Supreme Court (Corporations) Rules 2013

The Rules define a number of key concepts. An “originating process” is a document in accordance with Form 2 or Form 2A (Form 2A was inserted by amendment but later revoked). An “interlocutory process” is in accordance with Form 3. The “plaintiff” is the person claiming relief (except interlocutory relief) under the Corporations Act, the ASIC Act or the Cross-Border Insolvency Act; the “defendant” is the person against whom such relief is claimed. For interlocutory relief, the terms “applicant” and “respondent” are used (rule 1.5). The “Corporations Act” means the Corporations Act 2001 of the Commonwealth; the “ASIC Act” means the Australian Securities and Investments Commission Act 2001; the “Cross-Border Insolvency Act” includes the Model Law on Cross-Border Insolvency (rule 1.5). The “Insolvency Practice Schedule (Corporations)” means Schedule 2 to the Corporations Act. “RedCrest” is the electronic filing system in the Court (rule 1.5, as amended). “Corporations List Judge” is a Judge nominated by the Chief Justice.

Expressions used in the Rules and in the Corporations Act have the same meaning unless the contrary intention appears (rule 1.4(1)). Similarly, expressions used in the Rules and in the Insolvency Practice Schedule (Corporations) have the same meaning (rule 1.4(2)). This ensures consistency between the procedural rules and the substantive legislation.

Substantial compliance with forms is sufficient: a document need only be substantially in accordance with the required form, and the Prothonotary must not reject a document for filing merely because a term used to describe a party differs from that in the Rules (rule 1.7). The Court has a general power to give directions where the Rules or the Acts do not adequately provide for practice and procedure or where a difficulty arises (rule 1.8).

Time calculation is governed by rule 1.9. The period is calculated without counting the day of the act or event. If the last day falls on a non-business day, the act may be done on the next business day. Crucially, the period between 25 December and 1 January inclusive is not counted (rule 1.9(4)). This affects deadlines such as the 21 days for serving a notice of objection to a liquidator’s release.

The Rules provide for extension and abridgment of time. Unless the Corporations Act or the ASIC Act otherwise provide, the rules of the Court that provide for extension or abridgment apply (rule 1.10).

Proceedings generally commence by filing an originating process in Form 2 for an application not made in an existing proceeding, or by filing an interlocutory process in Form 3 if the application is made in a proceeding already commenced (rule 2.2(1)). The process must state each section or regulation under which the proceeding is brought and the relief sought. On receiving a process, the Prothonotary fixes a time, date and place for hearing and endorses those details (rule 2.3).

The title of documents must be in accordance with Form 1, which includes the name of the corporation, its ABN/ACN/ARBN, and an indication if it is in liquidation, under administration, etc. (rule 2.1).

Notice of appearance is governed by rule 2.9: a person intending to appear must file a notice of appearance in Form 4 and serve it on the plaintiff within prescribed times (3 days before hearing for originating process, 1 day for interlocutory process). For winding up applications, the notice may also include the grounds of opposition as required by section 465C of the Corporations Act.

ASIC may intervene in a proceeding by filing a notice of intervention in Form 5 (rule 2.10). In certain applications, the person making the application must serve a copy of the originating or interlocutory process and supporting affidavit on ASIC a reasonable time before the hearing (rule 2.8). The table in rule 2.8 lists applications requiring such notice, including for release of liquidator, reinstatement of registration, applications under Chapters 6-7, and applications under the Insolvency Practice Schedule.

Publication of notices is required in many instances: for example, a notice of application for winding up (rule 5.6), a notice of hearing to approve a compromise (rule 3.4), and a notice of application for leave to distribute a surplus (rule 7.9). The notice must be published in a daily newspaper circulating generally in the State or Territory where the corporation has its principal place of business (rule 2.11). Proof of publication is by affidavit or memorandum annexing a copy of the published matter (rule 2.12).

