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UNIFORM CIVIL PROCEDURE RULES 1999 - SCHEDULE 1A

SCHEDULE 1A – Rules for proceedings under Corporations Act or ASIC Act

Part 1 - Preliminary

1.1 Short title

The rules in this schedule may be cited as the Corporations Proceedings Rules.

1.2 Notes in text

A note in the text of this schedule is part of the schedule.

1.3 Application of these rules and other rules of the court

(1) Unless the court otherwise orders—
(a) these rules apply to a proceeding in the court under the Corporations Act , or the ASIC Act , that is commenced on or after the commencement of these rules; and
(b) part 15A applies to a proceeding in the court under the Cross-Border Insolvency Act 2008 (Cwlth) .
(2) The other rules of the court apply, to the extent they are relevant and not inconsistent with these rules—
(a) to a proceeding in the court under the Corporations Act , or the ASIC Act , that is commenced on or after the commencement of these rules; and
(b) to a proceeding in the court under the Cross-Border Insolvency Act 2008 (Cwlth) .
(3) Unless the court otherwise orders, the rules applying to a proceeding in the court under the Corporations Act , or the ASIC Act , as in force immediately before the commencement of these rules, continue to apply to a proceeding under the Corporations Act , or the ASIC Act , that was commenced before the commencement of these rules.
Note—
Under the Acts Interpretation Act 1954 , section 7 , a reference to the Corporations Act includes a reference to the Corporations Regulations .

1.4 Expressions used in Corporations Act

(1) An expression used in these rules and in the Corporations Act has the same meaning in these rules as it has in the Corporations Act .
Note—
Expressions used in these rules (including the notes to these rules) that are defined in the Corporations Act include—

"ABN" (short for ‘Australian Business Number’)—see section 9

"ACN" (short for ‘Australian Company Number’)—see section 9

"ARBN" (short for ‘Australian Registered Body Number’)—see section 9

"ASIC" —see section 9

"body" —see section 9

"body corporate" —see section 9

"books" —see section 9

"company" —see section 9

"corporation" —see section 57A

"daily newspaper" —see section 9

"foreign company" —see section 9

"Part 5.1 body" —see section 9

"Part 5.7 body" —see section 9

"register" —see section 9

"registered liquidator" section 9

"registered office" —see section 9

"statutory demand" —see section 9 .
(2) An expression used in these rules and in the Insolvency Practice Schedule (Corporations) has the same meaning in these rules as it has in that schedule.
Note—
Definitions of expressions used in the Insolvency Practice Schedule (Corporations) are set out in part 1 , division 5 of that schedule.

1.5 Definitions for these rules

(1) In these rules—

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

"Insolvency Practice Schedule (Corporations)" means the Corporations Act , schedule 2 .

"interlocutory application" ...

"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 2008 (Cwlth) , schedule 1 , with the modifications set out in part 2 of that Act.

"originating application" ...

"respondent" means a person against whom relief is claimed.

"the court" means the Supreme Court of Queensland.

"the law" ...
(2) A reference in these rules to the Cross-Border Insolvency Act 2008 (Cwlth) includes a reference to the Model Law.

1.6 References to rules and forms

In these rules—

(a) a reference to a rule is a reference to a rule in this schedule; and
(b) a reference to a form followed by a number is a reference to the approved form for these rules having that number.

1.7 Substantial compliance with forms

(1) It is sufficient compliance with these rules in relation to a document that is required to be in accordance with a form if the document is substantially in accordance with the form required or has only such variations as the nature of the case requires.
(2) Without limiting subrule (1) , the 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 these rules.
(3) This rule does not limit the Acts Interpretation Act 1954 , section 48A .

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 it is satisfied, in the circumstances of the proceeding, that—

(a) 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, these rules—
(a) prohibit, permit or require an act or thing to be done within, by, or before the end of; or
(b) otherwise prescribe, allow or provide for;
a period of time before or after a particular day, act or event, the period is to be calculated without counting that day, or the day of the act or event, as the case may be.
(2) Without limiting subrule (1) , in calculating how many days a particular day, act or event is before or after another day, act or event, only the first day, or the day of the first act or event, is to be counted.
(3) If the last day of any period prescribed or allowed by these rules for an act or thing to be done falls on a day that is not a business day in the place where the act or thing is to be or may be done, the act or thing may be done on the first business day in the place after that day.
(4) In calculating a period of time for the purposes of these rules, the period beginning on 25 December in a year and ending at the end of 1 January in the next year is not to be counted.
(5) Subject to subrules (1) to (4) , the Acts Interpretation Act 1954 , section 38 applies in relation to these rules.

1.10 Extension and abridgement of time

Unless the Corporations Act , the ASIC Act , or these rules otherwise provide, the rules of the court that provide for the extension or shortening of a period of time fixed for the doing of any act or thing in relation to a proceeding apply to a proceeding to which these rules apply.

Part 2 - Proceedings generally

2.1 Title of documents in a proceeding—form 1

The title of a document filed in a proceeding must be in form 1.

2.2 Originating application and interlocutory application—forms 2 and 3

(1) Unless these rules otherwise provide, a person must make an application required or permitted by the Corporations Act to be made to the court—
(a) if the application is not made in a proceeding already commenced in the court—by filing an originating application; and
(b) in any other case, and whether interlocutory relief or final relief is claimed—by filing an interlocutory application.
(2) Unless the court otherwise directs, a person may make an application to the court in relation to a proceeding in respect of which final relief has been granted by filing an interlocutory application in that proceeding.
(3) An originating application must—
(a) be in form 2; and
(b) state—
(i) each section of the Corporations Act or the ASIC Act , or each regulation of the Corporations Regulations , under which the proceeding is brought; and
(ii) the relief sought.
(4) An interlocutory application must—
(a) be in form 3; and
(b) state—
(i) if appropriate, each section of the Corporations Act or the ASIC Act , or each regulation of the Corporations Regulations , or each rule of court under which the interlocutory application is made; and
(ii) the relief sought.

2.3 Fixing of hearing

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

(a) must fix a time, date and place for hearing and endorse those details on the originating application or interlocutory application; 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 application, or interlocutory application, must be supported by an affidavit stating the facts in support of the relief claimed.
(2) An affidavit in support of an originating application must exhibit a record of a search of the records maintained by ASIC, in relation to the company that is the subject of the application carried out no earlier than 7 days before the application is filed.
Note—
In an application for winding up in insolvency on the ground that the company has failed to comply with a statutory demand, the applicant should consider completing form 2, part C.

