Corporations - Court Rules and Related Legislation 2017. [Annual. ed.] 9780455500126, 0455500126

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Corporations – Court Rules and Related Legislation 2017

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Corporations – Court Rules and Related Legislation 2017

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Published in Sydney by Thomson Reuters (Professional) Australia Limited ABN 64 058 914 668 19 Harris Street, Pyrmont, NSW, 2009 First edition ..........................................................................................2008 Second edition ......................................................................................2009 Third edition .........................................................................................2010 Fourth edition .......................................................................................2011 Fifth edition ..........................................................................................2012 Sixth edition .........................................................................................2013 Seventh edition .....................................................................................2014 Eighth edition .......................................................................................2015 Ninth edition .........................................................................................2016 Tenth edition .........................................................................................2017 ISSN 1836-5868 ISBN 978-0-455-500126 © 2017 Thomson Reuters (Professional) Australia Limited ABN 64 058 914 668 This publication is copyright. Other than for the purposes of and subject to the conditions prescribed under the Copyright Act 1968, no part of it may in any form or by any means (electronic, mechanical, microcopying, photocopying, recording or otherwise) be reproduced, stored in a retrieval system or transmitted without prior written permission. Inquiries should be addressed to the publishers.

Angela Bandiera Paul Godwin David Graham Vanessa Schlenert Yudi Seomangal Sonia Tulse Catherine Yan Catherine Fitzgerald Original: Sandra McCullough Updated by Graham Clayton

Editorial team:

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Copyright Commonwealth: Copyright of Cth legislative material: © Commonwealth of Australia (2017). All Commonwealth legislative material is reproduced by permission but does not purport to be the official or authorised version. It is subject to Commonwealth of Australia copyright. For reproduction or publication beyond that permitted by the Copyright Act 1968 (Cth), permission should be sought in writing from the current Commonwealth Government agency with the relevant policy responsibility. New South Wales: Copyright of NSW legislative material: Copyright continues to reside in the State of NSW. Victoria: All Acts and Statutory Rules © The State of Victoria, , the Government Printer (2017). Disclaimer: This product or service contains an unofficial version of the Acts and Statutory Rules of the State of Victoria. The State of Victoria accepts no responsibility for the accuracy, completeness or currency of any legislation contained in this product or provided through this service. Queensland: Copyright of Queensland legislative material: © The State of Queensland (2017). Western Australia: Copyright of WA legislative material: © State of Western Australia. The only authorised version is the hardcopy (printed) version available from Western Australia’s State Law Publisher. South Australia: Copyright of SA legislative material: Copyright is owned by the Crown in right of the State of South Australia. Tasmania: Copyright of Tasmanian legislative material: Copyright is owned by the State of Tasmania. Northern Territory: Copyright of NT legislative material: © Northern Territory Government of Australia. Australian Capital Territory: Copyright of ACT legislative material: Copyright is owned by the Australian Capital Territory. © Australian Capital Territory, all rights reserved.

ABOUT THIS PUBLICATION Corporations – Court Rules and Related Legislation 2017 is a complementary work to Corporations Legislation 2017, bringing together in one volume the various court rules and related legislation governing proceedings under the Corporations Act 2001 (Cth) and the Australian Securities and Investments Commission Act 2001 (Cth) applying in superior courts. CONTENTS Court Rules • Australian Capital Territory – Court Procedure Rules 2006 (Extracts) • Commonwealth – Federal Court (Corporations) Rules 2000 • New South Wales – Supreme Court (Corporations) Rules 1999 • Northern Territory – Corporations Law Rules • Queensland – Uniform Civil Procedure Rules 1999 (Extracts) • South Australia – Corporations Rules 2003 (South Australia) and Corporations Supplementary Rules 2015 • Tasmania – Supreme Court (Corporations) Rules 2008 • Victoria – Supreme Court (Corporations) Rules 2013 • Western Australia – Supreme Court (Corporations) (WA) Rules 2004 Related Legislation • Corporations (Review Fees) Act 2003 • Corporations (Review Fees) Regulations 2003 • Corporations (National Guarantee Fund Levies) Act 2001 • Corporations (Compensation Arrangements Levies) Act 2001 • Corporations (Repeals, Consequentials and Transitionals) Act 2001 (Extracts) • Criminal Code Act 1995 (Extracts) Takeovers Panel Rules • Takeovers Panel Rules for Proceedings (June 2010 version) INDEX A comprehensive subject index has been included, organised by jurisdiction for ease of use. Please refer to page – for details of abbreviations used in the Index. CURRENCY For the currency of each of the rules reproduced in this work, please refer to the Table of Amending Legislation that accompanies each piece of legislation. The Rules have been updated to include all available amendments to 1 Jan 2017. HISTORY NOTES The history notes have been entered into an abbreviated form using the number and year of the amending rule and a descriptor (eg. “insrt”) to show the effect of the amending rule. The abbreviations used in the historical notes are as follows: • insrt – inserted • am – amended • subst – substituted • rep – repealed • reinsrt – reinserted • renum – renumbered • reloc – relocated • mod – modified • exp – expired

