Document ID: chunk:federal_register_of_legislation:C2004A04501:schedule:3:p56
Version: federal_register_of_legislation:C2004A04501
Segment Type: schedule
Provision Reference: sch 3 (pt 56/110)
Character Range: 294880–297498

a creditor only because of a contingent or prospective debt;

  (b)     a contributory;

  (c)     a director;

  (d)     the Commission.

"(3) The Court may give leave if satisfied that there is a prima facie case that the company is insolvent, but not otherwise.

  "(4) The Court may give leave subject to conditions.

"(5) Except as permitted by this section, a person cannot apply for a company to be wound up in insolvency.

Application relying on failure to comply with statutory demand

"459Q. If an application for a company to be wound up in insolvency relies on a failure by the company to comply with a statutory demand, the application:

    (a)     must set out particulars of service of the demand on the company and of the failure to comply with the demand; and

  (b)     must have attached to it:

       (i) a copy of the demand; and

         (ii) if the demand has been varied by an order under subsection 459H(4)—a copy of the order; and

    (c) unless the debt, or each of the debts, to which the demand relates is a judgment debt—must be accompanied by an affidavit that:

         (i) verifies that the debt, or the total of the amounts of the debts, is due and payable by the company; and

      (ii) complies with the rules.

Period within which application must be determined

"459R.(1) An application for a company to be wound up in insolvency is to be determined within 6 months after it is made.

"(2) The Court may by order extend the period within which an application must be determined, but only if:

     (a) the Court is satisfied that special circumstances justify the extension; and

     (b) the order is made within that period as prescribed by subsection (1), or as last extended under this subsection, as the case requires.

"(3) An application is, because of this subsection, dismissed if it is not determined as required by this section.

"(4) An order under subsection (2) may be made subject to conditions.

Company may not oppose application on certain grounds

"459S.(1) In so far as an application for a company to be wound up in insolvency relies on a failure by the company to comply with a statutory demand, the company may not, without the leave of the Court, oppose the application on a ground:

    (a)     that the company relied on for the purposes of an application by it for the demand to be set aside; or

    (b)     that the company could have so relied on, but did not so rely on (whether it made such an application or not).

"(2) The Court is not to grant leave under subsection (1) unless it is satisfied that the ground is material to proving that