Supreme Court (Chapter V Amendment No. 2) Rules 2001

i Supreme Court (Chapter V Amendment No. 2) Rules 2001 S.R. No. 27/2001 TABLE OF PROVISIONS Rule Page 1. Object 1 2. Authorising provisions 1 3. Commencement 1 4. Principal Rules 1 5. References to ASIC Law 2 6. Notice of certain applications to be given to Commission 2 7. Leave to creditor, contributory or officer to be heard 3 8. Application of Order 5 4 9. Appointment of provisional liquidator 4 10. Remuneration of receiver 4 11. Remuneration of administrator 5 12. Remuneration of provisional liquidator 5 13. Remuneration of liquidator 6 14. Remuneration of special manager 6 15. Application for examination or investigation 7 16. Application for examination summons 7 17. Service on Commission in relation to certain proceedings 7 12.1 Service on Commission in relation to proceedings under Chapter 6, 6A, 6B, 6C, 6D or 7 of the Law 7 18. Appeals from Orders of Masters 7 19. New Order 16A inserted 7 ORDER 16A—PROCEEDINGS UNDER THE FEDERAL COURTS (STATE JURISDICTION) ACT 1999 7 16A.1 Form for initiating proceeding 7 20. Amendment of Form 2 8 21. Amendment of Form 3 9 22. Amendment of Form 17 9 ═══════════════ ENDNOTES 11 -- 1 of 12 -- 1 STATUTORY RULES 2001 S.R. No. 27/2001 Supreme Court Act 1986 Corporations (Victoria) Act 1990 Supreme Court (Chapter V Amendment No. 2) Rules 2001 The Judges of the Supreme Court make the following Rules: 1. Object The object of these Rules is to make miscellaneous amendments to the Supreme Court (Corporations Law) Rules 1999. 2. Authorising provisions These Rules are made under section 25 of the Supreme Court Act 1986, section 51 of the Corporations (Victoria) Act 1990 and all other enabling powers. 3. Commencement (1) These Rules, except Rule 5(4), come into operation on 1 April 2001. (2) Rule 5(4) comes into operation on the day on which Schedule 1 to the Financial Sector Reform (Victoria) Act 1999 comes into operation. 4. Principal Rules In these Rules, the Supreme Court (Corporations Law) Rules 19991 are called the Principal Rules. -- 2 of 12 -- S.R. No. 27/2001 Supreme Court (Chapter V Amendment No. 2) Rules 2001 2 5. References to ASIC Law (1) In Rules 1.3(1), 1.3(2), 1.3(3), 1.8(a), 1.10, 2.2(3)(b)(i), 2.2(4)(b)(i), 15.1, 15.2 and 15.3 of the Principal Rules, for "ASC Law" substitute "ASIC Law". (2) In Rule 1.5 of the Principal Rules— (a) after the definition of "applicant" insert— ' "ASIC Law" means ASC Law within the meaning of the Corporations (Victoria) Act 1990;'; (b) in the definitions of "defendant" and "plaintiff", for "ASC Law" substitute "ASIC Law". (3) In Schedule 2 to the Principal Rules, in column 1, for "ASC LAW" substitute "ASIC LAW". (4) In Rule 1.5 of the Principal Rules, the definition of "ASIC Law" is revoked. 6. Notice of certain applications to be given to Commission In Rule 2.8 of the Principal Rules, for sub-rule (3) substitute— "(3) Unless the Court otherwise orders, if a person makes an application under a provision of the Law mentioned in column 2 of the item of the following Table, the person must serve on the Commission, 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. r. 5 -- 3 of 12 -- S.R. No. 27/2001 Supreme Court (Chapter V Amendment No. 2) Rules 2001 3 TABLE Column 1 Column 2 Column 3 Item Provision Description of application 1. Section 480 For the release of a liquidator of a company and the deregistration of the company 2. Sub-section 482(1) For the stay of a compulsory winding up 3. Sub-section 509(6) For the deregistration of a company 4. Sub-section 536(1) For an inquiry into the conduct of a liquidator 5. Sub-section 601AH(2) To reinstate the registration of a company 6. Sub-section 601CC(8) To restore the name of an Australian body to the register 7. Sub-section 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. Sub-sections 1317S(2), (4) and (5) For relief from liability for contravention of a civil penalty provision". 