Supreme Court (Chapter V Amendment No. 5) Rules 1999

i Supreme Court (Chapter V Amendment No. 5) Rules 1999 S.R. No. 51/1999 TABLE OF PROVISIONS Rule Page 1. Object 1 2. Authorising provisions 1 3. Commencement 1 4. Principal Rules 1 5. Amendment of title 1 6. Application 2 7. Amendment of definition 2 8. Title of proceedings 2 9. Reports 2 10. Meetings ordered by the Court 2 11. New Rule 3.23 3 3.23 Reference to Court of question of law 3 12. Matters to be gazetted and advertised 3 13. Notice to Commission 3 14. Issue of shares at discount 5 15. Appeals before Judge 5 16. Inquiries 5 17. Reduction of capital 5 18. Application of Order 8 5 19. Affidavit under Rule 8.05 6 20. Notice of appointment of provisional liquidator 6 21. Order of appointment 6 22. Provisional liquidator's powers 6 23. Report as to company's affairs 6 24. Making calls 7 25. Leave to disclaim 7 10.13 Application by liquidator for leave to disclaim contract 7 26. Examinations 7 27. Amendment of Table of Forms 7 28. Revocation of certain Forms 7 29. Amendment of certain Forms 8 30. New Second Schedule 8 -- 1 of 18 -- Rule Page ii SECOND SCHEDULE—Jurisdiction of masters 8 ═══════════════ NOTES 16 -- 2 of 18 -- 1 STATUTORY RULES 1999 S.R. No. 51/1999 Supreme Court Act 1986 Corporations (Victoria) Act 1990 Supreme Court (Chapter V Amendment No. 5) Rules 1999 The Judges of the Supreme Court make the following Rules: 1. Object The object of these Rules is to make miscellaneous amendments to Chapter V of the Rules of the Supreme Court principally in consequence of amendments to the Corporations Law. 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 These Rules come into operation on 3 May 1999. 4. Principal Rules In these Rules, Chapter V of the Rules of the Supreme Court1 is called the Principal Rules. 5. Amendment of title (1) In the heading to the Principal Rules, immediately before the expression "ORDER 1" omit— "CHAPTER V -- 3 of 18 -- S.R. No. 51/1999 Supreme Court (Chapter V Amendment No. 5) Rules 1999 2 CORPORATIONS RULES 1992". (2) For Rule 1.01 of the Principal Rules substitute— "1.01 Title These Rules constitute Chapter V of the Rules of the Supreme Court and are entitled the Supreme Court (Corporations) Rules 1992.". 6. Application In Rule 1.04 of the Principal Rules, after paragraph (3) insert— "(4) These Rules as in force immediately before 3 May 1999 continue to apply to applications under a provision of the Corporations Law or the ASC Law made to the Court before that date.". 7. Amendment of definition In Rule 1.05(1) of the Principal Rules, for sub- paragraph (b) substitute— '(b) "Commission" means the Australian Securities and Investments Commission established by the Australian Securities and Investments Commission Act 1989 of the Commonwealth;'. 8. Title of proceedings In Rule 3.05 of the Principal Rules, for 'or "(under official management)" ' substitute 'or "(controller acting)" or otherwise as the case may require'. 9. Reports In Rule 3.19(2) of the Principal Rules, omit ", 452(4)". 10. Meetings ordered by the Court r. 6 -- 4 of 18 -- S.R. No. 51/1999 Supreme Court (Chapter V Amendment No. 5) Rules 1999 3 In Rule 3.20 of the Principal Rules, for "5.6.36" substitute "5.6.36A". 11. New Rule 3.23 After Rule 3.22 of the Principal Rules insert— "3.23 Reference to Court of question of law (1) Where by the Corporations Law or the ASC Law provision is made for a question of law to be referred to the Court by any body or person other than a Court, Order 6 of Chapter II of the Rules of the Supreme Court applies to the reference with any necessary modification. (2) Without limiting paragraph (1), Order 6 applies in accordance with paragraph (1) to the reference to the Court of a question of law under section 61 or 196 of the ASC Law.". 12. Matters to be gazetted and advertised (1) In Rule 4.01(1) of the Principal Rules, for Table 1 substitute— "TABLE 1 Column 1 Provision Column 2 Description s. 246D To set aside variation etc. of rights of shareholders. s. 254E To validate an issue of shares or confirm its terms. s. 411(1A), 411(4) and (6), s. 413(1) For an order for meetings or approval of scheme.". (2) In Rule 4.01(4)(c) of the Principal Rules, for "section 218(1) and (3)" substitute "sections 121 and 142(2)". 