Division 1Preliminary
1.1Name of
Rules
These Rules may be cited as the Supreme Court (Corporations) Rules
1999.
rule 1.1: Am
19.12.2003.
1.2Commencement
These Rules commence on 1 March
2000.
1.3Application 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 other rules of the Court 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 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.
rule 1.3: Am
22.12.2000; 19.12.2003; 2008 (455), Sch 1 [1].
1.4Expressions used in the
Corporations Act
rule 1.4, hdg: Am
19.12.2003.
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
company—see section 9
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.
rule 1.4: Am
19.12.2003; 2007 (447), Sch 1 [1]; 2008 (136), Sch 1 [1] [2]; 2014 (708), Sch
1 [1].
1.5Definitions 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.
Corporations Regulations means the
Corporations Regulations 2001 of the
Commonwealth.
Cross-Border Insolvency Act means
the Cross-Border Insolvency Act 2008 of the
Commonwealth 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.
rule 1.5: Am
22.12.2000; 19.12.2003; 2008 (455), Sch 1 [2]–[5].
1.6References 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.
1.7Substantial 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 Court or the
Court officer 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.
1.8Court’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, the 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.
rules 1.8, 1.10: Am
22.12.2000; 19.12.2003.
1.9Calculation 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.
rules 1.8, 1.10: Am
22.12.2000; 19.12.2003.
1.10Extension and abridgment of
time
Unless the Corporations Act, the ASIC Act, or
these Rules otherwise provide, the rules of this Court 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.
rules 1.8, 1.10: Am
22.12.2000; 19.12.2003.
Division 2Proceedings
generally
2.1Title of documents in a
proceeding—Form 1
The title of a document filed in a proceeding
must be in accordance with Form 1.
2.2Originating 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
(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).
rule 2.2: Am
22.12.2000; 19.12.2003; 2005 (286), Sch 1 [1]; 2007 (163), Sch 1
[1].
2.3Fixing 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.
2.4Supporting
affidavits
(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 or exhibit 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).
rule 2.4: Am
1.6.2001; 19.12.2003; 2008 (136), Sch 1 [3].
2.4AApplication for order setting
aside statutory demand (Corporations Act s 459G)
rule 2.4A, hdg: Ins
1.6.2001. Subst 19.12.2003.
(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.
(3)
The plaintiff must:
(a)
no earlier than 7 days before the originating
process is filed, and not 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.
rule 2.4A: Ins
1.6.2001. Am 19.12.2003; 2008 (136), Sch 1 [3].
2.5Affidavits 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, or
(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.
2.6Form of
affidavits
An affidavit must be in a form that complies
with:
(a)
the rules of the Court, or
(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 of
Australia.
2.7Service 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.
rule 2.7: Am 2007
(163), Sch 1 [2].
2.8Notice 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 2 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.
Item
Provision
Description
of application
1
Section
480
For the
release of a liquidator of a company and the deregistration of the
company
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 relief
from liability for contravention of a civil penalty
provision
rule 2.8: Am
22.12.2000; 19.12.2003; 2008 (136), Sch 1 [3] [4].
2.9Notice of appearance
(Corporations Act s 465C)—Form 4
rule 2.9, hdg: Am
19.12.2003.
(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.
(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.
(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.
rule 2.9: Am
19.12.2003.
2.10Intervention in proceeding by
ASIC (Corporations Act s 1330)—Form 5
rule 2.10, hdg: Am
19.12.2003; 2008 (136), Sch 1 [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.
rule 2.10: Am 2008
(136), Sch 1 [3].
2.11
rule 2.11: Am
19.12.2003. Rep 2014 (708), Sch 1 [2].
2.12Proof 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
(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.
2.13Leave 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, 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.
(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
(b)
remove any person so
appointed.
rule 2.13: Am
22.12.2000.
2.14Inquiry 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.
2.15Meetings 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.
rule 2.15: Am
19.12.2003; 2008 (136), Sch 1 [6].
Division 9Remuneration of
office-holders
9.1Remuneration 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.
Note 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.
Note 2—
The amendment to section 425 of the Corporations
Act made by the Corporations Amendment (Insolvency) Act
2007of the Commonwealth 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.
(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), and
(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
(f)
if the receivership is continuing—give
details of any matters delaying the completion of the
receivership.
rule 9.1: Am
22.12.2000; 19.12.2003; 2008 (136), Sch 1 [7] [8].
9.2Determination by Court of
remuneration of administrator (Corporations Act s 449E (1) (c) and (1A)
(c))—Form 16
rule 9.2, hdg: Am
19.12.2003. Subst 2008 (136), Sch 1 [9].
(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
(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.
rule 9.2: Am
22.12.2000; 19.12.2003. Subst 2008 (136), Sch 1 [9].
