.
(2) Not later than 3 days before the date fixed for the hearing at which
ASIC intends to appear in the proceeding, ASIC must serve a copy
of the notice, and any affidavit on which it intends to rely, on the
plaintiff and on any other party to the proceeding.
2.11 Publication of notices
If a rule requires a notice in relation to a body to be published in
accordance with this rule, the notice must be published once in a
daily newspaper circulating generally in the State or Territory where
the body has its principal, or last known, place of business.
Note
Under the Corporations Act, certain notices may also be required to be published
in the Gazette or in accordance with the Corporations Regulations. Nothing in
this rule is intended to affect the operation of any provision of the Corporations
Act that requires publication of a notice in the Gazette or in accordance with the
Corporations Regulations.
2.12 Proof of publication
(1) This rule applies in relation to any matter published in connection
with a proceeding.
(2) Unless these Rules otherwise provide, or the Court otherwise
orders, the person responsible for the publication of the matter, or
the person's legal practitioner, must file:
(a) an affidavit made by the person, or the person's legal
practitioner, that states the date of publication and to which is
annexed or exhibited a copy of the published matter; or
-- 16 of 94 --
Division 2 Proceedings generally
Corporations Law Rules 2000 11
(b) a memorandum signed by the person, or the person's legal
practitioner, that states the date of publication and refers to
and annexes a copy of the published matter.
(3) The affidavit or memorandum is prima facie evidence that the
publication took place on the date and otherwise as stated in the
affidavit or memorandum.
2.13 Leave to creditor, contributory or officer to be heard
(1) The Court may grant leave to any person who is, or who claims to
be:
(a) a creditor, contributory or officer of a corporation;
(b) an officer of a creditor, or contributory, of a corporation; or
(c) any other interested person,
to be heard in a proceeding without becoming a party to the
proceeding.
(2) If the Court considers that the attendance of a person to whom
leave has been granted under subrule (1) has resulted in additional
costs for any party, or the corporation, which should be borne by
the person to whom leave was granted, the Court may:
(a) direct that the person pay the costs; and
(b) order that the person not be heard further in the proceeding
until the costs are paid or secured to the Court's satisfaction.
(3) The Court may order that a person who is, or who claims to be, a
creditor, contributory or officer of a corporation be added as a
defendant to the proceeding.
(4) The Court may grant leave to a person under subrule (1), or order
that a person be added as a defendant to a proceeding under
subrule (3):
(a) on application by the person or a party to the proceeding; or
(b) on the Court's own initiative.
(5) The Court may:
(a) appoint a creditor or contributory to represent all or any class
of the creditors or contributories on any question, or in relation
to any proceeding, before the Court, at the expense of the
corporation; and
-- 17 of 94 --
Division 3 Compromises and arrangements in relation to Part 5.1 bodies
Corporations Law Rules 2000 12
(b) remove any person so appointed.
2.14 Inquiry in relation to corporation's debts etc
The Court may direct an inquiry in relation to the debts, claims or
liabilities, or a class of debts, claims or liabilities, of or affecting a
corporation to which a proceeding relates.
2.15 Meetings ordered by the Court
Subject to the Corporations Act, these Rules and any direction of
the Court to the contrary, regulations 5.6.11 to 5.6.36A of the
Corporations Regulations apply to meetings ordered by the Court.
Division 3 Compromises and arrangements in relation to
Part 5.1 bodies
3.1 Application of Division 3
This Division applies if an application is made to the Court for
approval of a compromise or arrangement between a Part 5.1 body
and its creditors or members, or any class of its creditors or
members.
3.2 Nomination of chairperson for meeting
Before the hearing of an application under subsection 411(1), (1A)
or (1B) of the Corporations Act, the plaintiff must file an affidavit
stating:
(a) the names of the persons who have been nominated to be the
chairperson and alternate chairperson of the meeting;
(b) that each person nominated:
(i) is willing to act as chairperson;
(ii) has had no previous relationship or dealing with the
body, or any other person interested in the proposed
compromise or arrangement, except as disclosed in the
affidavit; and
(iii) has no interest or obligation that may give rise to a
conflict of interest or duty if the person were to act as
chairperson of the meeting, except as disclosed in the
affidavit;
(c) the name of the person (if any) proposed to be appointed to
administer the proposed compromise or arrangement; and
-- 18 of 94 --
Division 3 Compromises and arrangements in relation to Part 5.1 bodies
Corporations Law Rules 2000 13
(d) that the person does not fall within paragraphs 411(7)(a) to (f)
of the Corporations Act, except as disclosed in the affidavit.
3.3 Order for meetings to identify proposed scheme
(1) An order under subsection 411(1) or (1A) of the Corporations Act
ordering a meeting or meetings in relation to a proposed
compromise or arrangement must set out in a schedule, or
otherwise identify, a copy of the proposed compromise or
arrangement.
(2) Unless the Court otherwise orders, a meeting of members ordered
under section 411 of the Corporations Act must be convened, held
and conducted in accordance with:
(a) the provisions of Part 2G.2 of the Corporations Act that apply
to the members of a company; and
(b) the provisions of the plaintiff's constitution that apply in relation
to meetings of members and are not inconsistent with
Part 2G.2 of the Corporations Act.
(3) Unless the Court otherwise orders, a meeting of a class of holders
of convertible securities ordered under section 411 of the
Corporations Act must be convened, held and conducted as if:
(a) the holders were a separate class of members; and
(b) the meeting were a meeting of members convened, held and
conducted under subrule (2),
but in accordance with, and subject to, the applicable provisions of
the instrument under which the securities were issued.
3.4 Notice of hearing (Corporations Act s 411 (4), s 413 (1)) –
Form 6
(1) This rule applies to:
(a) an application, under subsection 411(4) of the Corporations
Act, for an order approving a proposed compromise or
arrangement in relation to a Part 5.1 body; and
(b) an application, under subsection 413(1) of the Corporations
Act, for an order in relation to the reconstruction of a Part 5.1
body, or Part 5.1 bodies, or the amalgamation of 2 or more
Part 5.1 bodies.
(2) Unless the Court otherwise orders, the plaintiff must publish a
notice of the hearing of the application.
-- 19 of 94 --
Division 5 Winding up proceedings (including oppression proceedings where winding up
is sought)
Corporations Law Rules 2000 14
(3) The notice must be:
(a) in accordance with Form 6; and
(b) published in accordance with rule 2.11 at least 5 days before
the date fixed for the hearing of the application.
3.5 Copy of order approving compromise or arrangement to be
lodged with ASIC
If the Court makes an order under subsection 411(1), (1A) or (4)
or 413(1) of the Corporations Act, the plaintiff must, as soon as
practicable after the order is made:
(a) have the order authenticated;
(b) lodge an office copy of the order with ASIC; and
(c) serve an office copy of the order on any person appointed to
administer the compromise or arrangement.
Division 4 Receivers and other controllers of corporation
property (Corporations Act Part 5.2)
4.1 Inquiry into the conduct of controller (Corporations Act s 423)
A complaint to the Court under paragraph 423(1)(b) of the
Corporations Act about an act or omission of a receiver, or a
controller appointed by the Court, must be made by an originating
process seeking an inquiry in relation to the complaint.
Division 5 Winding up proceedings (including oppression
proceedings where winding up is sought)
5.1 Application of Division 5
This Division applies to the following applications for the winding up
of a company:
(a) an application for an order under Part 2F.1 of the Corporations
Act;
(b) an application under Part 5.4 or Part 5.4A of the Corporations
Act.
-- 20 of 94 --
Division 5 Winding up proceedings (including oppression proceedings where winding up
is sought)
Corporations Law Rules 2000 15
5.2 Affidavit accompanying statutory demand (Corporations Act
s 459E(3)) – Form 7
For the purposes of subsection 459E(3) of the Corporations Act, the
affidavit accompanying a statutory demand relating to a debt, or
debts, owed by a company must:
(a) be in accordance with Form 7 and state the matters
mentioned in that Form;
(b) be made by the creditor or by a person with the authority of
the creditor or creditors; and
(c) not state a proceeding number, or refer to a Court proceeding,
in any heading or title to the affidavit.
5.3 Application for leave to apply for winding up in insolvency
(Corporations Act s 459P(2))
An application for leave to apply to the Court for an order that a
company be wound up in insolvency may be made at the same
time as the application for an order that the company be wound up
in insolvency is made.
5.4 Affidavit in support of application for winding up (Corporations
Act s 459P, s 462, s 464)
(1) The affidavit in support of an originating process seeking an order
that a company be wound up must be made by the plaintiff or by a
person with the authority of the plaintiff or plaintiffs.
(2) If the application is made in reliance on a failure by the company to
comply with a statutory demand, the affidavit must:
(a) verify service of the demand on the company;
(b) verify the failure of the company to comply with the demand;
and
(c) state whether and, if so, to what extent, the debt, or each of
the debts, to which the demand relates is still due and payable
by the company at the date when the affidavit is made.
Note
An example of the affidavit in support of an application for winding up in
insolvency for failure to comply with a statutory demand is shown in Schedule 2
(Notes to these Rules).
-- 21 of 94 --
Division 5 Winding up proceedings (including oppression proceedings where winding up
is sought)
Corporations Law Rules 2000 16
(3) If the application is made in reliance on the ground mentioned in
paragraph 461(1)(a) of the Corporations Act, the affidavit must:
(a) state whether the company is able to pay all its debts as and
when they become due and payable; and
(b) refer to the company's most recent balance sheet and profit
and loss statement as an annexure or exhibit to the affidavit,
or explain their absence.
(4) The affidavit must be made within 7 days before the originating
process is filed.
5.5 Consent of liquidator (Corporations Act s 532 (9)) – Form 8
(1) In this rule, liquidator does not include a provisional liquidator.
(2) For the purposes of subsection 532(9) of the Corporations Act, the
consent of an official liquidator to act as liquidator of a company
must be in accordance with Form 8.
(3) In an application for an order that a company be wound up, the
plaintiff must:
(a) before the hearing of the application, file the consent
mentioned in subrule (2) of an official liquidator who would be
entitled to be appointed as liquidator of the company; and
(b) serve a copy of the consent on the company at least one day
before the hearing.
5.7 Applicant to make copies of documents available
A copy of any document filed in a proceeding to which this Division
applies must be available at the plaintiff's address for service for
inspection by a creditor, contributory or officer of the company, or
an officer of a creditor or contributory of the company.
5.8 Discontinuance of application for winding up
An application for an order that a company be wound up may not
be discontinued except with the leave of the Court.
5.9 Appearance before Registrar
After filing an originating process seeking an order that a company
be wound up, the plaintiff must, if required:
(a) appear before the Registrar on a date to be appointed by the
Registrar; and
-- 22 of 94 --
Division 5 Winding up proceedings (including oppression proceedings where winding up
is sought)
Corporations Law Rules 2000 17
(b) satisfy the Registrar that the plaintiff has complied with the
Corporations Act and these Rules in relation to applications for
a winding up order.
5.10 Order substituting plaintiff in application for winding up
(Corporations Act s 465B) – Form 10
(1) If the Court makes an order under section 465B of the Corporations
Act, the Court may also order that the substituted plaintiff or
plaintiffs publish a notice stating that the substituted plaintiff or
plaintiffs intend to apply for an order that the company be wound
up.
(2) The notice must be:
(a) in accordance with Form 10; and
(b) published:
(i) in accordance with rule 2.11 at least 7 days before the
date fixed for the hearing of the application; or
(ii) as otherwise directed by the Court.
5.11 Notice of winding up order and appointment of liquidator –
Form 11
(1) This rule applies if the Court orders that a company be wound up
and an official liquidator be appointed as liquidator of the company.
(2) Not later than the day after the order is made, the plaintiff must
inform the liquidator of the appointment.
(3) As soon as practicable after being informed of the appointment, the
liquidator must publish a notice of the winding up order and the
liquidator's appointment.
(4) The notice must be:
(a) in accordance with Form 11; and
(b) published in accordance with rule 2.11.
(5) In this rule, liquidator does not include a provisional liquidator.
-- 23 of 94 --
Division 6 Provisional liquidators (Corporations Act Part 5.4B)
Corporations Law Rules 2000 18
Division 6 Provisional liquidators (Corporations Act
Part 5.4B)
6.1 Appointment of provisional liquidator (Corporations Act
s 472) – Form 8
(1) An application for an official liquidator to be appointed, under
subsection 472(2) of the Corporations Act, as a provisional
liquidator of a company must be accompanied by the written
consent of the official liquidator.
(2) The consent must be in accordance with Form 8.
(3) If:
(a) an order is made appointing a provisional liquidator; and
(b) the order provides that the provisional liquidator may take into
the provisional liquidator's custody part only of the property of
the company,
the order is to include a short description of the part of the property
of the company that the provisional liquidator may take into
custody.
(4) The Court may require the plaintiff to give an undertaking as to
damages.
6.2 Notice of appointment of provisional liquidator – Form 12
(1) This rule applies if the Court orders that an official liquidator be
appointed as a provisional liquidator of a company.
(2) Not later than the day after the order is made, the plaintiff must:
(a) except if the plaintiff is ASIC – lodge an office copy of the
order with ASIC;
(b) serve an office copy of the order on the company (except if the
plaintiff is the company) and on any other person as directed
by the Court; and
(c) give to the provisional liquidator an office copy of the order
and a written statement that the order has been served as
required by paragraph (b).
(3) As soon as practicable after the order is made, the provisional
liquidator must publish a notice of the provisional liquidator's
appointment.
-- 24 of 94 --
Division 7 Liquidators
Corporations Law Rules 2000 19
(4) The notice must be:
(a) in accordance with Form 12; and
(b) published in accordance with rule 2.11.
Division 7 Liquidators
7.1 Resignation of liquidator (Corporations Act s 473(1))
(1) A liquidator appointed by the Court who wishes to resign office
must file with the Registrar, and lodge with ASIC, a memorandum
of resignation.
(2) The resignation takes effect on the filing and lodging of the
memorandum.
7.2 Filling vacancy in office of liquidator (Corporations Act
s 473(7), s 502)
(1) If, for any reason, there is no liquidator acting in a winding up, the
Court may:
(a) in the case of a winding up by the Court – appoint another
official liquidator whose written consent in accordance with
Form 8 has been filed; and
(b) in the case of a voluntary winding up – appoint another
registered liquidator whose written consent in accordance with
Form 8 has been filed.