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

(1) This rule applies, and rule 2.4 (2) does not apply, to an originating application by a company under the Corporations Act , section 459G for an order setting aside a statutory demand served on the company.
(2) The applicant may file with the originating application seeking the order a copy of the statutory demand and a copy of any affidavit that accompanied the statutory demand.
(3) The applicant must—
(a) no earlier than 7 days before the originating application is filed, and not later than the day before the hearing of the application, carry out a search of the records maintained by ASIC in relation to the applicant; and
(b) either—
(i) annex the record of the search to the affidavit in support of the originating application; 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 , 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 (if any) or Territory (if any) where the affidavit was sworn or affirmed; or
(c) the rules of the Federal Court of Australia.

2.7 Service of originating application or interlocutory application and supporting affidavit

(1) As soon as practicable after filing an originating application and, in any case, at least 5 days before the date fixed for hearing, the applicant must serve a copy of the application and any supporting affidavit on—
(a) each respondent (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 application and, in any case, at least 3 days before the date fixed for hearing, the applicant must serve a copy of the interlocutory application and any supporting affidavit on—
(a) each respondent (if any) to the interlocutory application; and
(b) if the corporation to which the interlocutory application relates is not a party to the interlocutory application—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 column 1 of the following table, the person must serve on ASIC, a reasonable time before the hearing of the application, a copy of the application and supporting affidavit in respect of the application.

Column 1
Provision
Column 2
Description of application
section 480 application for the release of a liquidator of a company and the deregistration of the company
section 482 (1) application for the stay of a compulsory winding up
section 509 (2) application for the deregistration of a company
section 601AH (2) application to reinstate the registration of a company
section 601CC (8) application to restore the name of an Australian body to the register
section 601CL (9) application to restore the name of a foreign company to the register
chapter 6 , 6A , 6B , 6C , 6D or 7 any application under these chapters
section 1317S (2) , (4) and (5) application for relief from liability for contravention of a civil penalty provision
Insolvency Practice Schedule (Corporations) , section 45-1 (3) application for an order under the Insolvency Practice Schedule (Corporations) , section 45-1 (1) in relation to a registered liquidator
Insolvency Practice Schedule (Corporations) , section 90-10 (1) application for an inquiry into the external administration of a company
Insolvency Practice Schedule (Corporations) , section 90-20 application for an order under the Insolvency Practice Schedule (Corporations) , section 90-15 in relation to the external administration of a company

2.9 Notice of appearance (Corporations Act, s 465C)—form 4

(1) A person who intends to appear before the court at the hearing of an application must, before appearing—
(a) file—
(i) a notice of appearance in form 4; and
(ii) if appropriate—an affidavit stating any facts on which the person intends to rely; and
(b) serve on the applicant a copy of the notice of appearance and any affidavit not later than—
(i) if the person is named in an originating application—3 days before the date fixed for hearing; or
(ii) if the person is named in an interlocutory application—1 day before the date fixed for hearing.
(2) If the person intends to appear before the court to oppose an application for winding up, the person may include in the notice of appearance the notice of the grounds on which the person opposes the application required by 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 , section 465C , a person may not, without the leave of the court, oppose an application for winding up unless, within the period prescribed by the rules (see subrule (3) of this rule), the person has filed, and served on the applicant, 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)—form 5

(1) If ASIC intends to intervene in a proceeding, ASIC must file a notice of intervention in form 5.
(2) Not later than 3 days before the date fixed for the hearing at which ASIC intends to appear in the proceeding, ASIC must serve a copy of the notice, and any affidavit on which it intends to rely, on the applicant and on any other party to the proceeding.

2.12 Proof of publication

(1) This rule applies in relation to any matter published in connection with a proceeding.
(2) Unless these rules otherwise provide, or the court otherwise orders, the person responsible for the publication of the matter, or the person’s legal practitioner, must file—
(a) an affidavit made by the person, or the person’s legal practitioner, that states the date of publication and to which is 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, officer or interested person to be heard

(1) The court may grant leave to any person who is, or who claims to be—
(a) a creditor, contributory or officer of a corporation; or
(b) an officer of a creditor, or contributory, of a corporation; or
(c) any other interested person;
to be heard in a proceeding without becoming a party to the proceeding.
(2) If the court considers that the attendance of a person to whom leave has been granted under subrule (1) has resulted in additional costs for any party, or the corporation, that should be borne by the person to whom leave was granted, the court may—
(a) direct that the person pay the costs; and
(b) order that the person not be heard further in the proceeding until the costs are paid or secured to the court’s satisfaction.
(3) The court may order that a person who is, or who claims to be, a creditor, contributory or officer of a corporation be added as a respondent to the proceeding.
(4) The court may grant leave to a person under subrule (1) , or order that a person be added as a respondent 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 , these rules and any direction of the court to the contrary, regulations 5.6.11 to 5.6.36A of the Corporations Regulations apply to meetings ordered by the court.

Part 3 - Compromises and arrangements in relation to Part 5.1 bodies

3.1 Application of pt 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 applicant must file an affidavit stating—

(a) the names of the persons 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
(c) the name of the person (if any) proposed to be appointed to administer the proposed compromise or arrangement; 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 or conducted in accordance with—
(a) the provisions of the Corporations Act , part 2G.2 that apply to the members of the 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—
(a) as if—
(i) the holders were a separate class of members; and
(ii) the meeting were a meeting of members convened, held and conducted under subrule (2) ; but
(b) in accordance with, and subject to, the applicable provisions of the instrument under which the securities were issued.

3.4 Notice of hearing (Corporations Act, ss 411(4) and 413(1))—form 6

(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 applicant 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 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 where any of the Part 5.1 bodies has its principal, or last known, place of business.
(3) The notice must be—
(a) in form 6; and
(b) published at least 5 days before the date fixed 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 413 (1) , the applicant 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
(c) serve an office copy of the order on any person appointed to administer the compromise or arrangement.

Part 4 - Process for seeking inquiry or order in relation to controller, registered liquidator or external administration

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

(1) A complaint to the court under 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 application seeking an inquiry in relation to the complaint.
(2) The complaint may be made by a person mentioned in rule 11.2 (1)(a), (b), (c) or (d).

