Supreme Court (Chapter V Amendment No.6) Rules 2009

i Supreme Court (Chapter V Amendment No. 6) Rules 2009 S.R. No. 43/2009 TABLE OF PROVISIONS Rule Page 1 Object 1 2 Authorising provisions 1 3 Commencement 1 4 Principal Rules 1 5 Application of these Rules and other rules of the Court 2 6 Definitions for these Rules 2 7 Order 15A inserted 3 ORDER 15A—PROCEEDINGS UNDER THE CROSS-BORDER INSOLVENCY ACT 3 15A.1 Application of this Order and other rules of the Court 3 15A.2 Expressions used in the Cross-Border Insolvency Act 4 15A.3 Application for recognition 5 15A.4 Application for provisional relief under article 19 of the Model Law 6 15A.5 Official liquidator's consent to act 6 15A.6 Notice of filing of application for recognition 7 15A.7 Notice of order for recognition, discontinuance etc. 7 15A.8 Relief after recognition 8 15A.9 Application to modify or terminate an order for recognition or other relief 9 8 Request for bill of taxation 11 9 Forms 2 and 3 amended 11 10 New Form 18A 11 Form 18A—Request to Deliver Bill for Taxation 11 11 New Forms 19 to 23 inserted 12 Form 19—Consent to act as designated person 12 Form 20—Notice of filing of application for recognition of foreign proceeding 13 Form 21—Notice of making of order under the Cross-Border Insolvency Act 2008 14 -- 1 of 20 -- Rule Page ii Form 22—Notice of dismissal or discontinuance of application for recognition of foreign proceeding 15 Form 23—Notice of filing of application to modify or terminate an order for recognition or other relief 16 ═══════════════ ENDNOTES 18 -- 2 of 20 -- 1 STATUTORY RULES 2009 S.R. No. 43/2009 Supreme Court Act 1986 Corporations (Ancillary Provisions) Act 2001 Supreme Court (Chapter V Amendment No. 6) Rules 2009 The Judges of the Supreme Court make the following Rules: 1 Object The object of these Rules is to amend Chapter V of the Rules of the Supreme Court as a consequence of the enactment of the Cross-Border Insolvency Act 2008 of the Commonwealth. 2 Authorising provisions These Rules are made under section 25 of the Supreme Court Act 1986, section 23 of the Corporations (Ancillary Provisions) Act 2001 and all other enabling powers. 3 Commencement These Rules come into operation on 4 May 2009. 4 Principal Rules In these Rules, the Supreme Court (Corporations) Rules 2003 1 are called the Principal Rules. -- 3 of 20 -- S.R. No. 43/2009 Supreme Court (Chapter V Amendment No. 6) Rules 2009 2 5 Application of these Rules and other rules of the Court For Rule 1.3(1) and (2) of the Principal Rules substitute— "(1) Unless the Court otherwise orders— (a) these Rules apply to a proceeding in the Court under the Corporations Act or the ASIC Act; and (b) Order 15A applies to a proceeding in the Court under the Cross-Border Insolvency Act. (2) The other rules of the Court apply, so far as they are relevant and not inconsistent with these Rules— (a) to a proceeding in the Court under the Corporations Act or the ASIC Act; and (b) to a proceeding in the Court under the Cross-Border Insolvency Act that is commenced on or after the commencement of the Supreme Court (Chapter V Amendment No. 6) Rules 2009.". 6 Definitions for these Rules (1) In Rule 1.5 of the Principal Rules insert the following definitions— "Cross-Border Insolvency Act means the Cross- Border Insolvency Act 2008 of the Commonwealth, including, unless the contrary intention appears, the Model Law; Model Law means the Model Law on Cross- Border Insolvency of the United Nations Commission on International Trade Law, the English text of which is set out in Schedule 1 r. 5 -- 4 of 20 -- S.R. No. 43/2009 Supreme Court (Chapter V Amendment No. 6) Rules 2009 3 to the Cross-Border Insolvency Act, with the modifications set out in Part 2 of that Act;". (2) In Rule 1.5 of the Principal Rules— (a) in the definition of defendant for "or the ASIC Act" substitute ", the ASIC Act or the Cross-Border Insolvency Act"; (b) in the definition of plaintiff for "or the ASIC Act" substitute ", the ASIC Act or the Cross-Border Insolvency Act". 