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Corporations – Court Rules and Related Legislation 2017

Example: History note under subr 2.4(2) of the Federal Court (Corporations) Rules 2000 (Cth): [Subr (2) am SLI 61 of 2008, r 3 and Sch 1 item 38, with effect from 15 Apr 2008] This note indicates that subrule (2) in rule 2.4 was amended by Select Legislative Instrument 61 of 2008, Schedule 1 item 38. R 3 is a reference to the enacting provision. Details of the short title of the amending rule, gazettal/registration and commencement dates are located in the Table of Amending Legislation following the Table of Provisions. Commencement dates have also been included with each historical note (eg. 15 Apr 2008). Future Commencements Insolvency Law Reform Act 2016 Uncommenced amendments made by the Insolvency Law Reform Act 2016 (No 11) to the Corporations (Review Fees) Act 2003 have been included in the body of the text in the form of future history notes. These future history notes are preceded by a ★. Example: Future history note under s 5 of the Corporations (Review Fees) Act 2003: 5 Imposition of review fees (1) Subject to section 6, the regulations may prescribe fees in relation to the review dates of the following: (a) companies; (a) companies; (b) registered schemes; (c) registered Australian bodies; (d) natural persons registered as auditors under Part 9.2 of the Corporations Act 2001; (e) natural persons registered as liquidators under Part 9.2 of the Corporations Act 2001; (f) persons holding an Australian financial services licence under Part 7.6 of the Corporations Act 2001. Note: The regulations may prescribe a fee to be paid in one year in relation to the review date of a later year (see paragraph 1351(4)(b) of the Corporations Act 2001). [Subs (1) future am Act 11 of 2016, s 3 and Sch 2 item 266, with effect from a date TBP, or if not sooner, ★ 1 Mar 2017, by repealing para (e).; am Act 103 of 2007, s 3 and Sch 1 item 1, with effect from 1 Sep 2007] LEGISLATIVE AMENDMENTS IN THIS EDITION Supreme Court (Corporations) Rules 2013 (Vic) Amending Acts • Supreme Court (Chapter V Publication of Notices Amendment) Rules 2016 – SR 140 of 2016 Criminal Code Act 1995 (Cth) Amending Acts • Acts and Instruments (Framework Reform) (Consequential Provisions) Act 2015 – Act 126 of 2015 • Statute Law Revision Act (No 1) 2016 – Act 4 of 2016 FUTURE COMMENCEMENTS Editor’s Note: a detailed example of a future commencement history note may be found under the sub heading HISTORY NOTES above. Corporations (Review Fees) Act 2003 (Cth) Amending legislation

Number

Insolvency Law Reform 11 of 2016 Act 2016

vi

Date of gazettal/assent/ Date of commencement registration 29 Feb 2016 Sch 2 items 266 and 267 commence at the same time as provs covered by table item 2 (to be proclaimed or 1 Mar 2017).

Corporations – Court Rules and Related Legislation 2017

CONTENTS About this Publication .......................................................................................................................... v COMMONWEALTH Federal Court (Corporations) Rules 2000 (Cth) ................................................................................. 3 Federal Court Practice Notes ........................................................................................................... 77 NEW SOUTH WALES Supreme Court (Corporations) Rules 1999 (NSW) ........................................................................ 145 NSW Practice Notes ....................................................................................................................... 211 VICTORIA Supreme Court (Corporations) Rules 2013 (Vic) ........................................................................... 259 Vic Practice Notes ........................................................................................................................... 339 QUEENSLAND Uniform Civil Procedure Rules 1999 (Qld) [Extracts] ..................................................................... 399 Qld Practice Directions ................................................................................................................... 457 WESTERN AUSTRALIA Supreme Court (Corporations) (WA) Rules 2004 (WA) ................................................................. 487 WA Practice Directions ................................................................................................................... 551 SOUTH AUSTRALIA Corporations Rules 2003 (South Australia) (SA) ............................................................................ 573 Corporations Supplementary Rules 2015 (South Australia) (SA) .................................................. 609 SA Practice Directions .................................................................................................................... 643 TASMANIA Supreme Court (Corporations) Rules 2008 (Tas) ........................................................................... 647 Tas Practice Directions ................................................................................................................... 653 AUSTRALIAN CAPITAL TERRITORY Court Procedures Rules 2006 (ACT) [Extracts] ............................................................................. 683 ACT Practice Directions .................................................................................................................. 753 NORTHERN TERRITORY Corporations Law Rules (NT) ......................................................................................................... 773 NT Practice Directions .................................................................................................................... 837 TAKEOVERS Takeovers Panel Procedural Rules ................................................................................................ 871 RELATED LEGISLATION Corporations (Review Fees) Act 2003 (Cth) ................................................................................... 893 Corporations (Review Fees) Regulations 2003 (Cth) ..................................................................... 897 Corporations (National Guarantee Fund Levies) Act 2001 (Cth) ................................................... 903 Corporations (Compensation Arrangements Levies) Act 2001 (Cth) ............................................. 907 Corporations (Repeals, Consequentials and Transitionals) Act 2001 (Cth) [Extracts] ................... 911 Criminal Code Act 1995 (Cth) [Extracts] ......................................................................................... 921 Index ................................................................................................................................................ 937