4.2 Order or inquiry in relation to registered liquidator or external administration of company

(1) This rule applies to an application to the court—
(a) under the Insolvency Practice Schedule (Corporations) , section 45-1 for an order in relation to a registered liquidator; or
(b) under the Insolvency Practice Schedule (Corporations) , section 90-10 for an inquiry into the external administration of a company; or
(c) under the Insolvency Practice Schedule (Corporations) , section 90-20 for an order in relation to the external administration of a company.
(2) The application must be made—
(a) in the case of a winding up by the court—by an interlocutory application seeking the inquiry or order; or
(b) in any other case—by an originating application seeking the inquiry or order.
Note—
An application for an order or inquiry in relation to the external administration of a company ordered to be wound up by a court is normally made to the court that made the winding up order.

Part 5 - Winding up proceedings (including oppression proceedings where winding up is sought)

5.1 Application of pt 5

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

(a) an application under the Corporations Act , part 2F.1 ;
(b) an application under the Corporations Act , part 5.4 or 5.4A .

5.2 Affidavit accompanying statutory demand (Corporations Act, s 459E(3))—form 7

For the purposes of 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 in form 7 and state the matters mentioned in that form; and
(b) be made by the creditor or by a person with the authority of the creditor or creditors; and
(c) not state a proceeding number, or refer to a court proceeding, in any heading or title to the affidavit.

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, ss 459P, 462 and 464)

(1) The affidavit in support of an originating application seeking an order that a company be wound up must be made by the applicant or by a person with the authority of the applicant or applicants.
(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.
Note—
Form 7A is an example of the affidavit in support of an application made in reliance on a failure to comply with a statutory demand.
(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 exhibit to the affidavit, or explain their absence.
(4) The affidavit must be made within 7 days before the originating application is filed.

5.5 Consent of liquidator (Corporations Act, s 532(9))—form 8

(1) In this rule—

"liquidator" does not include a provisional liquidator.
(2) For the purposes of the Corporations Act , section 532 (9) , the consent of a registered liquidator to act as liquidator of a company must be in form 8.
(3) In an application for an order that a company be wound up, the applicant must—
(a) before the hearing of the application, file the consent mentioned in subrule (2) of a registered 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.

5.6 Notice of application for winding up—form 9

(1) If a person applies for a company to be wound up other than under the Corporations Act , section 459P , 462 or 464 , the person must, unless the court otherwise orders, cause a notice of the application to be published in a daily newspaper circulating generally in the State where the company has its principal, or last known, place of business.
Note—
If a person applies under the Corporations Act , section 459P , 462 or 464 for a company to be wound up, the person must cause a notice, setting out the information prescribed by the Corporations Regulations , regulation 5.4.01A to be published in the way provided by the Corporations Act , section 1367A and the Corporations Regulations , regulation 5.6.75. See the Corporations Act , section 465A (1) .
(2) The notice must be in form 9.
(3) A notice under subrule (1) , or under the Corporations Act , section 465A (1) (c) , of an application for a company to be wound up must be published—
(a) at least 3 days after the originating application is served on the company; and
(b) at least 7 days before the date fixed for the hearing of the application.

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 applicant’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 application seeking an order that a company be wound up, the applicant must, if required—

(a) appear before the registrar on a date to be appointed by the registrar; and
(b) satisfy the registrar that the applicant has complied with the Corporations Act and these rules in relation to applications for a winding up order.

5.10 Order substituting applicant in application for winding up (Corporations Act, s 465B)—form 10

(1) If the court makes an order under the Corporations Act , section 465B , the court may also order that the substituted applicant or applicants publish a notice stating that the substituted applicant or applicants intend to apply for an order that the company be wound up.
(2) The notice must be in form 10.
(3) Unless otherwise directed by the court, 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 where the company has its principal, or last known, place of business.

5.11 Notice of winding up order and appointment of liquidator—form 11

(1) This rule applies if the court orders that a company be wound up and a registered liquidator be appointed as liquidator of the company.
(2) Not later than the day after the order is made, the applicant must inform the liquidator of the appointment.
(3) If the winding up order results from an application other than an application under the Corporations Act , section 459P , 462 or 464 , the liquidator must cause a notice of the winding up order and the liquidator’s appointment to be published in a daily newspaper circulating generally in the State where the company has its principal, or last known, place of business.
Note—
If the winding up order results from an application under the Corporations Act , section 459P , 462 or 464 , the liquidator must cause a notice, setting out the information prescribed by the Corporations Regulations , regulation 5.4.01B to be published in the way provided by the Corporations Act , section 1367A and the Corporations Regulations , regulation 5.6.75. See the Corporations Act , section 465A (2) .
(4) The notice must be in form 11.
(5) A notice under subrule (3) , or under the Corporations Act , section 465A (2) , of a winding up order must be published as soon as practicable after the liquidator is informed of the appointment.
(6) In this rule—

"liquidator" does not include a provisional liquidator.

Part 6 - Provisional liquidators (Corporations Act, part 5.4B)

Note—
See also rule 7.3 in relation to the requirement to report to a provisional liquidator as to the affairs of a company.

6.1 Appointment of provisional liquidator (Corporations Act, s 472)—form 8

(1) An application for a registered 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 registered liquidator.
(2) The consent must be in form 8.
(3) Subrule (4) applies 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 property of the company.
(4) The order must include a short description of the part of the property of the company that the provisional liquidator may take into custody.

6.2 Notice of appointment of provisional liquidator—form 12

(1) This rule applies if the court orders that a registered liquidator be appointed as provisional liquidator of a company.
(2) Not later than the day after the order is made, the applicant must—
(a) except if the applicant 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 applicant is the company) and on any other person 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) If the order results from an application other than an application under the Corporations Act , section 459P , 462 or 464 , the provisional liquidator must cause a notice of the provisional liquidator’s appointment to be published in a daily newspaper circulating generally in the State where the company has its principal, or last known, place of business.
Note—
If the order results from an application under the Corporations Act , section 459P , 462 or 464 , the provisional liquidator must cause a notice, setting out the information prescribed by the Corporations Regulations , regulation 5.4.01B to be published in the way provided by the Corporations Act , section 1367A and the Corporations Regulations , regulation 5.6.75. See the Corporations Act , section 465A (2) .
(4) The notice must be in form 12.
(5) A notice under subrule (3) , or under the Corporations Act , section 465A (2) , of a provisional liquidator’s appointment must be published as soon as practicable after the order is made.

Part 7 - Liquidators

7.2 Vacancy in office of liquidator (Corporations Act, ss 473A and 499(3) and Insolvency Practice Schedule (Corporations), s 90-15)

If, for any reason, there is no liquidator of a company under external administration, the court may appoint a registered liquidator whose written consent in form 8 has been filed.

Note—
Under the Insolvency Practice Schedule (Corporations) , section 90-15 (2) , the court may make the appointment—
(a) on its own initiative, during a proceeding before the court; or
(b) on application under the Insolvency Practice Schedule (Corporations) , section 90-20 .

