COURT PROCEDURES RULES 2006

Australian Capital Territory Current Regulations

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COURT PROCEDURES RULES 2006 - SCHEDULE 6

Schedule 6 Corporations Rules

(see r 3270)

Part 6.1 Corporations Rules—preliminary

1.1 Name of rules

The rules in this schedule are the Corporations Rules .

1.2

Note These rules do not include a r 1.2.

The rule number has been kept to ensure that provision numbers in these rules are consistent with the uniform corporations rules.

1.3 Application of sch 6 and provisions of these rules

(1) Unless the Supreme Court otherwise orders—

(a) this schedule applies to a proceeding in the court under the Corporations Act

, or the ASIC Act

, that is started on or after 12 November 2003; and

(b) part 6.15A applies to a proceeding in the court under the Cross-Border Insolvency Act

(2) The other provisions of these rules apply, as far as they are relevant and not inconsistent with this schedule—

(a) to a proceeding in the Supreme Court under the Corporations Act

, or the ASIC Act

, that is started on or after 12 November 2003; and

(b) to a proceeding in the court under the Cross-Border Insolvency Act

that is started on or after the commencement of part 6.15A.

(3) Unless the Supreme Court otherwise orders, the rules applying to a proceeding in the court under the Corporations Act

, or the ASIC Act

, that were in force immediately before 12 November 2003, continue to apply to a proceeding under the Corporations Act

, or the ASIC Act

, that was started before that date.

Note Because of the definition of this Act in the Corporations Act

, s 9, a reference to the Corporations Act

includes a reference to the Corporations Regulations

1.4 Terms used in Corporations Act

A term used in the Corporations Act

has the same meaning in this schedule.

Note Terms used in this schedule (including the notes to those rules) that are defined in the Corporations Act

include the following:

• ABN (short for ‘Australian Business Number') (see s 9)

• ACN (short for ‘Australian Company Number') (see s 9)

• ARBN (short for ‘Australian Registered Body Number') (see s 9)

• ASIC (see s 9)

• body (see s 9)

• body corporate (see s 9)

• books (see s 9)

• company (see s 9)

• corporation (see s 57A)

• daily newspaper (see s 9)

• foreign company (see s 9)

• official liquidator (see s 9)

• Part 5.1 body (see s 9)

• Part 5.7 body (see s 9)

• register (see s 9)

• registered liquidator (see s 9)

• registered office (see s 9)

• statutory demand (see s 9).

1.5 Definitions—sch 6

In this schedule:

"applicant" means a person claiming interlocutory relief in a proceeding.

"ASIC Act "means the Australian Securities and Investments Commission Act 2001

(Cwlth).

"Corporations Regulations" means the Corporations Regulations 2001

(Cwlth).

"Cross-Border Insolvency Act" means the Cross-Border Insolvency Act 2008

(Cwlth) 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 a proceeding.

"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 the Cross-Border Insolvency Act

, schedule 1, with the modifications set out in that Act, part 2.

"originating process" means an originating process in a proceeding.

"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.

1.6 References to rules

A reference in this schedule to a rule is a reference to a rule in this schedule.

1.7 Substantial compliance with forms

(1) It is sufficient compliance with this schedule in relation to a document that is required to be in accordance with an approved form if the document is substantially in accordance with the form or has only such variations as the nature of the case requires.

(2) Without limiting subrule (1), the registrar 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 this schedule.

1.8 Court's power to give directions

The court may give directions in relation to the practice and procedure to be followed in a proceeding if satisfied, in the circumstances of the proceeding, that—

(a) the provisions of the Corporations Act

, the ASIC Act

, or the rules of the 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.

1.9 Calculation of time

(1) If, for any purpose, this schedule—

(a) prohibits, permits or requires anything to be done within, by, or before the end of; or

(b) otherwise prescribes, allows or provides 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.

(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 a period prescribed or allowed by these rules for anything to be done falls on a day that is not a business day where it is to be or may be done, it is to be or may be done on the first business day at the place after that day.

(4) In calculating a period of time for 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.

1.10 Extending and shortening of time

Unless the Corporations Act

, the ASIC Act

or this schedule otherwise provides, the rules of the court that provide for the extending or shortening of a period of time fixed for doing anything in relation to a proceeding apply to a proceeding to which this schedule applies.

Part 6.2 Proceedings generally

2.1 Title of documents in a proceeding

A document for use in a proceeding, and for which there is an approved form, must be headed in the way set out in the form.

2.2 Originating process and interlocutory process

(1) Unless this schedule otherwise provides, 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 started 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.

Note See

• approved form 2 (Originating process) AF2008-143

• approved form 3 (Interlocutory process) AF2008-144

(2) Unless the court otherwise directs, a person may make an application to the court in relation to a proceeding in relation to which final relief has been granted by filing an interlocutory process in the proceeding.

(3) An originating process must state—

(a) each section of the Corporations Act

or the ASIC Act

, or each regulation of the Corporations Regulations

, under which the proceeding is brought; and

(b) the relief sought.

(4) An interlocutory process must state—

(a) 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

(b) the relief sought.

2.3 Setting of hearing

On receiving an originating process or interlocutory process, the registrar—

(a) must set 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.

2.4 Supporting affidavits

(1) Unless the court otherwise directs, an originating or interlocutory process must be supported by an affidavit stating the facts in support of the process.

(2) An affidavit in support of an originating process must annex 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.

(3) This rule does not apply to an application by a company under the Corporations Act

, section 459G for an order setting aside a statutory demand served on the company.

2.4A Application for order setting aside statutory demand (Corporations Act, s 459G)

(1) This rule applies to an application by a company under the Corporations Act

, section 459G for an order setting aside a statutory demand served on the company.

(2) The plaintiff may file a copy of the statutory demand, and a copy of any affidavit that accompanied the statutory demand, with the originating process seeking the order.

(3) The plaintiff must—

(a) carry out a search of the records maintained by ASIC in relation to the plaintiff not earlier than 7 days before the originating process is filed, and not later than the day before the hearing of the application; 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.

2.5 Affidavits made by creditors

Subject to rule 5.4 (Affidavit in support of application for winding-up), 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.

2.6 Form 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 or Territory (if any) where the affidavit was sworn or affirmed.

2.7 Service 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 set 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 set 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.

2.8 Notice 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 table 2.8, column 2, the person must serve on ASIC, a reasonable time before the hearing of the application, a copy of the originating or interlocutory process and supporting affidavit in relation to the application.

Table 2.8 Applications of which notice must be given to ASIC

column 1

item

column 2

provision

column 3

description of application

1

section 480

for the release of a liquidator of a company and the deregistration of the company

2

section 482 (1)

for the stay or termination of a winding-up

3

section 509 (6)

for the deregistration of a company

4

section 536 (1)

for an inquiry into the conduct of a liquidator

5

section 601AH (2)

to reinstate the registration of a company

6

section 601CC (8)

to restore the name of an Australian body to the register

7

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

section 1317S (2) and (4)

for relief from liability for contravention of a civil penalty provision

column 1 item	column 2 provision	column 3 description of application
1	section 480	for the release of a liquidator of a company and the deregistration of the company
2	section 482 (1)	for the stay or termination of a winding-up
3	section 509 (6)	for the deregistration of a company
4	section 536 (1)	for an inquiry into the conduct of a liquidator
5	section 601AH (2)	to reinstate the registration of a company
6	section 601CC (8)	to restore the name of an Australian body to the register
7	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	section 1317S (2) and (4)	for relief from liability for contravention of a civil penalty provision

2.9 Notice of appearance (Corporations Act, s 465C)

(1) A person who intends to appear before the court at the hearing of an application must, before appearing—

(a) file the following:

(i) a notice of appearance;

Note See approved form 4 (Notice of Appearance) AF2007-134

(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 set for hearing; or

(ii) if the person is named in an interlocutory process—1 day before the date set 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 the Corporations Act

, section 465C.

