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Contents (1970 - 01)
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Supreme Court Rules 1970
Current version for 6 January 2017 to date (accessed 30 April 2017 at 13:21)
Part 80A Division 7
Division 7 Winding up
14   Index: search
Any person may, upon payment of the fee (if any) fixed under the Act, search in the index kept in the registry against the name of a subject corporation.
15   Form of affidavit in support of statutory demand (s 459E (3))
(1)  An affidavit referred to in section 459E (3) must:
(a)  subject to subrule (2), be made by the creditor or, where there is more than one creditor, by one of them,
(b)  set out the facts entitling the deponent under paragraph (a) to make the affidavit,
(c)  state the source of the deponent’s knowledge of the matters stated in the affidavit concerning the debt or debts,
(d)  state that the deponent believes those matters to be true, and
(e)  state that the deponent believes that there is no genuine dispute about the existence or amount of the debt or debts to which the demand relates.
(2)  In the case of a creditor which is:
(a)  a corporation—an affidavit by a member or officer of the corporation having knowledge of the facts so far as they are known to the corporation is taken to be an affidavit by the creditor,
(b)  the Crown—an affidavit by an officer of the Crown having knowledge of the facts so far as they are known to the Crown is taken to be an affidavit by the creditor, and
(c)  a company to which a liquidator or provisional liquidator has been appointed—an affidavit by the liquidator or provisional liquidator is taken to be an affidavit by the creditor.
(3)  An affidavit under this rule must:
(a)  be in accordance with the prescribed form,
(b)  contain the statement headed “Important Note” set out in the form, and
(c)  not state a proceeding number.
(4)  An affidavit under this rule must not be filed with the Court.
(5)  For the purposes of section 459E (3), an affidavit in support of a statutory demand that complies with the rules of:
(a)  the Federal Court of Australia, or
(b)  the Supreme Court of another State or Territory in which the registered office of the company to be served is situated,
is taken to be an affidavit that complies with this rule.
(6)  In subrule (2), Crown includes not only the Crown in right of New South Wales but also the Crown in any other capacity.
16   Form of affidavit in support of an application to wind up relying on failure to comply with statutory demand (s 459Q (c))
(1)  An affidavit referred to in section 459Q (c) must:
(a)  be in accordance with the prescribed form,
(b)  subject to subrule (2), be made by the plaintiff or, where there is more than one plaintiff, by one of them,
(c)  set out the facts entitling the deponent under paragraph (b) to make the affidavit,
(d)  state the source of the deponent’s knowledge of the matters stated in the affidavit concerning the debt or debts,
(e)  state that the deponent believes those matters to be true, and
(f)  state that the deponent believes that there is no genuine dispute about the existence or amount of the debt or debts to which the demand relates.
(2)  In the case of a plaintiff which is:
(a)  a corporation—an affidavit by a member or officer of the corporation having knowledge of the facts so far as they are known to the corporation is taken to be an affidavit by the plaintiff,
(b)  the Crown—an affidavit by an officer of the Crown having knowledge of the facts so far as they are known to the Crown is taken to be an affidavit by the plaintiff, and
(c)  a company to which a liquidator or provisional liquidator has been appointed—an affidavit by the liquidator or provisional liquidator is taken to be an affidavit by the plaintiff.
(3)  In subrule (2), Crown includes not only the Crown in right of New South Wales but also the Crown in any other capacity.
17   Time prescribed (s 465C)
The period prescribed for the purposes of section 465C is a period terminating 2 days before the date appointed for the hearing.
