Victorian Consolidated Regulations Victorian Consolidated RegulationsIN THE [name of Court] No. of [ year ]
AT
DIVISION: [ insert if appropriate ]
REGISTRY: [ insert if appropriate ]
IN THE MATTER OF [ full name of corporation to which the proceeding relates and, if applicable, the words "(in liquidation)", "(receiver appointed)", "(receiver and manager appointed)", "(controller acting)", or "(under administration)" ]
ABN or ACN or ARBN: [ insert ABN or ACN or ARBN ]]
AB (and Others) Plaintiff(s)
[ list, in a schedule, any further plaintiffs ]
and
CD (and Others) Defendant(s)
[ list, in a schedule, any further defendants ]
_______________
[ Title ]
A. DETAILS OF APPLICATION
This application is made under *section/*regulation [ number ] of the *Corporations Act/*ASIC Act/*Cross-Border Insolvency Act/*Corporations Regulations.
[ State briefly the nature of the proceeding, e.g. application for winding up on ground of insolvency; or complaint about a receiver. ]
On the facts stated in the supporting affidavit(s), the plaintiff claims—
1.
2.
etc.
AND
Date:
.............................................................
Signature of
plaintiff or
plaintiff's legal practitioner
This application will be heard by at [address of Court] at *am/*pm on [insert date].
B. NOTICE TO DEFENDANT(S)
TO: [ name and address of each defendant (if any) ]:
If you or your legal practitioner do not appear before the Court at the time shown above, the application may be dealt with, and an order made, in your absence. As soon after that time as the business of the Court will allow, any of the following may happen—
(a) the application may be heard and final relief given;
(b) directions may be given for the future conduct of the proceeding;
(c) any interlocutory application may be heard.
Before appearing before the Court, you must file a notice of appearance, in the prescribed form, in the office of the Prothonotary and serve a copy of it on the plaintiff.
|
Note: Except with the leave of the Court, a defendant that is a corporation cannot appear at a hearing otherwise than by a legal practitioner. |
C. APPLICATION FOR WINDING UP ON GROUND OF INSOLVENCY
[ Complete this section if this originating process is seeking an order that a company be wound up in insolvency on the ground that the company has failed to comply with a statutory demand (see section 459Q of the Corporations Act ) ]
[ Set out particulars of service of the statutory demand on the company and of the failure to comply with the demand ]
[ Attach to this originating process a copy of the statutory demand and, if the demand has been varied by an order made under section 459H(4) of the Corporations Act because of a dispute or offsetting claim, a copy of the order made under that subsection. ]
[ The affidavit in support of this originating process must—
(a) verify service of 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 at the date when the affidavit is made.]
Note 1: 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 Part C of Form 2 as shown in the Notes in Schedule 3 to these Rules.
Note 2: An example of the affidavit in support of an application for winding up in insolvency for failure to comply with a statutory demand is in the Notes in Schedule 3 to these Rules.
D. FILING
Date of filing: [ date of filing to be entered by Prothonotary ]
...................................................................
Prothonotary
This originating process is filed by [ name ] for the plaintiff.
E. SERVICE
The plaintiff's address for service is [ address of plaintiff's legal practitioner or of plaintiff ].
*It is not intended to serve a copy of this originating process on any person.
OR
*It is intended to serve a copy of this originating process on each defendant and on any person listed below:
[ name of defendant and any other person on whom a copy of the originating process is to be served ]
[ Complete the following section if the time for service has been abridged ]
The time by which a copy of this originating process is to be served has been abridged by order made by [ name of Judge of the Court or Associate Judge ] on [ date ] to [ time and date ].
* Omit if not applicable .
_______________
Sch. 1 Form 2A inserted by S.R. No. 48/2014 rule 28, amended by S.R. No. 15/2017 rule 23, revoked by S.R. No. 58/2018 rule 36.
* * * * *
[ Title ]
A. DETAILS OF APPLICATION
*This application is made under *section/*regulation [ number ] of the *Corporations Act/*ASIC Act/*Cross-Border Insolvency Act/*Corporations Regulations.
On the facts stated in the supporting affidavit(s), the applicant, [ name ], applies for the following relief—
1.
2.
etc.