7. Leave to creditor, contributory or officer to be heard r. 6 -- 4 of 12 -- S.R. No. 27/2001 Supreme Court (Chapter V Amendment No. 2) Rules 2001 4 (1) In Rule 2.13(1)(b) of the Principal Rules, for "corporation—" substitute "corporation; or". (2) After Rule 2.13(1)(b) of the Principal Rules insert— "(c) any other interested person—". 8. Application of Order 5 In Rule 5.1 of the Principal Rules, for paragraph (a) substitute— "(a) an application for an order under Part 2F.1 of the Law;". 9. Appointment of provisional liquidator In Rule 6.1 of the Principal Rules, for sub-rule (3) substitute— "(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 must include a short description of the part of the property of the company that the provisional liquidator may take into custody.". 10. Remuneration of receiver (1) In Rule 9.1(1) of the Principal Rules, in the Note at the foot of the Rule, after "receiver" (where first occurring) insert "appointed under an instrument". (2) In Rule 9.1(6) of the Principal Rules, for paragraph (d) substitute— -- 5 of 12 -- S.R. No. 27/2001 Supreme Court (Chapter V Amendment No. 2) Rules 2001 5 "(d) state particulars of any objection of which the receiver has received notice; and (e) if the receivership is continuing, give details of any matters delaying the completion of the receivership.". 11. Remuneration of administrator (1) In Rule 9.2 of the Principal Rules, for sub-rule (2) substitute— "(2) The administrator must not apply for the order until after the date of the meeting of creditors mentioned in paragraph 449E(1)(a) of the Law.". (2) In Rule 9.2(3)(b) of the Principal Rules, for "inspection" substitute "creditors". (3) In Rule 9.2(7) of the Principal Rules, for paragraph (d) substitute— "(d) state particulars of any objection of which the administrator has received notice; and (e) if the administration is continuing, give details of any matters delaying the completion of the administration.". 12. Remuneration of provisional liquidator (1) In Rule 9.3(3)(b) of the Principal Rules, for "inspection" (where twice occurring) substitute "creditors". (2) In Rule 9.3(7) of the Principal Rules, for paragraph (d) substitute— "(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— r. 11 -- 6 of 12 -- S.R. No. 27/2001 Supreme Court (Chapter V Amendment No. 2) Rules 2001 6 (i) any reasons known to the provisional liquidator why the winding up proceeding has not been determined; and (ii) any reasons why the provisional liquidator's remuneration should be determined before the determination of the winding up proceeding.". 13. Remuneration of liquidator (1) In Rule 9.4(2)(b) of the Principal Rules omit "the end of 28 days after". (2) In Rule 9.4(3)(b) of the Principal Rules, for "inspection" substitute "creditors". (3) In Rule 9.4(7) of the Principal Rules, for paragraph (d) substitute— "(d) state particulars of any objection of which the liquidator has received notice; and (e) if the winding up is continuing, give details of any matters delaying the completion of the winding up.". 14. Remuneration of special manager (1) In Rule 9.5(3)(b) of the Principal Rules, for "inspection" (where twice occurring) substitute "creditors". (2) In Rule 9.5(7) of the Principal Rules, for paragraph (d) substitute— "(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.". r. 13 -- 7 of 12 -- S.R. No. 27/2001 Supreme Court (Chapter V Amendment No. 2) Rules 2001 7 15. Application for examination or investigation In Rule 11.2(1) and (3) of the Principal Rules, for "section 411 or 423" substitute "paragraph 411(9)(b), section 423". 