(3) The period prescribed for filing and serving the notice and affidavit required by the Corporations Act

, section 465C is the period mentioned in subrule (1) (b) (i).

Note Under the Corporations Act

, s 465C, a person may not, without the leave of the court, oppose an application for winding-up unless, within the period prescribed by these rules (see r (3)), 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 .

2.10 Intervention in proceeding by ASIC (Corporations Act, s 1330)

(1) If ASIC intends to intervene in a proceeding, ASIC must file a notice of intervention.

Note See approved form 5 (Notice of intervention by ASIC) AF2008-66

(2) Not later than 3 days before the date set 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.

2.12 Proof of publication

(1) This rule applies in relation to any matter published in relation to a proceeding.

(2) Unless this schedule otherwise provides, 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.

2.13 Leave to creditor, contributory or officer to be heard

(1) The court may grant leave to any person who is, or 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

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, and that the costs 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 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.

2.14 Inquiry 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.

2.15 Meetings ordered by the court

Subject to the Corporations Act

, this schedule and any direction of the court to the contrary, the Corporations Regulations

, regulations 5.6.11 to 5.6.36A apply to meetings ordered by the court.

Part 6.3 Compromises and arrangements in relation to Part 5.1 bodies

3.1 Application—pt 1.3

This part applies if an application is made to the court for approval of a compromise or arrangement between a Part 5.1 body and its creditors or members, or any class of its creditors or members.

3.2 Nomination of chairperson for meeting

Before the hearing of an application under the Corporations Act

, section 411 (1), (1A) or (1B), the plaintiff must file an affidavit stating—

(a) the names of the people who have been nominated to be the chairperson and alternate chairperson of the meeting; and

(b) that each person nominated—

(i) is willing to act as chairperson; and

(ii) has had no previous relationship or dealing with the body, or any other person interested in the proposed compromise or arrangement, except as disclosed in the affidavit; and

(iii) has no interest or obligation that may give rise to a conflict of interest or duty if the person were to act as chairperson of the meeting, except as disclosed in the affidavit; and

(d) that the person does not fall within the Corporations Act

, section 411 (7) (a) to (f), except as disclosed in the affidavit.

3.3 Order for meetings to identify proposed scheme

(1) An order under the Corporations Act

, section 411 (1) or (1A) ordering a meeting or meetings in relation to a proposed compromise or arrangement must set out in a schedule, or otherwise identify, a copy of the proposed compromise or arrangement.

(2) Unless the court otherwise orders, a meeting of members ordered under the Corporations Act

, section 411 must be convened, held and conducted in accordance with—

(a) the provisions of the Corporations Act

, part 2G.2 that apply to the members of a company; and

(b) the provisions of the plaintiff's constitution that apply in relation to meetings of members and are not inconsistent with the Corporations Act

, part 2G.2.

(3) Unless the court otherwise orders, a meeting of a class of holders of convertible securities ordered under the Corporations Act

, section 411 must be convened, held and conducted as if—

(a) the holders were a separate class of members; and

(b) the meeting were a meeting of members convened, held and conducted under subrule (2).

(4) However, subrule (3) only applies to a meeting of a class of holders of convertible securities to the extent that the subrule is not inconsistent with the applicable provisions of the instrument under which the securities were issued.

3.4 Notice of hearing (Corporations Act, s 411 (4) and s 413 (1))

(1) This rule applies to—

(a) an application, under the Corporations Act

, section 411 (4), for an order approving a proposed compromise or arrangement in relation to a Part 5.1 body; and

(b) an application, under the Corporations Act

, section 413 (1), for an order in relation to the reconstruction of a Part 5.1 body, or Part 5.1 bodies, or the amalgamation of 2 or more Part 5.1 bodies.

(2) Unless the court otherwise orders, the plaintiff must publish a notice of the hearing of the application—

(a) for an application in relation to 1 Part 5.1 body—in a daily newspaper circulating generally in the State or Territory where the Part 5.1 body has its principal, or last known, place of business; or

(b) for an application in relation to 2 or more Part 5.1 bodies—in a daily newspaper circulating generally in each State or Territory where any of the Part 5.1 bodies has its principal, or last known, place of business.

Note See approved form 6 (Notice of hearing to approve compromise or arrangement) AF2006-431

(3) The notice must be published at least 5 days before the date set for the hearing of the application.

3.5 Copy of order approving compromise or arrangement to be lodged with ASIC

If the court makes an order under the Corporations Act

, section 411 (1), (1A) or (4) or section 413 (1), the plaintiff must, as soon as practicable after the order is made—

(a) have the order sealed; and

(b) lodge an office copy of the order with ASIC; and

Part 6.4 Receivers and other controllers of corporation property (Corporations Act, pt 5.2)

4.1 Inquiry into conduct of controller (Corporations Act, s 423)

A complaint to the court under the Corporations Act

, section 423 (1) (b) about an act or omission of a receiver, or a controller appointed by the court, must be made by an originating process seeking an inquiry in relation to the complaint.

Part 6.5 Winding-up proceedings (including oppression proceedings where winding-up is sought)

5.1 Application—pt 6.5

This part applies to the following applications for the winding-up of a company:

(a) an application for an order under the Corporations Act

, part 2F.1;

(b) an application under the Corporations Act

, part 5.4 or part 5.4A.

5.2 Affidavit accompanying statutory demand (Corporations Act, s 459E (3))

For the Corporations Act

, section 459E (3), the affidavit accompanying a statutory demand relating to a debt, or debts, owed by a company must—

(a) be made by the creditor or by a person with the authority of the creditor or creditors; and

(b) not state a proceeding number, or refer to a court proceeding, in any heading or title to the affidavit.

Note See approved form 7 (Affidavit accompanying statutory demand) AF2006-432

5.3 Application for leave to apply for winding-up in insolvency (Corporations Act, s 459P (2))

An application for leave to apply to the court for an order that a company be wound up in insolvency may be made at the same time as the application for an order that the company be wound up in insolvency is made.

5.4 Affidavit in support of application for winding-up (Corporations Act, s 459P, s 462, s 464)

(1) The affidavit in support of an originating process seeking an order that a 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.

(3) If the application is made in reliance on the ground mentioned in the Corporations Act

, section 461 (1) (a), the affidavit must—

(a) state whether the company is able to pay all its debts as and when they become due and payable; and

(b) refer to the company's most recent balance sheet and profit and loss statement as an annexure or exhibit to the affidavit, or explain their absence.

(4) The affidavit must be made within 7 days before the originating process is filed.

5.5 Consent of liquidator (Corporations Act, s 532 (9))

(1) For the Corporations Act

, section 532 (9), an official liquidator must consent to act as liquidator of a company.