18   Evidence in support of winding up application
The evidence in support of an application for the winding up of a corporation shall include:
(a)  an affidavit stating:
(i)  unless the plaintiff is the subject corporation, the capacity in which the plaintiff makes the application under section 459P or section 462 (2),
(ii)  the grounds of the application and a reference to the provision or provisions of the Corporations Law on which the plaintiff relies,
(iii)  the statute under which the subject corporation was incorporated,
(iv)  the date of its incorporation,
(v)  whether or not an administrator has been appointed to the subject corporation and, if so, details of that appointment, as ascertained by a search of the records maintained by ASIC made not earlier than seven days before the summons was filed,
(vi)  whether or not a winding up application was pending or a winding up order had been made against the subject corporation and, if so, details of that application or order, as ascertained by a search of the records maintained by ASIC made not earlier than seven days before the summons was filed, and
(b)  unless the subject corporation is the plaintiff or has entered an appearance, proof of the address of its registered office as ascertained by a search of the records maintained by ASIC made not earlier than 7 days before the summons was filed, supported by a copy of the last or only notice of the address, or change in the situation, of its registered office lodged with ASIC or with any predecessor of ASIC.
19   Discontinuance (ss 459 and 461)
Proceedings shall not be discontinued without the leave of the Court, so far as they concern a claim for a winding up order under section 459A or section 461.
20   Service of notice of appointment of liquidator or provisional liquidator
(1)  Where the Court appoints a liquidator or a provisional liquidator:
(a)  the plaintiff must:
(i)  obtain from the Court and serve on the liquidator or provisional liquidator by delivery or by facsimile transmission to his or her office, a sealed copy of a notice in Form 154F not later than 1 day after the appointment is made, and
(ii)  if the subject Corporation is not the plaintiff—serve a copy of the notice on the subject Corporation by delivery or by facsimile transmission or by pre-paid post to its registered office not later than 1 day after the appointment is made, and
(b)  the liquidator or provisional liquidator must, not later than 7 days after the appointment is made, cause to be advertised a notice in Form 154G or Form 154H, as the case requires.
(2)  For the purposes of subrule (1), a sealed or unsealed copy is sufficiently served at an office if the information contained in the copy is transmitted to a facsimile transmission number by a means that reproduces, in that office, the information as it appears in the copy.
21   Appeal from registrar: winding up order
(1)  An appeal shall lie to the Court constituted by a Judge from a winding up order made by a registrar.
(2)  Subject to such changes as it is necessary to make, Divisions 4 and 5 of Part 45 of the Uniform Civil Procedure Rules 2005 apply to an appeal under subrule (1) in the same way as they apply to an appeal under Division 1 of that Part.
(3)    (Repealed)
22   Remuneration of provisional liquidator (s 473 (2))
(1)  An application by a provisional liquidator for determination of his or her remuneration by the Court under section 473 (2) must be made by motion in the winding up proceedings.
(2)  Notice of the motion must not be filed until the expiration of 21 days after the applicant has served written notice of intention to apply for such determination in Form 154I together with a copy of the affidavit upon which the applicant intends to rely, on:
(a)  any liquidator of the subject corporation (other than the applicant),
(b)  each member of any committee of inspection, or if there is no committee of inspection, each of the 5 largest creditors of the subject corporation, and
(c)  each member of the subject corporation whose shareholding represents at least 10 per cent of the issued capital.
(3)  The liquidator or any creditor or contributory may within 21 days after service of the last of the notices required by subrule (2) deliver to the applicant a notice of objection to the remuneration claimed, stating the grounds of objection.
(4)  Where the applicant files with the notice of motion an affidavit made after the expiration of the lastmentioned period of 21 days:
(a)  proving service of the notices required by subrule (2), and
(b)  stating that he has received no notice of objection to the remuneration claimed,
and the notice of motion is endorsed with a request that the application be determined or dealt with by the Court in the absence of the public and without any attendance by or on behalf of the applicant, the application may be so dealt with by the Court.
(5)  The notice of motion must be served on any liquidator, creditor or contributory of the subject corporation who has given notice of objection under subrule (3).
(6)  The evidence in support of the application must include an affidavit stating:
(a)  the nature of the work carried out by the applicant together with a summary of receipts and payments for the relevant period, and
(b)  if at the time of the application the applicant remains the provisional liquidator:
(i)  any reasons known to the applicant why the winding up proceedings have not been determined, and
(ii)  any reasons why the applicant’s remuneration should be determined prior to the determination of the winding up proceedings.
