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Contents (1970 - 01)
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Supreme Court Rules 1970
Current version for 6 January 2017 to date (accessed 31 March 2017 at 03:43)
Part 80 Division 4
Division 4 Part XII of the Code (winding up)
17   Company Index: search (s 363)
cf CR 1968, r 44 (1).
Any person may, upon payment of the fee (if any) fixed under the Act, search in the Company Index kept in the registry against the name of the Company which is the subject of a winding up application or which is in the course of being wound up.
18   Application for a winding up order under s 364 (1)
(1)  This rule applies to an application for an order under section 364 (1) of the Code.
(2)  The summons claiming the order may be in Form 132.
(3)  The evidence in support of the application shall include:
(a)  a statement of the statute under which the Company was incorporated,
(b)  a statement of the date of incorporation,
(c)  unless the Company is the plaintiff or has entered an appearance, proof of:
(i)  the address of its registered office at the date of search made under this subrule, being the latest address disclosed in a notice or annual return lodged with the Commission under section 84 (2) (b) (ia), section 85 (4) (fa), section 217 (1) or (3) or section 263 (1) of the Code,
(ii)  the date of lodgment of the notice or return disclosing that address,
as ascertained by search made not earlier than three days before:
(iii)  if the summons was served on the Company by post—the date of posting, or
(iv)  if the summons was served otherwise—the date of service,
(d)  unless the Company is the plaintiff, the capacity in which the plaintiff makes the application,
(e)  the grounds of the application and a reference to the paragraph of section 364 (1) of the Code under which the plaintiff is proceeding.
(4)  Unless the Court otherwise orders, notice in Form 126 of the application shall, not earlier than three days after the date of service on the Company of the summons claiming the order and not later than seven days before the date of hearing, be published once in the Government Gazette and once in a prescribed newspaper.
19   Serial number: winding up
cf CR 1968, r 43.
The serial number assigned to the summons claiming an order for the winding up of the Company shall be borne by every document filed in proceedings in the winding up of the Company after the winding up order is made.
20   Notice of intention to appear
cf CR 1968, r 27, 28.
(1)  This rule applies in proceedings on an application for a winding up order under the Code.
(2)  Where a person on whom the summons has not been served intends to appear on the hearing of the application, he shall add to his notice of appearance a note in Form 133.
(3)  The notice shall be served on the plaintiff before 1 in the afternoon of a day (being a day on which the registry is open for business) before the date appointed for hearing.
(4)  Where the plaintiff has received any notice mentioned in subrule (2) he shall, at or before the hearing, file a notice in Form 134.
21   Substituted plaintiff in winding up application
cf CR 1968, r 52.
(1)  Where a plaintiff, in proceedings on an application for a winding up order:
(a)  fails to take all the steps prescribed by these rules preliminary to the hearing,
(b)  seeks the leave of the Court to discontinue the proceedings,
(c)  consents to the proceedings being dismissed,
(d)  does not appear when the proceedings are called on for hearing,
(e)  does not claim the order at the hearing, or
(f)  does not obtain the order at the hearing,
the Court may, at any time, on terms, subject to the Code, on application of any person, make orders for the further conduct of the proceedings, including an order in Form 135 substituting that person for the former plaintiff.
(2)    (Repealed)
22   Discontinuance
Rule 12.2 of the Uniform Civil Procedure Rules 2005 does not apply to proceedings on an application for a winding up order.
22A   Notice to liquidator of appointment
(1)  Where an order for the winding up of a Company is made, the plaintiff shall:
(a)  complete two forms of notice in Form 135A,
(b)  leave a copy with, and obtain a sealed copy from, the proper officer of the Court,
(c)  serve the sealed copy on the liquidator appointed:
(i)  where the order is made before noon—before 5 in the afternoon,
(ii)  where the order is made in the afternoon—before noon of the following day.
(2)  A sealed copy is sufficiently served on a liquidator within the time prescribed in subrule (1) (c) if the information contained in the copy is transmitted to the liquidator’s facsimile transmission number by a means that reproduces, in the hands of the liquidator, that information as it appears in the copy.
23   Form of winding up order
cf CR 1968, r 58.
A minute of a winding up order may be in Form 136.