13. Notice to Commission r. 11 -- 5 of 18 -- S.R. No. 51/1999 Supreme Court (Chapter V Amendment No. 5) Rules 1999 4 In Rule 4.02(1) of the Principal Rules, for Table 2 substitute— "TABLE 2 Column 1 Provision Column 2 Description s. 254E To validate an issue of shares or confirm its terms. s. 266(4) To extend time for registration of charge. s. 445G To avoid or validate deed of company arrangement. s. 449B To remove administrator. s. 473(2) and (3) To fix remuneration of provisional liquidator or liquidator. s. 480 For release of liquidator and deregistration of company. s. 482(1) For stay of compulsory winding-up. s. 509(6) For deregistration of company. s. 511(1)(b) (where the application is for the exercise of the power that would be exercisable under s. 482(1) if the company were being wound up by the Court) For stay of voluntary winding-up. s. 532 For leave to be appointed or act as liquidator. s. 536(1)(b) For inquiry into conduct of liquidator. s. 598 (where Commission not applicant) For an order in respect of fraud, negligence, etc. s. 601AH(2) For reinstatement of the registration of company. s. 601CC(8) To restore name of Australian body to i r. 13 -- 6 of 18 -- S.R. No. 51/1999 Supreme Court (Chapter V Amendment No. 5) Rules 1999 5 register. Column 1 Provision Column 2 Description s. 601CL(9) To restore name of foreign company to register. s. 1224 (where Commission not applicant) For an order to restrain dealings with futures broker's bank accounts. s. 1226 (where Commission not applicant) For further order or directions subsequent to an order under s. 1224. s. 1317JA For relief from liability for contravention of civil penalty provision. s. 1322(4) To overcome irregularities in proceedings.". 14. Issue of shares at discount Rule 4.04 of the Principal Rules is revoked. 15. Appeals before Judge In Rule 5.01 of the Principal Rules, for "section 15(2)" substitute "section 17B(2)". 16. Inquiries In Rule 5.09 of the Principal Rules, for "section 15(2)" substitute "section 17B(2)". 17. Reduction of capital Order 6 of the Principal Rules is revoked. 18. Application of Order 8 (1) In Rule 8.01(1) of the Principal Rules, for "section 260" substitute "section 246AA". (2) After Rule 8.01(2) of the Principal Rules insert— "(2.1) This Order applies, with any necessary modification to— r. 14 -- 7 of 18 -- S.R. No. 51/1999 Supreme Court (Chapter V Amendment No. 5) Rules 1999 6 (a) an application under section 601ND of the Corporations Law for an order directing the responsible entity of a registered scheme to wind up the scheme; (b) an application under section 1457(2) of the Corporations Law for an order directing a management company to wind up a scheme— as it applies to an application for the winding up of a company.". (3) In Rule 8.01(3) of the Principal Rules, after "paragraph (1)" insert "or in paragraph (2.1)". 19. Affidavit under Rule 8.05 (1) In Rule 8.06(c) of the Principal Rules, omit "and the enactment (if any) pursuant to which it was incorporated or formed". (2) In Rule 8.06(f)(ii) of the Principal Rules, for "Part 4.1" substitute "Part 5B.2". 20. Notice of appointment of provisional liquidator In Rule 9.02 of the Principal Rules, for "Commissioner" substitute "Commission". 21. Order of appointment In Rule 9.04 of the Principal Rules, for "Commissioner" substitute "Commission". 22. Provisional liquidator's powers Rule 9.05 of the Principal Rules is revoked. 23. Report as to company's affairs In Rule 10.04 of the Principal Rules, after paragraph (5) insert— '(6) In this Rule, "liquidator" includes a provisional liquidator.'. r. 19 -- 8 of 18 -- S.R. No. 51/1999 Supreme Court (Chapter V Amendment No. 5) Rules 1999 7 24. Making calls Rules 10.08, 10.09 and 10.10 of the Principal Rules are revoked. 25. Leave to disclaim For Rule 10.13 of the Principal Rules substitute— "10.13 Application by liquidator for leave to disclaim contract A liquidator who applies under section 568(1A) for leave to disclaim a contract shall— (a) file an affidavit showing the persons interested and their interests; and (b) serve a copy of the affidavit on the parties to the contract, other than the company, and on any person interested in the contract.". 26. Examinations 2 (1) In Rule 12.01(1) of the Principal Rules omit ", official manager". (2) In Rules 12.01(1), 12.02, 12.03(1) and 12.05(3) of the Principal Rules, omit ", 452". 27. Amendment of Table of Forms In the First Schedule to the Principal Rules, in the Table of Forms, the items referring to Forms 5- 6A, 5-6B, 5-6C, 5-6D, 5-6E , 5-6F, 5-6G, 5-10C, 5-10D, 5-10E, 5-10F, 5-10G, 5-10H, 5-10J, 5-10K, 5-10L and 5-10M are revoked. 