The Rules affect a wide range of participants in corporate insolvency and restructuring proceedings. The primary parties are plaintiffs (creditors, contributories, officers, or ASIC) who initiate proceedings, and defendants (corporations against whom relief is sought). The corporation itself, if not a party, must often be served with documents (rule 2.7). Creditors and contributories have rights to appear, to be heard, to object to the release of a liquidator, and to challenge remuneration determinations. Under rule 2.13, the Court may grant leave to be heard without becoming a party to any person who is or claims to be a creditor, contributory, officer of the corporation, or any other interested person. The Court may also add such a person as a defendant, or appoint a creditor or contributory to represent a class.

Office-holders are heavily regulated: receivers, liquidators, provisional liquidators, external administrators, special managers, and controllers. They must comply with the Rules when seeking orders for appointment, remuneration, release, or other relief. For instance, a receiver applying for remuneration under rule 9.1 must serve a notice on the person who appointed the receiver, any other secured creditor, any administrator or liquidator, and otherwise the five largest unsecured creditors and 10% shareholders. Liquidators seeking release under rule 7.5 must file extensive supporting material including a statement of financial position and summary of receipts and payments, and must serve notice on all creditors who have proved debts.

ASIC is a central participant. It must be notified of certain applications (rule 2.8 table) and may intervene in any proceeding (rule 2.10). It receives copies of orders (e.g., rule 3.5 for scheme of arrangement approval; rule 6.2 for appointment of provisional liquidator) and reports from liquidators (e.g., rule 7.7 auditor’s report under section 481). ASIC may also make applications itself, such as for an inquiry into a controller (rule 4.1) or for an examination summons (rule 11.3).

Legal practitioners are affected by the procedural requirements, including the obligation to use prescribed forms, to serve documents within time limits, and to attend before Associate Judges or Judicial Registrars for winding up applications (rule 5.9). The Rules also address costs, including short form bills for winding up applications (rule 17.7) and the procedure for taxation of bills of costs (Order 17).

The Court itself is affected through the delegation of powers to Associate Judges (Schedule 2 and Schedule 2AA) and Judicial Registrars (Schedule 2A). For example, an Associate Judge may hear and determine applications for orders under section 459G (setting aside a statutory demand) and section 482(1) (stay or termination of winding up). Judicial Registrars may exercise certain powers listed in Schedule 2A, such as granting leave to apply for winding up (section 459P(2)) and making orders under section 596A (mandatory examination). However, the Rules also impose limitations: for example, an Associate Judge may not hear a complaint for an offence (rule 16.4), and a Judicial Registrar may not either (rule 16B.5).

Finally, foreign representatives and creditors in cross-border insolvency proceedings are affected by Order 15A, which governs the procedure for recognition of foreign proceedings under the Model Law.

The Rules impose a number of specific duties on parties and confer corresponding rights. The plaintiff’s primary duty is to file the correct originating process (Form 2) or interlocutory process (Form 3) stating the relevant statutory provisions and the relief sought (rule 2.2). The process must be supported by an affidavit stating the facts in support (rule 2.4(1)), and in most cases must annex an ASIC search carried out no earlier than seven days before filing (rule 2.4(2)). For applications to set aside a statutory demand under section 459G, the plaintiff may file a copy of the demand and supporting affidavit, but must carry out an ASIC search no earlier than seven days before filing and no later than the day before the hearing, and either annex the record or file/tender it at hearing (rule 2.4A). The supporting affidavit for a winding up application must be made within seven days before the originating process is filed (rule 5.4(4)).

Service is a key duty. As soon as practicable after filing, and at least five days before the hearing, the plaintiff must serve a copy of the originating process and supporting affidavit on each defendant and, if the corporation is not a party, on the corporation (rule 2.7(1)). For interlocutory processes, the period is at least three days (rule 2.7(2)). If the period is too short, a party may apply for an extension or abridgment under the Court’s rules (rule 1.10). The Court may give directions about service (rule 1.8).

Defendants and other persons have the right to appear at the hearing, but must first file a notice of appearance in Form 4 (rule 2.9). For a winding up application, the notice must also state the grounds of opposition, supported by an affidavit verifying those grounds, as required by section 465C of the Corporations Act. Failure to do so may result in the person not being heard without leave of the Court.