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) taxed or assessed.
(3) The liquidator must report to the court any default in complying with the requirements of the Corporations Act , section 475 .
(4) Unless the court otherwise orders, a report filed by a liquidator under the Corporations Act , section 475 (7) is not available for inspection by any person.
Note—
A report filed by a liquidator under the Corporations Act , section 475 (7) may include commercial-in-confidence information that may not be inspected. See the Corporations Act , section 1274 (4G) .
(5) 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, within 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 application 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, in form 13, within 21 days after the date of service of the interlocutory application; and
(b) a statement setting out the terms of the Corporations Act , section 481 (3) .
Note—
The Corporations Act , section 481 (3) provides that an order of the court releasing a liquidator discharges the liquidator from all liability in respect of 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;
(c) any dividends paid 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 caused books in relation to the company to be audited under the Insolvency Practice Schedule (Corporations) , section 70-15 ;
(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 by reason of which it is submitted that the company should not be deregistered.
(4) The liquidator must include in the supporting affidavit the statements set out in paragraphs (a) and (b) of this subrule, 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 that is likely to give rise to any liability to the subject corporation or any creditor or contributory [except as disclosed in this affidavit].’; and
(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 exhibit to the supporting affidavit—
(a) a statement of the financial position of the company at the date when the interlocutory application 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 application 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 application seeking release was filed.

7.6 Objection to release of liquidator—form 13

(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 application seeking release—
(a) file—
(i) a notice of objection in form 13; and
(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, within 3 days after being served, serve on the creditor or contributory a copy of the affidavit supporting the interlocutory application.

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 the Corporations Act , section 481 (1) ’; and
(b) serve a copy of the report on the liquidator; and
(c) lodge a copy of the report with ASIC.
(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))—form 14

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 be in form 14.

7.9 Distribution of surplus by liquidator with special leave of court (Corporations Act, s 488(2))—form 15

(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 fixed for the hearing of the application, the liquidator must publish a notice of the application in a daily newspaper circulating generally in the State where the company has its principal, or last known, place of business.
(3) The notice must be in form 15.

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

Subject to the Corporations Act , the Corporations Regulations , these rules, and any order of the court, the powers and duties conferred or imposed on the court by the Corporations Act , part 5.4B in respect of the matters mentioned in the Corporations Act , section 488 (1) may be exercised or performed by a liquidator appointed by the court as an officer of the court and subject to the control of the court.

7.11 Appointment of reviewing liquidator (Insolvency Practice Schedule (Corporations), s 90-23(8))

(1) An application to the court under the Insolvency Practice Schedule (Corporations) , section 90-23 (8) to appoint a registered liquidator to carry out a review into a matter relating to the external administration of a company must be made—
(a) in the case of a winding up by the court—by filing an interlocutory application seeking the relevant orders; or
(b) in the case of a voluntary winding up—by filing an originating application seeking the relevant orders.
(2) The application must be accompanied by the written declaration made by the proposed reviewing liquidator under the Insolvency Practice Rules (Corporations) 2016 (Cwlth) , section 90-18 .

Part 8 - Special managers (Corporations Act, part 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 furnishing the security given by a special manager in respect of 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 9 - Remuneration of office-holders

9.1 Remuneration of receiver (Corporations Act, s 425(1))—form 16

(1) This rule applies to an application by a receiver of property of a corporation for an order under the Corporations Act , section 425 (1) fixing the receiver’s remuneration.
Note—
1 Under the Corporations Act , section 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.
2 The amendment to the Corporations Act , section 425 made by the Corporations Amendment (Insolvency) Act 2007 applies in relation to a receiver appointed on or after 31 December 2007—see the Corporations Act , section 1480 (5) .
(2) At least 21 days before filing an originating application, or interlocutory application seeking the order, the receiver must serve a notice in form 16 of the receiver’s intention to apply for the order, and a copy of any affidavit on which the receiver intends to rely, on the following persons—
(a) the person who appointed the receiver;
(b) any creditor holding security over all or any of the same property of the corporation (except if the creditor is the person who appointed the receiver);
(c) any administrator, liquidator or provisional liquidator of the corporation;
(d) any administrator of a deed of company arrangement executed by the corporation;
(e) if there is no person of the kind mentioned in paragraph (c) or (d)
(i) each of the 5 largest (measured by amount of debt) unsecured creditors of the corporation; and
(ii) each member of the corporation whose shareholding represents at least 10% of the issued capital of the corporation.
(3) Within 21 days after the last service of the documents mentioned in subrule (2) , any creditor or contributory, or any person mentioned in 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 application, or interlocutory application, 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 application, or interlocutory application, with a request that the application be dealt with in the absence of the public and without any attendance by, or on behalf of, the receiver; and
(c) the application may be so dealt with.
(5) If the receiver receives a notice of objection within the period mentioned in subrule (3) , the receiver must serve a copy of the originating application, or interlocutory application, 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 application, or interlocutory application, 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
(c) state the amount of remuneration claimed; and
(d) include a summary of the receipts taken and payments made by the receiver; and
(e) state particulars of any objection of which the receiver has received notice; and
(f) if the receivership is continuing—give details of any matters delaying the completion of the receivership.

9.2 Determination of remuneration of external administrator (Insolvency Practice Schedule (Corporations), s 60-10(1)(c) and (2)(b))—form 16

