1.5 Definitions for these Rules r. 1.5 In these Rules, unless the contrary intention appears— applicant means a person claiming interlocutory relief in a proceeding; ASIC Act means the Australian Securities and Investments Commission Act 2001 of the Commonwealth; Corporations Act means the Corporations Act 2001 of the Commonwealth; Corporations Regulations means the Corporations Regulations 2001 of the Commonwealth; Rule 1.5 def. of Cross-Border Insolvency Act inserted by S.R. No. 43/2009 rule 6(1). Cross-Border Insolvency Act means the Insolvency Act 2008 of the Commonwealth, including, unless the contrary intention appears, the Model Law; Rule 1.5 def. of defendant amended by S.R. No. 43/2009 rule 6(2)(a). defendant means a person against whom relief (except interlocutory relief) is claimed under the Corporations Act, the ASIC Act or the Cross-Border Insolvency Act, whether in the originating process or not; interlocutory process means an interlocutory process in accordance with Form 3; Rule 1.5 def. of Model Law inserted by S.R. No. 43/2009 rule 6(1). Model Law means the Model Law on Insolvency of the United Nations Commission on International Trade Law, the English text of which is set out in Schedule 1 to the Cross-Border Insolvency Act, with the modifications set out in Part 2 of that Act; originating process means an originating process in accordance with Form 2;
Rule 9.4(3)(b) amended by S.R. No. 117/2008 rule 11(4)(b). (b) each member of any committee of inspection; Rule 9.4(3)(c) substituted by S.R. No. 117/2008 rule 11(4)(c). (c) if there is no committee of inspection, and no meeting of creditors has been convened and held, each of the five largest (measured by amount of debt) creditors of the company; Rule 9.4(3)(d) inserted by S.R. No. 117/2008 rule 11(4)(c). (d) each member of the company whose shareholding represents at least 10 per cent of the issued capital of the company. r. 9.4 (4) Within 21 days after the last service of the documents mentioned in subrule (3), any creditor or contributory may give to the liquidator a notice of objection to the remuneration claimed, stating the grounds of objection. (5) If the liquidator does not receive a notice of objection within the period mentioned in subrule (4)— (a) the liquidator may file an affidavit, made after the end of that period, in support of the interlocutory process 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 liquidator has not received any notice of objection to the remuneration claimed within the period mentioned in subrule (4); and r. 9.4 (b) the liquidator may endorse the interlocutory process with a request that the application be dealt with in the absence of the public and
Rule 16.8 (Heading) amended by S.R. No. 100/2008 rule 21(1)(o). Rule 16.8 amended by S.R. No. 100/2008 rule 21(1)(p). 16.8 Application to Associate Judge r. 16.8 Every application to which this Part applies must, unless the Court otherwise orders, be made in the first instance to an Associate Judge. Rule 16.9 (Heading) amended by S.R. No. 100/2008 rule 21(1)(q). 16.9 Consideration by Associate Judge Rule 16.9(1) amended by S.R. No. 100/2008 rule 21(1)(r)(i). (1) The Associate Judge at or before the hearing of an application to which this Part applies shall consider whether— (a) the application has been duly advertised; (b) the affidavit in support of the application and any affidavit of service has been duly filed; (c) the consent in writing of the liquidator to be appointed if a winding up order is made has been obtained and filed; (d) the provisions of these Rules as to applications for a winding up order have been duly complied with; and (e) the notice required by section 470(1)(a) has been duly lodged. Rule 16.9(2) amended by S.R. No. 100/2008 rule 21(1)(r)(i). (2) If the Associate Judge is satisfied— (a) that the requirements referred to in subrule (1) have been substantially complied with; and (b) that the application is unopposed— the Associate Judge shall hear and determine the application.
