Commonwealth Numbered Regulations

1993 No. 137 FEDERAL COURT RULES (AMENDMENT) - RULE 33

33.1 Omit the rule, substitute: Winding up of a company in insolvency under
section 459P

"37. (1) This rule applies to an application under section 459P of the
Corporations Law for a winding up order.

"(2) An application that relies on a failure to comply with a statutory demand
may be made in or substantially in accordance with Form 93C and must set out
the matters referred to in paragraph 459Q (a) of the Corporations Law and have
attached the documents referred to in paragraph 459Q (b) of the Corporations
Law.

"(3) An application that does not rely on a failure to comply with a statutory
demand, may be made in or substantially in accordance with Form 93C and must
specify the grounds on which the applicant relies to allege that the company
is insolvent. (NOTE TO APPLICANTS: Section 465A of the Corporations Law
requires a person who applies for an order that a company be wound up under
section 459P, 462 or 464, to lodge a notice in the prescribed form that the
application has been made; to serve a copy of it on the company within 14 days
after the application is made; and to advertise the application as prescribed
in the Rules.)

"(4) On filing and serving an application referred to in subrule (2), 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)  if the debt is not a judgment debt-an affidavit in or substantially in
        accordance with Form 94 setting out:

        (i)    a statement of the debt alleged and details of how and when it
               was incurred; and

        (ii)   a statement that the debt is due and payable to the applicant.

"(5) On filing and serving an application referred to in subrule (3), the
applicant must also file and serve an affidavit setting out the material facts
relied on in support of the application.

"(6) Unless the Court orders to the contrary, an affidavit referred to in
paragraph (4) (b) or subrule (5) must be:

   (a)  made by a person who can depose to the indebtedness of the company, or
        to the facts relied on in support of the application, as the case may
        be, to his or her own knowledge; and

   (b)  served on the company, with the copy of the application.

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

"(8) 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 concerned a
copy of any affidavits on which it relies, and any nomination of a liquidator
under subrule (7), in a manner permitted by section 220 of the Corporations
Law.

"(9) 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.

"(10) 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.

"(11) 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.

"(12) 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.)

"(13) 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.

"(14) 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.

"(15) An application may not be discontinued without the leave of the Court.

"(16) 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.".