7 Order 15A inserted After Order 15 of the Principal Rules insert— "ORDER 15A—PROCEEDINGS UNDER THE CROSS-BORDER INSOLVENCY ACT 15A.1 Application of this Order and other rules of the Court Unless the Court otherwise orders— (a) this Order 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 Orders of these Rules, and the other rules of the Court, apply to a proceeding in the Court under the Cross-Border Insolvency Act if they are relevant and not inconsistent with this Order. Note See rule 1.5 for definitions of Cross-Border Insolvency Act and Model Law. r. 7 -- 5 of 20 -- S.R. No. 43/2009 Supreme Court (Chapter V Amendment No. 6) Rules 2009 4 15A.2 Expressions used in the Cross-Border Insolvency Act (1) Unless the contrary intention appears, an expression that is used in this Order 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 Order as it has in the Cross-Border Insolvency Act. Note The following expressions used in this Order (including in the notes to this Order) 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; 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. r. 7 -- 6 of 20 -- S.R. No. 43/2009 Supreme Court (Chapter V Amendment No. 6) Rules 2009 5 (2) This Order 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 (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— (a) the foreign representative must file, but need not serve, an interlocutory process seeking directions as to service; and (b) 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 referred to in subrule (2)— (a) unless the Court otherwise orders, in accordance with rule 2.7(1); and r. 7 -- 7 of 20 -- S.R. No. 43/2009 Supreme Court (Chapter V Amendment No. 6) Rules 2009 6 (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 referred to in rule 2.9. 15A.4 Application for provisional relief under article 19 of the Model Law (1) Any application by the plaintiff for provisional relief under article 19 of the Model Law must be made by filing an interlocutory process in accordance with Form 3. (2) Unless the Court otherwise orders, the interlocutory process and any supporting affidavit must be served in accordance with rule 2.7(2). 15A.5 Official liquidator's consent to act If the relief sought in an application under article 15 of the Model Law includes an application for an order under article 19 or 21 to entrust the distribution of the debtor's assets to a person designated by the Court (other than the foreign representative), unless the Court otherwise orders, that person must— (a) be an official liquidator; and (b) have filed a Consent to Act in accordance with Form 19 that specifies an address for service for the person within Australia. r. 7 -- 8 of 20 -- S.R. No. 43/2009 Supreme Court (Chapter V Amendment No. 6) Rules 2009 7 15A.6 Notice of filing of application for recognition (1) Unless the Court otherwise orders, the plaintiff in a proceeding referred to 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 referred to in rule 2.11. 15A.7 Notice of order for recognition, discontinuance 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 authenticated; (b) serve a copy of the authenticated 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; r. 7 -- 9 of 20 -- S.R. No. 43/2009 Supreme Court (Chapter V Amendment No. 6) Rules 2009 8 (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 referred to in rule 2.11. (3) If the application for recognition is discontinued or dismissed, the plaintiff must, as soon as practicable, do all of the following— (a) for a dismissal, have the order of dismissal authenticated; (b) serve a copy of the authenticated order of dismissal or notice of the discontinuance, on the defendant; (c) send a notice of the dismissal or discontinuance in accordance with Form 22 to each person whose claim to be a creditor of the defendant is known to the plaintiff; (d) publish a notice of the dismissal or discontinuance 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 referred to 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 r. 7 -- 10 of 20 -- S.R. No. 43/2009 Supreme Court (Chapter V Amendment No. 6) Rules 2009 9 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 rule 2.7(2), but on the following persons— (a) the defendant; (b) any person that the Court directed be served with the originating process by which the application for recognition was made; (c) any other person that the Court directs. (3) A person who intends to appear before the Court at the hearing of an application under subrule (1) must file and serve the documents referred to 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 to which this rule applies must be made by filing an interlocutory process in accordance with Form 3. r. 7 -- 11 of 20 -- S.R. No. 43/2009 Supreme Court (Chapter V Amendment No. 6) Rules 2009 10 (3) An interlocutory process for an application to which this rule applies and any supporting affidavit must be served on— (a) for an application referred to in 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 referred to in 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 to which this rule applies 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 referred to in rule 2.11. (6) A person who intends to appear before the Court at the hearing of an application to which this rule applies must file and serve the documents referred to in rule 2.9.". r. 7 -- 12 of 20 -- S.R. No. 43/2009 Supreme Court (Chapter V Amendment No. 6) Rules 2009 11 8 Request for bill of taxation In the Principal Rules— (a) in the heading to Rule 17.2 for "Form 19" substitute "Form 18A"; (b) in Rule 17.2(1) for "Form 19" substitute "Form 18A". 