(1) Unless the Court otherwise orders, 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.
(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.
(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—1 day before the date fixed for hearing.
(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, or (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.
(1) The affidavit in support of an originating process seeking an order that 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, 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 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).
(1A)
(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.
(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 the Commission 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. (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 the Commission 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 the Commission or by the Court, or (ii) any creditor, contributory or other interested person, (h) whether any report has been submitted by the liquidator to the Commission 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.
(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.
(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. Note— 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) 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.
(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 subsection 449E (1) of the Corporations Act fixing the administrator’s remuneration. (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 Corporations Act.
(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.
(1) This rule applies to an application by a liquidator of a company for an order under subsection 473 (3) of the Corporations Act determining the liquidator’s remuneration. (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.
(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.
(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.
(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, and (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.
(rule 1.6)