Note See approved form 8 (Consent of liquidator/provisional liquidator) AF2008-67

(2) In an application for an order that a company be wound up, the plaintiff must—

(a) before the hearing of the application, file the consent mentioned in subrule (1) of an official liquidator who would be entitled to be appointed as liquidator of the company; and

(b) serve a copy of the consent on the company at least 1 day before the hearing.

(3) In this rule:

"liquidator" does not include a provisional liquidator.

5.6 Notice of application for winding-up

(1) Unless the court otherwise orders, the plaintiff must publish a notice of the application for an order that a company be wound up.

Note See approved form 9 (Notice of application for winding-up order) AF2012-199

(2) The notice must be published—

(a) at least 3 days after the originating process is served on the company; and

(b) at least 7 days before the date set for hearing of the application.

(3) If the notice is of an application for an order under the Corporations Act

, part 2F.1, the notice must be published in a daily newspaper circulating generally in the State or Territory where the company has its principal, or last known, place of business.

Note A notice of an application for an order under the Corporations Act

, pt 5.4 or pt 5.4A must be published in the prescribed manner—see the Corporations Act

, s 465A and s 1367A.

5.7 Applicant to make copies of documents available

A copy of any document filed in a proceeding to which this part applies must be available at the plaintiff's address for service for inspection by a creditor, contributory or officer of the company, or an officer of a creditor or contributory of the company.

5.8 Discontinuance of application for winding-up

An application for an order that a company be wound up may not be discontinued except with the leave of the court.

5.9 Appearance before registrar

After filing an originating process seeking an order that a company be wound up, the plaintiff must, if required—

(a) appear before the registrar on a date to be appointed by the registrar; and

(b) satisfy the registrar that the plaintiff has complied with the Corporations Act

and these rules in relation to applications for a winding-up order.

5.10 Order substituting plaintiff in application for winding-up (Corporations Act, s 465B)

(1) If the court makes an order under the Corporations Act

, section 465B, the court may also order that the substituted plaintiff or plaintiffs publish a notice stating that the substituted plaintiff or plaintiffs intend to apply for an order that the company be wound up.

Note See approved form 10 (Notice of application for winding-up order by substituted plaintiff) AF2007-138

(2) Unless the court otherwise directs, the notice must be published—

(a) at least 7 days before the date fixed for the hearing of the application; and

(b) in a daily newspaper circulating generally in the State or Territory where the company has its principal, or last known, place of business.

5.11 Notice of winding-up order and appointment of liquidator

(1) This rule applies if the court orders that a company be wound up and an official liquidator be appointed as liquidator of the company.

(2) Not later than the day after the order is made, the plaintiff must inform the liquidator of the appointment.

(3) As soon as practicable after being informed of the appointment, the liquidator must publish a notice of the winding-up order and the liquidator's appointment in a daily newspaper circulating generally in the State or Territory where the company has its principal, or last known, place of business.

Note See approved form 11 (Notice of winding-up order and of appointment of liquidator) AF2007-139

(4) In this rule:

"liquidator" does not include a provisional liquidator.

Part 6.6 Provisional liquidators (Corporations Act, pt 5.4B)

6.1 Appointment of provisional liquidator (Corporations Act, s 472)

(1) An application for an official liquidator to be appointed, under the Corporations Act

, section 472 (2), as a provisional liquidator of a company must be accompanied by the written consent of the official liquidator.

Note See approved form 8 (Consent of liquidator/provisional liquidator) AF2008-67

(2) 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 company's property;

the order must include a short description of the part of the company's property that the provisional liquidator may take into custody.

(3) The court may require the plaintiff to give an undertaking as to damages.

6.2 Notice of appointment of provisional liquidator

(1) This rule applies if the court orders that an official liquidator be appointed as a provisional liquidator of a company.

(2) Not later than the day after the order is made, the plaintiff must—

(a) except if the plaintiff is ASIC—lodge an office copy of the order with ASIC; and

(b) serve an office copy of the order on the company (except if the plaintiff is the company) and on anyone else as directed by the court; and

(c) give to the provisional liquidator an office copy of the order and a written statement that the order has been served as required by paragraph (b).

(3) As soon as practicable after the order is made, the provisional liquidator must publish a notice of the provisional liquidator's appointment in a daily newspaper circulating generally in the State or Territory where the company has its principal, or last known, place of business.

Note See approved form 12 (Notice of appointment of provisional liquidator) AF2007-140

Part 6.7 Liquidators

7.1 Resignation of liquidator (Corporations Act, s 473 (1))

(1) A liquidator appointed by the court who wishes to resign office must file with the registrar, and give to ASIC, a memorandum of resignation.

(2) The resignation takes effect on the filing and giving of the memorandum.

7.2 Filling vacancy in office of liquidator (Corporations Act, s 473 (7), s 502)

(1) If, for any reason, there is no liquidator acting in a winding-up, the court may—

(a) for a winding-up by the court—appoint another official liquidator whose written consent has been filed; and

(b) for a voluntary winding-up—appoint another registered liquidator whose written consent has been filed.

(2) The court may make the appointment—

(a) in any case—on application by ASIC, a creditor or a contributory; or

(b) for a winding-up by the court—on its own initiative.

7.3 Report to liquidator as to company's affairs (Corporations Act, s 475)

(1) If a person is required under the Corporations Act

, section 475 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.

(2) Except by order of the court, no person is to be allowed out of the property of a company any costs or expenses incurred in relation to the preparation of the report that have not been—

(a) sanctioned by the liquidator before being incurred; or

(b) assessed.

(3) The liquidator must report to the court any default in complying with the requirements of the Corporations Act

, section 475.

(4) In this rule:

"liquidator" includes a provisional liquidator.

7.4 Liquidator to file certificate and copy of settled list of contributories (Corporations Act, s 478)

If, in a winding-up by the court, a liquidator has settled and certified a list, or supplementary list, of contributories, the liquidator must, not later than 14 days after doing so, file the certificate and a copy of the list.

7.5 Release of liquidator and deregistration of company (Corporations Act, s 480 (c) and (d))

(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 ASIC 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 not later than 21 days after the date of service of the interlocutory process; and

(b) a statement setting out the terms of the Corporations Act

, section 481 (3).

Note The Corporations Act

, s 481 (3) provides that an order of the court releasing a liquidator discharges the liquidator from all liability in relation to 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;

(d) whether the committee of inspection (if any) has passed a resolution approving the liquidator's release;

(e) whether ASIC has appointed an auditor to report on an account or statement of the position in the winding-up under the Corporations Act

, section 539 (2);

(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 ASIC or by the court; or

(ii) any creditor, contributory or other interested person;

(h) whether any report has been submitted by the liquidator to ASIC under the Corporations Act

, section 533;

(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 the Corporations Act

, section 480 (c)—the facts and circumstances because of which it is submitted that the company should not be deregistered.

(4) The liquidator must include in the supporting affidavit the following statements, including, if appropriate, the words in brackets:

(a) ‘To the best of my belief, there has been no act done or default made by me in the administration of the affairs of the subject corporation or otherwise in relation to my conduct as liquidator which is likely to give rise to any liability to the subject corporation or any creditor or contributory [except as disclosed in this affidavit]';

(b) ‘I am not aware of any claim made by any person that there has been any such act or default [except as disclosed in this affidavit]'.

(5) The liquidator must file with, or annex to, the supporting affidavit—

(a) a statement of the financial position of the company at the date when the interlocutory process seeking release was filed; and

(b) a summary of the liquidator's receipts and payments in winding up the company.