9.2AReview 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—
The amendment to section 449E of the Corporations
Act made by the Corporations Amendment (Insolvency) Act
2007 of the Commonwealth 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
paragraphs 449E (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 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 applicant 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,
(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.
rule 9.2A: Ins 2008
(136), Sch 1 [9].
9.3Remuneration of provisional
liquidator (Corporations Act s 473 (2))—Form 16
rule 9.3, hdg: Am
19.12.2003.
(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.
(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), and
(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, and
(b)
state the amount of remuneration claimed,
and
(c)
include a summary of the receipts taken and
payments made by the provisional liquidator, and
(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
(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
“liquidator” were references to “provisional
liquidator”.
rule 9.3: Am
22.12.2000; 19.12.2003; 2008 (136), Sch 1 [10]–[13].
9.4Determination by Court of
liquidator’s remuneration (Corporations Act s 473 (3) (b)
(ii))
rule 9.4, hdg: Am
19.12.2003.
(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—
The amendment to section 473 of the Corporations
Act made by the Corporations Amendment (Insolvency) Act
2007 of the Commonwealth 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,
(d)
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), 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), and
(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
(f)
if the winding up is continuing—give
details of any matters delaying the completion of the winding
up.
rule 9.4: Am
22.12.2000; 19.12.2003; 2008 (136), Sch 1 [14]–[19].
9.4AReview of remuneration of
liquidator (Corporations Act s 473 (5) and (6) and s 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—
The amendment to section 504 of the Corporations
Act made by the Corporations Amendment (Insolvency) Act
2007 of the Commonwealth applies in relation to a
liquidator appointed on or after 31 December 2007—see Corporations Act s
1480 (7).
(2)
The application may only be made after
remuneration has been determined under paragraph 473 (3) (a) or subparagraph
473 (3) (b) (i), or fixed under subsection 495 (1) or subsection 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.
(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 the 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 the requirement to prepare a report, see
subsections 473 (11), 473 (12), 495 (5), 499 (6) and 499 (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.
rule 9.4A: Ins 2008
(136), Sch 1 [20].
9.5Remuneration of special
manager (Corporations Act s 484 (2))—Form 16
rule 9.5, hdg: Am
19.12.2003.
(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), and
(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
(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, and
(b)
state the amount of remuneration claimed,
and
(c)
include a summary of the receipts taken and
payments made by the special manager, and
(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.
rule 9.5: Am
22.12.2000; 19.12.2003; 2008 (136), Sch 1 [21]–[23].
Division 15AProceedings under the
Cross-Border Insolvency Act
15A.1Application 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 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 Division.
Note—
See rule 1.5 for definitions of Cross-Border Insolvency Act and
Model
Law.
rules
15A.1–15A.4: Ins 2008 (455), Sch 1 [6].
15A.2Expressions 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.
rules
15A.1–15A.4: Ins 2008 (455), Sch 1 [6].
15A.3Application 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, 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 order, 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.
rules
15A.1–15A.4: Ins 2008 (455), Sch 1 [6].
15A.4Application 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).
rules
15A.1–15A.4: Ins 2008 (455), Sch 1 [6].
15A.5Official liquidator’s
consent to act
If an application is made for an order:
(a)
under article 19 or 21 of the Model Law to
entrust the administration or realisation of all or part of the debtor’s
assets to a person designated by the Court (other than the foreign
representative), or
(b)
under article 21 to entrust the 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:
(c)
be an official liquidator,
and
(d)
have filed a Consent to Act, in accordance with
Form 19, that specifies an address for service for the person within
Australia.
rule 15A.5: Ins 2008
(455), Sch 1 [6]. Subst 2009 (480), rule 3.
15A.6Notice 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 a daily
newspaper circulating generally in the State or Territory where the defendant
has its principal, or last known, place of
business.
(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 paragraph (1)
(b).
rule 15A.6: Ins 2008
(455), Sch 1 [6]. Am 2014 (708), Sch 1 [9] [10].
15A.7Notice 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 a daily newspaper circulating generally in the
State or Territory where the defendant has its principal, or last known, place
of business.
(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 paragraph (1)
(d).
(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,
(d)
publish a notice of the dismissal or withdrawal
in accordance with Form 22 in a daily newspaper circulating generally in the
State or Territory where the defendant has its principal, or last known, place
of business.
(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 paragraph (3)
(d).
rule 15A.7: Ins 2008
(455), Sch 1 [6]. Am 2014 (708), Sch 1 [11]–[14].
15A.8Relief 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.
rule 15A.8: Ins 2008
(455), Sch 1 [6].
15A.9Application 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.
(3)
An interlocutory process for an application under
subrule (1) and any supporting affidavit must be served on:
(a)
for an applicant 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 of the Model Law.
(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 a daily newspaper circulating generally in the
State or Territory where the defendant has its principal, or last known, place
of business.
(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 paragraph (4)
(b)
(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.
rule 15A.9: Ins 2008
(455), Sch 1 [6]. Am 2014 (708), Sch 1 [15] [16].