Part 2G.2 of the Corporations Act.
(3) Unless the Court otherwise orders, a meeting of a class of holders
of convertible securities ordered under section 411 of the
Corporations Act must be convened, held and conducted as if:
(a) the holders were a separate class of members; and
(b) the meeting were a meeting of members convened, held and
conducted under subrule (2),
but 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 s 411 (4), s 413 (1)) –
Form 6
(1) This rule applies to:
(a) an application, under subsection 411(4) of the Corporations
Act, for an order approving a proposed compromise or
arrangement in relation to a Part 5.1 body; and
(b) an application, under subsection 413(1) of the Corporations
Act, 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 plaintiff must publish a
notice of the hearing of the application.
Corporations Law Rules 2000 14
(3) The notice must be:
(a) in accordance with Form 6; and
(b) published in accordance with rule 2.11 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 subsection 411(1), (1A) or (4)
or 413(1) of the Corporations Act, the plaintiff must, as soon as
practicable after the order is made:
(a) have the order authenticated;
(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.
Division 4 Receivers and other controllers of corporation
property (Corporations Act Part 5.2)
4.1 Inquiry into the conduct of controller (Corporations Act s 423)
A complaint to the Court under paragraph 423(1)(b) of the
Corporations Act about an act or omission of a receiver, or a
controller appointed by the Court, must be made by an originating
process seeking an inquiry in relation to the complaint.
Division 5 Winding up proceedings (including oppression
proceedings where winding up is sought)
5.1 Application of Division 5
This Division applies to the following applications for the winding up
of a company:
(a) an application for an order under Part 2F.1 of the Corporations
Act;
(b) an application under Part 5.4 or Part 5.4A of the Corporations
Act.
Corporations Law Rules 2000 15
5.2 Affidavit accompanying statutory demand (Corporations Act
s 459E(3)) – Form 7
For the purposes of subsection 459E(3) of the Corporations Act, the
affidavit accompanying a statutory demand relating to a debt, or
debts, owed by a company must:
(a) be in accordance with Form 7 and state the matters
mentioned in that Form;
(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 s 459P, s 462, s 464)
(1) The affidavit in support of an originating process seeking an order
that a company be wound up must be made by the plaintiff or by a
person with the authority of the plaintiff or plaintiffs.
(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;
(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
An example of the affidavit in support of an application for winding up in
insolvency for failure to comply with a statutory demand is shown in Schedule 2
(Notes to these Rules).
Corporations Law Rules 2000 16
(3) If the application is made in reliance on the ground mentioned in
paragraph 461(1)(a) of the Corporations Act, 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 annexure or exhibit to the affidavit,
or explain their absence.
(4) The affidavit must be made within 7 days before the originating
process 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 subsection 532(9) of the Corporations Act, the
consent of an official liquidator to act as liquidator of a company
must be in accordance with Form 8.
(3) In an application for an order that a company be wound up, the
plaintiff must:
(a) before the hearing of the application, file the consent
mentioned in subrule (2) of an official 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 one day
before the hearing.
5.7 Applicant to make copies of documents available
A copy of any document filed in a proceeding to which this Division
applies must be available at the plaintiff'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 process seeking an order that a company
be wound up, the plaintiff must, if required:
(a) appear before the Registrar on a date to be appointed by the
Registrar; and
Corporations Law Rules 2000 17
(b) satisfy the Registrar that the plaintiff has complied with the
Corporations Act and these Rules in relation to applications for
a winding up order.
5.10 Order substituting plaintiff in application for winding up
(Corporations Act s 465B) – Form 10
(1) If the Court makes an order under section 465B of the Corporations
Act, the Court may also order that the substituted plaintiff or
plaintiffs publish a notice stating that the substituted plaintiff or
plaintiffs intend to apply for an order that the company be wound
up.
(2) The notice must be:
(a) in accordance with Form 10; and
(b) published:
(i) in accordance with rule 2.11 at least 7 days before the
date fixed for the hearing of the application; or
(ii) as otherwise directed by the Court.
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 an official liquidator be appointed as liquidator of the company.
(2) Not later than the day after the order is made, the plaintiff must
inform the liquidator of the appointment.
(3) As soon as practicable after being informed of the appointment, the
liquidator must publish a notice of the winding up order and the
liquidator's appointment.
(4) The notice must be:
(a) in accordance with Form 11; and
(5) In this rule, liquidator does not include a provisional liquidator.
Division 6 Provisional liquidators (Corporations Act Part 5.4B)
Corporations Law Rules 2000 18
Division 6 Provisional liquidators (Corporations Act
Part 5.4B)
6.1 Appointment of provisional liquidator (Corporations Act
s 472) – Form 8
(1) An application for an official liquidator to be appointed, under
subsection 472(2) of the Corporations Act, as a provisional
liquidator of a company must be accompanied by the written
consent of the official liquidator.
(2) The consent must be in accordance with Form 8.