(6) Unless the court otherwise orders, the liquidator must serve by prepaid post, on each creditor who has proved a debt in the course of the winding-up, and on each contributory, a copy of the interlocutory process accompanied by—

(a) a copy of the summary of the liquidator's receipts and payments in winding up the company; and

(b) a copy of the statement of the financial position of the company at the date when the interlocutory process seeking release was filed.

7.6 Objection to release of liquidator

(1) A creditor or contributory of a company who wishes to object to the release of the liquidator of the company must, within 21 days after the date of service of the interlocutory process seeking release—

(a) file—

(i) a notice of objection; and

Note See approved form 13 (Notice by creditor or contributory of objection to release of liquidator) AF2007-141

(ii) if appropriate, an affidavit stating any facts relied on; and

(b) serve a copy of the notice and the affidavit (if any) on the liquidator.

(2) If the liquidator is served with a notice of objection by a creditor or contributory, the liquidator must, not later than 3 days after being served, serve on the creditor or contributory a copy of the affidavit supporting the interlocutory process.

7.7 Report on accounts of liquidator (Corporations Act, s 481)

(1) If the court orders that a report on the accounts of a liquidator be prepared under the Corporations Act

, section 481 (1), the liquidator must give to the auditor appointed to prepare the report all information, books and vouchers required to prepare the report.

(2) On completing the report, the auditor must—

(a) file a copy of the report in a sealed envelope that is marked with the title and number of the proceeding and the words ‘Auditor's report under section 481 (1) of the Corporations Act 2001 '; and

(b) serve a copy of the report on the liquidator; and

(3) Except with the leave of the court, a report is not available for inspection by any person except the liquidator or ASIC.

7.8 Application for payment of call (Corporations Act, s 483 (3) (b))

The affidavit in support of an application by the liquidator of a company, under the Corporations Act

, section 483 (3) (b), for an order for the payment of a call must, if a form is approved under the Court Procedures Act 2004

, section 8 for this rule, be in accordance with the approved form.

Note See approved form 14 (Affidavit in support of application for order for payment of call) AF2007-142

7.9 Distribution of surplus by liquidator with special leave of the court (Corporations Act, s 488 (2))

(1) The affidavit in support of an application for special leave to distribute a surplus in relation to a company must state how the liquidator intends to distribute the surplus including the name and address of each person to whom the liquidator intends to distribute any part of the surplus.

(2) At least 14 days before the date set for the hearing of the application, the liquidator must publish a notice of the application in a daily newspaper circulating generally in the State or Territory where the company has its principal, or last known, place of business.

Note See approved form 15 (Notice of application for leave to distribute a surplus) AF2007-143

7.10 Powers delegated to liquidator by the court (Corporations Act, s 488)

Subject to the Corporations Act

, this schedule and any order of the court, the powers and duties given to the court by the Corporations Act

, part 5.4B in relation to the matters mentioned in the Corporations Act

, section 488 (1) may be exercised by a liquidator appointed by the court as an officer of the court and subject to the control of the court.

7.11 Inquiry into conduct of liquidator (Corporations Act, s 536 (1) and (2))

(1) A complaint to the court under the Corporations Act

, section 536 (1) (b) must be made—

(a) for a winding-up by the court—by an interlocutory process seeking an inquiry; and

(b) for a voluntary winding-up—by an originating process seeking an inquiry.

(2) A report to the court by ASIC under the Corporations Act

, section 536 (2) must be made—

(a) for a winding-up by the court—by filing—

(i) an interlocutory process seeking orders under the subsection; and

(ii) a written report in a sealed envelope that is marked with the title and number of the proceeding; and

(b) for a voluntary winding-up—by filing—

(i) an originating process seeking orders under the subsection; and

(ii) a written report in a sealed envelope that is marked with the title of the proceeding and provision for its number.

(3) The contents of a report filed under subrule (2) need not, at the time of filing, be verified by an affidavit.

(4) Except with the leave of the court, a report made under the Corporations Act

, section 536 (2) is not available for inspection by anyone except the liquidator or ASIC.

(5) In this rule:

"liquidator" includes a provisional liquidator.

Part 6.8 Special managers (Corporations Act, pt 5.4B)

8.1 Application for appointment of special manager (Corporations Act, s 484)

(1) An application by a liquidator for the appointment of a special manager in relation to a company must state the powers that, in the liquidator's opinion, should be entrusted by the court to the special manager.

(2) The supporting affidavit must state—

(a) the circumstances making it proper that a special manager be appointed; and

(b) details of the remuneration proposed to be paid to the special manager; and

(c) whether any committee of inspection in the winding-up, or a meeting of creditors, has approved the appointment of a special manager.

8.2 Security given by special manager (Corporations Act, s 484)

(1) The court may, from time to time, direct that the amount of security given by a special manager be varied.

(2) Unless the court otherwise directs, the costs of providing the security given by a special manager in relation to a particular winding-up—

(a) are the personal expenses of the special manager; and

(b) must not be charged against the property of the company as an expense incurred in the winding-up.

8.3 Special manager's receipts and payments (Corporations Act, s 484)

(1) A special manager must give to the liquidator—

(a) an account of the special manager's receipts and payments; and

(b) a statutory declaration verifying the account.

(2) If the liquidator approves the account, the liquidator must include the total amounts of the special manager's receipts and payments in the liquidator's accounts.

Part 6.9 Remuneration of office-holders

9.1 Remuneration of receiver (Corporations Act, s 425 (1))

(1) This rule applies to an application by a receiver of property of a corporation for an order under the Corporations Act

, section 425 (1) fixing the receiver's remuneration.

Note 1 Under the Corporations Act

, s 425 (2) (b), 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 the Corporations Act

, s 425 made by the Corporations Amendment (Insolvency) Act 2007

(Cwlth) 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 or interlocutory process seeking the order, the receiver must serve a notice 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:

Note See approved form 16 (Notice of intention to apply for remuneration) AF2007-144

(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);

(d) any administrator of a deed of company arrangement executed by the corporation;

(e) if there is no-one 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% 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 anyone mentioned in subrule (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 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 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

(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 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 the Corporations Act

, section 425 (8); and

(b) state the nature of the work performed or likely to be performed by the receiver; 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.

9.2 Determination by court of remuneration of administrator (Corporations Act, s 449E (1) (c) and (1A) (c))

(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 the Corporations Act

, section 449E (1) (c) or (1A) (c) 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 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 people:

(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.

Note See approved form 16 (Notice of intention to apply for remuneration) AF2007-144

(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 the 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

(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 the Corporations Act

, section 449E (4); and

(b) state the nature of the work performed or likely to be performed by the administrator; 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.

9.2A Review 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 the Corporations Act

, section 449E (2).

Note The amendment to the Corporations Act

, section 449E made by the Corporations Amendment (Insolvency) Act 2007

(Cwlth) 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 the Corporations Act

, section 449E (1) (a) or (b) or (1A) (a) or (b).

(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 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 people:

(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;

Note See approved form 16A (Notice of intention to apply for review of remuneration) AF2008-68

(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 the notice.

(7) The administrator must file an affidavit stating the following matters:

(a) the matters mentioned in the Corporations Act

, section 449E (4);

(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 the notice or notices.