(2) The Court may make the appointment:
(a) in any case – on application by ASIC, a creditor or a
contributory; or
(b) in the case of a winding up by the Court – on its own initiative.
7.3 Report to liquidator as to company's affairs (Corporations Act
s 475)
(1) If a person is required under section 475 of the Corporations Act to
submit and verify a report as to the affairs of a company, the
liquidator must give to the person the appropriate forms and
instructions for the preparation of the report.
-- 25 of 94 --
Division 7 Liquidators
Corporations Law Rules 2000 20
(2) Except by order of the Court, no person is to be allowed out of the
property of a company any costs or expenses incurred in relation to
the preparation of the report that have not been:
(a) sanctioned by the liquidator before being incurred; or
(b) taxed or assessed.
(3) The liquidator must report to the Court any default in complying with
the requirements of section 475 of the Corporations Act.
(4) In this rule, liquidator includes a provisional liquidator.
7.4 Liquidator to file certificate and copy of settled list of
contributories (Corporations Act s 478)
If, in a winding up by the Court, a liquidator has settled and certified
a list, or supplementary list, of contributories, the liquidator must,
within 14 days after doing so, file the certificate and a copy of the
list.
7.5 Release of liquidator and deregistration of company
(Corporations s 480(c) and (d))
(1) This rule applies to an application by the liquidator of a company:
(a) for an order that the liquidator be released; or
(b) for an order that the liquidator be released and that ASIC
deregister the company.
(2) The interlocutory process seeking the order must include:
(a) a notice stating that any objection to the release of the
liquidator must be made by filing and serving a notice of
objection, in the prescribed form, within 21 days after the date
of service of the interlocutory process; and
(b) a statement setting out the terms of subsection 481(3) of the
Corporations Act.
Note
Subsection 481(3) of the Corporations Act provides that an order of the Court
releasing a liquidator discharges the liquidator from all liability in respect of any
act done or default made by the liquidator in the administration of the affairs of
the company, or otherwise in relation to the liquidator's conduct as liquidator, but
any such order may be revoked on proof that it was obtained by fraud or by
suppression or by concealment of any material fact.
-- 26 of 94 --
Division 7 Liquidators
Corporations Law Rules 2000 21
(3) The supporting affidavit must include details of the following
matters:
(a) whether the whole of the company's property has been
realised or whether so much of the company's property has
been realised as, in the liquidator's opinion, can be realised
without needlessly protracting the winding up;
(b) any calls made on contributories in the course of the winding
up;
(c) any dividends paid in the course of the winding up;
(d) whether the committee of inspection (if any) has passed a
resolution approving the liquidator's release;
(e) whether ASIC has appointed an auditor to report on an
account or statement of the position in the winding up under
subsection 539(2) of the Corporations Act;
(f) whether the Court has ordered a report on the accounts of the
liquidator to be prepared;
(g) whether any objection to the release of the liquidator has been
received by the liquidator from:
(i) an auditor appointed by ASIC or by the Court; or
(ii) any creditor, contributory or other interested person;
(h) whether any report has been submitted by the liquidator to
ASIC under section 533 of the Corporations Act;
(i) whether the liquidator considers it necessary to report on the
affairs of the company or any of its officers;
(j) any property disclaimed in the course of the winding up;
(k) any remuneration paid or payable to the liquidator and how
such remuneration was determined;
(l) any costs, charges or expenses payable by the liquidator if the
Court grants the liquidator's release;
(m) if the application is made under paragraph 480(c) of the
Corporations Act – the facts and circumstances by reason of
which it is submitted that the company should not be
deregistered.
-- 27 of 94 --
Division 7 Liquidators
Corporations Law Rules 2000 22
(4) The liquidator must include in the supporting affidavit the
statements set out in paragraphs (a) and (b) of this subrule,
including, if appropriate, the words in brackets:
(a) "To the best of my belief, there has been no act done or
default made by me in the administration of the affairs of the
subject corporation or otherwise in relation to my conduct as
liquidator which is likely to give rise to any liability to the
subject corporation or any creditor or contributory [except as
disclosed in this affidavit]";
(b) "I am not aware of any claim made by any person that there
has been any such act or default [except as disclosed in this
affidavit]".
(5) The liquidator must file with, or annex to, the supporting affidavit:
(a) a statement of the financial position of the company at the
date when the interlocutory process seeking release was filed;
and
(b) a summary of the liquidator's receipts and payments in
winding up the company.
(6) Unless the Court otherwise orders, the liquidator must serve by
prepaid post, on each creditor who has proved a debt in the course
of the winding up, and on each contributory, a copy of the
interlocutory process accompanied by:
(a) a copy of the summary of the liquidator's receipts and
payments in winding up the company; and
(b) a copy of the statement of the financial position of the
company at the date when the interlocutory process seeking
release was filed.
7.6 Objection to release of liquidator – Form 13
(1) A creditor or contributory of a company who wishes to object to the
release of the liquidator of the company must, within 21 days after
the date of service of the interlocutory process seeking release:
(a) file:
(i) a notice of objection in accordance with Form 13; and
(ii) if appropriate, an affidavit stating any facts relied on; and
(b) serve a copy of the notice and the affidavit (if any) on the
liquidator.
-- 28 of 94 --
Division 7 Liquidators
Corporations Law Rules 2000 23
(2) If the liquidator is served with a notice of objection by a creditor or
contributory, the liquidator must, within 3 days after being served,
serve on the creditor or contributory a copy of the affidavit
supporting the interlocutory process.
7.7 Report on accounts of liquidator (Corporations Act s 481)
(1) If the Court orders that a report on the accounts of a liquidator be
prepared under subsection 481(1) of the Corporations Act, the
liquidator must give to the auditor appointed to prepare the report
all information, books and vouchers required to prepare the report.
(2) On completing the report, the auditor must:
(a) file a copy of the report in a sealed envelope that is marked
with the title and number of the proceeding and the words
"Auditor's report under subsection 481(1) of the Corporations
Act 2001";
(b) serve a copy of the report on the liquidator; and
(c) lodge a copy of the report with ASIC.
(3) Except with the leave of the Court, a report is not available for
inspection by any person except the liquidator or ASIC.
7.8 Application for payment of call (Corporations Act s 483(3)(b)) –
Form 14
The affidavit in support of an application by the liquidator of a
company, under paragraph 483(3)(b) of the Corporations Act, for an
order for the payment of a call must be in accordance with Form 14.
7.9 Distribution of surplus by liquidator with special leave of the
Court (Corporations Act s 488 (2)) – Form 15
(1) The affidavit in support of an application for special leave to
distribute a surplus must state how the liquidator intends to
distribute the surplus including the name and address of each
person to whom the liquidator intends to distribute any part of the
surplus.
(2) At least 14 days before the date fixed for hearing of the application,
the liquidator must publish a notice of the application.
(3) The notice must be:
(a) in accordance with Form 15; and
(b) published in accordance with rule 2.11.
-- 29 of 94 --
Division 7 Liquidators
Corporations Law Rules 2000 24
7.10 Powers delegated to liquidator by the Court (Corporations Act
s 488)
Subject to the Corporations Act, the Corporations Regulations,
these Rules, and any order of the Court, the powers and duties
conferred or imposed on the Court by Part 5.4B of the Corporations
Act in respect of the matters mentioned in subsection 488(1) of the
Corporations Act may be exercised or performed by a liquidator
appointed by the Court as an officer of the Court and subject to the
control of the Court.
7.11 Inquiry into conduct of liquidator (Corporations Act s 536(1)
and (2))
(1) A complaint to the Court under paragraph 536(1)(b) of the
Corporations Act must be made:
(a) in the case of a winding up by the Court – by an interlocutory
process seeking an inquiry; and
(b) in the case of a voluntary winding up – by an originating
process seeking an inquiry.
(2) A report to the Court by ASIC under subsection 536(2) of the
Corporations Act must be made:
(a) in the case of a winding up by the Court – by filing:
(i) an interlocutory process seeking orders under the
section; and
(ii) a written report in a sealed envelope that is marked with
the title and number of the proceeding; and
(b) in the case of a voluntary winding up – by filing:
(i) an originating process seeking orders under the
subsection; and
(ii) a written report in a sealed envelope that is marked with
the title of the proceeding and provision for its number.
(3) The contents of a report filed under subrule (2) need not, at the time
of filing, be verified by an affidavit.
(4) Except with the leave of the Court, a report made under
section 536(2) of the Corporations Act is not available for inspection
by any person except the liquidator or ASIC.
(5) In this rule, liquidator includes a provisional liquidator.
-- 30 of 94 --
Division 8 Special managers (Corporations Act Part 5.4B)
Corporations Law Rules 2000 25
Division 8 Special managers (Corporations Act Part 5.4B)
8.1 Application for appointment of special manager (Corporations
Act s 484)
(1) An application by a liquidator for the appointment of a special
manager in relation to a company must state the powers which, in
the liquidator's opinion, should be entrusted by the Court to the
special manager.
(2) The supporting affidavit must state:
(a) the circumstances making it proper that a special manager be
appointed;
(b) details of the remuneration proposed to be paid to the special
manager; and
(c) whether any committee of inspection in the winding up, or a
meeting of creditors, has approved the appointment of a
special manager.
8.2 Security given by special manager (Corporations Act s 484)
(1) The Court may, from time to time, direct that the amount of security
given by a special manager be varied.
(2) Unless the Court otherwise directs, the costs of furnishing the
security given by a special manager in respect of a particular
winding up:
(a) are the personal expenses of the special manager; and
(b) are not to be charged against the property of the company as
an expense incurred in the winding up.
8.3 Special manager's receipts and payments (Corporations Act
s 484)
(1) A special manager must give to the liquidator:
(a) an account of the special manager's receipts and payments;
and
(b) a statutory declaration verifying the account.
(2) If the liquidator approves the account, the liquidator must include
the total amounts of the special manager's receipts and payments
in the liquidator's accounts.
-- 31 of 94 --
Division 9 Remuneration of office-holders
Corporations Law Rules 2000 26
Division 9 Remuneration of office-holders
9.1 Remuneration of receiver (Corporations Act s 425(1)) –
Form 16
(1) This rule applies to an application by a receiver of property of a
corporation for an order under subsection 425(1) of the
Corporations Act fixing the receiver's remuneration.
Notes for subrule (1)
1 Under paragraph 425(2)(b) of the Corporations Act, the Court may exercise
its power to make an order fixing the remuneration of a receiver appointed
under an instrument even if the receiver has died, or has ceased to act,
before the making of the order or the application for the order.
2 The amendment to section 425 of the Corporations Act made by the
Corporations Amendment (Insolvencies) Act 2007 applies in relation to a
receiver appointed on or after 31 December 2007 – see Corporations Act
s 1480(5).
(2) At least 21 days before filing an originating process, or interlocutory
process, seeking the order, the receiver must serve a notice in
accordance with Form 16 of the receiver's intention to apply for the
order, and a copy of any affidavit on which the receiver intends to
rely, on the following persons:
(a) the person who appointed the receiver;
(b) any creditor holding security over all or any of the same
property of the corporation (except if the creditor is the person
who appointed the receiver);
(c) any administrator, liquidator or provisional liquidator of the
corporation;
(d) any administrator of a deed of company arrangement
executed by the corporation;
(e) if there is no person of the kind mentioned in paragraph (c)
or (d):
(i) each of the 5 largest (measured by amount of debt)
unsecured creditors of the corporation; and
(ii) each member of the corporation whose shareholding
represents at least 10 per cent of the issued capital of
the corporation.
-- 32 of 94 --
Division 9 Remuneration of office-holders
Corporations Law Rules 2000 27
(3) Within 21 days after the last service of the documents mentioned in
subrule (2), any creditor or contributory, or any person mentioned in
paragraph (2) (c), (d) or (e), may give to the receiver a notice of
objection to the remuneration claimed, stating the grounds of
objection.
(4) If the receiver does not receive a notice of objection within the
period mentioned in subrule (3):
(a) the receiver may file an affidavit, made after the end of that
period, in support of the originating process, or interlocutory
process, seeking the order stating:
(i) the date, or dates, when the notice and affidavit required
to be served under subrule (2) were served; and
(ii) that the receiver has not received any notice of objection
to the remuneration claimed within the period mentioned
in subrule (3);
(b) the receiver may endorse the originating process, or
interlocutory process, with a request that the application be
dealt with in the absence of the public and without any
attendance by, or on behalf of, the receiver; and
(c) the application may be so dealt with.
(5) If the receiver receives a notice of objection within the period
mentioned in subrule (3), the receiver must serve a copy of the
originating process, or interlocutory process, seeking the order on
each creditor or contributory, or other person, who has given a
notice of objection.
(6) An affidavit in support of the originating process, or interlocutory
process, seeking the order must:
(a) include evidence of the matters mentioned in
subsection 425(8) of the Corporations Act; and
(b) state the nature of the work performed or likely to be
performed by the receiver; and
(c) state the amount of remuneration claimed; and
(d) include a summary of the receipts taken and payments made
by the receiver; and
(e) state particulars of any objection of which the receiver has
received notice; and
-- 33 of 94 --
Division 9 Remuneration of office-holders
Corporations Law Rules 2000 28
(f) if the receivership is continuing – give details of any matters
delaying the completion of the receivership.
9.2 Determination by Court of remuneration of administrator
(Corporations Act s 449E(1)(c) and (1A)(c)) – Form 16
(1) This rule applies to an application by the administrator of a
company under administration, or of a deed of company
arrangement, for an order under paragraph 449E(1)(c) or (1A)(c) of
the Corporations Act determining the administrator's remuneration.
(2) At least 21 days before filing an originating process, or interlocutory
process, seeking the order, the administrator must serve a notice in
accordance with Form 16 of the administrator's intention to apply for
the order, and a copy of any affidavit on which the administrator
intends to rely, on the following persons:
(a) each creditor who was present, in person or by proxy, at any
meeting of creditors;
(b) each member of any committee of creditors or committee of
inspection;
(c) if there is no committee of creditors or committee of
inspection, and no meeting of creditors has been convened
and held, each of the 5 largest (measured by amount of debt)
creditors of the company;
(d) each member of the company whose shareholding represents
at least 10% of the issued capital of the company.