28. Revocation of certain Forms In the First Schedule to the Principal Rules, Forms 5-6A, 5-6B, 5-6C, 5-6D, 5-6E, 5-6F, 5-6G, r. 24 -- 9 of 18 -- S.R. No. 51/1999 Supreme Court (Chapter V Amendment No. 5) Rules 1999 8 5-10C, 5-10D, 5-10E, 5-10F, 5-10G, 5-10H, 5-10J, 5-10K, 5-10L and 5-10M are revoked. 29. Amendment of certain Forms (1) In the First Schedule to the Principal Rules, in Form 5-8E, for the words and expressions commencing "The application is to be heard in" and ending at the end of the paragraph substitute— "The application is to be heard before the Master in Court 5, Supreme Court, Ground Floor, 436 Lonsdale Street, Melbourne [or before the Judge-in-Charge of Corporations Business, Supreme Court, 210 William Street, Melbourne].". (2) In the First Schedule to the Principal Rules, in Form 5-10N omit the note at the foot of the Form. 30. New Second Schedule For the Second Schedule to the Principal Rules substitute— "SECOND SCHEDULE JURISDICTION OF MASTERS (Rule 2.02) Column 1 Provision Column 2 Description THE ASC LAW s. 79(4) To extend time for service of notice. THE CORPORATION S LAW s. 266(4) For extension of time for registration of charge. s. 274 To rectify omission or mis-statement. r. 29 -- 10 of 18 -- S.R. No. 51/1999 Supreme Court (Chapter V Amendment No. 5) Rules 1999 9 s. 411(16) To restrain further proceedings. s. 425 To fix remuneration of receiver. Column 1 Provision Column 2 Description s. 429(3) To extend time for report. s. 434 That receiver remedy default. s. 439A(6) For extension of convening period. s. 440D(b) For leave to begin or proceed with proceeding against company during administration. s. 440F For leave to begin or proceed with enforcement process re property of company during administration. s. 440G(7) To permit a court officer to take action or make a payment during administration. s. 444 For leave to proceed or to restrain proceedings. s. 444B(2)(b) To extend time for company to execute deed. s. 444E(3)(c) For leave to person bound by deed to begin or proceed with proceeding against company etc or enforcement process against company. s. 447A(1) (where winding up order to be made by a Master) To end administration of company. s. 447E(2) For order where office of administrator is vacant or no administrator is acting. s. 449C(6) For appointment of an administrator of company under administration when none is acting. s. 449D(1) To fill vacancy in office of administrator of deed. s. 449D(2) For appointment of an administrator of deed where none is acting. r. 30 -- 11 of 18 -- S.R. No. 51/1999 Supreme Court (Chapter V Amendment No. 5) Rules 1999 10 Column 1 Provision Column 2 Description s. 449E(1) To fix the remuneration of an administrator. s. 449E(2) For review etc. of administrator's remuneration. s. 459F(2)(a) For order extending period for compliance with demand. s. 459G For order on application to set aside a demand. s. 459R For extension of time for determination of application for winding up in insolvency. s. 459S For leave to company to oppose application. s. 465B(1) For order substituting applicant. s. 465C (if the application is pending before a Master) For leave to oppose application when there has been failure to file and serve notice of grounds of opposition and verifying affidavit. s. 467(7) For stay of proceedings. s. 470(2)(b) To serve a copy order on another person. s. 471B For leave to begin or proceed with a proceeding or begin or proceed with enforcement process against a company being wound up in insolvency or by the Court or in respect of which a provisional liquidator is acting. s. 472(1) (where winding-up order made by a Master) For appointment of liquidator. s. 472(2) For appointment of provisional liquidator. r. 30 -- 12 of 18 -- S.R. No. 51/1999 Supreme Court (Chapter V Amendment No. 5) Rules 1999 11 Column 1 Provision Column 2 Description s. 472(6) For order on application with respect to the exercise or proposed exercise of a power of a provisional liquidator. s. 473(2) Determination of provisional liquidator's remuneration. s. 473(3), (5) Determination or review of liquidator's remuneration. s. 473(7) To fill vacancy in office of liquidator. s. 473(8) To declare what may be done by liquidator, where more than one appointed. s. 474(2) To vest property in liquidator. s. 477(2A) For approval of liquidator's compromising a debt. s. 477(2B) For approval of liquidator's entering an agreement which may last or obligations which may be performable more than 3 