9.3 Remuneration of provisional liquidator (Corporations Act, s 473 (2))

(1) This rule applies to an application by a provisional liquidator of a company for an order under the Corporations Act

, section 473 (2) 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 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:

Note See approved form 16 (Notice of intention to apply for remuneration) AF2007-144

(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;

(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

(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

(d) state particulars of any objection of which the provisional liquidator has received notice; and

(e) if the winding-up proceeding has not been completed—give details of—

(i) any reasons known to the provisional liquidator why the winding-up proceeding has not been completed; and

(ii) any reasons why the provisional liquidator's remuneration should be determined before the completion of the winding-up proceeding.

(8) The affidavit must also provide evidence of the matters mentioned in the Corporations Act

, section 473 (10)—

(a) to the extent that they may be relevant to a provisional liquidator; and

(b) as if a reference in that subsection to liquidator were a reference to provisional liquidator .

9.4 Determination by court of liquidator's remuneration (Corporations Act, s 473 (3) (b) (ii))

(1) This rule applies to an application by a liquidator of a company for an order under the Corporations Act

, section 473 (3) (b) (ii) determining the liquidator's remuneration.

Note The amendment to the Corporations Act

, s 473 made by the Corporations Amendment (Insolvency) Act 2007

(Cwlth) applies in relation to a liquidator appointed on or after 31 December 2007—see the 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 the Corporations Act

, section 473 (4).

(3) At least 21 days before filing the interlocutory process seeking the order, the liquidator must serve a notice 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:

Note See approved form 16 (Notice of intention to apply for remuneration) AF2007-144

(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% 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

(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 the Corporations Act

, section 473 (10); and

(b) state the nature of the work performed or likely to be performed by the liquidator; 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.

9.4A Review 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 the Corporations Act

, section 473 (5) or (6) or section 504 (1).

Note The amendment to the Corporations Act

, s 504 made by the Corporations Amendment (Insolvency) Act 2007

(Cwlth) applies in relation to a liquidator appointed on or after 31 December 2007—see the Corporations Act

, s 1480 (7).

(2) The application may only be made after remuneration has been determined under the Corporations Act

, section 473 (3) (a) or (b) (i), or fixed under section 495 (1) or section 499 (3).

(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 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 people:

(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;

Note See approved form 16A (Notice of intention to apply for review of remuneration) AF2008-68

(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 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).

(7) The liquidator must file an affidavit stating the following matters:

(a) for an application under the Corporations Act

, section 473 (5) or (6)—the matters mentioned in the Corporations Act

, section 473 (10);

(b) for an application under the Corporations Act

, section 504 (1)—the matters mentioned in the Corporations Act

, section 504 (2);

(d) the amount of remuneration claimed by the liquidator if that 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 the Corporations Act

, s 473 (11) and (12), s 495 (5), s 499 (6) and (7).

(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 the notice or notices.

9.5 Remuneration of special manager (Corporations Act, s 484 (2))

(1) This rule applies to an application by a special manager of the property or business of a company for an order under the Corporations Act

, section 484 (2) 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 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:

Note See approved form 16 (Notice of intention to apply for remuneration) AF2007-144

(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;

(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

(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

(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.

Part 6.10 Winding-up generally

10.1 Determination of value of debts or claims (Corporations Act, s 554A (2))

A reference to the court by a liquidator of a company under the Corporations Act

, section 554A (2) (b) must be made—

(a) for a winding-up by the court—by filing an interlocutory process seeking an order estimating, or determining a method for working out, the value of the debt or claim; and

(b) for a voluntary winding-up—by filing an originating process seeking an order estimating, or determining a method for working out, the value of the debt or claim.

10.2 Disclaimer of contract (Corporations Act, s 568 (1A))

(1) The affidavit in support of an application by a liquidator, under the Corporations Act

, section 568 (1A), for leave to disclaim a contract in relation to a company must—

(a) state the people interested, and their interests, under the contract; and

(b) state the facts on which it is submitted that the contract should be disclaimed.

(2) The liquidator must serve the affidavit on each party to the contract (except the company) and on anyone interested in the contract.

10.3 Winding-up Part 5.7 bodies (Corporations Act s 583, s 585) and registered schemes (Corporations Act, s 601ND)

These rules apply, with any necessary changes, and in the same way as they apply to a company, in relation to the winding-up of a Part 5.7 body or a registered scheme.

Part 6.11 Examinations and orders (Corporations Act, pt 5.9, div 1 and div 2)

11.1 Meaning of examination summons in pt 6.11

In this part:

"examination summons" means a summons under the Corporations Act

, section 596A or section 596B for the examination of a person about a corporation's examinable affairs.

11.2 Application for examination or investigation under Corporations Act, s 411 (9) (b), s 423 or s 536 (3)

(1) An application for an order for the examination or investigation of a person under the Corporations Act

, section 411 (9) (b), section 423 or section 536 (3) may be made by—

(a) ASIC; or

(b) a person authorised by ASIC; or

(d) anyone else aggrieved by the conduct of—

(i) a person appointed to administer a compromise or arrangement; or

(ii) a controller; or

(iii) a liquidator or provisional liquidator.

(2) The application may be made without notice to anyone.

(3) The provisions of this part that apply to an examination under the Corporations Act

, part 5.9, division 1 apply, with any necessary changes, to an examination or an investigation under the Corporations Act

, section 411 (9) (b), section 423 or section 536 (3).

11.3 Application for examination summons (Corporations Act, s 596A, s 596B)

(1) An application for the issue of an examination summons must be made by filing an interlocutory or originating process.

(2) The application may be made without notice to anyone.

(3) The originating or interlocutory process seeking the issue of the examination summons must be—

(a) supported by an affidavit stating the facts in support of the process; and

(b) accompanied by a draft examination summons.

Note See approved form 17 (Summons for examination) AF2007-145

(4) The originating or interlocutory process and supporting affidavit must be filed in a sealed envelope marked, as appropriate—

(a) ‘Application and supporting affidavit for issue of summons for examination under section 596A of the Corporations Act 2001 '; or

(b) ‘Application and supporting affidavit for issue of summons for examination under section 596B of the Corporations Act 2001 '.

(5) If the application is not made by the liquidator, the liquidator must be given notice of the application and, if required by the liquidator, served with a copy of the originating or interlocutory process and the supporting affidavit.

(6) If the application is not made by ASIC, ASIC must be given notice of the application and, if required by ASIC, served with a copy of the originating or interlocutory process and the supporting affidavit.

(7) Unless the court otherwise orders, an affidavit in support of an application for an examination summons is not available for inspection by anyone.

11.4 Service of examination summons

An examination summons issued by the court must be personally served, or served in any way that as the court may direct, on the person who is to be examined at least 8 days before the date set for the examination.

11.5 Discharge of examination summons

(1) This rule applies if a person is served with an examination summons.

(2) Not later than 3 days after the person is served with the examination summons, the person may apply to the court for an order discharging the summons by filing—

(a) an interlocutory process seeking an order discharging the summons; and

(b) an affidavit stating the facts in support of the interlocutory process.

(3) As soon as practicable after filing the interlocutory process seeking the order and the supporting affidavit, the person must serve a copy of the interlocutory process and the supporting affidavit on—

(a) the person who applied for the examination; and

(b) unless that person is ASIC or a person authorised by ASIC, ASIC.