(3) Within 21 days after the last service of the documents mentioned in
subrule (2), any creditor or contributory may give to the
administrator a notice of objection to the remuneration claimed,
stating the grounds of objection.
(4) If the administrator does not receive a notice of objection within the
period mentioned in subrule (3):
(a) the administrator may file an affidavit, made after the end of
that period, in support of the originating process, or
interlocutory process, seeking the order stating:
(i) the date, or dates, when the notice and affidavit required
to be served under subrule (2) were served; and
(ii) that the administrator has not received any notice of
objection to the remuneration claimed within the period
mentioned in subrule (3); and
-- 34 of 94 --
Division 9 Remuneration of office-holders
Corporations Law Rules 2000 29
(b) the administrator may endorse the originating process, or
interlocutory process, with a request that the application be
dealt with in the absence of the public and without any
attendance by, or on behalf of, the administrator; and
(c) the application may be so dealt with.
(5) If the administrator receives a notice of objection within the period
mentioned in subrule (3), the administrator must serve a copy of the
originating process, or interlocutory process, seeking the order 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 order must:
(a) include evidence of the matters mentioned in
subsection 449E(4) of the Corporations Act; and
(b) state the nature of the work performed or likely to be
performed by the administrator; and
(c) state the amount of remuneration claimed; and
(d) include a summary of the receipts taken and payments made
by the administrator; and
(e) state particulars of any objection of which the administrator
has received notice; and
(f) if the administration is continuing – give details of any matters
delaying the completion of the administration.
9.2A Review of remuneration of administrator (Corporations
Act s 449E(2))
(1) This rule applies to an application for review of the amount of the
remuneration of an administrator under subsection 449E(2) of the
Corporations Act.
Note for subrule (1)
The amendment to section 449E of the Corporations Act made by the
Corporations Amendment (Insolvency) Act 2007 applies in relation to an
administrator appointed on or after 31 December 2007 – see Corporations Act
s 1480(6).
(2) The application may be made only after the remuneration has been
determined under paragraph 449E(1)(a) or (b) or (1A)(a) or (b) of
the Corporations Act.
(3) At least 21 days before filing the originating process, or the
interlocutory process, applying for a review, the plaintiff or applicant
-- 35 of 94 --
Division 9 Remuneration of office-holders
Corporations Law Rules 2000 30
must serve a notice, in accordance with Form 16A, of intention to
apply for the review and a copy of any affidavit on which the plaintiff
or applicant intends to rely (other than an affidavit required by
subrule (9)), on the following persons:
(a) if there is a committee of creditors or a committee of
inspection – each member of the committee;
(b) if the remuneration of the administrator was determined by the
creditors – each creditor who was present, in person or by
proxy, at the meeting of creditors at which the remuneration
was determined;
(c) each member of the company whose shareholding represents
at least 10% of the issued capital of the company.
(4) Within 21 days after the last service of the documents mentioned in
subrule (3), any person on whom the notice has been served may
serve on the plaintiff or applicant a notice:
(a) stating the person’s intention to appear at the hearing of the
application for review; and
(b) setting out the issues that the person seeks to raise before the
Court.
(5) A person mentioned in subrule (3) is entitled to be heard on the
application for review, but only (unless the Court otherwise orders)
if the person has served on the plaintiff or applicant a notice in
accordance with subrule (4).
(6) If the plaintiff or applicant is served with a notice in accordance with
subrule (4), the plaintiff or applicant must serve a copy of the
originating process or interlocutory process applying for the review
on each person who has served such a notice.
(7) The administrator must file an affidavit stating the following matters:
(a) the matters mentioned in subsection 449E(4) of the
Corporations Act;
(b) the nature of the work performed or likely to be performed by
the administrator;
(c) the amount of remuneration claimed by the administrator if
that amount is different from the amount of remuneration that
has been determined;
(d) a summary of the receipts taken and payments made by the
administrator;
-- 36 of 94 --
Division 9 Remuneration of office-holders
Corporations Law Rules 2000 31
(e) particulars of any objection to the remuneration as
determined, of which the administrator has received notice;
(f) if the administration is continuing – details of any matters
delaying the completion of the administration.
(8) The affidavit mentioned in subrule (7) must annex a copy of the
report that the administrator was required to prepare before
remuneration was determined.
(9) The plaintiff or applicant must:
(a) file an affidavit stating whether any notice or notices under
subrule (4) has or have been served; and
(b) annex or exhibit to the affidavit a copy of any such notice.
9.3 Remuneration of provisional liquidator (Corporations Act
s 473(2)) – Form 16
(1) This rule applies to an application by a provisional liquidator of a
company for an order under subsection 473(2) of the Corporations
Act determining the provisional liquidator's remuneration.
(2) The application must be made by interlocutory process in the
winding up proceeding.
(3) At least 21 days before filing the interlocutory process seeking the
order, the provisional liquidator must serve a notice in accordance
with Form 16 of the provisional liquidator's intention to apply for the
order, and a copy of any affidavit on which the provisional liquidator
intends to rely, on the following persons:
(a) any liquidator (except the provisional liquidator) of the
company;
(b) each member of any committee of inspection or, if there is no
committee of inspection, each of the 5 largest (measured by
amount of debt) creditors of the company;
(c) each member of the company whose shareholding represents
at least 10 per cent of the issued capital of the company.
(4) Within 21 days after the last service of the documents mentioned in
subrule (3), the liquidator, or any creditor or contributory, may give
to the provisional liquidator a notice of objection to the remuneration
claimed, stating the grounds of objection.
-- 37 of 94 --
Division 9 Remuneration of office-holders
Corporations Law Rules 2000 32
(5) If the provisional liquidator does not receive a notice of objection
within the period mentioned in subrule (4):
(a) the provisional liquidator may file an affidavit, made after the
end of that period, in support of the interlocutory process
seeking the order stating:
(i) the date, or dates, when the notice and affidavit required
to be served under subrule (3) were served; and
(ii) that the provisional liquidator has not received any notice
of objection to the remuneration claimed within the
period mentioned in subrule (4);
(b) the provisional liquidator may endorse the interlocutory
process with a request that the application be dealt with in the
absence of the public and without any attendance by, or on
behalf of, the provisional liquidator; and
(c) the application may be so dealt with.
(6) If the provisional liquidator receives a notice of objection within the
period mentioned in subrule (4), the provisional liquidator must
serve a copy of the interlocutory process seeking the order:
(a) on each creditor or contributory who has given a notice of
objection; and
(b) on the liquidator (if any).
(7) An affidavit in support of the interlocutory process seeking the order
must:
(a) state the nature of the work performed or likely to be
performed by the provisional liquidator;
(b) state the amount of remuneration claimed;
(c) include a summary of the receipts taken and payments made
by the provisional liquidator;
(d) state particulars of any objection of which the provisional
liquidator has received notice; and
(e) if the winding up proceeding has not been determined – give
details of:
(i) any reasons known to the provisional liquidator why the
winding up proceeding has not been determined; and
-- 38 of 94 --
Division 9 Remuneration of office-holders
Corporations Law Rules 2000 33
(ii) any reasons why the provisional liquidator's
remuneration should be determined before the
determination of the winding up proceeding.
(8) The affidavit must also provide evidence of the matters mentioned
in subsection 473(10) of the Corporations Act:
(a) to the extent that they may be relevant to a provisional
liquidator; and
(b) as if references in that subsection to a liquidator were
references to a provisional liquidator.
9.4 Determination by Court of liquidator’s remuneration
(Corporations Act s 473(3)(b)(ii))
(1) This rule applies to an application by a liquidator of a company for
an order under subparagraph 473(3)(b)(ii) of the Corporations Act
determining the liquidator's remuneration.
Note for subrule (1)
The amendment to section 473 of the Corporations Act made by the
Corporations Amendment (Insolvency) Act 2007 applies in relation to a liquidator
appointed on or after 31 December 2007 – see Corporations Act s 1480(7).
(2) The application:
(a) must be made by interlocutory process in the winding up
proceeding; and
(b) must not be made until after the date of the meeting of
creditors mentioned in subsection 473(4) of the Corporations
Act.
(3) At least 21 days before filing the interlocutory process seeking the
order, the liquidator must serve a notice in accordance with
Form 16 of the liquidator's intention to apply for the order, and a
copy of any affidavit on which the liquidator intends to rely, on the
following persons:
(a) each creditor who was present, in person or by proxy, at any
meeting of creditors at which the remuneration of the liquidator
was considered;
(b) each member of any committee of inspection;
(c) if there is no committee of inspection, and no meeting of
creditors has been convened and held – each of the 5 largest
(measured by amount of debt) creditors of the company;
-- 39 of 94 --
Division 9 Remuneration of office-holders
Corporations Law Rules 2000 34
(d) each member of the company whose shareholding represents
at least 10% of the issued capital of the company.
(4) Within 21 days after the last service of the documents mentioned in
subrule (3), any creditor or contributory may give to the liquidator a
notice of objection to the remuneration claimed, stating the grounds
of objection.
(5) If the liquidator does not receive a notice of objection within the
period mentioned in subrule (4):
(a) the liquidator may file an affidavit, made after the end of that
period, in support of the interlocutory process seeking the
order stating:
(i) the date, or dates, when the notice and affidavit required
to be served under subrule (3) were served; and
(ii) that the liquidator has not received any notice of
objection to the remuneration claimed within the period
mentioned in subrule (4);
(b) the liquidator may endorse the interlocutory process with a
request that the application be dealt with in the absence of the
public and without any attendance by, or on behalf of, the
liquidator; and
(c) the application may be so dealt with.
(6) If the liquidator receives a notice of objection within the period
mentioned in subrule (4), the liquidator must serve a copy of the
interlocutory process seeking the order on each creditor or
contributory who has given a notice of objection.
(7) An affidavit in support of the interlocutory process seeking the order
must:
(a) include evidence of the matters mentioned in
subsection 473(10) of the Corporations Act; and
(b) state the nature of the work performed or likely to be
performed by the liquidator; and
(c) state the amount of remuneration claimed; and
(d) include a summary of the receipts taken and payments made
by the liquidator; and
(e) state particulars of any objection of which the liquidator has
received notice; and
-- 40 of 94 --
Division 9 Remuneration of office-holders
Corporations Law Rules 2000 35
(f) if the winding up is continuing – give details of any matters
delaying the completion of the winding up.
9.4A Review of remuneration of liquidator (Corporations Act
s 473(5) and (6) and 504(1))
(1) This rule applies to an application for review of the amount of the
remuneration of a liquidator under subsection 473(5) or (6)
or 504(1) of the Corporations Act.
Note for subrule (1)
The amendment to section 504 of the Corporations Act made by the
Corporations Amendment (Insolvency) Act 2007 applies in relation to a liquidator
appointed on or after 31 December 2007 – see Corporations Act s 1480(7).
(2) The application may be made only after remuneration has been
determined under paragraph 473(3)(a) or
subparagraph 473(3)(b)(i), or fixed under subsection 495(1)
or 499(3), of the Corporations Act.
(3) At least 21 days before filing the originating process or interlocutory
process applying for a review, the plaintiff or applicant must serve a
notice, in accordance with Form 16A, of intention to apply for the
review and a copy of any affidavit on which the plaintiff or applicant
intends to rely (other than an affidavit required by subrule (9)), on
the following persons:
(a) if there is a committee of inspection – each member of the
committee;
(b) if the remuneration of the liquidator was determined or fixed by
the creditors – each creditor who was present, in person or by
proxy, at the meeting of creditors at which the remuneration
was determined or fixed;
(c) each member of the company whose shareholding represents
at least 10% of the issued capital of the company.
(4) Within 21 days after the last service of the documents mentioned in
subrule (3), any person on whom the notice has been served may
serve on the plaintiff or applicant a notice:
(a) stating the person’s intention to appear at the hearing of the
application for review; and
(b) setting out the issues that the person seeks to raise before the
Court.
-- 41 of 94 --
Division 9 Remuneration of office-holders
Corporations Law Rules 2000 36
(5) A person mentioned in subrule (3) is entitled to be heard on the
application for review, but only (unless the Court otherwise orders)
if the person has served on the plaintiff or applicant a notice in
accordance with subrule (4).
(6) If the plaintiff or applicant is served with a notice in accordance with
subrule (4), the plaintiff or applicant must serve a copy of the
originating process or interlocutory process applying for the review
on each person who has served such a notice.
(7) The liquidator must file an affidavit stating the following matters:
(a) for an application under subsection 473(5) or (6) of the
Corporations Act – the matters mentioned in
subsection 473(10) of the Corporations Act;
(b) for an application under subsection 504(1) of the Corporations
Act – the matters mentioned in subsection 504(2) of the
Corporations Act;
(c) the nature of the work performed or likely to be performed by
the liquidator;
(d) the amount of remuneration claimed by the liquidator if that
amount is different from the amount of remuneration that has
been determined or fixed;
(e) a summary of the receipts taken and payments made by the
liquidator;
(f) particulars of any objection to the remuneration as determined
or fixed of which the liquidator has received notice;
(g) if the winding up is continuing – details of any matters delaying
the completion of the winding up.
(8) The affidavit under subrule (7) must annex a copy of the report that
the liquidator was required to prepare before remuneration was
determined or fixed.
Note for subrule (8)
For the requirement to prepare a report, see subsections 473(11) and (12),
495(5) and 499(6) and (7) of the Corporations Act.
(9) The plaintiff or applicant must:
(a) file an affidavit stating whether any notice or notices under
subrule (4) has or have been served; and
(b) annex or exhibit to the affidavit a copy of any such notice.
-- 42 of 94 --
Division 9 Remuneration of office-holders
Corporations Law Rules 2000 37
9.5 Remuneration of special manager (Corporations Act s 84(2)) –
Form 16
(1) This rule applies to an application by a special manager of the
property or business of a company for an order under
subsection 484(2) of the Corporations Act fixing the special
manager's remuneration.
(2) The application must be made by interlocutory process in the
winding up proceeding.