23A   (Repealed)
24   Stay of proceedings against company (s 367)
Where an action or other civil proceeding against a company is pending in the Court in a Division, an application to the Court for an order under section 367 (6) of the Code may be made by motion in the action or proceeding in that Division.
24A   Validation of dispositions of property etc (s 368)
An application for an order under section 368 (2) of the Code (which subsection relates to the validation of dispositions of property etc) shall be made by motion in the proceedings for the winding up order.
25   Proceedings against a Company after a winding up order (s 371)
An application for leave under section 371 (2) of the Code may, where the proceedings in respect of which leave is sought have been commenced in a Division, be made by motion in those proceedings in that Division.
26   Appointment of provisional liquidator (s 372)
cf CR 1968, r 50 (3).
(1)  An application for the appointment of a provisional liquidator under section 372 (2) of the Code shall be made by motion in the proceedings for the winding up order.
(2)  Any party obtaining an order under section 372 (2) of the Code shall:
(a)  complete two forms of notice in Form 136A,
(b)  leave a copy with, and obtain a sealed copy from the proper officer of the Court,
(c)  serve the sealed copy on the provisional liquidator appointed:
(i)  where the order is made before noon—before 5 in the afternoon,
(ii)  where the order is made in the afternoon—before noon of the following day,
(d)  publish once in the Government Gazette and once in a prescribed newspaper a notice in Form 137, and
(e)  serve an office copy of the minute of order on the provisional liquidator.
(3)  A sealed copy is sufficiently served on a provisional liquidator within the time prescribed in subrule (2) (c) and an office is sufficiently served under subrule (2) (e) if the information contained in the copy is transmitted to the provisional liquidator’s facsimile transmission number by a means that reproduces, in the hands of the provisional liquidator, that information as it appears in the copy.
27   Notice to liquidator of appointment
cf CR 1968, r 55.
The registrar shall, forthwith after a person has been appointed liquidator or provisional liquidator, give notice to that person of his appointment.
28   Notice of appointment of liquidator
cf CR 1968, r 57.
Where the Court makes an order for the winding up of the Company and appoints a liquidator, the liquidator shall, not later than seven days after the order is made, publish a notice in Form 138 once in the Government Gazette and once in a prescribed newspaper.
29   Provisional liquidator (s 372)
cf CR 1968, r 50 (5).
(1)  Subject to the Code and the rules and subject to any directions of the Court, a liquidator appointed provisionally under section 372 (2) of the Code shall have power to carry on the business of the Company and the powers specified in section 377 (2) (a)–(k) of the Code.
(2)  For the purpose of enabling the provisional liquidator to take out letters of administration or recover money as mentioned in section 377 (2) (h) of the Code, the money due shall be deemed to be due to the provisional liquidator himself.
(3)  The exercise by the provisional liquidator of the powers conferred by this rule is subject to the control of the Court, and any creditor or contributory may apply to the Court with respect to any exercise or proposed exercise of any of those powers.
30   Filling vacancy in office of liquidator (s 373)
cf CR 1968, r 89 (5).
A person applying to the Court for an order under section 373 (7) of the Code shall, not later than seven days before the date appointed for hearing, publish, in a prescribed newspaper, a notice of his intention to apply to the Court for the order.
31   Copy of report under s 375 (7) (a)
cf CR 1968, r 66.
The copy of the report required to be filed with the Court under section 375 (7) (a) of the Code shall be a copy certified in writing by the liquidator of the Company to be a true copy of the original report.
32   List of contributories (s 378 (1) (a))
cf CR 1968, r 140.
Where, in a winding up by the Court, a liquidator has settled a list or supplementary list of contributories, he shall, within 14 days after certifying it, file a copy of it and the certificate.
33   Liquidator to file resolutions
cf CR 1968, r 100.
(1)  The liquidator appointed by the Court shall, after the passing of any resolution of a meeting of creditors, of contributories, of both or of the committee of inspection, file a copy certified by him of the resolution.
(2)  The certificate may be in Form 139.
34   (Repealed)
35   Release of liquidator (s 381)
(1)  A summons by which an application is made under section 381 (c) or section 381 (d) of the Code for an order that the liquidator be released shall bear a note “Section 382 (3) of the Companies (New South Wales) Code provides” and state the provisions of the subsection.
(2)  The liquidator shall file with a summons claiming an order mentioned in section 381 (c) or section 381 (d) of the Code a summary of receipts and payments in the winding up and a statement showing the position of the Company at the date of filing the summons.