23   Remuneration of liquidator (s 473 (3))
(1)  An application by a liquidator for determination of his or her remuneration by the Court under section 473 (3) must be made by motion in the winding up proceedings.
(2)  Notice of the motion must not be filed until the expiration of:
(a)  28 days after the holding of the meeting of creditors referred to in section 473 (4), and
(b)  21 days after the applicant has served notice in form 154I of his or her intention to apply for such determination, together with a copy of the affidavit on which the applicant intends to rely, on:
(i)  each creditor who was present in person or by proxy at the meeting of creditors,
(ii)  each member of any committee of inspection, and
(iii)  any member of the subject corporation whose shareholding represents at least 10 per cent of the issued capital.
(3)  Any creditor or contributory may within 21 days after service of the last of the notices required by subrule (2) deliver to the applicant a notice of objection to the remuneration claimed, stating the grounds of objection.
(4)  Where the applicant files with the notice of motion an affidavit made after the expiration of the lastmentioned period of 21 days:
(a)  proving service of the notices required by subrule (2) (b), and
(b)  stating that he has received no notice of objection to the remuneration claimed,
and the notice of motion is endorsed with a request that the application be determined or dealt with by the Court in the absence of the public and without any attendance by or on behalf of the applicant, the application may be so dealt with by the Court.
(5)  The notice of motion must be served on any creditor or contributory of the subject corporation who has given notice of objection under subrule (3).
(6)  The evidence in support of the application must include an affidavit stating:
(a)  the nature of the work carried out by the applicant together with a summary of receipts and payments for the relevant period, and
(b)  if at the time of the application the applicant remains the liquidator, any matters delaying the completion of the winding up.
24   Copy of a report under s 475 (7) (a)
The copy of the report required to be filed with the Court under section 475 (7) (a) shall be a copy certified in writing by the liquidator of the subject corporation to be a true copy of the original report.
25   Report by the liquidator to the Court: stay of winding up (s 482 (2))
A report by the liquidator to the Court under section 482 (2) may be furnished to the Court by filing it in Form 154J.
26   Special manager (s 484)
(1)  This rule applies to proceedings in the Court under section 484 (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.
27   Accounting by special manager (s 484 (2) (a))
(1)  Subject to any order of the Court under section 484 (2) (a) 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 154K 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.
28   Default of special manager
(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.
29   Complaints concerning liquidator or provisional liquidator (s 536 (1))
(1)  The complaint to the Court under section 536 (1) shall be filed with the summons claiming an inquiry under the subsection in respect of the matter complained of.
(2)  A complaint under section 536 (1) shall not be inspected or used except by leave of the Court.
30   Report concerning liquidator or provisional liquidator (s 536 (2))
(1)  A report to the Court by ASIC under section 536 (2) shall be filed with the summons claiming orders under the subsection in respect of the matter reported.
(2)  A report made under section 536 (2) shall not be inspected or used except by leave of the Court.
31   Report by the chairman to the Court: meeting of creditors etc (s 547)
A report by the chairman to the Court under section 547 may be made by filing a report in Form 154J.
32   Appeal from liquidator etc (s 1321)
(1)  An appeal to the Court under section 1321 in respect of an act, omission or decision of a receiver, receiver and manager, liquidator or provisional liquidator, appointed by the Court, shall be instituted by motion in the proceedings in which the appointment was made, within 28 days after the date on which the person who wishes to appeal receives notice of the act, omission or decision.
(2)    (Repealed)
(3)  A person mentioned in section 1321 (a), (b), (c), (ca), or (d) may, on application in writing made to that person before the expiration of the time limited by subrule (1) (other than the time extended by the Court) for instituting an appeal from that person’s act, omission or decision, grant, by notice in writing, an extension of that time and, where that person does so, he or she shall deliver the notice to the applicant who shall file the notice with the summons or notice of motion (as the case may be) instituting the appeal.