(1) This rule applies in relation to an application for a determination under the Insolvency Practice Schedule (Corporations) , section 60-10 (1) (c) or (2) (b) specifying remuneration that an external administrator of a company is entitled to receive for necessary work properly performed by the external administrator in relation to the external administration.
Note—
The Insolvency Practice Schedule (Corporations) , section 60-10 does not apply in relation to the remuneration of a provisional liquidator or a liquidator appointed by ASIC under the Corporations Act , section 489EC . See the Insolvency Practice Schedule (Corporations) , section 60-2 .
(2) At least 21 days before filing an originating application, or interlocutory application, seeking the determination, the external administrator must serve a notice in form 16 of the external administrator’s intention to apply for the determination, and a copy of any affidavit on which the external administrator intends to rely, on the following persons—
(a) each creditor who was present, in person or by proxy, at any meeting of creditors;
(b) each member of any committee of 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.
(3) Within 21 days after the last service of the documents mentioned in subrule (2) , any creditor or contributory may give the external administrator a notice of objection to the remuneration claimed, stating the grounds of objection.
(4) If the external administrator does not receive a notice of objection within the period mentioned in subrule (3)
(a) the external administrator may file an affidavit, made after the end of that period, in support of the originating application, or interlocutory application, seeking the determination stating—
(i) the date, or dates, when the notice and affidavit required to be served under subrule (2) were served; and
(ii) that the external administrator has not received any notice of objection to the remuneration claimed within the period mentioned in subrule (3) ; and
(b) the external administrator may endorse the originating application, or interlocutory application, 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 external administrator; and
(c) the application may be so dealt with.
(5) If the external administrator receives a notice of objection within the period mentioned in subrule (3) , the external administrator must serve a copy of the originating application, or interlocutory application, seeking the determination on each creditor or contributory who has given a notice of objection.
(6) An affidavit in support of the originating application, or interlocutory application, seeking the determination must—
(a) include evidence of the matters mentioned in the Insolvency Practice Schedule (Corporations) , section 60-12 ; and
(b) state the nature of the work performed or likely to be performed by the external administrator; and
(c) state the amount of remuneration claimed; and
(d) include a summary of the receipts taken and payments made by the external administrator; and
(e) state particulars of any objection of which the external administrator has received notice; and
(f) if the external administration is continuing—give details of any matters delaying the completion of the external administration.

9.2A Review of remuneration determination for external administrator (Insolvency Practice Schedule (Corporations), s 60-11(1))

(1) This rule applies in relation to an application under the Insolvency Practice Schedule (Corporations) , section 60-11 (1) for a review of a remuneration determination for an external administrator of a company.
Notes—
1 The Insolvency Practice Schedule (Corporations) , section 60-11 does not apply in relation to the remuneration of a provisional liquidator or a liquidator appointed by ASIC under the Corporations Act , section 489EC . See the Insolvency Practice Schedule (Corporations) , section 60-2 .
2 An application may not be made under the Insolvency Practice Schedule (Corporations) , section 60-11 (1) for a review of a remuneration determination made by the court under section 60-10 (1) (c) or (2) (b) of that schedule. See the Insolvency Practice Schedule (Corporations) , section 60-11 (5) .
(2) At least 21 days before filing the originating application, or the interlocutory application, applying for a review, the applicant must serve a notice, in form 16A, of intention to apply for the review and a copy of any affidavit on which the applicant intends to rely (other than an affidavit required under subrule (7) ) on the following persons—
(a) if there is a committee of inspection—each member of the committee;
(b) if the remuneration of the external administrator was determined by the creditors—each creditor who was present, in person or by proxy, at the meeting of creditors at which the remuneration was determined;
(c) each member of the company whose shareholding represents at least 10% of the issued capital of the company.
(3) Within 21 days after the last service of the documents mentioned in subrule (2) , any person on whom the notice has been served may serve on the 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 the person seeks to raise before the court.
(4) A person mentioned in subrule (2) is entitled to be heard on the application for review, but only (unless the court otherwise orders) if the person has served on the applicant a notice under subrule (3) .
(5) If the applicant is served with a notice under subrule (3) , the applicant must serve a copy of the originating application, or interlocutory application, applying for the review on each person who has served a notice under subrule (3) .
(6) The external administrator must file an affidavit stating the following matters—
(a) the matters mentioned in the Insolvency Practice Schedule (Corporations) , section 60-12 ;
(b) the nature of the work performed or likely to be performed by the external administrator;
(c) the amount of remuneration claimed by the external 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 external administrator;
(e) particulars of any objection to the remuneration as determined, of which the external administrator has received notice;
(f) if the external administration is continuing—details of any matters delaying the completion of the external administration.
(7) The applicant must—
(a) file an affidavit stating whether any notices under subrule (3) have been served; and
(b) annex or exhibit to the affidavit a copy of any notice served under subrule (3) .

9.3 Remuneration of provisional liquidator (Insolvency Practice Schedule (Corporations), s 60-16)—form 16

(1) This rule applies in relation to an application by a provisional liquidator of a company for a determination under the Insolvency Practice Schedule (Corporations) , section 60-16 (1) of the remuneration the provisional liquidator is entitled to receive.
(2) The application must be made by interlocutory application in the winding up proceeding.
(3) At least 21 days before filing the interlocutory application seeking the determination, the provisional liquidator must serve a notice in form 16 of the provisional liquidator’s intention to apply for the determination, and a copy of any affidavit on which the provisional liquidator intends to rely, on the following persons—
(a) any liquidator (except the provisional liquidator) of the company;
(b) each member of any committee of inspection or, if there is no committee of inspection, each of the 5 largest (measured by amount of debt) creditors of the company;
(c) each member of the company whose shareholding represents at least 10% of the issued capital of the company.
(4) Within 21 days after the last service of the documents mentioned in subrule (3) , the liquidator, or any creditor or contributory, may give to the provisional liquidator a notice of objection to the remuneration claimed, stating the grounds of objection.
(5) If the provisional liquidator does not receive a notice of objection within the period mentioned in subrule (4)
(a) the provisional liquidator may file an affidavit, made after the end of that period, in support of the interlocutory application seeking the determination 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 application with a request that the application be dealt with in the absence of the public and without any attendance by, or on behalf of, the provisional liquidator; and
(c) the application may be so dealt with.
(6) If the provisional liquidator receives a notice of objection within the period mentioned in subrule (4) , the provisional liquidator must serve a copy of the interlocutory application seeking the determination—
(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 application seeking the determination must—
(a) state the nature of the work performed or likely to be performed by the provisional liquidator; and
(b) state the amount of remuneration claimed; and
(c) include a summary of the receipts taken and payments made by the provisional liquidator; and
(d) state particulars of any objection of which the provisional liquidator has received notice; and
(e) if the winding up proceeding has not been determined—give details of—
(i) any reasons known to the provisional liquidator why the winding up proceeding has not been determined; and
(ii) any reasons why the provisional liquidator’s remuneration should be determined before the determination of the winding up proceeding.
(8) The affidavit must also provide evidence of the matters mentioned in the Insolvency Practice Schedule (Corporations) , section 60-12
(a) to the extent that they may be relevant to a provisional liquidator; and
(b) as if references in that section to ‘external administrator’ were references to ‘provisional liquidator’.