Creditors and contributories have the right to object to the release of a liquidator. They must file a notice of objection in Form 13 and any supporting affidavit within 21 days after service of the interlocutory process seeking release, and serve a copy on the liquidator (rule 7.6). The liquidator must then serve a copy of the supporting affidavit on the objector within three days (rule 7.6(2)). Similarly, creditors and contributories may object to remuneration claimed by a receiver, external administrator, provisional liquidator, or special manager within 21 days after service of the notice of intention to apply (rules 9.1(3), 9.2(3), 9.3(4), 9.5(4)). If no objection is received, the application may be dealt with in the absence of the public and without attendance (e.g., rule 9.2(4)).

The Rules also impose duties on the Court’s administrative officers. The Prothonotary must fix a hearing date on receiving a process (rule 2.3), and must nominate a liquidator if the plaintiff does not file a consent (rule 5.5(4)). The Prothonotary may also make further nominations (rule 5.5(6)). In cross-border insolvency proceedings, the foreign representative must file an interlocutory process seeking directions as to service (rule 15A.3(3)).

The Court has the right to give directions and to make orders of its own motion, such as appointing a liquidator if there is a vacancy (rule 7.2), or ordering an inquiry into a corporation’s debts (rule 2.14). The Court may also grant leave to a person to be heard without becoming a party, and may impose costs on that person if their attendance has resulted in additional costs (rule 2.13).

The Rules do not themselves create criminal offences or civil penalties; those are found in the Corporations Act and ASIC Act. However, the Rules provide mechanisms for enforcement and consequences for non-compliance. The most significant enforcement power is the arrest warrant under section 486B of the Corporations Act. Rule 11A.01 prescribes the form of the warrant (Form 17A) and requires that the application state the grounds for its issue and be supported by an affidavit. A person arrested under the warrant must be brought before the Court, and the person who carried out the arrest must immediately give notice to the Prothonotary (rule 11A.01(4)).

Order 11 deals with defaults in relation to examinations. If a person summoned to attend for examination without reasonable cause fails to attend, refuses to be sworn, refuses to answer a question directed by the Court, refuses to produce books, or fails to sign a written record, the Court may issue a warrant for that person’s arrest and make any other orders it thinks just or necessary (rule 11.10). This also applies if the person who applied for the summons satisfies the Court that the person summoned has absconded or is about to abscond.

Non-compliance with procedural requirements can result in the dismissal of an application. For example, in a winding up application, if the Associate Judge or Judicial Registrar is not satisfied that the requirements as to advertising, filing of affidavits, obtaining the liquidator’s consent, and lodging the section 470 notice have been substantially complied with, they may adjourn the hearing on appropriate terms or dismiss the application (rule 16.9(3)).

The Rules also impose consequences for failing to serve documents within time. If a party fails to file a notice of appearance within the prescribed period, they may not be heard without leave (section 465C of the Corporations Act, reflected in rule 2.9). Discontinuance of a winding up application is not permitted without leave of the Court (rule 5.8). If a person to whom a request for a bill of costs has been made fails to deliver the bill within the time stated, the liquidator may declare and distribute a dividend without regard to that person’s claim, and unless the Court otherwise orders, the claim is forfeit (rule 17.2(2)).

Costs orders are a key enforcement tool. The Court may order a person who has been granted leave to be heard but whose attendance caused additional costs to pay those costs, and may order that the person not be heard further until the costs are paid or secured (rule 2.13(2)). The Rules also provide for security for costs (Schedule 2 item 134, referring to section 1335 of the Corporations Act, which may be exercised by an Associate Judge).

In cross-border insolvency proceedings, failure to comply with notice and service requirements may affect the Court’s ability to grant recognition or relief. The foreign representative must publish notices and serve documents as directed, and the Court may modify or terminate an order for recognition or other relief on application (Order 15A rules 15A.9).