AND
Date:
Signature of applicant making this application or
applicant's legal
practitioner
This interlocutory application will be heard by at [address of Court] at *am/*pm on [insert date ].
B. NOTICE TO RESPONDENT(S) (IF ANY)
TO: [ name and address of each respondent to this interlocutory process
(if
any). If applicable, also state the respondent's address for service. ]
If you or your legal practitioner do not appear before the Court at the time shown above, the application may be dealt with, and an order made, in your absence.
Before appearing before the Court, you must, except if you have already done so or you are the plaintiff in this proceeding, file a notice of appearance, in the prescribed form, in the office of the Prothonotary and serve a copy of it on the plaintiff in the originating process.
|
Note: Unless the Court otherwise orders, a respondent that is a corporation must be represented at a hearing by a legal practitioner. It may be represented at a hearing by a director of the corporation only if the Court grants leave. |
C. FILING
This interlocutory process is filed by [ name ] for the applicant.
D. SERVICE
The applicant's address for service is [ address of applicant's legal practitioner or of applicant ].
*It is not intended to serve a copy of this interlocutory process on any person.
OR
*It is intended to serve a copy of this interlocutory process on each respondent and on any person listed below:
[ name of respondent and any other person on whom a copy of the interlocutory process is to be served ]
[ Complete the following section if the time for service has been abridged ]
The time by which a copy of this interlocutory process is to be served has been abridged by order made by [ name of Judge of the Court or Associate Judge ] on [ date ] to [ time and date ].
* Omit if not applicable .
__________________
[ Title ]
A. DETAILS OF PERSON INTENDING TO APPEAR
Notice is given that [ state full name and address ], [ briefly state your interest in the proceeding, e.g. a creditor for $ (amount), or a contributory, of the corporation ] intends to appear before the Court at the hearing of the application to be heard at [ name of Court and address ] on [ date ] and, if applicable, to *oppose/*support the application.
|
Note: Except with the leave of the Court, a defendant that is a corporation cannot appear at a hearing otherwise than by a legal practitioner. |
B. GROUNDS OF OPPOSITION TO WINDING UP
[ Complete this section only if you are opposing an application to wind up a company ]
The grounds on which I oppose the application for winding up are—
1.
2.
etc.
C. SERVICE
[ This section must be completed ]
The address for service of the person giving this notice is [ address of person's legal practitioner or of person ].
.........................................................
Signature of person
giving notice
or of person's legal practitioner
* Omit if not applicable.
_______________
Sch. 1 Form 4A inserted by S.R. No. 48/2014 rule 29, revoked by S.R. No. 58/2018 rule 36.
* * * * *
NOTICE OF INTERVENTION BY ASIC
[ Title ]
The Australian Securities and Investments Commission, whose address for service is [ address ], intervenes in this proceeding.
Date:
........................................................................
Signed on behalf of ASIC
Name of signatory: [ name ]
Capacity of signatory: [ capacity ].
_______________
NOTICE OF HEARING TO APPROVE COMPROMISE OR ARRANGEMENT
TO all the creditors and members of [ name of company ]
TAKE NOTICE that at *am/*pm on the at [ address of Court ] will hear an application by [ name of plaintiff ] seeking the approval of a compromise or arrangement between the above-named company and its *members/*creditors as proposed by a resolution passed by the meeting of the *members/*creditors of the company held on [ date ].
[ Complete this section if applicable ]
The proposed compromise or arrangement as passed by the meeting was amended from the form of compromise or arrangement previously sent to you in the following respects—
[ Set out the details of any amendment made at the meeting ]
If you wish to oppose the approval of the compromise or arrangement, you must file and serve on the plaintiff a notice of appearance, in the prescribed form, together with any affidavit on which you wish to rely at the hearing. The notice of appearance and affidavit must be served on the plaintiff at its address for service at least 1 day before the date fixed for the hearing of the application.
[ This section must be completed ]
The address for service of the plaintiff is [ address of plaintiff's legal practitioner or of plaintiff ].
Name of person giving notice or of person's legal practitioner [ name ]
* Omit if not applicable.