(3) At least 21 days before filing the interlocutory process seeking the
order, the special manager must serve a notice in accordance with
Form 16 of the special manager's intention to apply for the order,
and a copy of any affidavit on which the special manager intends to
rely, on the following persons:
(a) the liquidator of the company;
(b) each member of any committee of creditors or committee of
inspection or, if there is no committee of creditors or
committee of inspection, each of the 5 largest (measured by
amount of debt) creditors of the company;
(c) each member of the company whose shareholding represents
at least 10 per cent of the issued capital of the company.
(4) Within 21 days after the last service of the documents mentioned in
subrule (3), the liquidator, or any creditor or contributory, may give
to the special manager a notice of objection to the remuneration
claimed, stating the grounds of objection.
(5) If the special manager does not receive a notice of objection within
the period mentioned in subrule (4):
(a) the special manager may file an affidavit, made after the end
of that period, in support of the interlocutory process seeking
the order stating:
(i) the date, or dates, when the notice and affidavit required
to be served under subrule (3) were served; and
(ii) that the special manager has not received any notice of
objection to the remuneration claimed within the period
mentioned in subrule (4);
(b) the special manager may endorse the interlocutory process
with a request that the application be dealt with in the absence
of the public and without any attendance by, or on behalf of,
the special manager; and
-- 43 of 94 --
Division 10 Winding up generally
Corporations Law Rules 2000 38
(c) the application may be so dealt with.
(6) If the special manager receives a notice of objection within the
period mentioned in subrule (4), the special manager must serve a
copy of the interlocutory process seeking the order:
(a) on each creditor or contributory who has given a notice of
objection; and
(b) on the liquidator.
(7) The affidavit in support of the interlocutory process seeking the
order must:
(a) state the nature of the work performed or likely to be
performed by the special manager;
(b) state the amount of remuneration claimed;
(c) include a summary of the receipts taken and payments made
by the special manager;
(d) state particulars of any objection of which the special manager
has received notice; and
(e) if the special management is continuing – give details of any
matters delaying the completion of the special management.
Division 10 Winding up generally
10.1 Determination of value of debts or claims (Corporations Act
s 554A(2))
A reference to the Court by a liquidator of a company under
paragraph 554A(2)(b) of the Corporations Act must be made:
(a) in the case of a winding up by the Court – by filing an
interlocutory process seeking an order estimating, or
determining a method for working out, the value of the debt or
claim; and
(b) in the case of a voluntary winding up – by filing an originating
process seeking an order estimating, or determining a method
for working out, the value of the debt or claim.
-- 44 of 94 --
Division 11 Examinations and orders (Corporations Act Part 5.9 Divisions 1 and 2)
Corporations Law Rules 2000 39
10.2 Disclaimer of contract (Corporations Act s 568(1A))
(1) The affidavit in support of an application by a liquidator, under
subsection 568(1A) of the Corporations Act, for leave to disclaim a
contract in relation to a company must:
(a) specify the persons interested, and their interests, under the
contract; and
(b) state the facts on which it is submitted that the contract should
be disclaimed.
(2) The liquidator must serve the affidavit on each party to the contract
(except the company) and on any person interested in the contract.
10.3 Winding up Part 5.7 bodies (Corporations Act s 583, s 585) and
registered schemes (Corporations Act s 601ND)
These Rules apply, with any necessary adaptations, and in the
same way as they apply to a company, in relation to the winding up
of a Part 5.7 body or a registered scheme.
Division 11 Examinations and orders (Corporations Act
Part 5.9 Divisions 1 and 2)
11.1 Definition for Division 11
In this Division, examination summons means a summons under
section 596A or 596B of the Corporations Act for the examination of
a person about a corporation's examinable affairs.
11.2 Application for examination or investigation under s 411(9)(B),
s 423 or s 536 (3) of the Corporations Act
(1) An application for an order for the examination or investigation of a
person under paragraph 411(9)(b), section 423 or
subsection 536(3) of the Corporations Act may be made by:
(a) ASIC;
(b) a person authorised by ASIC;
(c) a creditor or contributory; or
(d) any other person aggrieved by the conduct of:
(i) a person appointed to administer a compromise or
arrangement;
(ii) a controller; or
-- 45 of 94 --
Division 11 Examinations and orders (Corporations Act Part 5.9 Divisions 1 and 2)
Corporations Law Rules 2000 40
(iii) a liquidator or provisional liquidator.
(2) The application may be made without notice to any person.
(3) The provisions of this Division that apply to an examination under
Division 1 of Part 5.9 of the Corporations Act apply, with any
necessary adaptations, to an examination or an investigation under
paragraph 411(9)(b), section 423 or subsection 536(3) of the
Corporations Act.
11.3 Application for examination summons (Corporations Act
s 596A, s 596B) – Form 17
(1) An application for the issue of an examination summons must be
made by filing an interlocutory process or an originating process, as
the case requires.
(2) The application may be made without notice to any person.
(3) The originating process, or interlocutory process, seeking the issue
of the examination summons must be:
(a) supported by an affidavit stating the facts in support of the
process; and
(b) accompanied by a draft examination summons.
(4) The originating process, or interlocutory process, and supporting
affidavit must be filed in a sealed envelope marked, as appropriate:
(a) "Application and supporting affidavit for issue of summons for
examination under section 596A of the Corporations
Act 2001"; or
(b) "Application and supporting affidavit for issue of summons for
examination under section 596B of the Corporations
Act 2001".
(5) If the application is not made by the liquidator, the liquidator must
be given notice of the application and, if required by the liquidator,
served with a copy of the originating process, or interlocutory
process, and the supporting affidavit.
(6) If the application is not made by ASIC, ASIC must be given notice
of the application and, if required by ASIC, served with a copy of
the originating process, or interlocutory process, and the supporting
affidavit.
-- 46 of 94 --
Division 11 Examinations and orders (Corporations Act Part 5.9 Divisions 1 and 2)
Corporations Law Rules 2000 41
(7) Unless the Court otherwise orders, an affidavit in support of an
application for an examination summons is not available for
inspection by any person.
(8) An examination summons is to be in accordance with Form 17.
11.4 Service of examination summons
An examination summons issued by the Court must be personally
served, or served in any other manner as the Court may direct, on
the person who is to be examined at least 8 days before the date
fixed for the examination.
11.5 Discharge of examination summons
(1) This rule applies if a person is served with an examination
summons.
(2) Within 3 days after the person is served with the examination
summons, the person may apply to the Court for an order
discharging the summons by filing:
(a) an interlocutory process seeking an order discharging the
summons; and
(b) an affidavit stating the facts in support of the interlocutory
process.
(3) As soon as practicable after filing the interlocutory process seeking
the order and the supporting affidavit, the person must serve a copy
of the interlocutory process and the supporting affidavit on:
(a) the person who applied for the examination; and
(b) unless that person is ASIC or a person authorised by ASIC –
ASIC.
11.6 Filing of record of examination (Corporations Act s 597(13))
If the Court makes an order in relation to an examination under
subsection 597(13) of the Corporations Act, the Court may give
directions for the filing of the written record of the examination.
-- 47 of 94 --
Division 11 Examinations and orders (Corporations Act Part 5.9 Divisions 1 and 2)
Corporations Law Rules 2000 42
11.7 Authentication of transcript of examination (Corporations Act
s 597(14))
For the purposes of subsection 597(14) of the Corporations Act, a
transcript of an examination may be authenticated:
(a) by the person, or persons, who prepared the record of
examination, or under whose supervision the record was
prepared, certifying in writing signed by the person or persons,
that the record is a true transcript of the record of examination;
or
(b) by any person present at the examination, or any part of the
examination, signing the person's name at the bottom of each
page of the written record that records a part of the
examination at which the person was present.
11.8 Inspection of record or transcript of examination or
investigation under s 411, s 423 or s 536 of the Corporations
Act
(1) A written record or transcript of an examination or investigation
under section 411, 423 or 536 is not available for inspection by any
person except:
(a) with the consent of the liquidator (if any) or ASIC; or
(b) by leave of the Court.
(2) This rule does not apply to the liquidator, ASIC or any person
authorised by ASIC.
11.9 Entitlement to record or transcript of examination held in
public
(1) This rule applies if:
(a) an examination under section 597 of the Corporations Act is
held wholly or partly in public; and
(b) a written record or transcript of the examination is filed in the
Court.
(2) The person examined may apply to the Registrar, within 3 years
after the date of completion of the examination, for a copy of the
record or transcript of the part of the examination of the person held
in public.
-- 48 of 94 --
Division 11 Examinations and orders (Corporations Act Part 5.9 Divisions 1 and 2)
Corporations Law Rules 2000 43
(3) On receiving an application from a person under subrule (2), and
any applicable fee, the Registrar must give a copy of the record or
transcript to the person.
11.10 Default in relation to examination
(1) This rule applies if a person is summoned or ordered by the Court
to attend for examination, and:
(a) without reasonable cause, the person:
(i) fails to attend at the time and place appointed; or
(ii) fails to attend from day to day until the conclusion of the
examination; or
(iii) refuses or fails to take an oath; or
(iv) refuses or fails to answer a question that the Court
directs the person to answer; or
(v) refuses or fails to produce books that the summons
requires the person to produce; or
(vi) fails to comply with a requirement by the Court to sign a
written record of the examination; or
(b) before the day fixed for the examination, the person who
applied for the summons or order satisfies the Court that there
is reason to believe that the person summoned or ordered to
attend for examination has absconded or is about to abscond.
(2) The Court may:
(a) issue a warrant for the arrest of the person summoned or
ordered to attend for examination; and
(b) make any other orders that the Court thinks just or necessary.
11.11 Service of application for order in relation to breaches etc by
person concerned with corporation (Corporations Act s 598)
(1) This rule applies to a person applying for an order under
section 598 of the Corporations Act.
-- 49 of 94 --
Division 12 Takeovers, acquisitions of shares etc. (Corporations Act Chapters 6 to 6B)
and Securities (Corporations Act Chapter 7)
Corporations Law Rules 2000 44
(2) In addition to complying with rules 2.7 and 2.8, the person must
serve a copy of the originating process, or interlocutory process, as
the case requires, and the supporting affidavit on any liquidator or
provisional liquidator (except if the person is the liquidator or
provisional liquidator) of the corporation or body.
Note
Under rule 2.7, a plaintiff must serve a copy of the originating process, and any
supporting affidavit, on a defendant to the proceeding and, if necessary, on the
corporation to which the proceeding relates; and an applicant must serve a copy
of an interlocutory process, and any supporting affidavit, on a respondent to the
proceeding and, if necessary, on the corporation to which the proceeding relates.
In certain cases, these documents may also be required to be served on ASIC –
see rule 2.8.
Division 11A Warrants (Corporations Act s 486B and Part 5.4B,
Division 3, Subdivision B)
11A.1 Arrest of person (Corporations Act s 486B) – Form 17A
(1) An application for the issue of a warrant under subsection 486B(1)
of the Corporations Act for the arrest of a person must state the
grounds for the issue of the warrant.
(2) The application must be accompanied by an affidavit stating the
facts in support of the application.
(3) The warrant must be in accordance with Form 17A.
(4) If a person is arrested under the warrant, the person who carried
out the arrest must immediately give notice of the arrest to the
Registrar.
Note for rule 11A.1
Sections 489A to 489E of the Corporations Act, inserted by the Corporations
Amendment (Insolvency) Act 2007, apply in relation to a warrant issued on or
after 31 December 2007 – see Corporations Act s 1481(3).
Division 12 Takeovers, acquisitions of shares etc.
(Corporations Act Chapters 6 to 6B) and Securities
(Corporations Act Chapter 7)
12.1 Service on ASIC in relation to proceedings under Chapter 6,
6A, 6B, 6C, 6D or 7 of the Corporations Act
If ASIC is not a party to an application made under Chapter 6, 6A,
6B, 6C, 6D or 7 of the Corporations Act, the plaintiff must serve a
copy of the originating process and the supporting affidavit on ASIC
as soon as practicable after filing the originating process.
-- 50 of 94 --
Division 12 Takeovers, acquisitions of shares etc. (Corporations Act Chapters 6 to 6B)
and Securities (Corporations Act Chapter 7)
Corporations Law Rules 2000 45
12.1A Reference to Court of question of law arising in proceeding
before Takeovers Panel (Corporations Act s 659A)
Order 64 of the Supreme Court Rules 1987 applies, with any
necessary adaptations, to a reference of a question of law arising in
a proceeding before the Takeovers Panel to the Court under
section 659A of the Corporations Act.
12.1B Notification to Court where proceeding is commenced before
end of takeover bid period (Corporations Act s 659B)
(1) This rule applies to a party to a proceeding who suspects or
becomes aware that:
(a) the proceeding was commenced in relation to a takeover bid,
or proposed takeover bid, before the end of the bid period;
and
(b) the proceeding falls within the definition court proceedings in
relation to a takeover bid or proposed takeover bid in
section 659B(4) of the Corporations Act.
(2) The party identified in subrule (1) must, immediately on suspecting
or becoming aware of the matters mentioned in subrule (1), notify
any other party to the proceeding and the Court of that suspicion or
knowledge.
(3) The party must comply with subrule (2), unless any other party to
the proceeding has given a notice under this rule to the party.
12.2 Application for summons for appearance of person
(Corporations Act s 1071D(4)) – Form 18
(1) An application for the issue of a summons under section 1071D(4)
of the Corporations Act must be made by filing an originating
process or an interlocutory process.
(2) The application may be made ex parte.
(3) The originating process, or interlocutory process, seeking the issue
of the summons must be:
(a) supported by an affidavit stating the facts in support of the
process; and
(b) accompanied by a draft summons.
(4) Unless the Court otherwise orders, a summons issued under this
rule is to be in accordance with Form 18.
-- 51 of 94 --
Division 14 Powers of Courts (Corporations Act Part 9.5)
Corporations Law Rules 2000 46
12.3 Application for orders relating to refusal to register transfer or
transmission of securities (Corporations Act s 1071F)
As soon as practicable after filing an originating process under
section 1071F of the Corporations Act, the plaintiff must serve a
copy of the originating process and the supporting affidavit on:
(a) the company; and
(b) any person against whom an order is sought.