The Rules are made under section 25 of the Supreme Court Act 1986 (Vic), section 23 of the Corporations (Ancillary Provisions) Act 2001 (Vic), and all other enabling powers (rule 1.2(1)). They operate as a procedural overlay on the substantive provisions of the Corporations Act 2001 (Cth), the ASIC Act 2001 (Cth), and the Cross-Border Insolvency Act 2008 (Cth). The Rules apply to proceedings in the Supreme Court of Victoria under those Acts, unless the Court otherwise orders (rule 1.3(1)). The other Rules of the Supreme Court (Chapter I of the Rules) apply to the extent they are relevant and not inconsistent (rule 1.3(2)). This means that the general practice and procedure of the Court (including rules on pleadings, discovery, evidence, appeals, and costs) supplement the specific provisions of the Corporations Rules.

The Rules adopt definitions from the Corporations Act and the Insolvency Practice Schedule (Corporations) (rule 1.4). This ensures that terms such as “company”, “corporation”, “officer”, “statutory demand”, “registered liquidator”, and “external administrator” have the same meaning in the procedural Rules as in the substantive law. Where the Rules refer to a provision of the Corporations Act (e.g., section 459G for setting aside a statutory demand), they do not replicate the substantive grounds but merely provide the procedural mechanism.

The Rules also interact with the Corporations Regulations 2001 (Cth). For example, rule 2.15 provides that, subject to the Corporations Act and the Rules, regulations 5.6.11 to 5.6.36A of the Corporations Regulations apply to meetings ordered by the Court. Similarly, the note to rule 5.6 refers to regulation 5.4.01A regarding publication of notices of winding up applications under sections 459P, 462, or 464. The note to rule 5.11 refers to regulation 5.4.01B for notices of winding up orders. The Rules also adopt certain forms from the Corporations Regulations (e.g., the form of notice of winding up order may follow the prescribed information).

The Insolvency Practice Schedule (Corporations) (Schedule 2 to the Corporations Act) is a significant source of interaction. The Rules confer powers on Associate Judges to exercise many of the powers under that Schedule (see Schedule 2AA). For example, an Associate Judge may exercise the power under section 90-15 of the Insolvency Practice Schedule to make orders in relation to the external administration of a company, subject to qualifications in the table. The Rules also provide the procedure for applications under that Schedule, such as an application for an inquiry into an external administration under section 90-10 (rule 4.2) or an application for a remuneration determination under section 60-10 (rule 9.2).

The Cross-Border Insolvency Act interaction is governed by Order 15A. The Rules apply to proceedings under that Act involving a debtor other than an individual (rule 15A.1). The definitions from the Model Law (such as “foreign proceeding”, “foreign representative”) are incorporated by reference (rule 15A.2). The Rules require that any person entrusted with distribution of assets (other than the foreign representative) must be a registered liquidator and file a consent (rule 15A.5). This ensures compliance with Australian insolvency regulation.

The Federal Courts (State Jurisdiction) Act 1999 (Vic) interaction is addressed in Order 16A. If the Federal Court of Australia has made an order for winding up that is an ineffective judgment within the meaning of that Act, an application under that Act in relation to the winding up may be made by filing an interlocutory process in the Supreme Court (rule 16A.1(2)). This allows the Supreme Court to assume jurisdiction over a Federal Court winding up where the Federal Court lacked power.

Finally, the Rules interact with the Supreme Court Act 1986 in relation to appeals. Rule 16.5 provides that an appeal lies to the Trial Division from an Associate Judge’s judgment or order, except that for certain matters (e.g., an application under section 459G or a matter referred by a Judge), the appeal lies to the Court of Appeal. Section 17A of the Supreme Court Act limits some rights of appeal. Similarly, appeals from a Judicial Registrar are governed by Rules 84.05 to 84.12 of Chapter I (rule 16B.6).

The Rules, as at the version incorporating amendments to 2 July 2018, are Version No. 011. They commenced on 24 September 2013 and replaced the Supreme Court (Corporations) Rules 2003 and eight subsequent amendment rules (rule 1.2(3)). Since commencement, the Rules have been amended by several statutory rules. The first amendment was by the Supreme Court (RedCrest Electronic Case Management System Amendment) Rules 2014 (S.R. No. 48/2014), which inserted definitions for “RedCrest” and “Corporations List Judge”, amended rule 2.2 regarding originating process, and made various other changes effective 1 July 2014.