9 Forms 2 and 3 amended In Schedule 1 to the Principal Rules— (a) in Form 2 for "Rule 2.2" substitute "Rules 2.2 and 15A.3"; (b) in Form 2 for "*Corporations Regulations" substitute "*Cross-Border Insolvency Act/*Corporations Regulations"; (c) in Form 3 for "Rule 2.2" substitute "Rules 2.2, 15A.4, 15A.8 and 15A.9"; (d) in Form 3 for "*Corporations Regulations" substitute "*Cross-Border Insolvency Act/*Corporations Regulations". 10 New Form 18A In Schedule 1 to the Principal Rules, for Form 19 substitute— "Rule 17.2 FORM 18A REQUEST TO DELIVER BILL FOR TAXATION [Title] TO: [name and address of person to whom request is made] I request that, within days of delivery of this request, you deliver to me for taxation by the proper officer your bill of costs [or charges] [or expenses] as [state nature of employment] employed by me as liquidator in the winding up of the abovenamed company. If this request is not met within the time provided for above, or within any extended time allowed by an Associate Judge of the Supreme Court, r. 8 -- 13 of 20 -- S.R. No. 43/2009 Supreme Court (Chapter V Amendment No. 6) Rules 2009 12 I am entitled to declare and distribute a dividend without regard to any claim you may have against the assets of the company and your claim against the assets of the company will be liable to be forfeited. Date: Signature of liquidator __________________". 11 New Forms 19 to 23 inserted In Schedule 1 to the Principal Rules, at the end of the Schedule insert— "Rule 15A.5 FORM 19 CONSENT TO ACT AS DESIGNATED PERSON [Title] I, [name], of [address], an official liquidator, consent to be appointed by the Court and to act as the person designated by the Court under *article 19/*article 21 of the Model Law to distribute the assets of [name of company]. I am not aware of any conflict of interest or duty that would make it improper for me to act as the person designated by the Court. The hourly rates currently charged in respect of work done as the person designated by the Court by me, and by my partners and employees who may perform work in this administration, are set out below or in the Schedule which is attached to this Consent. I acknowledge that my appointment by the Court does not constitute an express or implied approval by the Court of these hourly rates. Date: Signature of official liquidator *Omit if not applicable r. 11 -- 14 of 20 -- S.R. No. 43/2009 Supreme Court (Chapter V Amendment No. 6) Rules 2009 13 SCHEDULE [description of hourly rate(s)] __________________ Rule 15A.6 FORM 20 NOTICE OF FILING OF APPLICATION FOR RECOGNITION OF FOREIGN PROCEEDING IN THE [name of Court] No. of [year] [Name of company] ABN or ACN: [ABN or ACN of company to which proceeding relates] TO all the creditors of [name of company]. TAKE NOTICE that: 1. An application under the Cross-Border Insolvency Act 2008 for recognition of a foreign proceeding in relation to [name of company] was commenced by the plaintiff, [name of plaintiff], on [date of filing of originating process] and will be heard by at [address of Court] at *am/*pm on . Copies of documents filed may be obtained from the plaintiff's address for service. 2. The plaintiff's address for service is [name and address of plaintiff's legal practitioner or, if there is no legal practitioner, address of the plaintiff]. 