months later. s. 477(6) For order on application with respect to the exercise or proposed exercise of a power by liquidator. s. 483(1) For delivery of property etc. to liquidator. s. 484 To appoint or remove special manager, to fix security or remuneration. s. 486 For inspection of books. s. 490 For leave to company to resolve that it be wound up voluntarily. s. 495(4) As to manner of holding meeting. s. 496(3) For order that list of creditors be sent. s. 497(3) For order that list of creditors be sent. s. 499 For direction as to liquidator. s. 500(2) For leave to proceed. r. 30 -- 13 of 18 -- S.R. No. 51/1999 Supreme Court (Chapter V Amendment No. 5) Rules 1999 12 Column 1 Provision Column 2 Description s. 500(3) For delivery of property etc. to liquidator. s. 502 To appoint liquidator. s. 504 To review liquidator's remuneration. s. 507(6) To sanction resolution. s. 507(9) For directions for initiation and conduct of arbitration. s. 507(10) For approval for exercise of powers. s. 509(6) To order deregistration on a specified day. s. 510(3) To settle dispute. s. 511(1)(b) For exercise of powers. s. 542(3)(a) As to destruction of books. s. 543(1) As to investment of funds. s. 544 As to accounts or payment of unclaimed funds. s. 545(2) To direct liquidator to incur a particular expense. s. 547(1) To direct meeting. s. 551 Leave to member of Committee of Inspection to accept benefit. s. 552 To give direction or permission. s. 568 (other than sub-section (9)) For leave to disclaim. s. 568B(2) To set aside disclaimer. s. 568F For orders re vesting of disclaimed property. s. 587 To stay proceedings or for leave to commence or proceed. s. 588T(2)(b) For leave to creditor to begin proceeding. Column 1 Column 2 r. 30 -- 14 of 18 -- S.R. No. 51/1999 Supreme Court (Chapter V Amendment No. 5) Rules 1999 13 Provision Description s. 596A For mandatory examination. s. 596F(1)(b) to (g) (if direction is given after commencement of examination before the Master) For directions about examination. s. 597(9) (if direction is given after commencement of examination before the Master) For direction to produce books. s. 597A For mandatory affidavit. s. 597B (if examination before the Master) For costs of unnecessary examination. s. 601AH(2) For reinstatement of the registration of a company. s. 601BJ To approve modification of constitution. s. 601CC(8) For restoration of name of registered Australian body. s. 601CL(9) For restoration of name of registered foreign company. s. 601FN For appointment of a temporary responsible entity of a scheme. s. 1053(5) For appointment of corporation to be trustee. s. 1094(1) For order following failure by directors to register etc. s. 1096(4) To remedy default in issuing certificate. s. 1274(11) For order to remedy default. Column 1 Provision Column 2 Description r. 30 r. 30 -- 15 of 18 -- S.R. No. 51/1999 Supreme Court (Chapter V Amendment No. 5) Rules 1999 14 s. 1319 For direction with respect to meeting. s. 1322(4) For order in relation to irregularities etc. s. 1341(3) For payment of money. CORPORATION S REGULATIONS 5.6.06 For order not to open liquidator's general account. 5.6.09 For directions with respect to money or securities and authorisation of payments to special bank accounts. 5.6.15(2) For repayment of costs of meeting. 5.6.16(4C) For declaration that adjourned meeting be taken to be incompetent to act. 5.6.18(2) For order as to place of adjourned meeting. 5.6.24(3) To determine whether security surrendered. 5C.2.02 To appoint a temporary responsible entity of a scheme.". Dated: 29 April 1999 J. H. PHILLIPS, C.J. JOHN WINNEKE, P. ROBERT BROOKING, J.A. W. F. ORMISTON, J.A. JOHN D. PHILLIPS, J.A. F. H. CALLAWAY, J.A. J. M. BATT, J.A. PETER BUCHANAN, J.A. ALEX CHERNOV, J.A. -- 16 of 18 -- S.R. No. 51/1999 Supreme Court (Chapter V Amendment No. 5) Rules 1999 15 BARRY BEACH, J. G. HAMPEL, J. F. H. R. VINCENT, J. BERNARD G. TEAGUE, J. P. D. CUMMINS, J. ALLAN W. McDONALD, J. T. H. SMITH, J. DAVID ASHLEY, J. JOHN J. HEDIGAN, J. JOHN COLDREY, J. G. M. EAMES, J. H. R. HANSEN, J. PHILIP MANDIE, J. ROSEMARY BALMFORD, J. MURRAY B. KELLAM, J. M. L. WARREN, J. ═══════════════ r. 30 -- 17 of 18 -- S.R. No. 51/1999 Supreme Court (Chapter V Amendment No. 5) Rules 1999 16 NOTES 1 Rule 4: Rule 5 of S.R. No. 98/1992. Reprinted to S.R. No. 170/1994 and subsequently amended by S.R. No. 141/1996. 2 Rule 26: In the heading to Rule 12.03 omit "under ss 411, 423, 452 or 536". Notes -- 18 of 18 --