The next significant amendment was by the Supreme Court (Judicial Registrars Amendment) Rules 2015 (S.R. No. 10/2015), effective 1 March 2015. This inserted a new Order 16B conferring powers on judicial registrars, and amended several rules to refer to judicial registrars (e.g., rules 5.9, 16.8, 16.9). The Supreme Court (Judicial Registrars Further Amendment) Rules 2015 (S.R. No. 30/2015) amended rule 16.9(2) to add a reference to a judicial registrar’s power to hear and determine unopposed applications. The Supreme Court (Associate Judges Amendment) Rules 2015 (S.R. No. 40/2015) amended rule 16.5(3) to adjust appeal provisions.

The Supreme Court (Chapter V Publication of Notices Amendment) Rules 2016 (S.R. No. 140/2016) amended rule 5.6, effective 1 January 2017, to require certain notice publications under the Corporations Act to follow the manner provided by section 1367A and regulation 5.6.75. The Supreme Court (E-Filing Amendments) Rules 2017 (S.R. No. 15/2017) updated the definition of “RedCrest” and revoked the definition of “RedCrest Corporations List”.

The most substantial amendment was the Supreme Court (Chapter V Insolvency and Further Powers of Judicial Registrars Amendment) Rules 2018 (S.R. No. 56/2018), effective 1 June 2018. This amendment rewrote several orders to align with the new Insolvency Practice Schedule (Corporations) (Schedule 2 to the Corporations Act). It inserted a new rule 1.4(2) defining expressions used in the Insolvency Practice Schedule, substituted Order 4 to cover inquiries into controllers and external administration, rewrote rule 7.2 on vacancies, substituted rule 9.2 on external administrator remuneration, replaced rule 7.11 on reviewing liquidators, updated Order 11 heading and substituted rule 11.2 on inquiries and examinations, and inserted Schedule 2AA listing powers under the Insolvency Practice Schedule that Associate Judges may exercise. It also revoked outdated rules 7.1, 9.4, 9.4A and made numerous other changes.

Finally, the Supreme Court (E-Filing and Other Amendments) Rules 2018 (S.R. No. 58/2018), effective 2 July 2018, substituted the definition of “RedCrest” again, revoked rule 2.1.1 (which had required filing through RedCrest), amended rule 2.2 to update references, and revoked Forms 2A and 4A. The table of amendments in the endnotes confirms that no amendments were not in operation at the date of publication.

The Rules themselves do not generate litigation; they are procedural. However, the Rules have been the subject of judicial consideration in the context of applications made under them. The note to rule 2.2 (Form 2) includes a sample of Part C for winding up based on failure to comply with a statutory demand, which reflects the approach taken by the Court in practice. The Rules also incorporate the effect of case law regarding section 465C of the Corporations Act (opposition to winding up) and section 459G (setting aside statutory demand).

The Rules have been amended in response to litigation trends: for example, the 2018 amendments were largely driven by the introduction of the Insolvency Practice Schedule (Corporations) in the Corporations Act, which itself followed a wave of litigation over liquidator remuneration and external administration. The Rules now provide a specific procedure for reviewing remuneration determinations (rule 9.2A), which would have been the subject of contested applications previously.

The Rules also reflect the High Court’s approach to cross-border insolvency: Order 15A largely implements the Model Law as adopted by the Cross-Border Insolvency Act. Case law on recognition of foreign proceedings has influenced the procedural requirements, such as the need for the foreign representative to file a filing an interlocutory process seeking directions as to service (rule 15A.3(3)) and to obtain the consent of a registered liquidator (rule 15A.5).

The Rules do not cite any specific cases. Practitioners should note that the Rules must be read in light of the general case law on the Corporations Act, such as decisions on what constitutes a “genuine dispute” in a statutory demand context (relevant to rule 5.4 and Form 7), or what matters must be disclosed in an affidavit supporting a liquidator’s remuneration (rule 9.2(6)). The Court’s power to give directions under rule 1.8 has also been used to resolve novel procedural issues.

Given the procedural nature, there is no centralised litigation history for the Rules themselves, but the Rules have been cited in many judgments of the Supreme Court of Victoria, often in the context of whether a party has complied with the requirements for service, notice, or form. Practitioners should be aware that the Court may exercise its discretion to dispense with compliance or to give directions in appropriate cases.