Rule 16.9(3) amended by S.R. No. 100/2008 rule 21(1)(r)(i). (3) If not satisfied that the requirements referred to in subrule (1) have been substantially complied with, the Associate Judge may from time to time adjourn the hearing of the application upon appropriate terms or the Associate Judge may dismiss the application. Rule 16.9(4) amended by S.R. No. 100/2008 rule 21(1)(r) (i)(ii). (4) If the Associate Judge is satisfied that the application is opposed on grounds appropriate for determination by a Judge of the Court, the Associate Judge shall refer the application for hearing and determination by a Judge of the Court, but otherwise the Associate Judge may hear and determine the application. Rule 16.9(5) amended by S.R. No. 100/2008 rule (5) An order of an Associate Judge declaring that the requirements referred to in subrule (1) have been complied with, or the extent to which those provisions have been complied with, is evidence of the facts so declared. 16.10 Filing of documents r. 16.10 All documents filed in support of an application to which this Part applies must be filed at least 7 days before the day appointed for the hearing. 1999 16A.1 Form for initiating proceeding (1) Subject to subrule (2) and any direction of the Court, a proceeding for relief under section 7, 10 or 11 of the Federal Courts (State Jurisdiction) Act 1999 must be initiated by filing an originating process. (2) If— (a) in a proceeding, the Federal Court of Australia has made an order for the winding up of a company; and
Sch. 1 Form 11 amended by S.R. No. 104/2007 rule 4(2)(d). Rule 5.11 11 Sch. 1 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]. _______________ Sch. 1 Form 12 amended by S.R. No. 104/2007 rule 4(2)(e). Rule 6.2 12 IN [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]. _______________ Rule 7.6 13 Sch. 1 [Title]
_______________ Sch. 1 Form 17A inserted by S.R. No. 117/2008 rule 17. Rule 11A.01 Sch. 1 17A 2001 486B [Title] TO: All members and special members of the Australian Federal Police and to all officers of the police force of the State or Territory in which [name of person] is to be found, and to the Sheriff of that State or Territory and all of that Sheriff's officers: WHEREAS: *[name of company] (the Company) is being wound up in insolvency; or *[name of company] (the Company) is being wound up by the Court; or *an application has been made for [name of company] (the Company) to be wound up AND THE COURT SATISFIED THAT [name of person] (a) *is about to leave this jurisdiction or in order to avoid— (i) *paying money payable to the Company; or (ii) *being examined about the Company's affairs; or (iii) *complying with an order of the Court, or some other obligation, under Chapter 5 of the Corporations Act 2001 of the Commonwealth in connection with the winding up; or (b) *has concealed or removed property of the Company in order to prevent or delay the taking of the property into the liquidator's custody or control; or (c) *has destroyed, concealed or removed books of the Company or is about to do so; THIS WARRANT THEREFORE requires and authorises you to take [name of person] and bring *him/*her before the Court at [address of Court] and to keep *him/*her there pending the making of a further order by the Court. WARRANT
2. The demand was [or The demand and an accompanying affidavit were] served by X.Y. who delivered it [or them] to the registered office of the defendant at [insert address] on [insert date] [or, if service was by post, who posted it [or them] by ordinary prepaid post to the registered office of the defendant at [insert address] on [insert date]]. [If applicable, A copy of the accompanying affidavit, marked B, is attached to this originating process.] 3. The defendant failed to pay the amount of the debt demanded [or the total of the debts demanded] or to secure or compound for that amount [or that total] to the plaintiff's reasonable satisfaction within 21 days after the demand was served on the defendant [or within 7 days after [insert date] when an application by the defendant under section 459G of the Corporations Act was finally determined or otherwise disposed of] [or if the period for compliance with the demand was extended by order within the period specified in the order of the [insert name of Court] on [insert date of order or, if more than one order, the date of the last such order] as the period for compliance with the demand. A copy of the order, marked C, is attached to this originating process.] [If the demand was varied by order under subsection 459H(4) of the Corporations Act— 4. The demand was varied by order of the [insert name of Court] on [insert date of order]. A copy of the order, marked D [or as the case may be], is attached to this originating process.] Note 2—see Rules 2.4 and 5.4(2) AFFIDAVIT IN SUPPORT OF APPLICATION FOR WINDING IN INSOLVENCY Sch. 3 I, [name] of [address and occupation], *say on oath/*affirm [or *make oath and say/*solemnly and sincerely declare and affirm]— 1. I am the above-named plaintiff [or if the applicant is a corporation, I am a [or the] director of the above-named plaintiff which is registered or taken to be registered in [specify State or Territory]. I am duly authorised to make this affidavit on its behalf]. Now produced and shown to me and marked A is a copy of the originating process to be filed in the proceeding.