_______________
AFFIDAVIT ACCOMPANYING STATUTORY DEMAND
[ Name of creditor(s) ]
Creditor(s)
[ Name of debtor company ]
Debtor company
I, [ name ] of [ address and occupation ], *say on oath/*affirm [ or *make oath and say/*solemnly and sincerely declare and affirm]—
1. I am [ state deponent's relationship to the creditor(s), e.g.
"the creditor", "(name), one of the creditors" ] in respect of *a debt of
$
[amount]/*debts totalling $ [amount] owed by [name of debtor
company] to *it/*them relating to [ state nature of debt, or debts, ensuring
that what is stated corresponds with the description of the debt, or debts, to
be given in the proposed statutory demand, with which this affidavit is to be
served on the debtor company ].
2. [ If the deponent is not the creditor, state the facts entitling the deponent to make the affidavit, e.g. "I am authorised by the creditor(s) to make this affidavit on its/their behalf" ].
3. [ State the source of the deponent's knowledge of the matters stated in the affidavit in relation to the debt or each of the debts, e.g. "I am the person who, on behalf of the creditor(s), had the dealings with the debtor company that gave rise to the debt", "I have inspected the business records of the creditor in relation to the debtor company's account with the creditor" ].
4. *The debt/*The total of the amounts of the debts, mentioned in paragraph 1 of this affidavit, is due and payable by the debtor company.
5. I believe that there is no genuine dispute about the existence or amount of the *debt/*any of the debts.
*Sworn/*affirmed at: [ place of swearing or affirmation ] on [ date ]
OR
*Sworn/*affirmed by the above-named deponent at: [ place of swearing or affirmation] this date of [month] [ year ]
.......................................................
Signature of deponent
Before me:
................................................................
Signature and
designation of person
before whom deponent swears or
affirms affidavit
* Omit if not applicable
|
Note: The form of the opening words and the jurat of this affidavit may be changed to conform to the form of affidavit used in a particular State or Territory—see Rule 2.6. |
_______________
Sch. 1 Form 8 substituted by S.R. No. 56/2018 rule 33.
|
FORM 8 |
CONSENT OF LIQUIDATOR/PROVISIONAL LIQUIDATOR
[ Title ]
I, [ name ], of [ address ], a registered liquidator, consent to be appointed by the Court and to act as the * liquidator/ * provisional liquidator of [ name of company ].
I am not aware of any conflict of interest or duty that would make it improper for me to act as * liquidator/ * provisional liquidator of the company.
EITHER
*I am not aware of any relevant relationship referred to in section 60(2) of the Corporations Act 2001.
OR
*I have, or have had within the preceding 24 months, the following relevant relationships referred to in section 60(2) of the Corporations Act 2001 :
[ Set out all relevant relationships ]
The time-cost rates currently charged in respect of work done as * liquidator/ * provisional liquidator by me, and by my partners and employees who may perform work in this external administration, are set out below or in the Schedule attached to this Consent. I acknowledge that my appointment by the Court does not constitute an express or implied approval by the Court of these rates.
Note
The remuneration that an external administrator is entitled to receive for necessary work properly performed by the external administrator in relation to the external administration of a company is regulated by Division 60 of the Insolvency Practice Schedule (Corporations).
Date:
Signature of registered liquidator
* Omit if not applicable.
Schedule
[ description of time-cost rate(s) ]
__________________
NOTICE OF APPLICATION FOR WINDING UP ORDER
IN THE [ name of Court ] No. of [year]
[ Name of company ]
ABN or ACN: [ ABN or ACN of company to which proceeding relates ]
1. A proceeding for the winding up of [ name of company ] was commenced by the plaintiff, [ name of plaintiff ], on [ date of filing of originating process ] and will be heard by at [address of Court] at *am/*pm on Copies of documents filed may be obtained from the plaintiff's address for service.
2. The plaintiff's address for service is [ address of plaintiff's legal practitioner or of plaintiff ].
3. Any person intending to appear at the hearing must file a notice of appearance, in accordance with the prescribed form, together with any affidavit on which the person intends to rely, and serve a copy of the notice and any affidavit on the plaintiff at the plaintiff's address for service at least 3 days before the date fixed for the hearing.
Date:
Name of plaintiff or plaintiff's legal practitioner: [ name ]
* Omit if not applicable.