3. Any person intending to appear at the hearing must file a notice of appearance, in accordance with the prescribed form, together with any affidavit on which the person intends to rely, and serve a copy of the notice and any affidavit on the plaintiff at the plaintiff's address for service at least 3 days before the date fixed for the hearing. r. 11 -- 15 of 20 -- S.R. No. 43/2009 Supreme Court (Chapter V Amendment No. 6) Rules 2009 14 4. If you are a foreign creditor you must file in the registry of the Court at the address mentioned in paragraph 1 an affidavit setting out the details of any claim, secured or unsecured, that you may have against the company above at least 3 days before the date fixed for the hearing. Date: Name of plaintiff or plaintiff's legal practitioner: [name] *Omit if not applicable __________________ Rule 15A.7 FORM 21 NOTICE OF MAKING OF ORDER UNDER THE CROSS-BORDER INSOLVENCY ACT 2008 IN THE [name of Court] No. of [year] [Name of company] ABN or ACN: [ABN or ACN of company to which proceeding relates] TO all the creditors of [name of company]. TAKE NOTICE that: 1. On [date], the [name of Court] in Proceeding No. of [year], commenced by the plaintiff [name of plaintiff], made the following orders under the Cross-Border Insolvency Act 2008 in relation to [name of company]: [insert details of order]. 2. The plaintiff's address for service is [name and address of plaintiff's legal practitioner or, if there is no legal practitioner, address of the plaintiff]. 3. The name and address of the foreign representative is [insert name and address]. 4. The name and address of the person entrusted with distribution of the company's assets is [insert name and address].* r. 11 -- 16 of 20 -- S.R. No. 43/2009 Supreme Court (Chapter V Amendment No. 6) Rules 2009 15 Date: Name of plaintiff or plaintiff's legal practitioner: [name] *Omit if not applicable __________________ Rule 15A.7 FORM 22 NOTICE OF DISMISSAL OR DISCONTINUANCE OF APPLICATION FOR RECOGNITION OF FOREIGN PROCEEDING IN THE [name of Court] No. of [year] [Name of company] ABN or ACN: [ABN or ACN of company to which proceeding relates] TO all the creditors of [name of company]. TAKE NOTICE that the application under the Cross-Border Insolvency Act 2008 for recognition of a foreign proceeding in relation to [name of company] commenced by the plaintiff, [name of plaintiff], on [date of filing of originating process] was dismissed*/discontinued* on [date of dismissal/discontinuance]. Date: Name of person giving notice or of person's legal practitioner [name] *Omit if not applicable __________________ r. 11 -- 17 of 20 -- S.R. No. 43/2009 Supreme Court (Chapter V Amendment No. 6) Rules 2009 16 Rule 15A.9 FORM 23 NOTICE OF FILING OF APPLICATION TO MODIFY OR TERMINATE AN ORDER FOR RECOGNITION OR OTHER RELIEF IN THE [name of Court] No. of [year] [Name of company] ABN or ACN: [ABN or ACN of company to which proceeding relates] TO all the creditors of [name of company]. TAKE NOTICE that: *1. An application under the Cross-Border Insolvency Act 2008 for an order *modifying/*terminating an order for recognition of a foreign proceeding in relation to [name of company] was filed by the applicant, [name of applicant], on [date of filing of interlocutory process] and will be heard by at [address of Court] at *am/*pm on . Copies of documents filed may be obtained from the applicant's address for service. *1. An application under the Cross-Border Insolvency Act 2008 for an order *modifying/*terminating relief granted under *article 19/*article 21 of the Model Law in relation to [name of company] was filed by the applicant, [name of applicant], on [date of filing of interlocutory process] and will be heard by at [address of Court] at *am/*pm on . Copies of documents filed may be obtained from the applicant's address for service. 2. The applicant's address for service is [name and address of applicant's legal practitioner or of applicant]. 3. Any person intending to appear at the hearing must file a notice of appearance (if the person has not already done so), in accordance with the prescribed form, together with any affidavit on which the person intends to rely, and serve a copy of the notice (if applicable) and any affidavit on the applicant at the r. 11 -- 18 of 20 -- S.R. No. 43/2009 Supreme Court (Chapter V Amendment No. 6) Rules 2009 17 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 __________________". Dated: 30 April 2009 M. L. WARREN, C.J. CHRISTOPHER MAXWELL, P. PETER BUCHANAN, J.A. DAVID ASHLEY, J.A. MARCIA NEAVE, J.A. P. D. CUMMINS, J. H. R. HANSEN, J. PHILIP MANDIE, J. R. S. OSBORN, J. STEPHEN KAYE, J. ANTHONY CAVANOUGH, J. TONY PAGONE, J. PAUL COGHLAN, J. ROSS ROBSON, J. JACK FORREST, J. JAMES JUDD, J. PETER VICKERY, J. EMILIOS KYROU, J. DAVID F. R. BEACH, J. JENNIFER DAVIES, J. ═══════════════ r. 11 -- 19 of 20 -- S.R. No. 43/2009 Supreme Court (Chapter V Amendment No. 6) Rules 2009 18 ENDNOTES 1 Rule 4: S.R. No. 107/2003. Reprint No. 1 as at 17 December 2008. Reprinted to S.R. No. 117/2008. Endnotes -- 20 of 20 --