Division 14 Powers of Courts (Corporations Act Part 9.5)
14.1 Appeal from act, omission or decision of administrator,
receiver or liquidator, etc (Corporations Act s 554A, s 1321)
(1) All appeals to the Court authorised by the Corporations Act must be
commenced by an originating process, or interlocutory process,
stating:
(a) the act, omission or decision complained of;
(b) in the case of an appeal against a decision – whether the
whole or part only and, if part only, which part of the decision
is complained of; and
(c) the grounds on which the complaint is based.
(2) Unless the Corporations Act or the Corporations Regulations
otherwise provide, the originating process, or interlocutory process,
must be filed within:
(a) 21 days after the date of the act, omission or decision
appealed against; or
(b) any further time allowed by the Court.
(3) The Court may extend the time for filing the originating process, or
interlocutory process, either before or after the time for filing expires
and whether or not the application for extension is made before the
time expires.
(4) As soon as practicable after filing the originating process, or
interlocutory process, and, in any case, at least 5 days before the
date fixed for hearing, the person instituting the appeal must serve
a copy of the originating process, or interlocutory process, and any
supporting affidavit, on each person directly affected by the appeal.
-- 52 of 94 --
Division 15A Proceedings under the Cross-Border Insolvency Act
Corporations Law Rules 2000 47
(5) As soon as practicable after being served with a copy of the
originating process, or interlocutory process, and any supporting
affidavit, a person whose act, omission or decision is being
appealed against must file an affidavit:
(a) stating the basis on which the act, omission or decision was
done or made; and
(b) annexing or exhibiting a copy of all relevant documents that
have not been put in evidence by the person instituting the
appeal.
Division 15 Proceedings under the ASIC Act
15.1 Reference to Court of question of law arising at hearing of
ASIC (ASIC Act s 61)
Order 64 of the Supreme Court Rules 1987 applies, with any
necessary adaptations, to a reference of a question of law arising at
a hearing by ASIC to the Court under section 61 of the ASIC Act.
15.3 Application for inquiry (ASIC Act s 70, s 201, s 219)
An application for an inquiry under subsection 70(3), 201(3)
or 219(7) of the ASIC Act must be made by filing an originating
process seeking an inquiry and orders under the relevant section.
Division 15A Proceedings under the Cross-Border
Insolvency Act
15A.1 Application of this Division and other rules of the Court
Unless the Court otherwise orders:
(a) this Division applies to a proceeding in the Court, under the
Cross-Border Insolvency Act, involving a debtor other than an
individual; and
(b) the rules in the other Divisions of these Rules, and the rules in
Chapter 1 of the Supreme Court Rules 1987, apply to a
proceeding in the Court under the Cross-Border Insolvency
Act if they are relevant and not inconsistent with this Division.
Note
See rule 1.5 for definitions Cross-Border Insolvency Act and Model Law.
-- 53 of 94 --
Division 15A Proceedings under the Cross-Border Insolvency Act
Corporations Law Rules 2000 48
15A.2 Expressions used in the Cross-Border Insolvency Act
(1) Unless the contrary intention appears, an expression that is used in
this Division and in the Cross-Border Insolvency Act, whether or not
a particular meaning is given to the expression by the Cross-Border
Insolvency Act, has the same meaning in this Division as it has in
the Cross-Border Insolvency Act.
Note
The following expressions used in this Division (including in the notes to this
Division) are defined in the Model Law as having the following meanings:
establishment means any place of operations where the debtor carries out a
non-transitory economic activity with human means and goods or services.
foreign court means a judicial or other authority competent to control or
supervise a foreign proceeding.
foreign main proceeding means a foreign proceeding taking place in the State
where the debtor has the centre of its main interests.
foreign non-main proceeding means a foreign proceeding, other than a foreign
main proceeding, taking place in a State where the debtor has an establishment
within the meaning of subparagraph (f) of the present article.
foreign proceeding means a collective judicial or administrative proceeding in a
foreign State, including an interim proceeding, pursuant to a law relating to
insolvency in which proceeding the assets and affairs of the debtor are subject to
control or supervision by a foreign court, for the purpose of reorganization or
liquidation.
foreign representative means a person or body, including one appointed on an
interim basis, authorized in a foreign proceeding to administer the reorganization
or the liquidation of the debtor’s assets or affairs or to act as a representative of
the foreign proceeding.
(2) This Division is to be interpreted in a manner that gives effect to the
Cross-Border Insolvency Act.
15A.3 Application for recognition
(1) An application by a foreign representative for recognition of a
foreign proceeding under article 15 of the Model Law must be made
by filing an originating process in accordance with Form 2.
(2) The originating process must:
(a) be accompanied by the statements referred to in article 15 of
the Model Law and in section 13 of the Cross-Border
Insolvency Act; and
(b) name the foreign representative as the plaintiff and the debtor
as the defendant; and
-- 54 of 94 --
Division 15A Proceedings under the Cross-Border Insolvency Act
Corporations Law Rules 2000 49
(c) be accompanied by an affidavit verifying the matters
mentioned in paragraphs 2 and 3 of article 15 of the Model
Law and in section 13 of the Cross-Border Insolvency Act.
(3) When filing the originating process, the foreign representative must
file, but need not serve, an interlocutory process seeking directions
as to service, and the Court may give any directions about service,
and make any incidental orders, that it thinks just.
(4) The plaintiff must serve a copy of the originating process and the
other documents mentioned in subrule (2):
(a) unless the Court otherwise orders, in accordance with
subrule 2.7(1); and
(b) on any other persons the Court may direct at the hearing of
the interlocutory process.
(5) A person who intends to appear before the Court at the hearing of
an application for recognition must file and serve the documents
mentioned in rule 2.9.
15A.4 Application for provisional relief under article 19 of the Model
Law
(1) Any application by the plaintiff for provisional relief under article 19
of the Model Law must be made by filing an interlocutory process in
accordance with Form 3.
(2) Unless the Court otherwise orders, the interlocutory process and
any supporting affidavit must be served in accordance with
subrule 2.7(2).
15A.5 Official liquidator's consent to act
If an application is made for an order under article 19 or 21 of the
Model Law to entrust the administration, realisation or distribution of
all or part of the debtor's assets to a person designated by the
Court (other than the foreign representative) then, unless the Court
otherwise orders, the person must:
(a) be an official liquidator; and
(b) have filed a Consent to Act, in accordance with Form 19, that
specifies an address for service for the person within
Australia.
-- 55 of 94 --
Division 15A Proceedings under the Cross-Border Insolvency Act
Corporations Law Rules 2000 50
15A.6 Notice of filing of application for recognition
(1) Unless the Court otherwise orders, the plaintiff in a proceeding
mentioned in rule 15A.3 must:
(a) send a notice of the filing of the application in accordance with
Form 20 to each person whose claim to be a creditor of the
defendant is known to the plaintiff; and
(b) publish a notice of the filing of the application for recognition of
a foreign proceeding in accordance with Form 20, in
accordance with rule 2.11.
(2) The Court may direct the plaintiff to publish a notice in accordance
with Form 20 in a daily newspaper circulating generally in any State
or Territory not described in rule 2.11.
15A.7 Notice of order for recognition, withdrawal etc
(1) If the Court makes an order for recognition of a foreign proceeding
under article 17 of the Model Law, or makes any order under
article 19 or 21 of the Model Law, the plaintiff must, as soon as
practicable after the order is made, do all of the following:
(a) have the order entered;
(b) serve a copy of the entered order on the defendant;
(c) send a notice of the making of the order in accordance with
Form 21 to each person whose claim to be a creditor of the
defendant is known to the plaintiff;
(d) publish a notice of the making of the order in accordance with
Form 21, in accordance with rule 2.11.
(2) The Court may direct the plaintiff to publish the notice in
accordance with Form 21 in a daily newspaper circulating generally
in any State or Territory not described in rule 2.11.
(3) If the application for recognition is withdrawn or dismissed, the
plaintiff must, as soon as practicable, do all of the following:
(a) for a dismissal, have the order of dismissal entered;
(b) serve a copy of the entered order of dismissal or notice of the
withdrawal, on the defendant;
(c) send a notice of the dismissal or withdrawal in accordance
with Form 22 to each person whose claim to be a creditor of
the defendant is known to the plaintiff;
-- 56 of 94 --
Division 15A Proceedings under the Cross-Border Insolvency Act
Corporations Law Rules 2000 51
(d) publish a notice of the dismissal or withdrawal in accordance
with Form 22, in accordance with rule 2.11.
(4) The Court may direct the plaintiff to publish the notice in
accordance with Form 22 in a daily newspaper circulating generally
in any State or Territory not described in rule 2.11.
15A.8 Relief after recognition
(1) If the Court has made an order for recognition of a foreign
proceeding, any application by the plaintiff for relief under
paragraph 1 of article 21 of the Model Law must be made by filing
an interlocutory process, and any supporting affidavit, in
accordance with Form 3.
(2) Unless the Court otherwise orders, an interlocutory process under
subrule (1) and any supporting affidavit must be served, in
accordance with subrule 2.7(2), but on the following persons:
(a) the defendant;
(b) any person that the Court directed be served with the
originating process by which the application for recognition
was made;
(c) any other person that the Court directs.
(3) A person who intends to appear before the Court at the hearing of
an application under subrule (1) must file and serve the documents
mentioned in rule 2.9.
15A.9 Application to modify or terminate an order for recognition or
other relief
(1) This rule applies to:
(a) an application under paragraph 4 of article 17 of the Model
Law for an order modifying or terminating an order for
recognition of a foreign proceeding; and
(b) an application under paragraph 3 of article 22 of the Model
Law for an order modifying or terminating relief granted under
article 19 or 21 of the Model Law.
(2) An application mentioned in subrule (1) must be made by filing an
interlocutory process in accordance with Form 3.
-- 57 of 94 --
Division 16 Powers of Associate Judge and Registrar
Corporations Law Rules 2000 52
(3) An interlocutory process for an application under subrule (1) and
any supporting affidavit must be served on:
(a) for an application under paragraph (1)(a) – the defendant and
other persons who were served with, or filed a notice of
appearance in relation to, the application for recognition; and
(b) for an application under paragraph (1)(b) – the defendant and
other persons who were served with, or filed a notice of
appearance in relation to, the application for relief under
article 19 or 21.
(4) Unless the Court otherwise orders, a plaintiff who applies for an
order under subrule (1) must:
(a) send a notice of the filing of the application in accordance with
Form 23 to each person whose claim to be a creditor of the
defendant is known to the plaintiff; and
(b) publish a notice of the filing of the application in accordance
with Form 23, in accordance with rule 2.11.
(5) The Court may direct the applicant to publish the notice in
accordance with Form 23 in a daily newspaper circulating generally
in any State or Territory not described in rule 2.11.
(6) A person who intends to appear before the Court at the hearing of
an application under subrule (1) must file and serve the documents
mentioned in rule 2.9.
Division 16 Powers of Associate Judge and Registrar
16.1 Powers of Associate Judge
(1) An Associate Judge may hear and determine any originating
process or interlocutory process brought under these Rules, subject
to the limitations contained in rule 77.02(4) of the Supreme Court
Rules 1987.
(2) If a proceeding before an Associate Judge appears to the Associate
Judge to be proper for the decision of a Judge, the Associate Judge
may, on the application of a party or of the Associate Judge's own
motion, refer the proceeding to a Judge.
(3) Any application brought under subrule (2) is to be dealt with before
the substantive application is heard.
(4) If an Associate Judge refers a proceeding to a Judge, the Judge
may dispose of the proceeding or refer it back to an Associate
Judge with any direction that the Judge considers appropriate.
-- 58 of 94 --
Division 17 Repeal
Corporations Law Rules 2000 53
(5) A Judge before whom any application is brought may direct that it,
or any issue relating to it, be heard by an Associate Judge.
16.2 Powers of Registrar
(1) An Associate Judge may, with the approval of the Chief Justice,
direct that, during a specified period or at any time, a Registrar may
hear:
(a) a specified application;
(b) an application of a specified type; or
(c) all applications,
that an Associate Judge may hear.
(2) If a proceeding before a Registrar appears to the Registrar to be
proper for the decision of a Judge, the Registrar:
(a) may refer the proceeding to a Judge; or
(b) on the application of a party to the proceeding – must refer the
proceeding to a Judge.
(3) If the Registrar refers a proceeding to a Judge, the Judge may
dispose of the proceeding or refer it back to the Registrar with any
direction that the Judge considers appropriate.
16.3 Appeal
(1) A person affected by a direction, decision or order of an Associate
Judge or Registrar may appeal to the Court of Appeal under Order
85 of the Supreme Court Rules 1987.
(2) Order 85 of the Supreme Court Rules 1987 applies, with any
necessary adaptations, in relation to an appeal under this rule as if
it were an appeal in relation to a judgment given or order made by
an Associate Judge or the Registrar under Chapter 1 of the
Supreme Court Rules 1987.
Division 17 Repeal
17. Repeal
The Supreme Court (Corporations Law) Interim Rules 1990
(Regulations 1990, No. 51) and the Supreme Court (Companies)
Rules 1986 (Regulations 1986, No. 31 and Regulations 1988,
No. 27) are repealed.
-- 59 of 94 --
Schedule 1 Forms
Corporations Law Rules 2000 54
Schedule 1 Forms
rule 1.6
Form 1 Document Title
(rule 2.1)
IN THE [name of Court] No. of [year]
DIVISION: [insert if appropriate]
REGISTRY: [1]
IN THE MATTER OF [full name of corporation to which the proceeding relates
and, if applicable, the words ‘(in liquidation)', ‘(receiver appointed)', ‘(receiver
and manager appointed)', ‘(controller acting)', or ‘(administrator appointed)']
ABN or ACN or ARBN: [insert ABN or ACN or ARBN]
AB (and Others)
Plaintiff(s)
[list, in a schedule, any further plaintiffs]
CD (and Others)
Defendant(s)
[list, in a schedule, any further defendants]
-- 60 of 94 --
Schedule 1 Forms
Corporations Law Rules 2000 55
Form 2 Originating process
(rules 2.2 and 15A.3)
[Title]
A. DETAILS OF APPLICATION
This application is made under *section/*regulation [number] of the
*Corporations Act/*ASIC Act/*Cross-Border Insolvency Act/*Corporations
Regulations.