9.5 Remuneration of special manager (Corporations Act, s 484(2))—form 16

(1) This rule applies to an application by a special manager of the property or business of a company for an order the Corporations Act , section 484 (2) fixing the special manager’s remuneration.
(2) The application must be made by interlocutory application in the winding up proceeding.
(3) At least 21 days before filing the interlocutory application seeking the order, the special manager must serve a notice in form 16 of the special manager’s intention to apply for the order, and a copy of any affidavit on which the special manager intends to rely, on the following persons—
(a) the liquidator of the company;
(b) each member of any committee of inspection or, if there is no committee of inspection, each of the 5 largest (measured by amount of debt) creditors of the company;
(c) each member of the company whose shareholding represents at least 10% of the issued capital of the company.
(4) Within 21 days after the last service of the documents mentioned in subrule (3) , the liquidator, or any creditor or contributory, may give to the special manager a notice of objection to the remuneration claimed, stating the grounds of objection.
(5) If the special manager does not receive a notice of objection within the period mentioned in subrule (4)
(a) the special manager may file an affidavit, made after the end of that period, in support of the interlocutory application 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 application with a request that the application be dealt with in the absence of the public and without any attendance by, or on behalf of, the special manager; and
(c) the application may be so dealt with.
(6) If the special manager receives a notice of objection within the period mentioned in subrule (4) , the special manager must serve a copy of the interlocutory application 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 application seeking the order must—
(a) state the nature of the work performed or likely to be performed by the special manager; and
(b) state the amount of remuneration claimed; and
(c) include a summary of the receipts taken and payments made by the special manager; and
(d) state particulars of any objection of which the special manager has received notice; and
(e) if the special management is continuing—give details of any matters delaying the completion of the special management.

Part 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) in the case of a winding up by the court—by filing an interlocutory application seeking an order estimating, or determining a method for working out, the value of the debt or claim; and
(b) in the case of a voluntary winding up—by filing an originating application 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) specify the persons 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 any person interested in the contract.

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

These rules apply, with any necessary adaptations, 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 11 - Inquiries, examinations, investigations, and orders against person concerned with corporation

11.1 Definition for pt 11

In this part—

"examination summons" means a summons under the Corporations Act , section 596A or 596B for the examination of a person about a corporation’s examinable affairs.

11.2 Inquiries, examinations and investigations under Corporations Act, s 411(9)(b) or 423(3) or Insolvency Practice Schedule (Corporations), div 90, sdiv B

(1) An application for an order for an examination or investigation under the Corporations Act , section 423 (3) in relation to a controller of property of a corporation may be made by any of the following—
(a) a person with a financial interest in the administration of the corporation;
(b) an officer of the corporation;
(c) if the committee of inspection (if any) so resolves—a creditor, on behalf of the committee;
(d) ASIC.
Note—
An application—
(a) under the Corporations Act , section 411 (9) (b) for an inquiry into the administration of a compromise or arrangement or an examination or investigation in connection with an inquiry of that type; or
(b) under the Insolvency Practice Schedule (Corporations) , division 90 , subdivision B for an inquiry into the external administration of a company or an examination or investigation in connection with an inquiry of that type;
may be made by a person mentioned in the Insolvency Practice Schedule (Corporations) , section 90-10 (2) . See the Corporations Act , section 411 (9) (b) and the Insolvency Practice Schedule (Corporations) , section 90-10 (1) .
(2) The following applications may be made without notice to any person—
(a) an application under the Corporations Act , section 411 (9) (b) for an inquiry into the administration of a compromise or arrangement or an examination or investigation in connection with an inquiry of that type;
(b) an application for an order for an examination or investigation under the Corporations Act , section 423 (3) ;
(c) an application under the Insolvency Practice Schedule (Corporations) , division 90 , subdivision B for an inquiry into the external administration of a company or an examination or investigation in connection with an inquiry of that type.
(3) The provisions of this part that apply to an examination under the Corporations Act , part 5.9 , division 1 apply, with any necessary adaptations, to an inquiry, examination or investigation under the Corporations Act , section 411 (9) (b) or 423 (3) or the Insolvency Practice Schedule (Corporations) , division 90 , subdivision B .

11.3 Application for examination summons (Corporations Act, ss 596A and 596B)—form 17

(1) An application for the issue of an examination summons must be made by filing an interlocutory application or an originating application, as the case requires.
(2) The application may be made without notice to any person.
(3) The originating application, or interlocutory application, seeking the issue of the examination summons must be—
(a) supported by an affidavit stating the facts in support of the application; and
(b) accompanied by a draft examination summons.
(4) If the application and supporting affidavit are filed (other than by lodgement by electronic or computer-based means), the application 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 the Corporations Act , section 596A ’; or
(b) ‘Application and supporting affidavit for issue of summons for examination under the Corporations Act , section 596B ’.
(5) If the application and supporting affidavit are lodged by electronic or computer-based means, the application and supporting affidavit—
(a) must be marked ‘Confidential’; and
(b) must be accompanied by a statement that the application and supporting affidavit are, as appropriate—
(i) ‘Application and supporting affidavit for issue of summons for examination under the Corporations Act , section 596A ’; or
(ii) ‘Application and supporting affidavit for issue of summons for examination under the Corporations Act , section 596B ’.
(6) 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 application, or interlocutory application, and the supporting affidavit.
(7) 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 application, or interlocutory application, and the supporting affidavit.
(8) Unless the court otherwise orders, an affidavit in support of an application for an examination summons is not available for inspection by any person.
(9) An examination summons must be in form 17.

11.4 Service of examination summons

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

11.5 Discharge of examination summons

(1) This rule applies if a person is served with an examination summons.
(2) Within 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 application seeking an order discharging the summons; and
(b) an affidavit stating the facts in support of the interlocutory application.
(3) As soon as practicable after filing the interlocutory application seeking the order and the supporting affidavit, the person must serve a copy of the interlocutory application 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 purposes of the Corporations Act , section 597 (14) , a transcript of an examination may be authenticated—

(a) by the person, or persons, who prepared the record of examination, or under whose supervision the record was prepared, certifying in writing signed by the person or persons, that the record is a true transcript of the record of examination; or
(b) by any person 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 or 423 or Insolvency Practice Schedule (Corporations), div 90, sdiv B

(1) A written record or transcript of an examination or investigation under the Corporations Act , section 411 or 423 or the Insolvency Practice Schedule (Corporations) , division 90 , subdivision B is not available for inspection by any person 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 any person 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 wholly 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, within 3 years after the date of 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 conclusion of the examination; or
(iii) refuses or fails to take an oath or make an affirmation; or
(iv) refuses or fails to answer a question that the court directs the person to answer; or
(v) refuses or 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 fixed 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 thinks 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 rules 2.7 and 2 .8, the person must serve a copy of the originating application, or interlocutory application, as the case requires, 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 rule 2.7 , an applicant must serve a copy of the originating application, and any supporting affidavit, on a respondent to the proceeding and, if necessary, on the corporation to which the proceeding relates, and must serve a copy of an interlocutory application, 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 rule 2.8 .

