Commonwealth Consolidated Regulations Commonwealth Consolidated Regulations
Note 1 -- see rule 2.2 (Form 2 Part C)
C. APPLICATION FOR WINDING UP ON GROUND OF INSOLVENCY
1 . The plaintiff relies on failure by the defendant to comply with a statutory demand. A copy of the demand, marked A, is attached to this originating process.
2. The demand was [ or The demand and an accompanying affidavit were] served by X.Y. who delivered it [ or them] to the registered office of the defendant at [ insert address ] on [ insert date ] [ or, if service was by post , who posted * it/ * them by ordinary prepaid post to the registered office of the defendant at [ insert address ] on [ insert date ]]. [ If applicable , A copy of the accompanying affidavit, marked B, is attached to this originating process.]
3. The defendant failed to pay the amount of the debt demanded [ or the total of the debts demanded] or to secure or compound for that * amount/ * total to the plaintiff's reasonable satisfaction within 21 days after the demand was served on the defendant [ or within 7 days after [ insert date ] when an application by the defendant under section 459G of the Corporations Act was finally determined or otherwise disposed of] [ or if the period for compliance with the demand was extended by order within the period specified in the order of the [ insert name of Court ] on [ insert date of order or, if more than one order, the date of the last such order ] as the period for compliance with the demand. A copy of the order, marked C, is attached to this originating process.]
[If the demand was varied by order under subsection 459H(4) of the Corporations Act]
4 . The demand was varied by order of the [ insert name of Court ] on [ insert date of order ]. A copy of the order, marked D [ or as the case may be ], is attached to this originating process.
* Omit if not applicable
Note 2 -- see rule 2.4 and subrule 5.4(2) (Affidavit in support)
* AFFIDAVIT IN SUPPORT/ * AFFIDAVIT IN SUPPORT OF APPLICATION FOR WINDING UP IN INSOLVENCY
I, [ name ] of [ address and occupation ], * say on oath/ * affirm [ or * make oath and say/ * solemnly and sincerely declare and affirm]:
1. I am the above - named plaintiff [ or if the applicant is a corporation , I am * a/ * the director of the above - named plaintiff which is registered or taken to be registered in [ specify State or Territory ]. I am duly authorised to make this affidavit on its behalf]. Now produced and shown to me and marked A is a copy of the originating process to be filed in the proceeding.
2. Annexed to this affidavit is a current and historical extract of the records maintained by the Australian Securities and Investments Commission with respect to the defendant.
3. [ Where the defendant is registered or taken to be registered in a State or Territory other than that of this Registry, state any facts -- apart from the defendant's principal place of business -- which bear upon jurisdiction being exercised in the State or Territory of this Registry, rather than in another State or Territory .]
4. The following facts are within my own personal knowledge save as otherwise stated.
5. The defendant was on [ state date of statutory demand or other relevant date ] indebted to the plaintiff in the sum of $ [ amount ] for [ state concisely the consideration, for example, goods sold and delivered etc. ] which sum was then due and payable.
6. The demand, a copy of which is attached to the originating process, was signed by or on behalf of the plaintiff. I served the demand [ or the demand and the accompanying affidavit] as referred to in the originating process [ or X.Y. has been instructed to make an affidavit of service of the demand [ or the demand and the accompanying affidavit]].
6A. The defendant has not made any application under section 459G of the Corporations Act to set aside the demand [ or On [ insert date ], the defendant made an application under section 459G of the Corporations Act to [ insert name of Court ] to set aside the demand. On [ insert date ], that Court dismissed the application [ or varied the demand by [ state effect of variation ]]. Annexed to this affidavit is a true copy of the court order disposing of the application].
7. The matters stated in the originating process concerning the demand and failure of the defendant to comply with it are true and correct.
8. The sum demanded remains due and payable by the defendant to me [ or the plaintiff].
Sworn, etc.
* Omit if not applicable