Several practical traps exist for practitioners under the Rules. The first is the ASIC search requirement. Under rule 2.4(2), an affidavit in support of an originating process must annex a record of a search of ASIC records carried out no earlier than seven days before the originating process is filed. Failure to do so may lead to the application being adjourned or dismissed. For winding up applications, this is critical. However, for applications under section 459G (setting aside a statutory demand), the rule is different: the plaintiff must carry out a search no earlier than seven days before filing and no later than the day before the hearing, and may either annex the record to the supporting affidavit or file it before or tender it at the hearing (rule 2.4A(3)). Missing this requirement can be fatal.

Second, the time calculation rule 1.9(4) excludes the period from 25 December to 1 January from counting. This means that if a notice period expires during this period, the act may be done on the next business day after 1 January. Practitioners must be careful when calculating deadlines such as the 21 days for filing a notice of objection to a liquidator’s release (rule 7.6) or the 21 days for objecting to remuneration (rule 9.1(3)). Use of an ordinary calendar without adjusting for this period could result in a late filing.

Third, service periods are strict. For originating processes, service must be at least five days before the hearing (rule 2.7(1)). However, if the hearing is fixed at short notice, this may be impossible. The Rules allow the Court to abridge time (rule 1.10), but an application for abridgment must be made. A party who serves too late risks the application being adjourned or struck out.

Fourth, the requirement to publish notices in a daily newspaper “circulating generally” in the State or Territory where the company has its principal place of business (rule 2.11) can be expensive and time-consuming. For winding up applications, the notice must be published at least three days after service on the company and at least seven days before the hearing (rule 5.6(2)). Failure to publish or to publish in time may lead the Associate Judge or Judicial Registrar not to be satisfied that requirements have been complied with (rule 16.9(1)(a)), resulting in adjournment or dismissal.

Fifth, the requirement to file a consent of a liquidator or provisional liquidator in Form 8. For winding up applications, the plaintiff may file a consent with the originating process; if not, the Prothonotary will nominate a liquidator, and the plaintiff must obtain and file that liquidator’s consent before the hearing (rule 5.5). If the consent is not filed, the application may not proceed.

Sixth, the Rules impose an obligation to provide notice to ASIC in many applications (rule 2.8 table). The notice must be given “a reasonable time before the hearing”. What constitutes a reasonable time is not defined; however, in practice, at least several days’ notice is expected. Failure to notify ASIC may result in the Court adjourning the application or making no order.

Seventh, the Rules for examinations under Order 11 require an application for an examination summons to be supported by an affidavit stating the facts, and the affidavit is generally not available for inspection (rule 11.3(7)). However, the application may be made without notice to any person (rule 11.3(2)). This is a powerful tool for liquidators investigating breaches, but the summons must be personally served at least eight days before the examination (rule 11.4). If service is not effected, the examination cannot proceed.

Eighth, the Rules for cross-border insolvency recognition (Order 15A) require the foreign representative to file a list of creditors and publish notices. The Court may direct service on additional persons. The foreign representative must also ensure that any person designated to distribute assets is a registered liquidator and has filed a consent (rule 15A.5). Failure to comply may result in the recognition order being modified or terminated.

Finally, the Rules contain a number of forms that must be used. Although substantial compliance is sufficient, the Court may be reluctant to accept a document that departs significantly from the prescribed form. Practitioners should always use the current versions of the forms, which are available from the Court’s website. The schedules are extensive: Schedule 1 contains 23 forms, Schedule 2 lists over 100 provisions that Associate Judges may exercise, and Schedule 2A lists provisions for Judicial Registrars.