11.6 Filing of record of examination (Corporations Act, s 597 (13))

If the court makes an order in relation to an examination under the Corporations Act

, section 597 (13), the court may give directions for the filing of the written record of the examination.

11.7 Authentication of transcript of examination (Corporations Act, s 597 (14))

For the Corporations Act

, section 597 (14), a transcript of an examination may be authenticated—

(a) by the person, or people, who prepared the record of examination, or under whose supervision the record was prepared, certifying in writing signed by the person or people, that the record is a true transcript of the record of examination; or

(b) by anyone present at the examination, or any part of the examination, signing the person's name at the bottom of each page of the written record that records a part of the examination at which the person was present.

11.8 Inspection of record or transcript of examination or investigation under Corporations Act, s 411, s 423 or s 536

(1) A written record or transcript of an examination or investigation under the Corporations Act

, section 411, section 423 or section 536 is not available for inspection by anyone except—

(a) with the consent of the liquidator (if any) or ASIC; or

(b) by leave of the court.

(2) This rule does not apply to the liquidator, ASIC or anyone authorised by ASIC.

11.9 Entitlement to record or transcript of examination held in public

(1) This rule applies if—

(a) an examination under the Corporations Act

, section 597 is held completely or partly in public; and

(b) a written record or transcript of the examination is filed in the court.

(2) The person examined may apply to the registrar, not later than 3 years after the completion of the examination, for a copy of the record or transcript of the part of the examination of the person held in public.

(3) On receiving an application from a person under subrule (2), and any applicable fee, the registrar must give a copy of the record or transcript to the person.

11.10 Default in relation to examination

(1) This rule applies if a person is summoned or ordered by the court to attend for examination, and—

(a) without reasonable cause, the person—

(i) fails to attend at the time and place appointed; or

(ii) fails to attend from day-to-day until the completion of the examination; or

(iii) fails to take an oath or make an affirmation; or

(iv) fails to answer a question that the court directs the person to answer; or

(v) fails to produce books that the summons requires the person to produce; or

(vi) fails to comply with a requirement by the court to sign a written record of the examination; or

(b) before the day set for the examination, the person who applied for the summons or order satisfies the court that there is reason to believe that the person summoned or ordered to attend for examination has absconded or is about to abscond.

(2) The court may—

(a) issue a warrant for the arrest of the person summoned or ordered to attend for examination; and

(b) make any other orders that the court considers just or necessary.

11.11 Service of application for order in relation to breaches etc by person concerned with corporation (Corporations Act, s 598)

(1) This rule applies to a person applying for an order under the Corporations Act

, section 598.

(2) In addition to complying with rule 2.7 (Service of originating process or interlocutory process and supporting affidavit) and rule 2.8 (Notice of certain applications to be given to ASIC), the person must serve a copy of the originating or interlocutory process and the supporting affidavit on any liquidator or provisional liquidator (except if the person is the liquidator or provisional liquidator) of the corporation or body.

Note Under r 2.7, a plaintiff must serve a copy of the originating process, and any supporting affidavit, on a defendant to the proceeding and, if necessary, on the corporation to which the proceeding relates; and an applicant must serve a copy of an interlocutory process, and any supporting affidavit, on a respondent to the proceeding and, if necessary, on the corporation to which the proceeding relates. In certain cases, these documents may also be required to be served on ASIC (see r 2.8).

Part 6.11A Warrants (Corporations Act, s 486B and pt 5.4B, div 3, subdiv B)

11A.1 Arrest of person (Corporations Act, s 486B)

(1) An application for the issue of a warrant under the Corporations Act

, section 486B (1) for the arrest of a person must state the grounds for the issue of the warrant.

(2) The application must be accompanied by an affidavit stating the facts in support of the application.

Note See approved form 17A (Arrest warrant) AF2008-69

(3) If a person is arrested under the warrant, the person who carried out the arrest must immediately give notice of the arrest to a registrar in the registry from which the warrant was issued.

Note The Corporations Act

, ss 489A to 489E, inserted by the Corporations Amendment (Insolvency) Act 2007

(Cwlth), apply in relation to a warrant issued on or after 31 December 2007—see the Corporations Act

, s 1481 (3).

Part 6.12 Takeovers, acquisitions of shares and other matters (Corporations Act, chs 6, 6A, 6B, 6C, 6D and 7) and securities (Corporations Act, ch 7)

12.1 Service on ASIC in relation to proceedings under Corporations Act, ch 6, 6A, 6B, 6C, 6D or 7

If ASIC is not a party to an application made under the Corporations Act

, chapter 6, 6A, 6B, 6C, 6D or 7, the plaintiff must serve a copy of the originating process and the supporting affidavit on ASIC as soon as practicable after filing the originating process.

12.1A Reference to court of question of law arising in proceeding before Takeovers Panel (Corporations Act, s 659A)

The procedures in the Federal Court Rules 2011

(Cwlth), part 38 (Cases stated and questions reserved) apply, with any necessary changes, to a reference of a question of law arising in a proceeding before the Takeovers Panel to the court under the Corporations Act

, section 659A.

12.1B Notification to court if proceeding started before end of takeover bid period (Corporations Act, s 659B)

(1) This rule applies to a party to a proceeding who suspects or becomes aware that—

(a) the proceeding was started in relation to a takeover bid, or proposed takeover bid, before the end of the bid period; and

(b) the proceeding falls within the definition of court proceedings in relation to a takeover bid or proposed takeover bid in the Corporations Act

, section 659B (4).

(2) The party identified in subrule (1) must, immediately on suspecting or becoming aware of the matters mentioned in subrule (1), notify any other party to the proceeding and the court of the suspicion or knowledge.

(3) The party must comply with subrule (2), unless any other party to the proceeding has given a notice under this rule to the party.

12.2 Application for summons for appearance of person (Corporations Act, s 1071D (4))

(1) An application for the issue of a summons under the Corporations Act

, section 1071D (4) must be made by filing an originating or interlocutory process.

(2) The applicant may be the only party to the application.

(3) The originating or interlocutory process seeking the issue of the summons must be—

(a) supported by an affidavit stating the facts in support of the process; and

(b) accompanied by a draft summons.

Note See approved form 18 (Summons for appearance in relation to registration of transfer of interests) AF2007-146

12.3 Application for orders relating to refusal to register transfer or transmission of securities (Corporations Act, s 1071F)

As soon as practicable after filing an originating process under the Corporations Act

, section 1071F, the plaintiff must serve a copy of the originating process and the supporting affidavit on—

(a) the company; and

(b) anyone against whom an order is sought.

Part 6.13

Note These rules do not include a pt 6.13.

The division number has been kept to ensure that provision numbers in these rules are consistent with the uniform corporations rules.

Part 6.14 Powers of courts (Corporations Act, pt 9.5)

14.1 Appeal from act, omission or decision of administrator, receiver or liquidator etc (Corporations Act, s 554A, s 1321)

(1) All appeals to the court authorised by the Corporations Act

must be started by an originating or interlocutory process that states—

(a) the act, omission or decision complained of; and

(b) for an appeal against a decision—whether all or part only of the decision is complained of and, if part only, which part of the decision is complained of; and

(2) Unless the Corporations Act

otherwise provides, the originating or interlocutory process must be filed within—

(a) 21 days after the date of the act, omission or decision appealed against; or

(b) any further time allowed by the court.