(3)  The liquidator shall give notice of the application and copies of the summary and the statement:
(a)  to every creditor who has proved his debt, and
(b)  to every contributory.
cf CR 1968, r 206.
(4)  The evidence in support of the application shall include statements in an affidavit by the liquidator to the following effect:
(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 company or otherwise in relation to my conduct as liquidator which is likely to give rise to any liability to the company or any creditor or contributory (where applicable add 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 (where applicable add except as disclosed in this affidavit)”.
36   Report by the liquidator to the Court: stay of winding up (s 383)
cf CR 1968, r 73 (1); (As to s 384 of the Code (delivery of property to liquidator and calls), see rules 40–45.)
A report by the liquidator to the Court under section 383 (2) of the Code may be furnished to the Court by filing it in Form 140.
37   Special manager (s 385)
cf CR 1968, r 61.
(1)  This rule applies to proceedings in the Court under section 385 of the Code (which section relates to a special manager).
(2)  The liquidator may file an unverified statement in support of the application, instead of an affidavit.
(3)  Security is sufficiently given if it is given for any winding up in which the person giving security is appointed a special manager.
(4)  The Court may at any time and from time to time give directions for the giving of security in a different amount to the amount for which security was previously given.
(5)  Where security is given to the satisfaction of an associate Judge he shall give a certificate to that effect.
38   Accounting by special manager
cf CR 1968, r 62.
(1)  Subject to any order of the Court under section 385 (2) (a) of the Code, the special manager shall furnish his accounts to the liquidator.
(2)  The accounts shall be verified by affidavit.
(3)  The affidavit may be in Form 141 and subscribed to the accounts.
(4)  When the accounts are approved by the liquidator, the totals of the receipts and payments shall be included by the liquidator in his accounts.
39   Default of special manager
cf CR 1968, r 64.
(1)  Where any special manager is required by the rules or any direction of the Court to do anything and does not carry out the requirement, the liquidator shall apply to the Court for directions in respect of the default and the Court may make such orders and give such directions as the Court thinks fit.
(2)  Without limiting subrule (1), where a special manager is required by the rules or by any order or direction of the Court to pay into Court any sum shown by his account as due from him, and he does not comply with the requirement, the Court may charge him with interest at the rate prescribed for payment of interest by a receiver under Rule 26.6 (3) of the Uniform Civil Procedure Rules 2005 on that sum while in his possession as special manager.
(3)  This rule does not limit the powers of the Court as to the enforcement of orders or as to the punishment of contempt.
40   Requirement by liquidator to pay money etc (ss 384 (1) and 389)
cf CR 1968, r 136.
A requirement by a liquidator under section 384 (1) of the Code may be in Form 142.
41   Calls: sanction of committee of inspection (ss 384 (3), 389)
cf CR 1968, r 145 (1).
(1)  In a winding up by the Court the liquidator shall, for the purpose of obtaining the sanction of the committee of inspection under section 389 (2) (a) of the Code:
(a)  convene a meeting of the committee by serving notice in Form 143 on every member of the committee so as to reach him not later than seven days before the date appointed for the meetings,
(b)  serve on every member of the committee, with the notice mentioned in paragraph (a), a statement in Form 144, and
(c)  publish notice of the meeting in Form 145 once in the Government Gazette and once in a prescribed newspaper or as the Court may direct.
(2)  The committee shall, before sanctioning the proposed call, consider representations (if any) made by any contributory to the liquidator or any member of the committee in writing before or at, or orally at, the meeting.
(3)  A resolution of the committee of inspection sanctioning a call may be in Form 146.
42   Application for leave to make a call (ss 384 (3), 389)
cf CR 1968, r 146.
(1)  This rule applies to proceedings on an application for an order under section 389 (2) (a) of the Code (which section relates to leave to make a call).
(2)  The summons may be in Form 147.
(3)  The affidavit in support of the application may be in Form 148.
(4)  Subject to subrule (5), the summons shall be served on each contributory on whom it is proposed the call should be made.
(5)  The summons need not be served on the contributories where the Court directs that notice of the proposed call may be given by advertisement.
(6)  The advertisement may be in Form 149.
(7)  The copy of the summons served on a contributory may show only the amount claimed to be owing by him.