[State briefly the nature of the proceeding, eg application for winding-up on
ground of insolvency; or complaint about a receiver.]
On the facts stated in the supporting affidavit(s), the plaintiff claims:
1
2
etc
AND
Date:
……………………………
Signature of plaintiff or
plaintiff's legal practitioner
This application will be heard by ……………………………………………… at
[address of Court] at ………….*am/*pm on ………………………… .
B. NOTICE TO DEFENDANT(S) (IF ANY)
TO: [name and address of each defendant (if any)]
If you or your legal practitioner do not appear before the Court at the time
shown above, the application may be dealt with, and an order made, in your
absence. As soon after that time as the business of the Court will allow, any
of the following may happen:
(a) the application may be heard and final relief given;
(b) directions may be given for the future conduct of the proceeding;
-- 61 of 94 --
Schedule 1 Forms
Corporations Law Rules 2000 56
(c) any interlocutory application may be heard.
Before appearing before the Court, you must file a notice of appearance, in
the prescribed form, in the Registry and serve a copy of it on the plaintiff.
Note
Unless the Court otherwise orders, a defendant that is a corporation must be represented at a
hearing by a legal practitioner. It may be represented at a hearing by a director of the
corporation only if the Court grants leave.
* Omit if not applicable.
C. APPLICATION FOR WINDING UP ON GROUND OF INSOLVENCY
[Complete this section if this originating process is seeking an order
that a company be wound up in insolvency on the ground that the
company has failed to comply with a statutory demand (see
section 459Q of the Corporations Act)]
[Set out particulars of service of the statutory demand on the company and of
the failure to comply with the demand]
[Attach to this originating process a copy of the statutory demand and, if the
demand has been varied by an order made under subsection 459H(4) of the
Corporations Act because of a dispute or offsetting claim, a copy of the order
made under that subsection]
[The affidavit in support of this originating process must:
(a) verify service of the demand on the company; and
(b) verify the failure of the company to comply with the demand;
and
(c) state whether and, if so, to what extent the debt, or each of the
debts, to which the demand relates is still due and payable at
the date when the affidavit is made]
Note 1
In an application for winding up in insolvency on the ground that the company has failed to
comply with a statutory demand, the applicant should consider completing Part C of Form 2
as shown in Schedule 2 (Notes to these Rules).
Note 2
An example of the affidavit in support of an application for winding up in insolvency for failure
to comply with a statutory demand is shown in Schedule 2 (Notes to these Rules).
-- 62 of 94 --
Schedule 1 Forms
Corporations Law Rules 2000 57
D. FILING
Date of filing: [date of filing to be entered by Registrar]
. . . . . . . . . . . . . . . . . . . . .
Registrar
This originating process is filed by [name] for the plaintiff.
E. SERVICE
The plaintiff's address for service is [address of plaintiff's legal practitioner or
of plaintiff].
*It is not intended to serve a copy of this originating process on any person.
OR
*It is intended to serve a copy of this originating process on each defendant
and on any person listed below:
[name of defendant and any other person on whom a copy of the originating
process is to be served]
[Complete the following section if the time for service has been
abridged]
The time by which a copy of this originating process is to be served has been
abridged by order made by [name of Judge] on [date] to [time and date].
* Omit if not applicable
-- 63 of 94 --
Schedule 1 Forms
Corporations Law Rules 2000 58
Form 3 Interlocutory process
(rules 2.2, 15A.4, 15A.8 and 15A.9)
[Title]
A. DETAILS OF APPLICATION
This application is made under *section/*regulation [number] of the
*Corporations Act/*ASIC Act/*Cross-Border Insolvency Act/*Corporations
Regulations.
On the facts stated in the supporting affidavit(s), the applicant, [name], applies
for the following relief:
1
2
etc
AND
Date:
……………………………
Signature of applicant making this application or
applicant's legal practitioner
This application will be heard by …………………………………… at [address
of Court] at ………….*am/*pm on ………………………… .
B. NOTICE TO RESPONDENT(S) (IF ANY)
TO: [name and address of each respondent to this interlocutory process (if
any). If applicable, also state the respondent's address for service.]
If you or your legal practitioner do not appear before the Court at the time
shown above, the application may be dealt with, and an order made, in your
absence.
Before appearing before the Court, you must, except if you have already done
so or you are the plaintiff in this proceeding, file a notice of appearance, in the
prescribed form, in the Registry and serve a copy of it on the plaintiff in the
originating process.
Note
Unless the Court otherwise orders, a respondent that is a corporation must be represented at
a hearing by a legal practitioner. It may be represented at a hearing by a director of the
corporation only if the Court grants leave.
-- 64 of 94 --
Schedule 1 Forms
Corporations Law Rules 2000 59
* Omit if not applicable.
C. FILING
This interlocutory process is filed by [name] for the applicant.
D. SERVICE
The applicant's address for service is [address of applicant's legal practitioner
or of applicant].
*It is not intended to serve a copy of this interlocutory process on any person.
OR
*It is intended to serve a copy of this interlocutory process on each
respondent and on any person listed below:
[name of respondent and any other person on whom a copy of the
interlocutory process is to be served]
[Complete the following section if the time for service has been
abridged]
The time by which a copy of this interlocutory process is to be served has
been abridged by order made by [name of Judge] on [date] to [time and date].
* Omit if not applicable
-- 65 of 94 --
Schedule 1 Forms
Corporations Law Rules 2000 60
Form 4 Notice Of Appearance
(rule 2.9)
[Title]
A. DETAILS OF PERSON INTENDING TO APPEAR
Notice is given that [state full name and address], [briefly state your interest in
the proceeding, eg a creditor for $ (amount), or a contributory, of the
corporation] intends to appear before the Court at the hearing of the
application to be heard at [name of Court and address] on [date] and, if
applicable, to *oppose/*support the application.
Note
Unless the Court otherwise orders, a defendant or respondent that is a corporation must be
represented at a hearing by a legal practitioner. It may be represented at a hearing by a
director of the corporation only if the Court grants leave.
B. GROUNDS OF OPPOSITION TO WINDING UP
[Complete this section only if you are opposing an application to wind up a
company]
The grounds on which I oppose the application for winding up are:
1
2
etc
C. SERVICE
[This section must be completed]
The address for service of the person giving this notice is [address of person's
legal practitioner or of person].
. . . . . . . . . . . . . . . . . . . . .
Signature of person giving notice
or of person's legal practitioner
* Omit if not applicable
-- 66 of 94 --
Schedule 1 Forms
Corporations Law Rules 2000 61
Form 5 Notice of intervention by ASIC
(rule 2.10)
[Title]
The Australian Securities and Investments Commission, whose address for
service is [address], intervenes in this proceeding.
Date:
. . . . . . . . . . . . . . . . . . . . .
Signed on behalf of ASIC
Name of signatory: [name].
Capacity of signatory: [capacity].
-- 67 of 94 --
Schedule 1 Forms
Corporations Law Rules 2000 62
Form 6 Notice of hearing to approve compromise or
arrangement
(rule 3.4)
TO all the creditors and members of [name of company].
TAKE NOTICE that at . . . . . . . . *am/*pm on . . . . . . . ., the . . . . . . . . . . . . . . .
at [address of Court] will hear an application by [name of plaintiff] seeking the
approval of a compromise or arrangement between the above-named
company and its *members/*creditors as proposed by a resolution passed by
the meeting of the *members/*creditors of the company held on [date].
[Complete this section if applicable]
The proposed compromise or arrangement as passed by the meeting was
amended from the form of compromise or arrangement previously sent to you
in the following respects:
[Set out the details of any amendment made at the meeting]
If you wish to oppose the approval of the compromise or arrangement, you
must file and serve on the plaintiff a notice of appearance, in the prescribed
form, together with any affidavit on which you wish to rely at the hearing. The
notice of appearance and affidavit must be served on the plaintiff at its
address for service at least one day before the date fixed for the hearing of
the application.
[This section must be completed]
The address for service of the plaintiff is [address of plaintiff's legal
practitioner or of plaintiff].
Name of person giving notice or of person's legal practitioner [name].
* Omit if not applicable
-- 68 of 94 --
Schedule 1 Forms
Corporations Law Rules 2000 63
Form 7 Affidavit accompanying statutory demand
(rule 5.2)
[Name of creditor(s)]
Creditor(s)
[Name of debtor company]
Debtor company
I, [name] of [address and occupation], make oath and say:
1 I am [state deponent's relationship to the creditor(s), e.g. "the creditor",
"(name), one of the creditors", "a director of the creditor", "a director of
(name), one of the creditors"] in respect of *a debt of $[amount]/*debts
totalling $[amount] owed by [name of debtor company] to *it/*them relating to
[state nature of debt, or debts, ensuring that what is stated corresponds with
the description of the debt, or debts, to be given in the proposed statutory
demand, with which this affidavit is to be served on the debtor company].
2 [If the deponent is not the creditor, state the facts entitling the deponent
to make the affidavit, eg ‘I am authorised by the creditor(s) to make this
affidavit on its/their behalf]
3 [State the source of the deponent's knowledge of the matters stated in
the affidavit in relation to the debt or each of the debts, eg "I am the person
who, on behalf of the creditor(s), had the dealings with the debtor company
that gave rise to the debt", "I have inspected the business records of the
creditor in relation to the debtor company's account with the creditor"]
4 *The debt/*The total of the amounts of the debts, mentioned in
paragraph 1 of this affidavit, is due and payable by the debtor company.
5 I believe that there is no genuine dispute about the existence or
amount of the *debt/*any of the debts.
Made at [place] ________________ on [date] ________________
By [signature of deponent] _______________________________________
Witnessed by
Signature ______________________________________
Justice of the peace / commissioner for oaths
Name ______________________________________
Address or phone no.
* Omit if not applicable
-- 69 of 94 --
Schedule 1 Forms
Corporations Law Rules 2000 64
Form 8 Consent of liquidator/provisional liquidator
(rules 5.5, 6.1)
[Title]
I, [name], of [address], an official liquidator, consent to be appointed by the
Court and to act as the *liquidator/*provisional liquidator of [name of
company].
I am not aware of any conflict of interest or duty that would make it improper
for me to act as *liquidator/*provisional liquidator of the company.
EITHER
I am not aware of any relevant relationship mentioned in subsection 60(2) of
the Corporations Act.
OR
I have, or have had within the preceding 24 months, the following relevant
relationships mentioned in subsection 60(2) of the Corporations Act:
[Set out all relevant relationships]
The hourly rates currently charged in respect of work done as
*liquidator/*provisional liquidator by me, and by my partners and employees
who may perform work in this administration, are set out below or in the
Schedule which is attached to this Consent. I acknowledge that my
appointment by the Court does not constitute an express or implied approval
by the Court of these hourly rates.
Note
The requirement to disclose hourly rates should not be taken to imply that remuneration on an
hourly basis is the most desirable or appropriate arrangement in every case. The
Corporations Act acknowledges that another method of calculating remuneration may be
appropriate (see, for example, s 473(2) and (3)).
Date:
. . . . . . . . . . . . . . . . . . . . .
Signature of official liquidator
* Omit if not applicable
Schedule
[description of hourly rate(s)]
-- 70 of 94 --
Schedule 1 Forms
Corporations Law Rules 2000 65
Form 10 Notice of application for winding up order by
substituted plaintiff
(rule 5.10)
IN THE [name of Court] No. of [year]
[Name of company]
ABN or ACN: [ABN or ACN of company to which proceeding relates]
1 [Name of substituted plaintiff], who was, by order of the [name of
Court], substituted as a plaintiff, will apply to the Court at . . . . .*am/*pm
on . . . . . . . . at [address of Court] for an order that the above company
be wound up.
2 The address for service of the substituted plaintiff is [address of
substituted plaintiff's legal practitioner or of substituted plaintiff].
3 Any person intending to appear at the hearing must file a notice of
appearance, in accordance with the prescribed form, together with any
affidavit on which the person intends to rely, and serve a copy of the
notice and any affidavit on the substituted plaintiff at its address for
service at least 3 days before the date fixed for the hearing.
Date:
Name of substituted plaintiff or substituted plaintiff’s legal practitioner: [name]
* Omit if not applicable
-- 71 of 94 --
Schedule 1 Forms
Corporations Law Rules 2000 66
Form 11 Notice of winding up order and of appointment of
liquidator
(rule 5.11)
IN THE [name of Court]
AT [location of Court]
IN THE MATTER OF [name of company to which the proceeding relates]
ABN or ACN: [ABN or ACN of company to which proceeding relates]
On [date], the [name of Court] in Proceeding No. of [year], ordered the
winding up of [name of company] and I was appointed as liquidator of the
company.
Date:
Name and address of liquidator: [name and address]
-- 72 of 94 --
Schedule 1 Forms
Corporations Law Rules 2000 67
Form 12 Notice of appointment of provisional liquidator
(rule 6.2)
IN THE [name of Court]
AT [location of Court]
IN THE MATTER OF [name of company to which the proceeding relates]
ABN or ACN: [ABN or ACN of company to which proceeding relates]
On [date], in Proceeding No. of [year], heard by the [name of Court], I was
appointed as the provisional liquidator of the above company.
Date:
Name and address of provisional liquidator: [name and address]
-- 73 of 94 --
Schedule 1 Forms
Corporations Law Rules 2000 68
Form 13 Notice by creditor or contributory of objection to
release of liquidator
(rule 7.6)
[Title]
[Name of creditor/contributory] of [address of creditor/contributory], a creditor
of [name of company] for $[amount], or a contributory of [name of company]
holding [number] shares in the company, objects to the grant of a release to
[name of liquidator] of [address of liquidator], who is the liquidator of [name of
company], on the following grounds:
[set out the grounds upon which the objection is made]
Date:
. . . . . . . . . . . . . . . . . . . . .
Signature of objector
or objector's legal practitioner
Name of objector or objector's legal practitioner: [name].
The objector's address for service is [address of objector or objector's legal
practitioner].