Part 11A - Warrants (Corporations Act, section 486B and part 5.4B, division 3, subdivision B)

11A.1 Arrest of person (Corporations Act, s 486B)—form 17A

(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.
(3) The warrant must be in form 17A.
(4) 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 , sections 489A to 489E , inserted by the Corporations (Amendment) Insolvency Act 2007 , apply in relation to a warrant issued on or after 31 December 2007—see the Corporations Act , section 1481 (3) .

Part 12 - Takeovers, acquisitions of shares etc. (Corporations Act, chapters 6 to 6D) and Securities (Corporations Act, chapter 7)

12.1 Service on ASIC in relation to proceedings under Corporations Act, chapter 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 applicant must serve a copy of the originating application and the supporting affidavit on ASIC as soon as practicable after filing the originating application.

12.1A Reference to court of questions of law arising in proceeding before takeovers panel (Corporations Act, s 659A)

The Uniform Civil Procedure Rules 1999 , rule 781 applies, with necessary changes, to the reference to the court under the Corporations Act , section 659A of a question of law arising in a proceeding before the takeovers panel.

12.1B Notification to court if proceeding is commenced 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 commenced 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
"court proceedings in relation to a takeover bid or proposed takeover bid" in the Corporations Act , section 659B (4) .
(2) The party 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 that 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))—form 18

(1) An application for the issue of a summons under the Corporations Act , section 1071D (4) must be made by filing an originating application or an interlocutory application.
(2) The application may be made ex parte.
(3) The originating application, or interlocutory application, seeking the issue of the summons must be—
(a) supported by an affidavit stating the facts in support of the application; and
(b) accompanied by a draft summons.
(4) Unless the court otherwise orders, a summons issued under this rule must be in form 18.

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 application under the Corporations Act , section 1071F , the applicant must serve a copy of the originating application and the supporting affidavit on—

(a) the company; and
(b) any person against whom an order is sought.

Part 13 - (Repealed)

Part 14 - Appeals authorised by Corporations Act

14.1 Appeals against acts, omissions or decisions

(1) All appeals to the court authorised by the Corporations Act must be commenced by an originating application, or interlocutory application, stating—
(a) the act, omission or decision complained of; and
(b) in the case of an appeal against a decision—whether the whole or part only and, if part only, which part of the decision is complained of; and
(c) the grounds on which the complaint is based.
(2) Unless the Corporations Act or the Corporations Regulations otherwise provide, the originating application, or interlocutory application, 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 application, or interlocutory application, either before or after the time for filing expires and whether or not the application for extension is made before the time expires.
(4) As soon as practicable after filing the originating application, or interlocutory application, and, in any case, at least 5 days before the date fixed for hearing, the person instituting the appeal must serve a copy of the application, 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 application, 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) exhibiting a copy of all relevant documents that have not been put in evidence by the person instituting the appeal.

Part 15 - Proceedings under the ASIC Act

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

A reference of a question of law arising at a hearing by ASIC to the court under the ASIC Act , section 61 is to be made by originating application which is to—

(a) set out in clear terms the question of law to be decided; and
(b) set out concisely all facts necessary for the decision; and
(c) have attached to it all documents necessary to enable the court to decide the question.

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

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

Part 15A - Proceedings under Cross-Border Insolvency Act 2008 (Cwlth)

15A.1 Application of part and other rules of the court

Unless the court otherwise orders—

(a) this part applies to a proceeding in the court under the Cross-Border Insolvency Act 2008 (Cwlth) involving a debtor other than an individual; and
(b) the rules in the other parts of these rules, and the other rules of the court, apply to a proceeding in the court under the Cross-Border Insolvency Act 2008 (Cwlth) if they are relevant and not inconsistent with this part.
Note—
See rule 1.5 (2) in relation to a reference in these rules to the Cross-Border Insolvency Act 2008 (Cwlth) .

15A.2 Expressions used in Cross-Border Insolvency Act 2008 (Cwlth)

(1) An expression used in this part and in the Cross-Border Insolvency Act 2008 (Cwlth) , whether or not a particular meaning is given to the expression in that Act, has the same meaning in this part as it has in that Act.
Note—
The following expressions 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 sub paragraph (f) of the present article.

"foreign proceeding" means a collective judicial or administrative proceeding in a foreign State, including an interim proceeding, pursuant to a law relating to insolvency in which proceeding the assets and affairs of the debtor are subject to control or supervision by a foreign court, for the purpose of reorganization or liquidation.

"foreign representative" means a person or body, including one appointed on an interim basis, authorized in a foreign proceeding to administer the reorganization or the liquidation of the debtor’s assets or affairs or to act as a representative of the foreign proceeding.
(2) This part is to be interpreted in a way that gives effect to the Cross-Border Insolvency Act 2008 (Cwlth) .

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 application in form 2.
(2) The originating application must—
(a) be accompanied by the statements mentioned in the Model Law, article 15 and in the Cross-Border Insolvency Act 2008 (Cwlth) , section 13 ; and
(b) name the foreign representative as the applicant and the debtor as the respondent; and
(c) be accompanied by an affidavit verifying the matters mentioned in the Model Law, article 15, paragraphs 2 and 3 and in the Cross-Border Insolvency Act 2008 (Cwlth) , section 13 .
(3) The applicant must serve a copy of the originating application and the other documents mentioned in subrule (2)
(a) unless the court otherwise orders, in accordance with rule 2.7 (1); and
(b) on any other persons the court may direct.
(4) 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) An application by the applicant for provisional relief under the Model Law, article 19 must be made by filing an interlocutory application in form 3.
(2) Unless the court otherwise orders, the interlocutory application and any supporting affidavit must be served in accordance with rule 2.7 (2).

15A.5 Registered liquidator’s consent to act

(1) This rule applies if an application is made for—
(a) an order 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) an order under the Model Law, 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).
(2) Unless the court otherwise orders, the person must—
(a) be a registered liquidator; and
(b) have filed a consent to act, in form 19, that states an address for service for the person within Australia.