(8)  The order granting leave may be in Form 150.
43   Filing notice of amount of call per share (ss 384 (3), 389)
cf CR 1968, r 146.
Where in a winding up by the Court the liquidator is authorised under section 389 (2) (a) of the Code to make a call, he shall file a notice in Form 151 showing the amount of the call per share.
44   Call on contributories (ss 384 (3), 389)
cf CR 1968, r 147.
(1)  In a winding up by the Court, the liquidator shall make a call on a contributory by serving a notice in Form 152 or Form 153 as the case may require, on the contributory.
(2)  The Court may direct that notice of the order granting leave to make the call or of the resolution sanctioning the making of the call be advertised.
45   Application for order for payment of call (s 384 (3) (b))
cf CR 1968, r 148; (As to s 385 of the Code (special manager), see rules 37–39.)
Evidence in support of an application for an order under section 384 (3) (b) of the Code (which relates to an order for payment of a call) shall include an estimate of the amount owing by each contributory (if more than one) in respect of the costs of the application and of carrying it into effect and a statement that the estimate is based on an apportionment of the costs of the application equally among the contributories who have not paid the call.
46   Powers of liquidator (s 389)
Subject to the Code, the rules and the Companies Regulations, the powers and duties conferred or imposed on the Court by Part XII of the Code in respect of:
(a)  the holding and conducting of meetings to ascertain the wishes of creditors and contributors,
(b)  the paying, delivering, conveyance, surrender or transfer of money, property or books to the liquidator,
(c)  the making of calls and the adjusting of the rights of contributories among themselves and the distribution of any surplus among the persons entitled to it, and
(d)  the fixing of a time within which debts and claims must be proved,
may be exercised and shall be performed by the liquidator as an officer of the Court and subject to the control of the Court.
47   Proceedings against company after voluntary winding up (ss 401, 402)
An application for leave under section 401 (2) or section 402 (2) of the Code may, where the proceedings in respect of which leave is sought have been commenced in a Division, be made by motion in the proceedings.
48   Complaints concerning liquidator (s 420 (1))
A complaint to the Court under section 420 (1) of the Code shall be filed with the summons claiming an inquiry under the subsection in respect of the matter complained of.
49   Report concerning liquidator (s 420 (2))
cf CR 1968, r 211.
(1)  A report to the Court by the Commission under section 420 (2) of the Code shall be filed with the summons claiming orders under the subsection in respect of the matter reported.
(2)  A report made under section 420 (2) of the Code shall not be inspected or used except by leave of the Court.
50   Resignation of liquidator (s 421)
cf CR 1968, r 89 (1).
Where, in a winding up by the Court, the liquidator resigns, he shall, within the time prescribed by section 421 (2) of the Code, file a copy of the notice of the resignation in the form prescribed by the Companies Regulations.
51   (Repealed)
52   Report by the chairman to the Court: meeting of creditors etc (s 431)
cf CR 1968, r 73 (1).
A report by the chairman to the Court under section 431 (1) of the Code may be made by filing a report in Form 140.
53   Committee of inspection (s 432)
cf CR 1968, r 74 (2).
(1)  The Court may, in proceedings for an order under section 432 (2) of the Code (which subsection relates to the appointment of a committee of inspection) make an appointment for hearing of the proceedings and give directions for service and publication of notice of the appointment.
(2)  On the hearing the Court may hear the liquidator, any creditor and any contributory.
54   Filing proof of debt (s 438)
cf CR 1968, r 164.
In a winding up by the Court the liquidator shall, within three days after service upon him of a summons instituting an appeal from his decision rejecting a creditor’s proof of debt, file the proof and a copy of the notice given by him under regulation 125 (1) of the Companies Regulations.
55   (Repealed)
56   Disclaimer (s 454)
cf CR 1968, r 130.
The applicant for leave under section 454 (6) of the Code shall file an affidavit showing who the persons interested are and their interests.
57   Winding up of bodies other than companies (s 470)
The rules apply, with such adaptations as are necessary, to a body to which Part XII Division 6 of the Code applies as they apply to a Company.
58   Stay of proceedings against body other than a Company (s 472)
An application for leave under section 472 (2) of the Code may, where the proceedings in respect of which leave is sought have been commenced in a Division, be made by motion in those proceedings in that Division.