_______________
NOTICE OF APPLICATION FOR WINDING UP ORDER BY SUBSTITUTED PLAINTIFF
IN THE [ name of Court ] No. of [year]
[ Name of company ]
ABN or ACN: [ ABN or ACN of company to which proceeding relates ]
1. [ Name of substituted plaintiff ], who was, by order of the [ name of Court ], substituted as a plaintiff, will apply to the Court at *am/*pm on at [address of Court] for an order that the above company be wound up.
2. The address for service of the substituted plaintiff is [ address of substituted plaintiff's legal practitioner or of substituted plaintiff ].
3. Any person intending to appear at the hearing must file a notice of appearance, in accordance with the prescribed form, together with any affidavit on which the person intends to rely, and serve a copy of the notice and any affidavit on the substituted plaintiff at its address for service at least 3 days before the date fixed for the hearing.
Date:
Name of substituted plaintiff or substituted plaintiff's
legal practitioner: [
name ].
* Omit if not applicable.
_______________
NOTICE OF WINDING UP ORDER AND OF APPOINTMENT OF LIQUIDATOR
IN THE [ name of Court ]
AT [ location of Court ]
IN THE MATTER OF [ name of company to which the proceeding relates ]
ABN or ACN: [ ABN or ACN of company to which proceeding relates ]
On [ date ], the [ name of Court ] in Proceeding No. of [ year ], ordered the winding up of [ name of company ] and I was appointed as liquidator of the company.
Date:
Name and address of liquidator: [ name and address ].
_______________
NOTICE OF APPOINTMENT OF PROVISIONAL LIQUIDATOR
IN THE [ name of Court ]
AT [ location of Court ]
IN THE MATTER OF [ name of company to which the proceeding relates ]
ABN or ACN: [ ABN or ACN of company to which proceeding relates ]
On [date], in Proceeding No. of [year], heard by the [ name of Court ], I was appointed as the provisional liquidator of the above company.
Date:
Name and address of provisional liquidator: [ name and address ].
_______________
NOTICE BY CREDITOR OR CONTRIBUTORY OF OBJECTION TO RELEASE OF LIQUIDATOR
[ Title ]
[ Name of creditor/contributory ] of [ address of creditor/contributory ], a creditor of [ name of company ] for $ [ amount ], or a contributory of [ name of company ] holding [ number ] shares in the company, objects to the grant of a release to [ name of liquidator ] of [ address of liquidator ], who is the liquidator of [ name of company ], on the following grounds—
[ set out the grounds upon which the objection is made ]
Date:
..........................................................
Signature of
objector or
objector's legal practitioner
Name of objector or objector's legal practitioner: [ name ].
The objector's address for service is [ address of objector or objector's legal practitioner ].
_______________
AFFIDAVIT IN SUPPORT OF APPLICATION FOR ORDER FOR PAYMENT OF CALL
[ Title ]
I, [ name ] of [ address ], liquidator, *make oath and say/*solemnly and sincerely declare and affirm—
1. I am the liquidator of [ name of company ] (the company).
2. On [date] I made a call of $ [amount] per share on all the contributories of the company [ or specify the class of contributories on whom the call was made ]. *Exhibited and marked A is a copy of the notice of the call. Each contributory whose name is shown in the Schedule marked B was duly served with notice of the call in the form exhibited and marked A .
3. Each contributory of the company whose name is set out in column 2 of the Schedule marked B has not paid, or caused to be paid, to me the sum specified opposite the contributory's name in column 5 of the Schedule, which is due from that contributory under the call.
4. The amount set out opposite the name of each contributory in column 6 of the Schedule is an estimate of the amount due by that contributory in respect of the costs of applying for and giving effect to the order for payment of the call. The estimate of the amounts so due by the several contributories has been reached by apportioning the costs among the contributories who have not paid the call according to the liability of the respective contributories to contribute.
5. The amount set out opposite the name of each contributory in column 7 of the Schedule is the total of the amount due by that contributory in respect of the call as set out in column 5 and the amount due in respect of costs as set out in column 6.
*Sworn/*Affirmed at: [ place of swearing or affirmation ] on [ date ]
..........................................
Signature of deponent
Before me:
.......................................................
Signature and
designation of
person before whom deponent
swears or affirms affidavit
* Omit if not applicable.