15A.6 Notice of filing of application for recognition

(1) Unless the court otherwise orders, the applicant in a proceeding mentioned in rule 15A.3 must—
(a) send a notice of the filing of the application in form 20 to each person whose claim to be a creditor of the respondent is known to the applicant; and
(b) publish a notice of the filing of the application for recognition of a foreign proceeding in form 20 in a daily newspaper circulating generally in the State where the respondent has its principal, or last known, place of business.
(2) The court may direct the applicant to publish a notice in form 20 in a daily newspaper circulating generally in any State 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 an order under the Model Law, article 19 or 21, the applicant must, as soon as practicable after the order is made, do each of the following—
(a) have the order entered;
(b) serve a copy of the entered order on the respondent;
(c) send a notice of the making of the order in form 21 to each person whose claim to be a creditor of the respondent is known to the applicant;
(d) publish a notice of the making of the order in form 21 in a daily newspaper circulating generally in the State where the respondent has its principal, or last known, place of business.
(2) The court may direct the applicant to publish the notice in form 21 in a daily newspaper circulating generally in any State not described in subrule (1) (d) .
(3) If the application for recognition is withdrawn or dismissed, the applicant must, as soon as practicable, do each 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 respondent;
(c) send a notice of the dismissal or withdrawal in form 22 to each person whose claim to be a creditor of the respondent is known to the applicant;
(d) publish a notice of the dismissal or withdrawal in form 22 in a daily newspaper circulating generally in the State where the respondent has its principal, or last known, place of business.
(4) The court may direct the applicant to publish the notice in form 22 in a daily newspaper circulating generally in any State 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, an application by the applicant for relief under the Model Law, article 21, paragraph 1 must be made by filing an interlocutory application, and any supporting affidavit, in form 3.
(2) Unless the court otherwise orders, an interlocutory application under subrule (1) and any supporting affidavit must be served in accordance with rule 2.7 (2), but on the following persons—
(a) the respondent;
(b) any person the court directed be served with the originating application by which the application for recognition was made;
(c) any other person the court directs.
(3) A person who intends to appear before the court at the hearing of an application under subrule (1) must file and serve the documents mentioned in rule 2.9 .

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 application in form 3.
(3) An interlocutory application for an application mentioned in subrule (1) and any supporting affidavit must be served on—
(a) for an application mentioned in subrule (1) (a) —the respondent and other persons who were served with, or filed a notice of appearance in relation to, the application for recognition; or
(b) for an application mentioned in subrule (1) (b) —the respondent and other persons 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, an applicant who applies for an order mentioned in subrule (1) (a) or (b) must—
(a) send a notice of the filing of the application in form 23 to each person whose claim to be a creditor of the respondent is known to the applicant; and
(b) publish a notice of the filing of the application in form 23 in a daily newspaper circulating generally in the State where the respondent has its principal, or last known, place of business.
(5) The court may direct the applicant to publish the notice in form 23 in a daily newspaper circulating generally in any State not described in subrule (4) (b) .
(6) A person who intends to appear before the court at the hearing of an application mentioned in subrule (1) (a) or (b) must file and serve the documents mentioned in rule 2.9 .

Part 16 - Powers of registrars

16.1 Powers of registrars

(1) Unless the court otherwise orders, a registrar may exercise a power of the court—
(a) under a provision of the Corporations Act mentioned in schedule 1B , part 1 , column 1 or a provision of these rules mentioned in schedule 1B , part 1 , column 2; or
Note—
See also rule 17.1 (7).
(b) under a provision of the Insolvency Practice Schedule (Corporations) mentioned in schedule 1B , part 1A , column 1 or a provision of these rules mentioned in schedule 1B , part 1A , column 2; or
(c) under a provision of the ASIC Act mentioned in schedule 1B , part 2 , column 1 or a provision of these rules mentioned in schedule 1B , part 2 , column 2.
(2) A decision, direction or act of a registrar made, given or done under these rules may be reviewed by the court.
(3) An application for the review of a decision, direction or act of a registrar made, given or done under these rules must be made within—
(a) 21 days after the decision, direction or act complained of; or
(b) any further time allowed by the court.

16.2 Reference by registrar

(1) If a proceeding before a registrar appears to the registrar to be proper for the decision of the court, the registrar may or, if required by a party to the proceeding, must, refer the matter to the court.
(2) If the registrar refers a matter to the court, the court may dispose of the matter or refer it back to the registrar with any direction that the court considers appropriate.

Part 17 - Transitional provision for Uniform Civil Procedure (Corporations Proceedings) Amendment Rule 2018

17.1 Transitional provision

(1) Despite the replacement of rule 9.2 by the amendment rule, that rule, as in force immediately before 1 September 2017, continues to apply in relation to the remuneration of an external administrator of a company who was appointed before 1 September 2017.
(2) Despite the replacement of rule 9.2A by the amendment rule, that rule, as in force immediately before 1 September 2017, continues to apply in relation to a review of the remuneration of an external administrator of a company who was appointed before 1 September 2017.
(3) Despite the amendment of rule 9.3 by the amendment rule, that rule, as in force immediately before 1 September 2017, continues to apply in relation to the remuneration of a provisional liquidator who was appointed before 1 September 2017.
(4) Despite the repeal of rule 9.4 by the amendment rule, that rule, as in force immediately before 1 September 2017, continues to apply in relation to the remuneration of a liquidator of a company who was appointed before 1 September 2017.
(5) Despite the repeal of rule 9.4A by the amendment rule, that rule, as in force immediately before 1 September 2017, continues to apply in relation to a review of the remuneration of a liquidator of a company who was appointed before 1 September 2017.
(6) Despite the replacement of rule 11.2 by the amendment rule, that rule, as in force immediately before 1 September 2017, continues to apply in relation to an inquiry commenced by ASIC before that date under the old Corporations Act , section 536 .
(7) For subrule (6) , a reference to an inquiry commenced under the old Corporations Act , section 536 includes a reference to an inquiry commenced because of the extension of that section by the Corporations Act , section 411 (9) , as in force from time to time before the commencement, to persons appointed under the terms of a compromise or arrangement.
(8) Rule 16.1 applies as if the reference in subrule (1) (a) to a provision of the Corporations Act mentioned in schedule 1B , part 1 , column 1 included a reference to the following provisions of the old Corporations Act
(a) section 449E ;
(b) section 473 (2) , (3) , (7) and (8) ;
(c) section 542 (3) (a) .
(9) In this rule—

"amendment rule" means the Uniform Civil Procedure (Corporations Proceedings) Amendment Rule 2018 .

"old Corporations Act" means the Corporations Act as in force immediately before 1 September 2017.
Note—
The court may give directions if a difficulty arises, or doubt exists, in relation to the practice and procedure to be followed in a proceeding. See rule 1.8 and the Corporations Act , section 467 (3) .



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