(3) The court may extend the time for filing the originating or interlocutory process either before or after the time for filing ends and whether or not the application for extension is made before the time ends.

(4) As soon as practicable after filing the originating or interlocutory process and, in any case, at least 5 days before the date set for hearing, the appellant must serve a copy of the process, and any supporting affidavit, on each person directly affected by the appeal.

(5) As soon as practicable after being served with a copy of the originating or interlocutory process and any supporting affidavit, a person whose act, omission or decision is being appealed against must file an affidavit—

(a) stating the basis on which the act, omission or decision was done or made; and

(b) annexing or exhibiting a copy of all relevant documents that have not been put in evidence by the appellant.

Part 6.15 Proceedings under ASIC Act

15.1 Reference to court of question of law arising at hearing of ASIC (ASIC Act, s 61)

The procedures in the Federal Court Rules 2011

(Cwlth), part 38 (Cases stated and questions reserved) apply, with any necessary changes, to a reference of a question of law arising at a hearing by ASIC to the court under the ASIC Act

, section 61.

15.2

Note These rules do not include a r 15.2.

The rule number has been kept to ensure that provision numbers in these rules are consistent with the uniform corporations rules.

15.3 Application for inquiry (ASIC Act, s 70, s 201, s 219)

An application for an inquiry under the ASIC Act

, section 70 (3), section 201 (3) or section 219 (7) must be made by filing an originating process seeking an inquiry and orders under the relevant subsection.

Part 6.15A Proceedings under the Cross-Border Insolvency Act

Division 6.15A.1 Introduction

15A.1 Application—pt 6.15A and other rules

Unless the court otherwise orders—

(a) this part applies to a proceeding in the court, under the Cross-Border Insolvency Act

, involving a debtor other than an individual; and

(b) the rules (other than this part) apply to a proceeding in the court under the Cross-Border Insolvency Act

if they are relevant and not inconsistent with this part.

Note Cross-Border Insolvency Act —see r 1.5.

15A.2 Terms used in Cross-Border Insolvency Act

(1) Unless the contrary intention appears, a term that is used in this part and in the Cross-Border Insolvency Act

, whether or not a particular meaning is given to the term by the Cross-Border Insolvency Act

, has the same meaning in this part as it has in the Cross-Border Insolvency Act

Note 1 The following terms used in this part (including in the notes to this part) 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 reorganisation or liquidation.

"foreign representative" means a person or body, including one appointed on an interim basis, authorised in a foreign proceeding to administer the reorganisation or the liquidation of the debtor's assets or affairs or to act as a representative of the foreign proceeding.

Note 2 Model Law —see r 1.5.

(2) This part is to be interpreted in a way that gives effect to the Cross-Border Insolvency Act

(3) In this part:

"concurrent proceedings"—see rule 15A.10 (1) (a).

"coordination agreement "means an agreement governing a form of cooperation mentioned in rule 15A.10 (1).

foreign party participation — see rule 15A.10 (1) (c).

"Global Guidelines" means the Global Guidelines for Court-to-Court Communications in International Insolvency Cases published by the American Law Institute and the International Insolvency Institute, as in force from time to time.

"Global Principles" means the Global Principles for cooperation in International Insolvency Cases published by the American Law Institute and the International Insolvency Institute, as in force from time to time.

"local proceeding" means a proceeding under the Corporations Act

, chapter 5 (other than part 5.2 and part 5.4A) or section 601CL.

"service list" means a service list established under the Global Guidelines, guideline 13.

(4) The Legislation Act

, section 47 (3) and (6) do not apply to the Global Guidelines and the Global Principles.

Note 1 The Global Guidelines and the Global Principles do not need to be notified under the Legislation Act

because s 47 (6) does not apply (see Legislation Act

, s 47 (7)).

Note 2 The Global Guidelines are accessible at https://www.insol.org/

Note 3 The Global Principles are accessible at https://www.iiiglobal.org/sites/default/files/alireportmarch_0.pdf

Division 6.15A.2 Recognition of a foreign proceeding

15A.3 Application for recognition

(1) An application by a foreign representative for recognition of a foreign proceeding under the Model Law, article 15 must be made by filing an originating process.

Note See approved form 2 (Originating process) AF2008-143

(2) The originating process must—

(a) be accompanied by the statements mentioned in the Model Law, article 15 and the Cross-Border Insolvency Act

, section 13; 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 the Model Law, article 15, paragraphs 2 and 3 and the Cross-Border Insolvency Act

, section 13.

(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 orders, that it considers just.

Note See approved form 3 (Interlocutory process) AF2008-144

(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 people 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.

15A.4 Application for provisional relief under Model Law, art 19

(1) Any application by the plaintiff for provisional relief under the Model Law, article 19 must be made by filing an interlocutory process.

Note See approved form 3 (Interlocutory process) AF2008-144

(2) Unless the court otherwise orders, the interlocutory process and any supporting affidavit must be served in accordance with subrule 2.7 (2).

15A.5 Liquidator's consent to act

If an application is made for an order—

(a) under the Model Law, article 19 or 21 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—

, section 472; and

(d) have filed a Consent to Act that states an address for service for the person within Australia.

Note See approved form 19 (Consent to act as designated person) AF2010-149

15A.6 Notice of filing 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 filing the application to each person whose claim to be a creditor of the defendant is known to the plaintiff; and

(b) publish a notice of filing the application for recognition of a foreign proceeding in a daily newspaper circulating generally in the State or Territory of the defendant's principal, or last known, place of business.

Note See approved form 20 (Notice of filing of application for recognition of foreign proceeding) AF2008-149

(2) The court may direct the plaintiff to publish the notice in a daily newspaper circulating generally in any State or Territory not described in subrule (1) (b).

15A.7 Notice of order for recognition, withdrawal etc

(1) If the court makes an order for recognition of a foreign proceeding under the Model Law, article 17 or makes any order under the Model Law, article 19 or 21, 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 to each person whose claim to be a creditor of the defendant is known to the plaintiff;

Note See approved form 21 (Notice of making of order under the Cross-Border Insolvency Act 2008

) AF2008-150

(d) publish the notice of the making of the order in a daily newspaper circulating generally in the State or Territory of the defendant's principal, or last known, place of business.

(2) The court may direct the plaintiff to publish the notice in a daily newspaper circulating generally in any state or territory not described in subrule (1) (d).

(3) If the application for recognition is dismissed or withdrawn, 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 to each person whose claim to be a creditor of the defendant is known to the plaintiff;

Note See approved form 22 (Notice of dismissal or withdrawal of application for recognition of foreign proceeding) AF2008-151

(d) publish the notice of the dismissal or withdrawal in a daily newspaper circulating generally in the State or Territory of the defendant's principal, or last known, place of business.

(4) The court may direct the plaintiff to publish the notice of the dismissal or withdrawal in a daily newspaper circulating generally in any State or Territory not described in subrule (3) (d).

15A.8 Relief after recognition

(1) If the court has made an order for recognition of a foreign proceeding, any application by the plaintiff for relief under the Model Law, article 21, paragraph 1 must be made by filing an interlocutory process, and any supporting affidavit.

Note See approved form 3 (Interlocutory process) AF2008-144

(2) Unless the court otherwise orders, an interlocutory process under subrule (1) and any supporting affidavit must be served in accordance with rule 2.7 (2) but on the following people:

(a) the defendant;

(b) any person that the court directed be served with the originating process by which the application for recognition was made;

(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.