Compliance with the Rules requires attention to procedural detail at every stage of a proceeding. For a creditor seeking a winding up order on the ground of insolvency, the following steps are typical. First, serve a statutory demand in accordance with the Corporations Act and ensure the accompanying affidavit is in Form 7 (rule 5.2). The affidavit must state the deponent’s relationship to the creditor, the source of knowledge, and that the debt is due and payable, and that there is no genuine dispute. The demand must not state a proceeding number or refer to a court proceeding (rule 5.2(c)). If the company does not comply within 21 days (or the extended period if ordered), the creditor may file an originating process in Form 2. The originating process should state the relevant provisions of the Corporations Act (e.g., sections 459P, 459Q) and seek a winding up order. The supporting affidavit must verify service of the demand, the failure to comply, and state whether the debt is still due and payable (rule 5.4(2)). It must be made within seven days before the originating process is filed (rule 5.4(4)). An ASIC search record (ASIC current and historical extract) must be annexed to the affidavit, carried out no earlier than seven days before filing (rule 2.4(2)).

The plaintiff should file the originating process with the Prothonotary and pay the filing fee. The Prothonotary will fix a hearing date. The plaintiff must then obtain and file the consent of a registered liquidator to act as liquidator (Form 8). If the plaintiff does not file a consent with the originating process, the Prothonotary will nominate a liquidator, and the plaintiff must then obtain that liquidator’s consent before the hearing (rule 5.5). The plaintiff must serve a copy of the originating process and supporting affidavit on the company and any defendant at least five days before the hearing (rule 2.7(1)). If the application is under sections 459P, 462, or 464, the plaintiff must also publish a notice in a daily newspaper in accordance with rule 5.6 and the Corporations Act (section 465A(1)(c)). The notice must be published at least three days after service on the company and at least seven days before the hearing (rule 5.6(2)). Proof of publication must be filed (rule 2.12). If the application is under other sections, the notice must be in Form 9 (rule 5.6(1)).

The plaintiff must also serve a copy of the originating process and supporting affidavit on ASIC if the application is of a kind listed in the table to rule 2.8 (winding up applications are not listed, but applications for release of liquidator, reinstatement, etc. are). In any event, it is prudent to notify ASIC if the winding up order is likely to affect the public.

On the hearing date, the plaintiff must appear before an Associate Judge or Judicial Registrar (rule 5.9, Order 16 Part 3). The Associate Judge or Judicial Registrar will check that the application has been duly advertised, affidavits filed, liquidator’s consent obtained, and the section 470(1)(a) notice lodged (rule 16.9(1)). If satisfied and the application is unopposed (or opposed but not referred to a Judge), the Associate Judge may make the winding up order. If the application is opposed on grounds appropriate for a Judge, it will be referred (rule 16.9(4)). The plaintiff must then inform the liquidator of the appointment within one day (rule 5.11(2)).

For other proceedings, the general pattern is similar: file the correct process, serve within required time, lodge required affidavits, give notice to ASIC if necessary, publish notices if required, and attend the hearing. For remuneration applications, the office-holder must serve a notice in Form 16 at least 21 days before filing, and if no objection is received, may request the application be dealt with in the absence of the public (rules 9.1, 9.2, 9.3, 9.5). For compromise or arrangement schemes, the plaintiff must file affidavit of chairperson nomination (rule 3.2), obtain an order for meetings (rule 3.3), and publish notice of the hearing for approval (rule 3.4, Form 6).

For cross-border insolvency proceedings, the foreign representative must file an originating process in Form 2, with the statements required by article 15 of the Model Law and section 13 of the Cross-Border Insolvency Act, and an affidavit verifying them (rule 15A.3). A separate interlocutory process for directions as to service must also be filed (rule 15A.3(3)). The foreign representative must then serve the originating process on the debtor and any other persons directed, and send/publish notices of the application and any orders made (rules 15A.6, 15A.7). For provisional relief under article 19, an interlocutory process is required (rule 15A.4).

In all cases, practitioners should maintain a careful diary of deadlines, including the exclusion of the Christmas/New Year period, and ensure that all required consents and notices are obtained and filed well before the hearing. Use of the prescribed forms (available in Schedule 1) is essential, though substantial compliance is accepted. The Court’s power to give directions (rule 1.8) can be used to resolve any procedural ambiguities, but it is safer to assume strict compliance is expected. The Rules sunset ten years after making (29 August 2023) under the Subordinate Legislation Act 1994, so practitioners should verify whether the Rules have been remade or replaced by the time of use.