(3) 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,
the order is to include a short description of the part of the property
of the company that the provisional liquidator may take into
custody.
(4) The Court may require the plaintiff to give an undertaking as to
damages.
6.2 Notice of appointment of provisional liquidator – Form 12
(1) This rule applies if the Court orders that an official liquidator be
appointed as a provisional liquidator of a company.
(2) Not later than the day after the order is made, the plaintiff must:
(a) except if the plaintiff is ASIC – lodge an office copy of the
order with ASIC;
(b) serve an office copy of the order on the company (except if the
plaintiff 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) As soon as practicable after the order is made, the provisional
liquidator must publish a notice of the provisional liquidator's
appointment.
Corporations Law Rules 2000 19
(4) The notice must be:
(a) in accordance with Form 12; and
7.1 Resignation of liquidator (Corporations Act s 473(1))
(1) A liquidator appointed by the Court who wishes to resign office
must file with the Registrar, and lodge with ASIC, a memorandum
of resignation.
(2) The resignation takes effect on the filing and lodging of the
memorandum.
7.2 Filling vacancy in office of liquidator (Corporations Act
s 473(7), s 502)
(1) If, for any reason, there is no liquidator acting in a winding up, the
Court may:
(a) in the case of a winding up by the Court – appoint another
official liquidator whose written consent in accordance with
Form 8 has been filed; and
(b) in the case of a voluntary winding up – appoint another
registered liquidator whose written consent in accordance with
Form 8 has been filed.
(2) The Court may make the appointment:
(a) in any case – on application by ASIC, a creditor or a
contributory; or
(b) in the case of a winding up by the Court – on its own initiative.
7.3 Report to liquidator as to company's affairs (Corporations Act
s 475)
(1) If a person is required under section 475 of the Corporations Act 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.
Corporations Law Rules 2000 20
(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 section 475 of the Corporations Act.
(4) 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 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 process 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 the prescribed form, within 21 days after the date
of service of the interlocutory process; and
(b) a statement setting out the terms of subsection 481(3) of the
Note
Subsection 481(3) of the Corporations Act 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.
Corporations Law Rules 2000 21
(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 appointed an auditor to report on an
account or statement of the position in the winding up under
subsection 539(2) of the Corporations Act;
(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 section 533 of the Corporations Act;
(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 paragraph 480(c) of the
Corporations Act – the facts and circumstances by reason of
which it is submitted that the company should not be
deregistered.
Corporations Law Rules 2000 22
(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 which is likely to give rise to any liability to the
subject corporation or any creditor or contributory [except as
disclosed in this affidavit]";
(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 file with, or annex to, the supporting affidavit:
(a) a statement of the financial position of the company at the
date when the interlocutory process 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 process 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 process 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 process seeking release:
(a) file:
(i) a notice of objection in accordance with 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.
Corporations Law Rules 2000 23
(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 process.
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 subsection 481(1) of the Corporations Act, 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 subsection 481(1) of the Corporations
Act 2001";
(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 paragraph 483(3)(b) of the Corporations Act, for an
order for the payment of a call must be in accordance with Form 14.
7.9 Distribution of surplus by liquidator with special leave of the
Court (Corporations Act s 488 (2)) – Form 15
(1) The affidavit in support of an application for special leave to
distribute a surplus 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 hearing of the application,
the liquidator must publish a notice of the application.
(3) The notice must be:
(a) in accordance with Form 15; and
Corporations Law Rules 2000 24
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 Part 5.4B of the Corporations
Act in respect of the matters mentioned in subsection 488(1) of the
Corporations Act 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 Inquiry into conduct of liquidator (Corporations Act s 536(1)
and (2))
(1) A complaint to the Court under paragraph 536(1)(b) of the
Corporations Act must be made:
(a) in the case of a winding up by the Court – by an interlocutory
process seeking an inquiry; and
(b) in the case of a voluntary winding up – by an originating
process seeking an inquiry.
(2) A report to the Court by ASIC under subsection 536(2) of the
Corporations Act must be made:
(a) in the case of a winding up by the Court – by filing:
(i) an interlocutory process seeking orders under the
section; and
(ii) a written report in a sealed envelope that is marked with
the title and number of the proceeding; and
(b) in the case of a voluntary winding up – by filing:
(i) an originating process seeking orders under the
subsection; and
(ii) a written report in a sealed envelope that is marked with
the title of the proceeding and provision for its number.
(3) The contents of a report filed under subrule (2) need not, at the time
of filing, be verified by an affidavit.
(4) Except with the leave of the Court, a report made under
section 536(2) of the Corporations Act is not available for inspection
by any person except the liquidator or ASIC.
(5) In this rule, liquidator includes a provisional liquidator.
Division 8 Special managers (Corporations Act Part 5.4B)
Corporations Law Rules 2000 25
Division 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 which, 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;
(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) are not to 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.
Corporations Law Rules 2000 26
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 subsection 425(1) of the
Corporations Act fixing the receiver's remuneration.
Notes for subrule (1)