15A.9 Application to modify or terminate order for recognition or other relief

(1) This rule applies to—

(a) an application under the Model Law, article 17, paragraph 4 for an order modifying or terminating an order for recognition of a foreign proceeding; and

(b) an application under the Model Law, article 22, paragraph 3 for an order modifying or terminating relief granted under the Model Law, article 19 or 21.

(2) An application mentioned in subrule (1) must be made by filing an interlocutory process.

Note See approved form 3 (Interlocutory process) AF2008-144

(3) An interlocutory process for an application under subrule (1) and any supporting affidavit must be served on—

(a) for an application under subrule (1) (a)—the defendant and any other people who were served with, or filed a notice of appearance in relation to, the application for recognition; and

(b) for an application under subrule (1) (b)—the defendant and any other people who were served with, or filed a notice of appearance in relation to, the application for relief under the Model Law, article 19 or 21.

(4) Unless the court otherwise orders, a plaintiff who applies for an order under subrule (1) must—

(a) send a notice of filing the application to each person whose claim to be a creditor of the defendant is known to the plaintiff; and

Note See approved form 23 (Notice of filing of application to modify or terminate an order for recognition or other relief) AF2008-152

(b) publish the notice of filing the application in a daily newspaper circulating generally in the State or Territory of the defendant's principal, or last known, place of business.

(5) The court may direct the applicant to publish the notice of filing the application in a daily newspaper circulating generally in any State or Territory not described in subrule (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.

Division 6.15A.3 Cooperation with foreign courts and representatives

15A.10 Cooperation involving court to be under coordination agreement

(1) This rule applies if—

(a) a foreign proceeding and a local proceeding in relation to the same debtor are taking place concurrently within the meaning of the Model Law, article 1 (c) ( concurrent proceedings ); or

(b) assistance is sought in Australia by a foreign court or foreign representative in relation to a foreign proceeding or is sought in a foreign state in relation to a local proceeding in relation to a debtor within the meaning of the Model Law, article 1 (a) and article 1 (b) ( cross-border assistance ); or

(c) creditors or other interested people in a foreign state have an interest in requesting the commencement of participation in a local proceeding in relation to a debtor within the meaning of the Model Law, article 1 (d) ( foreign party participation ).

(2) Subject to subrule (5), coordination of concurrent proceedings under the Model Law, article 27 (e) is to take place under a coordination agreement approved by the court under rule 15A.11.

(3) Subject to subrule (5), coordination of the administration and supervision of a debtor's assets and affairs under the Model Law, article 27 (c) that involves the court is to take place under a coordination agreement approved by the court under rule 15A.11.

(4) Subject to subrule (5), any other form of cooperation under the Model Law, article 27 that involves the court is to take place under a coordination agreement approved by the court under rule 15A.11.

(5) The court may, on application by a party or on its own motion, order that a form of cooperation under subrule (2), (3) or (4) is to proceed other than under a coordination agreement approved by the court under rule 15A.11.

(6) An application by a party under subrule (5)—

(a) subject to paragraph (b), must be made by originating process; and

(b) may, if a proceeding has been started in the court in relation to the debtor under these rules, be made by interlocutory process in that proceeding; and

(c) must be supported by an affidavit identifying the form and substance of cooperation sought, the grounds for seeking it and the provisions of the Global Guidelines that the party proposes apply to the cooperation.

(7) If the court makes an order under subrule (5), the court must determine which provisions of the Global Guidelines apply to the cooperation.

15A.11 Application for approval of coordination agreement

(1) A coordination agreement that involves the court is subject to the approval of the court.

(2) An application under subrule (1)—

(a) subject to paragraph (b), must be made by originating process; and

(b) may, if a proceeding has been started in the court in relation to a debtor under these rules, be made by interlocutory process in the proceeding.

(3) An application under subrule (1) must be supported by an affidavit—

(a) exhibiting the coordination agreement; and

(b) identifying the manner in which the agreement involves the court; and

(d) identifying and providing contact details for all relevant foreign courts; and

(e) identifying all relevant foreign representatives; and

(f) identifying any local liquidator or controller appointed in relation to the debtor's local property.

(4) When filing the application, the applicant 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 orders, which it considers just.

(5) The applicant must serve a copy of the application and supporting affidavit—

(a) unless the court otherwise orders, on the parties to the proceeding under rule 2.7 (1); and

(b) on any other people the court may direct at the hearing of the interlocutory process.

(6) A person who intends to appear before the court at the hearing of the application must file and serve the documents mentioned in rule 2.9.

15A.12 Appointment of independent intermediary

(1) This rule applies if the court has made or is contemplating making an order under rule 15A.10 (Cooperation involving court to be under coordination agreement) or has approved or is contemplating approving a coordination agreement under rule 15A.11.

(2) The court may, on application by a party or on its own motion, order that an independent intermediary under Global Principle 23, be appointed to carry out any tasks in accordance with the conditions (if any) the court states.

(3) An application by the party under subrule (2) must be accompanied by an affidavit identifying the following matters:

(a) the proposed independent intermediary;

(b) the qualifications of the intermediary by reference to Global Principle 23 (5);

(d) the tasks proposed to be performed by the intermediary;

(e) the proposed remuneration of the intermediary.

Division 6.15A.4 Concurrent proceedings

15A.13 Starting proceeding after recognition of a foreign main proceeding

(1) This rule applies if a foreign main proceeding in relation to a debtor has been recognised under division 6.15A.2 (Recognition of a foreign proceeding) of the rules or of corresponding rules in the Federal Court of Australia or Supreme Court of a State or Territory of Australia.

(2) A party who wishes to start a local proceeding in relation to the debtor or the debtor's assets which is governed by the Model Law, article 28 must file with the originating process an affidavit—

(a) exhibiting the order recognising the foreign main proceeding; and

(b) identifying the assets of the debtor in Australia; and

(c) identifying any other assets of the debtor that under the law of the Commonwealth should be administered in the local proceeding.

Division 6.15A.5 General

15A.14 Proof of orders or documents of foreign courts

(1) This rule applies if an apparently authentic order or document of a foreign court is received by the court directly from the foreign court by physical or electronic delivery under provisions governing the transmission of the documents contained in—

(a) an order under rule 15A.10 (Cooperation involving court to be under coordination agreement); or

(b) a coordination agreement approved by the court under rule 15A.11 (Application for approval of coordination agreement).

(2) Unless the court otherwise orders, the order or document of the foreign court is presumed to be authentic in the absence of evidence to the contrary.

15A.15 Service in accordance with service list

(1) This rule applies if—

(a) a service list has been agreed under a coordination agreement approved by the court under rule 15A.11; or

(b) a service list has been established under an order by the court under rule 15A.10.

(2) Unless the court otherwise orders, the following applications must be served on all people named in the service list to which this rule applies that is applicable to the application:

(a) an application for recognition under rule 15A.3;

(b) an application to modify or terminate an order for recognition under rule 15A.9;

(3) If any application not governed by subrule (2) is made, the court may direct that the application be served on some or all people named in the service list to which this rule applies that is applicable to the application.

Part 6.16

Note This part of the uniform corporations rules has not been included.

These rules deal with the powers of the court that may be exercised by the registrar of the court (see pt 6.5 (Registrar) and sch 5 (Jurisdiction of registrar)).

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