16. Application for examination summons In Rule 11.3(8) of the Principal Rules, for "is to be" substitute "must be". 17. Service on Commission in relation to certain proceedings For Rule 12.1 of the Principal Rules substitute— "12.1 Service on Commission in relation to proceedings under Chapter 6, 6A, 6B, 6C, 6D or 7 of the Law If the Commission is not a party to an application made under Chapter 6, 6A, 6B, 6C, 6D or 7 of the Law, the plaintiff must serve a copy of the originating process and the supporting affidavit on the Commission as soon as practicable after filing the originating process.". 18. Appeals from Orders of Masters In Rule 16.5 of the Principal Rules, for "paragraphs" substitute "sub-rules". 19. New Order 16A inserted After Order 16 of the Principal Rules insert— "ORDER 16A—PROCEEDINGS UNDER THE FEDERAL COURTS (STATE JURISDICTION) ACT 1999 16A.1 Form for initiating proceeding (1) Subject to sub-rule (2) and any direction of the Court, a proceeding for relief under section 7, 10 or 11 of the Federal Courts r. 15 -- 8 of 12 -- S.R. No. 27/2001 Supreme Court (Chapter V Amendment No. 2) Rules 2001 8 (State Jurisdiction) Act 1999 must be initiated by filing an originating process. (2) If— (a) in a proceeding, the Federal Court of Australia has made an order for the winding up of a company; and (b) the order is an ineffective judgment within the meaning of the Federal Courts (State Jurisdiction) Act 1999— an application under the Federal Courts (State Jurisdiction) Act 1999 in relation to the winding up of the company may be made by filing an interlocutory process. (3) An interlocutory process filed under sub- rule (2) must state the proceeding number of the Federal Court proceeding.". 20. Amendment of Form 2 In Schedule 1 to the Principal Rules, in Form 2— (a) in Part A— (i) for "ASC" substitute "ASIC"; (ii) at the end of the Part insert— "This application will be heard by at [address of Court] at *am/*pm on [insert date]."; (b) in Part B— (i) omit— "This application will be heard by at [address of Court] at *am/*pm on"; (ii) for "at that time" substitute "at the time shown above". r. 20 -- 9 of 12 -- S.R. No. 27/2001 Supreme Court (Chapter V Amendment No. 2) Rules 2001 9 21. Amendment of Form 3 In Schedule 1 to the Principal Rules, in Form 3— (a) in Part A— (i) for "ASC" substitute "ASIC"; (ii) at the end of the Part insert— "This interlocutory application will be heard by at [address of Court] at *am/*pm on [insert date]."; (b) in Part B— (i) omit— "This interlocutory application will be heard by at [address of Court] at *am/*pm on"; (ii) for "at that time" substitute "at the time shown above". 22. Amendment of Form 17 In Schedule 1 to the Principal Rules, in Form 17— (a) in the Heading to the Form, omit "PUBLIC"; (b) in Part B, before "* Omit if not applicable." insert— "This summons is issued at the request of [name] whose address for service is [address of person's legal practitioner or of person].". Dated: 29 March 2001 J. H. PHILLIPS, C.J. JOHN WINNEKE, P. ROBERT BROOKING, J.A. R. C. TADGELL, J.A. W. F. ORMISTON, J.A. r. 21 -- 10 of 12 -- S.R. No. 27/2001 Supreme Court (Chapter V Amendment No. 2) Rules 2001 10 JOHN D. PHILLIPS, J.A. F. H. CALLAWAY, J.A. J. M. BATT, J.A. PETER BUCHANAN, J.A. ALEX CHERNOV, J.A. ALLAN W. McDONALD, J. T. H. SMITH, J. DAVID ASHLEY, J. JOHN J. HEDIGAN, J. JOHN COLDREY, J. DAVID BYRNE, J. G. M. EAMES, J. H. R. HANSEN, J. PHILIP MANDIE, J. E. W. GILLARD, J. MURRAY B. KELLAM, J. M. L. WARREN, J. BERNARD D. BONGIORNO, J. ═══════════════ r. 22 -- 11 of 12 -- S.R. No. 27/2001 Supreme Court (Chapter V Amendment No. 2) Rules 2001 11 ENDNOTES 1 Rule 4: S.R. No. 134/1999 as amended by S.R. No. 121/2000. Endnotes -- 12 of 12 --