-- 74 of 94 --
Schedule 1 Forms
Corporations Law Rules 2000 69
Form 14 Affidavit in support of application for order for
payment of call
(rule 7.8)
[Title]
I, [name] of [address], liquidator, make oath and say:
1 I am the liquidator of [name of company] (the company).
2 On [date] I made a call of $[amount] per share on all the contributories
of the company [or specify the class of contributories on whom the call
was made]. *Annexed/*Exhibited and marked A is a copy of the notice
of the call. Each contributory whose name is shown in the Schedule
marked B was duly served with notice of the call in the form annexed or
exhibited and marked A.
3 Each contributory of the company whose name is set out in column 2 of
the Schedule marked B has not paid, or caused to be paid, to me the
sum specified opposite the contributory's name in column 5 of the
Schedule, which is due from that contributory under the call.
4 The amount set out opposite the name of each contributory in column 6
of the Schedule is an estimate of the amount due by that contributory in
respect of the costs of applying for and giving effect to the order for
payment of the call. The estimate of the amounts so due by the several
contributories has been reached by apportioning the costs among the
contributories who have not paid the call according to the liability of the
respective contributories to contribute.
5 The amount set out opposite the name of each contributory in column 7
of the Schedule is the total of the amount due by that contributory in
respect of the call as set out in column 5 and the amount due in respect
of costs as set out in column 6.
Made at [place] ________________ on [date] ________________
By [signature of deponent] _______________________________________
Witnessed by
Signature ______________________________________
Justice of the peace / commissioner for oaths
Name ______________________________________
Address or phone no.
* Omit if not applicable
-- 75 of 94 --
Schedule 1 Forms
Corporations Law Rules 2000 70
Schedule B
Number on list
of
contributories
Name Address Character in
which
included in
the list
Unpaid
amount
of call
Proportion of costs
of application
Total
amount
payable
-- 76 of 94 --
Schedule 1 Forms
Corporations Law Rules 2000 71
Form 15 Notice of application for leave to distribute a
surplus
(rule 7.9)
IN THE [name of Court and address]
APPLICATION NO:
IN THE MATTER OF [company name]
ABN or ACN: [ABN or ACN of company to which proceeding relates]
On . . . . . . . . at . . . . . . . ., the . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . will hear
an application by the liquidator of [name of company] in Proceeding No. of
[year] for leave to distribute a surplus in respect of the liquidation of the
company.
Any person intending to appear at the hearing must file a notice of
appearance, in accordance with the prescribed form, together with any
affidavit on which the person intends to rely, and serve a copy of the notice
and affidavit on the liquidator at the address shown below at least 3 days
before the date fixed for the hearing.
Name of liquidator: [name].
The liquidator's address for service is [address].
. . . . . . . . . . . . . . . . . . . . .
Signature of liquidator
-- 77 of 94 --
Schedule 1 Forms
Corporations Law Rules 2000 72
Form 16 Notice of intention to apply for remuneration
(rules 9.1, 9.2, 9.3, 9.4, 9.5)
IN THE MATTER OF [company name]
ABN or ACN: [ABN or ACN of company to which proceeding relates]
TO: [name and address of person to whom notice is given]
TAKE NOTICE that, not less than 21 days after this notice is served on you, I,
[name and address], the *receiver/*administrator/*liquidator/*provisional
liquidator/*special manager of the above company, intend to apply to the
Court to determine my remuneration.
If you object to my application, you must, within 21 days after being served
with this notice, serve on me a notice of objection stating the grounds of
objection to the remuneration claimed.
Date:
. . . . . . . . . . . . . . . . . . . . .
Signature of *receiver/*administrator/*liquidator/
*provisional liquidator/*special manager
* Omit if not applicable
-- 78 of 94 --
Schedule 1 Forms
Corporations Law Rules 2000 73
Form 16A Notice of intention to apply for review of
remuneration
(rules 9.2A, 9.4A)
IN THE MATTER OF [company name]
ACN or ABN: [ACN or ABN of company to which proceeding relates]
TO: [name and address of person to whom notice is given]
TAKE NOTICE that, not less than 21 days after this notice is served on you, I,
[name and address of plaintiff or applicant], *[the *administrator/*liquidator of
the above company,] intend to apply to the Court to review *the remuneration
of/*my remuneration as the *administrator/*liquidator of the above company.
The amount of the remuneration that has been determined or fixed is [state
the amount]. The remuneration was determined or fixed by [state who
determined or fixed the remuneration] on [state the date when the
remuneration was determined or fixed].
I intend to apply for an order to *confirm/*increase/*reduce the remuneration.
[Set out the grounds upon which an order or orders will be sought. If an order
to increase or reduce the remuneration is sought, set out the amount by which
the remuneration is sought to be increased or reduced.]
If you wish to appear at the hearing of the application, in order to raise any
issues before the Court, you must, within 21 days after being served with this
notice, serve on me a notice under rule *9.2A(4)/*9.4A(4) of the Corporations
Law Rules 2000, stating your intention to appear at the hearing and setting
out the issues that you seek to raise before the Court.
Date:
……………………………………
Signature of plaintiff or applicant
* Omit if not applicable
-- 79 of 94 --
Schedule 1 Forms
Corporations Law Rules 2000 74
Form 17 Summons for examination
(rule 11.3)
[Title]
A. DETAILS OF SUMMONS
TO: [name and address of person to be examined]
You are summoned under *section 596A/*section 596B of the Corporations
Act to:
(a) attend before . . . . . . . . . . . . . . . . . . . . . . . . . . at [address of
Court] at . . . . . . . . *am/*pm on . . . . . . . ., and from day to day
until excused by the Court, to be examined on oath about the
examinable affairs of [name of corporation]; and
(b) *to produce at the examination the following books [specify
books – include in a schedule if necessary].
Date:
. . . . . . . . . . . . . . . . . . . . .
Registrar/Associate Judge
B. NOTICE TO PERSON TO BE EXAMINED
The Court may order that the questions put to you and the answers given by
you at the examination are to be recorded in writing and signed by you.
If you do not attend the examination in accordance with this summons, without
reasonable cause, you may be arrested and imprisoned without further notice.
This summons is issued at the request of [name] whose address for service is
[address of person's legal practitioner or of person].
* Omit if not applicable
-- 80 of 94 --
Schedule 1 Forms
Corporations Law Rules 2000 75
Form 17A Arrest warrant
(Corporations Act s 486B and rule 11A.1)
[Title]
TO: All members and special members of the Australian Federal Police and
to all officers of the police force of the State or Territory in which [name of
person] is found, and to the Sheriff of that State or Territory and all of that
Sheriff’s officers.
WHEREAS:
*[name of company] (the Company) is being wound up in insolvency;
*[name of company] (the Company) is being wound up by the Court;
*an application has been made for [name of company] (the Company) to be
wound up;
AND THE COURT IS SATISFIED THAT [name of person]:
*is about to leave [*the name of the jurisdiction/*Australia] in order to avoid:
*paying money payable to the company;
*being examined about the company’s affairs;
*complying with an order of the Court, or some other obligation, under
Chapter 5 of the Corporations Act in connection with the winding up;
*has concealed or removed property of the Company in order to prevent or
delay the taking of the property into the liquidator’s custody or control;
*has destroyed, concealed or removed books of the Company or is about to
do so;
THIS WARRANT THEREFORE requires and authorises you to take [name of
person] and to bring *him/*her before the Court at [address of court] and to
keep *him/*her there pending the making of a further order by the Court.
THIS WARRANT ALSO requires and authorises you to seize any property or
books of the company in the possession of [name of person] and to deliver
them into the custody of the Registrar of the Court to be kept by the Registrar
until the Court makes an order for their disposal.
Date:
……………………………………
Judge
-- 81 of 94 --
Schedule 1 Forms
Corporations Law Rules 2000 76
* Omit if not applicable
Note for Form 17A
Section 489A of the Corporations Act provides that if the Court issues a warrant under
section 486B for a person to be arrested and brought before the Court, and the person is not
in prison, then the person named in the warrant may be arrested by an officer of the police
force of the State or Territory in which the person is found, or the Sheriff of that State or
Territory or any of the Sheriff’s officers, or a member or special member of the Australian
Federal Police.
-- 82 of 94 --
Schedule 1 Forms
Corporations Law Rules 2000 77
Form 18 Summons for appearance in relation to registration
of transfer of interests
(rule 12.2)
[Title]
TO: [name and address]
You are required to appear before the . . . . . . . . . . . . . . . at [address of
Court] at . . . . . . *am/*pm on . . . . . . . . and show cause why the
document(s) specified in the Schedule should not be *delivered up/*produced
at the office of [name of company] at [address of company] within [period as
ordered], as required by the attached notice.
The address for service of the person applying for this summons is [address
of person's legal practitioner or of person].
Date:
. . . . . . . . . . . . . . . . . . . . .
Registrar
* Omit if not applicable
Schedule
[description of document(s)]
-- 83 of 94 --
Schedule 1 Forms
Corporations Law Rules 2000 78
Form 19 Consent to act as designated person
(rule 15A.5)
[Title]
I, [name], of [address], an official liquidator, consent to be appointed by the
Court and to act as the person designated by the Court under
*article 19/*article 21 of the Model Law to *administer/*realise/*distribute the
assets of [name of company].
I am not aware of any conflict of interest or duty that would make it improper
for me to act as the person designated by the Court.
The hourly rates currently charged in respect of work done as the person
designated by the Court by me, and by my partners and employees who may
perform work in this *administration/*realisation/*distribution, are set out below
or in the Schedule which is attached to this Consent.
I acknowledge that my appointment by the Court does not constitute an
express or implied approval by the Court of these hourly rates.
Date:
……………………………………
Signature of official liquidator
* Omit if not applicable
Schedule
[description of hourly rate(s)]
-- 84 of 94 --
Schedule 1 Forms
Corporations Law Rules 2000 79
Form 20 Notice of filing of application for recognition of
foreign proceeding
(rule 15A.6)
IN THE [name of Court] No. of [year]
[Name of company]
ABN or ACN: [ABN or ACN of company to which proceeding relates]
TO all the creditors of [name of company].
TAKE NOTICE that:
1. An application under the Cross-Border Insolvency Act 2008 (Cth) for
recognition of a foreign proceeding in relation to [name of company]
was commenced by the plaintiff, [name of plaintiff], on [date of filing of
originating process] and will be heard by . . . . . . . . . . . . . . . . . . . . . . . .
at [address of Court] at . . . . . . . . *am/*pm on . . . . . . . . Copies of
documents filed may be obtained from the plaintiff’s address for
service.
2. The plaintiff’s address for service is [name and address of plaintiff’s
legal practitioner or, if there is no legal practitioner, address of the
plaintiff].
3. Any person intending to appear at the hearing must file a notice of
appearance, in accordance with the prescribed form, together with any
affidavit on which the person intends to rely, and serve a copy of the
notice and any affidavit on the plaintiff at the plaintiff’s address for
service at least 3 days before the date fixed for the hearing.
4. If you are a foreign creditor you must file in the registry of the Court at
the address mentioned in paragraph 1 an affidavit setting out the
details of any claim, secured or unsecured, that you may have against
the company above at least 3 days before the date fixed for the
hearing.
Date:
Name of plaintiff or plaintiff’s legal practitioner: [name]
* Omit if not applicable
-- 85 of 94 --
Schedule 1 Forms
Corporations Law Rules 2000 80
Form 21 Notice of making of order under the Cross-Border
Insolvency Act 2008 (Cth)
(rule 15A.7)
IN THE [name of Court] No. of [year]
[Name of company]
ABN or ACN: [ABN or ACN of company to which proceeding relates]
TO all the creditors of [name of company].
TAKE NOTICE that:
1. On [date], the [name of Court] in Proceeding No. of [year],
commenced by the plaintiff [name of plaintiff], made the following
orders under the Cross-Border Insolvency Act 2008 (Cth) in relation to
[name of company]: [insert details of order].
2. The plaintiff’s address for service is [name and address of plaintiff’s
legal practitioner or, if there is no legal practitioner, address of the
plaintiff].
3. The name and address of the foreign representative is [insert name
and address].
*4. The name and address of the person entrusted with distribution of the
company’s assets is [insert name and address].
Date:
Name of plaintiff or plaintiff’s legal practitioner: [name]
* Omit if not applicable
-- 86 of 94 --
Schedule 1 Forms
Corporations Law Rules 2000 81
Form 22 Notice of dismissal or withdrawal of application for
recognition of foreign proceeding
(rule 15A.7)
IN THE [name of Court] No. of [year]
[Name of company]
ABN or ACN: [ABN or ACN of company to which proceeding relates]
TO all the creditors of [name of company].
TAKE NOTICE that the application under the Cross-Border Insolvency
Act 2008 (Cth) for recognition of a foreign proceeding in relation to [name of
company] commenced by the plaintiff, [name of plaintiff], on [date of filing of
originating process] was *dismissed/*withdrawn on [date of
dismissal/withdrawal].
Date:
Name of person giving notice or of person’s legal practitioner: [name]
* Omit if not applicable
-- 87 of 94 --
Schedule 1 Forms
Corporations Law Rules 2000 82
Form 23 Notice of filing of application to modify or
terminate an order for recognition or other relief
(rule 15A.9)
IN THE [name of Court] No. of [year]
[Name of company]
ABN or ACN: [ABN or ACN of company to which proceeding relates]
TO all the creditors of [name of company].
TAKE NOTICE that:
*1. An application under the Cross-Border Insolvency Act 2008 (Cth) for an
order *modifying/*terminating an order for recognition of a foreign
proceeding in relation to [name of company] was filed by the applicant,
[name of applicant], on [date of filing of interlocutory process] and will
be heard by . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
at [address of Court] at . . . . . . . . *am/*pm on . . . . . . . . Copies of
documents filed may be obtained from the applicant’s address for
service.
*1. An application under the Cross-Border Insolvency Act 2008 (Cth) for an
order *modifying/*terminating relief granted under *article 19/*article 21
of the Model Law in relation to [name of company] was filed by the
applicant, [name of applicant], on [date of filing of interlocutory process]
and will be heard by . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . at [address of Court] at . . . . . . . . *am/*pm on . . . . . . .
Copies of documents filed may be obtained from the applicant’s
address for service.
2. The applicant’s address for service is [name and address of applicant’s
legal practitioner or of applicant].
