Commonwealth Numbered Regulations

1993 No. 137 FEDERAL COURT RULES (AMENDMENT) - RULE 31

31.1 Omit the rule substitute: Application for a winding up order-section 462

"36. (1) This rule applies to an application for a winding up order under
section 462 of the Corporations Law, on or after 23 June 1993.

"(2) On filing and serving an application, the applicant must also file and
serve:

   (a)  an affidavit made not earlier than 7 days before the application is
        filed, setting out the prescribed information, which may be in, or
        substantially in, accordance with Form 128; and

   (b)  an affidavit made not earlier than 7 days before the application is
        filed, setting out:

        (i)    any other material facts to be relied on by the applicant in
               support of the application; and

        (ii)   the grounds of the application and a reference to the provision
               or provisions of section 461 of the Corporations Law on which
               the applicant relies.

"(3) If an application is made on a ground provided for by paragraph 461 (a)
of the Corporations Law, the affidavit referred to in paragraph (2) (a) must:

   (a)  include a statement whether, at the date of the application, the
        company is able to pay all its debts as and when they become due and
        payable; and

   (b)  annex the most recent accounts of the company that are lodged with the
        Commission.

"(4) The affidavit referred to in paragraph (2) (b) must be made by a person
who can depose of his or her own knowledge to at least some of the grounds
relied on for the winding up of the company.

"(5) Subject to subrule (6), at the same time as filing the application and
any affidavit in support, the applicant may lodge a nomination in accordance
with Form 88 of an official liquidator who will be appointed as liquidator
(unless the Court is satisfied that some other official liquidator should be
appointed) if an order for the winding up of the company is made.

"(6) Subrule (5) applies to a voluntary winding up occurring under Part 5.5 of
the Corporations Law, if for the purposes of winding up the affairs and
distributing the property of the company, a person has been nominated to be
liquidator:

   (a)  by the company at its meeting; or

   (b)  by the creditors of the company at their meeting.

"(7) As soon as is practicable after filing the application and any affidavit
in support, and in any event not later than 14 days after the date of filing,
the applicant (unless it is the company) must serve on the company, in a
manner permitted by section 220 of the Corporations Law:

   (a)  a signed and sealed copy of the application; and

   (b)  the affidavits on which it relies; and

   (c)  any nomination of a liquidator under subrule (5).

"(8) Unless the Court orders to the contrary, notice of an application in
accordance with Form 93 must be published in the manner prescribed by rule 104
not earlier than 3 days after the date a copy of the application was served on
the company and not later than 7 days before the day appointed for directions
under Order 4, rule 8.

"(9) If the Court thinks fit, it may hear and determine an application for the
winding up of a company on the day appointed for directions under Order 4,
rule 8, or a day subsequently appointed for directions in the proceedings.

"(10) If the company to which a winding up application relates intends to
appear on the day appointed for directions or on the hearing of a winding up
application, and to oppose the application, it must:

   (a)  file a notice of appearance in accordance with Form 79, specifying the
        grounds of opposition and an affidavit verifying those grounds in
        accordance with Form 93A; and

   (b)  serve a copy of the notice of appearance and affidavit on the
        applicant, not later than 2 days before the day appointed for
        directions or the day of the hearing, as the case may be.

"(11) A person (other than the company to which a winding up application
relates) who intends to appear on the day appointed for directions, or on the
hearing of a winding up application, must:

   (a)  file:

        (i)    a notice of appearance in accordance with Form 79, specifying
               any grounds of opposition to the application; and

        (ii)   if he or she opposes the application-an affidavit verifying the
               grounds of opposition in accordance with Form 93A; and

   (b)  serve a copy of the notice of appearance and affidavit on the
        applicant not later than 2 days before the day appointed for
        directions or the day of the hearing, as the case may be. (NOTE TO
        APPLICANTS: Section 465C of the Corporations Law provides that a
        person may not oppose an application for winding up of a company under
        section 459P, 462 or 464, without the leave of the Court, unless the
        person has filed and served on the applicant notice of the grounds on
        which the person opposes the application and an affidavit verifying
        the matters stated in the notice, within the period prescribed by the
        Rules.)

"(12) At the first directions hearing or at any subsequent directions hearing,
the Court may direct the applicant or its solicitors to prepare and file a
list in accordance with Form 80 of the names and addresses of persons who have
given notice of their intention to appear in the proceedings.

"(13) Without limiting any right of inspection otherwise available under Order
46, rule 6, a person who is or claims to be a contributory, member, creditor
or officer of a company, and who makes application in a form approved by the
Registrar, must:

   (a)  be permitted by the Registrar to inspect an application to wind up the
        company, and any affidavits in relation to the application that are in
        the Registrar's custody; and

   (b)  on payment of the prescribed fee-be provided with a copy of those
        documents.

"(14) Nothing in this rule shall restrict any power of the Court to appoint
more than one liquidator and to declare whether anything that is required by
the Corporations Law to be done by the liquidator is to be done by all, or by
any one or more, of the persons appointed.

"(15) An application to which this rule applies may not be discontinued
without the leave of the Court.".