33   Release of liquidator (s 480)
(1)  An application by a liquidator for:
(a)  an order under section 480 (c) that he or she be released, or
(b)  an order under section 480 (d) that he or she be released and that the subject corporation be dissolved,
must be made by motion in the winding up proceedings.
(2)  An application by a liquidator for an order under section 480 (c) that he or she be released must state the grounds on which it is contended that the subject corporation should not be dissolved.
(3)  Unless the Court otherwise orders, the liquidator must, not less then 21 days prior to filing notice of the motion:
(a)  send:
(i)  a notice in form 154L,
(ii)  a copy of the application for release,
(iii)  a copy of the summary of receipts and payments, and
(iv)  a copy of the statement showing the subject corporation’s position,
by prepaid post to each creditor who has proved his or her debt and to each contributory, and
(b)  cause notice of the application in form 154M to be published in the Commonwealth of Australia Gazette.
(4)  Where a liquidator applies for an order under section 480 (c) or section 480 (d), he or she shall file with notice of the motion:
(a)  a summary of receipts and payments in the winding up,
(b)  a statement showing the position of the subject corporation at the date the application was filed, and
(c)  an affidavit:
(i)  stating whether the whole of the property of the subject corporation has been realised, or whether so much of the property of the subject corporation has been realised as can be realised without needlessly prolonging the liquidation,
(ii)  stating details of any calls made upon contributories in the course of the winding up,
(iii)  stating details of any dividends paid in the course of the winding up,
(iv)  stating whether the committee of inspection, if any, has passed a resolution approving of the liquidator’s release,
(v)  stating whether ASIC has appointed an auditor to report on an account or a statement of the position in the winding up under section 539 (2),
(vi)  stating whether the Court has ordered a report on the accounts of the liquidator to be prepared,
(vii)  stating whether any objection has been received by the liquidator to his or her release as liquidator of the subject corporation from any auditor appointed by ASIC or by the Court or from any creditor, contributory or other person interested,
(viii)  stating whether any report has been submitted by the liquidator to ASIC under section 533,
(ix)  stating whether the unsecured creditors of the subject corporation have been paid more than 50 cents in the dollar and whether it is otherwise necessary to report on the affairs of the subject corporation or its officers,
(x)  stating details of any onerous property disclaimed in the course of the winding up,
(xi)  stating details of any costs and expenses payable by the liquidator if the Court grants his or her release,
(xii)  annexing a copy of:
(A)  the notice sent to each creditor and contributory in compliance with paragraph (a) of subrule (3), and
(B)  the notice published in the Commonwealth of Australia Gazette in compliance with paragraph (b) of subrule (3), and
(xiii)  including statements 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 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” and, 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” and, where applicable, add “except as disclosed in this affidavit”.
(5)  A creditor or contributory who wishes to object to the grant of release to a liquidator must deliver to the liquidator a notice of objection stating the grounds of objection within 21 days of publication of the notice referred to in subrule (3) (b).
(6)  Where the applicant files with the notice of motion an affidavit made after the expiration of the 21 days:
(a)  proving compliance with subrule (3), and
(b)  stating that he has received no notice of objection to the release,
and the notice of motion is endorsed with a request that the application be determined or dealt with in the absence of the public and without an attendance by or on behalf of the applicant, the application may be so determined or dealt with by the Court.
34   Exercise of Court’s power by liquidator (s 488 (1))
Subject to the Corporations Law, the Corporations Regulations, this Part, and any order of the Court, the powers and duties conferred on the Court by Part 5.4B of the Corporations Law in respect of the matters referred to in section 488 (1) may be exercised by the liquidator as an officer of the Court and subject to the control of the Court.
35   Destruction of books (s 542 (3) (a))
(1)  An application for an order under section 542 (3) (a) must be made by motion in the winding up proceedings.
(2)  Where notice of the motion is endorsed with a request that the application be dealt with by the Court in the absence of the public and without an attendance by or on behalf of the applicant, the application may be so dealt with by the Court.