3. Any person intending to appear at the hearing must file a notice of
appearance (if the person has not already done so), in accordance with
the prescribed form, together with any affidavit on which the person
intends to rely, and serve a copy of the notice (if applicable) and any
affidavit on the applicant at the applicant’s address for service at least
3 days before the date fixed for the hearing.
Date:
Name of applicant or applicant’s legal practitioner: [name]
* Omit if not applicable
-- 88 of 94 --
Schedule 2 Notes to these Rules
Corporations Law Rules 2000 83
Schedule 2 Notes to these Rules
(rules 2.2, 2.4 and 5.4)
Note 1 – see rule 2.2 (Form 2 Part C)
C. APPLICATION FOR WINDING UP ON GROUND OF INSOLVENCY
1. The plaintiff relies on failure by the defendant to comply with a statutory demand. A
copy of the demand, marked A, is attached to this originating process.
2. The demand was [or The demand and an accompanying affidavit were] served by
X.Y. who delivered it [or them] to the registered office of the defendant at [insert
address] on [insert date] [or, if service was by post, who posted *it/*them by ordinary
prepaid post to the registered office of the defendant at [insert address] on [insert
date]]. [If applicable, A copy of the accompanying affidavit, marked B, is attached to
this originating process.]
3. The defendant failed to pay the amount of the debt demanded [or the total of the
debts demanded] or to secure or compound for that *amount/*total to the plaintiff’s
reasonable satisfaction within 21 days after the demand was served on the defendant
[or within 7 days after [insert date] when an application by the defendant under
section 459G of the Corporations Act was finally determined or otherwise disposed of]
[or if the period for compliance with the demand was extended by order within the
period specified in the order of the [insert name of Court] on [insert date of order or, if
more than one order, the date of the last such order] as the period for compliance
with the demand. A copy of the order, marked C, is attached to this originating
process.]
[If the demand was varied by order under subsection 459H (4) of the
Corporations Act]
4. The demand was varied by order of the [insert name of Court] on [insert date of
order]. A copy of the order, marked D [or as the case may be], is attached to this
originating process.
* Omit if not applicable
Note 2 – see rule 2.4 and subrule 5.4(2) (Affidavit in support)
*AFFIDAVIT IN SUPPORT/*AFFIDAVIT IN SUPPORT OF APPLICATION FOR WINDING
UP IN INSOLVENCY
I, [name] of [address and occupation], make oath and say:
1. I am the above-named plaintiff [or if the applicant is a corporation, I am *a/*the
director of the above-named plaintiff which is registered or taken to be registered in
[specify State or Territory]. I am duly authorised to make this affidavit on its behalf].
Now produced and shown to me and marked A is a copy of the originating process to
be filed in the proceeding.
2. Annexed to this affidavit is a current and historical extract of the records maintained
by the Australian Securities and Investments Commission with respect to the
defendant.
-- 89 of 94 --
Schedule 2 Notes to these Rules
Corporations Law Rules 2000 84
3. [Where the defendant is registered or taken to be registered in a State or Territory
other than that of this Registry, state any facts – apart from the defendant's principal
place of business – which bear upon jurisdiction being exercised in the State or
Territory of this Registry, rather than in another State or Territory.]
4. The following facts are within my own personal knowledge save as otherwise stated.
5. The defendant was on [state date of statutory demand or other relevant date]
indebted to the plaintiff in the sum of $ [amount] for [state concisely the consideration,
for example, goods sold and delivered etc.] which sum was then due and payable.
6. The demand, a copy of which is attached to the originating process, was signed by or
on behalf of the plaintiff. I served the demand [or the demand and the accompanying
affidavit] as referred to in the originating process [or X.Y. has been instructed to make
an affidavit of service of the demand [or the demand and the accompanying
affidavit]].
7. The matters stated in the originating process concerning the demand and failure of
the defendant to comply with it are true and correct.
8. The sum demanded remains due and payable by the defendant to me [or the
plaintiff].
Made at [place] ________________ on [date] ________________
By [signature of deponent] _______________________________________
Witnessed by
Signature ______________________________________
Justice of the peace / commissioner for oaths
Name ______________________________________
Address or phone no.
* Omit if not applicable
-- 90 of 94 --
ENDNOTES
Corporations Law Rules 2000 85
ENDNOTES
1 KEY
Key to abbreviations
amd = amended od = order
app = appendix om = omitted
bl = by-law pt = Part
ch = Chapter r = regulation/rule
cl = clause rem = remainder
div = Division renum = renumbered
exp = expires/expired rep = repealed
f = forms s = section
Gaz = Gazette sch = Schedule
hdg = heading sdiv = Subdivision
ins = inserted SL = Subordinate Legislation
lt = long title sub = substituted
nc = not commenced
2 LIST OF LEGISLATION
Corporations Law Rules (SL No. 40, 2000)
Notified 12 July 2000
Commenced 1 September 2000 (Gaz G34, 30 August 2000, p 3)
Amendments of Corporations Law Rules (SL No. 35, 2001)
Notified 29 June 2001
Commenced 30 June 2001 (r 2)
Amendments of Corporations Law Rules (SL No. 60, 2003)
Notified 11 February 2004
Commenced 11 February 2004
Amendments of Corporations Law Rules (SL No. 30, 2004)
Notified 11 August 2004
Commenced 11 August 2004
Corporations Law Amendment Rules 2005 (SL No. 34, 2005)
Notified 12 October 2005
Commenced 12 October 2005
Corporations Law Amendment Rules 2007 (SL No. 29, 2007)
Notified 29 August 2007
Commenced 29 August 2007
Corporations Law Amendment Rules 2008 (SL No. 36, 2008)
Notified 17 December 2008
Commenced 17 December 2008
Corporations Law Amendment (Cross-Border Insolvency) Rules 2009 (SL No. 13, 2009)
Notified 10 June 2009
Commenced 10 June 2009
-- 91 of 94 --
ENDNOTES
Corporations Law Rules 2000 86
Corporations Law Amendment Rules 2009 (SL No. 39, 2009)
Notified 16 December 2009
Commenced 16 December 2009
Oaths, Affidavits and Declarations (Consequential Amendments) Act 2010 (Act No. 40,
2010)
Assent date 18 November 2010
Commenced 1 March 2011 (s 2, s 2 Oaths, Affidavits and Declarations
Act 2010 (Act No. 39, 2010) and Gaz G7, 16 February 2011,
p 4)
Corporations Law Amendment Rules 2012 (SL No. 40, 2012)
Notified 28 November 2012
Commenced 28 November 2012
Corporations Law Amendment Rules 2013 (SL No. 32, 2013)
Notified 21 August 2013
Commenced 21 August 2013
Corporations Law Amendment Rules 2017 (SL No. 8, 2017)
Notified 26 April 2017
Commenced 26 April 2017
Corporations Law Amendment (Associate Judges) Rules 2017 (SL No. 31, 2017)
Notified 21 November 2017
Commenced 22 November 2017 (r 2, s 2 Supreme Court Amendment
(Associate Judges) Act 2017 (Act No. 18, 2017) and Gaz S84,
21 November 2017, p 1)
3 GENERAL AMENDMENTS
General amendments of a formal nature (which are not referred to in the table
of amendments to this reprint) are made by the Interpretation Legislation
Amendment Act 2018 (Act No. 22 of 2018) to: rr 1.1, 1.3, 1.10, 2.6, 12.1A,
15.1, 15A.1 16.1, 16.3 and 17 and sch 1.
4 LIST OF AMENDMENTS
r 1.3 amd No. 35, 2001, r 20; No. 60, 2003, rr 2 and 23; No. 13, 2009, r 3
r 1.4 amd No. 60, 2003, r 23; No. 29, 2007, r 3; No. 36, 2008, r 3
r 1.5 amd No. 35, 2001, r 20; No. 60, 2003, rr 3 and 23; No. 13, 2009, r 4
r 1.6 amd No. 60, 2003, r 4
r 1.7 amd by No. 60, 2003, r 5
r 1.8 amd No. 35, 2001, r 20; No. 60, 2003, r 23
r 1.10 amd No. 35, 2001, r 20; No. 60, 2003, r 23
r 2.2 amd No. 35, 2001, r 20; No. 60, 2003, rr 6 and 23; No. 34, 2005, r 3; No. 29,
2007, r 4
r 2.4 amd No. 35, 2001, r 3; No. 60, 2003, r 7; No. 36, 2008, r 11
r 2.4A ins No. 35, 2001, r 4
amd No. 60, 2003, r 23; No. 36, 2008, r 11
r 2.6 amd No. 8, 2017, r 3
r 2.7 amd No. 29, 2007, r 5
r 2.8 amd No. 35, 2001, r 5; No. 60, 2003, r 23; No. 36, 2008, r 11
r 2.9 amd No. 60, 2003, r 23
r 2.10 amd No. 36, 2008, r 11
r 2.11 amd No. 60, 2003, r 23; No. 32, 2013, r 3
-- 92 of 94 --
ENDNOTES
Corporations Law Rules 2000 87
r 2.13 amd No. 35, 2001, r 6
r 2.15 amd No. 60, 2003, r 23; No. 36, 2008, r 11
r 3.2 amd No. 60, 2003, r 23
r 3.3 amd No. 35, 2001, r 7; No. 60, 2003, r 23
r 3.4 amd No. 60, 2003, r 23
r 3.5 amd No. 60, 2003, r 23; No. 36, 2008, r 11
div 4 hdg amd No. 60, 2003, r 8
r 4.1 amd No. 60, 2003, r 23
r 5.1 amd No. 35, 2001, r 8; No. 60, 2003, r 23
r 5.2 amd No. 60, 2003, r 23
r 5.4 amd No. 60, 2003, rr 9 and 23
r 5.5 amd No. 60, 2003, r 23
r 5.6 rep No. 32, 2013, r 4
r 5.9 amd No. 60, 2003, r 23
r 5.10 amd No. 60, 2003, r 23; No. 30, 2004, r 2
div 6 hdg amd No. 60, 2003, r 10
r 6.1 amd No. 35, 2001, r 9; No. 60, 2003, r 23; No. 34, 2005, r 4
r 6.2 amd No. 36, 2008, r 11
rr 7.1 – 7.2 amd No. 36, 2008, r 11
r 7.3 amd No. 60, 2003, r 23
r 7.5 amd No. 60, 2003, r 23; No. 36, 2008, r 11
r 7.7 amd No. 60, 2003, r 23; No. 36, 2008, r 11
r 7.8 amd No. 60, 2003, r 23
r 7.10 amd No. 60, 2003, r 23
r 7.11 amd No. 60, 2003, r 23; No. 36, 2008, r 11
div 8 hdg amd No. 60, 2003, r 11
r 9.1 amd No. 35, 2001, r 10; No. 60, 2003, r 23; No. 36, 2008, r 4
r 9.2 amd No. 35, 2001, r 11; No. 60, 2003, r 23
sub No. 36, 2008, r 5
r 9.2A ins No. 36, 2008, r 5
r 9.3 amd No. 35, 2001, r 12; No. 60, 2003, r 23; No. 36, 2008, r 6
r 9.4 amd No. 35, 2001, r 13; No. 60, 2003, r 23; No. 36, 2008, r 7
r 9.4A ins No. 36, 2008, r 8
r 9.5 amd No. 35, 2001, r 14; No. 60, 2003, r 23; No. 36, 2008, r 11
rr 10.1 – 10.2 amd No. 60, 2003, r 23
div 11 hdg amd No. 60, 2003, r 12
r 11.1 amd No. 60, 2003, r 23
r 11.2 amd No. 35, 2001, r 15; No. 60, 2003, r 23; No. 36, 2008, r 11
r 11.3 amd No. 35, 2001, r 16; No. 60, 2003, r 23; No. 36, 2008, r 11
r 11.5 amd No. 36, 2008, r 11
rr 11.6 – 11.7 amd No. 60, 2003, r 23
r 11.8 amd No. 36, 2008, r 11
r 11.9 amd No. 60, 2003, r 23
r 11.10 amd Act No. 40, 2010, s 120
r 11.11 amd No. 60, 2003, r 23; No. 36, 2008, r 11
div 11A hdg ins No. 36, 2008, r 9
r 11A.1 ins No. 36, 2008, r 9
div 12 hdg sub No. 35, 2001, r 17
amd No. 60, 2003, r 13
r 12.1 sub No. 35, 2001, r 18
amd No. 60, 2003, r 23; No. 36, 2008, r 11
r 12.1A ins No. 60, 2003, r 14
r 12.1B ins No. 29, 2007, r 6
r 12.2 amd No. 60, 2003, r 15
r 12.3 amd No. 60, 2003, r 16
div 13 hdg rep No. 60, 2003, r 17
rr 13.1 – 13.2 rep No. 60, 2003, r 17
div 14 hdg amd No. 60, 2003, r 18
-- 93 of 94 --
ENDNOTES
Corporations Law Rules 2000 88
r 14.1 amd No. 60, 2003, r 23
div 15 hdg amd No. 35, 2001, r 20; No. 60, 2003, r 19
r 15.1 amd No. 35, 2001, r 20; No. 60, 2003, r 23; No. 36, 2008, r 11
r 15.2 amd No. 35, 2001, r 20
rep No. 60, 2003, r 20
r 15.3 amd No. 35, 2001, r 20; No. 60, 2003, r 23
div 15A hdg ins No. 13, 2009, r 5
rr 15A.1 –
15A.4 ins No. 13, 2009, r 5
r 15A.5 ins No. 13, 2009, r 5; sub No 39, 2009, r 3
rr 15A.6 –
15A.9 ins No. 13, 2009, r 5
div 16 hdg amd No. 31, 2017, r 4
r 16.1 amd No. 60, 2003, r 23; No. 31, 2017, r 5
r 16.2 amd No. 31, 2017, r 6
r 16.3 amd No. 36, 2008, r 11; No. 31, 2017, r 7
sch 1 amd No. 35, 2001, r 18; No. 60, 2003, r 21; No. 30, 2004, r 3; No. 29, 2007,
r 7; No. 36, 2008, r 10; No. 13, 2009, r 6; Act No. 40, 2010, s 121; No. 40,
2012, r 3; No. 32, 2013, r 5; No. 31, 2017, r 8
sch 2 ins No. 60, 2003, r 22
amd No. 30, 2004, r 4; Act No. 40, 2010, s 122
-- 94 of 94 --