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Commonwealth Federal Court (Corporations) Rules 2000 (Cth) ................................................................................. 3 Federal Court Practice Notes ........................................................................................................... 77

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Cth

FEDERAL COURT (CORPORATIONS) RULES 2000 (CTH) Division 1 – Preliminary 1.1 Citation................................................................................................................................................ 9 1.2 Commencement.................................................................................................................................. 9 1.3 Application of these Rules and other rules of the Court.....................................................................9 1.4 Expressions used in the Corporations Act.......................................................................................... 9 1.5 Definitions for these Rules................................................................................................................ 10 1.6 References to rules and forms.......................................................................................................... 11 1.7 Substantial compliance with forms.................................................................................................... 11 1.8 Court’s power to give directions........................................................................................................ 11 1.9 Calculation of time............................................................................................................................. 11 1.10 Extension and abridgment of time.....................................................................................................11 Division 2 – Proceedings generally 2.1 Title of documents in a proceeding — Form 1..................................................................................11 2.2 Originating process and interlocutory process — Forms 2 and 3.................................................... 11 2.3 Fixing of hearing................................................................................................................................12 2.4 Supporting affidavits.......................................................................................................................... 12 2.4A Application for order setting aside statutory demand (Corporations Act s 459G)............................ 12 2.5 Affidavits made by creditors.............................................................................................................. 13 2.6 Form of affidavits...............................................................................................................................13 2.7 Service of originating process or interlocutory process and supporting affidavit............................. 13 2.8 Notice of certain applications to be given to ASIC........................................................................... 13 2.9 Notice of appearance (Corporations Act s 465C) — Form 4........................................................... 14 2.10 Intervention in proceeding by ASIC (Corporations Act s 1330) — Form 5...................................... 15 2.11 Publication of notices [Repealed]......................................................................................................15 2.12 Proof of publication........................................................................................................................... 15 2.13 Leave to creditor, contributory or officer to be heard........................................................................15 2.14 Inquiry in relation to corporation’s debts etc..................................................................................... 16 2.15 Meetings ordered by the Court......................................................................................................... 16 Division 3 – Compromises and arrangements in relation to Part 5.1 bodies 3.1 Application of Division 3.................................................................................................................... 16 3.2 Nomination of chairperson for meeting............................................................................................. 16 3.3 Order for meetings to identify proposed scheme..............................................................................16 3.4 Notice of hearing (Corporations Act s 411(4), s 413(1)) — Form 6................................................. 17 3.5 Copy of order approving compromise or arrangement to be lodged with ASIC.............................. 17 Division 4 – Receivers and other controllers of corporation property (Corporations Act Part 5.2) 4.1 Inquiry into the conduct of controller (Corporations Act s 423)........................................................ 17 Division 5 – Winding up proceedings (including oppression proceedings where winding up is sought) 5.1 Application of Division 5.................................................................................................................... 17 5.2 Affidavit accompanying statutory demand (Corporations Act s 459E(3)) — Form 7........................17 5.3 Application for leave to apply for winding up in insolvency (Corporations Act s 459P(2))...............18 5.4 Affidavit in support of application for winding up (Corporations Act s 459P, s 462, s 464)............. 18 5.5 Consent of liquidator (Corporations Act s 532(9)) — Form 8...........................................................18 5.6 Notice of application for winding up — Form 9................................................................................ 18 5.7 Applicant to make copies of documents available............................................................................19 5.8 Discontinuance of application for winding up....................................................................................19 5.9 Appearance before Registrar............................................................................................................ 19 5.10 Order substituting plaintiff in application for winding up (Corporations Act s 465B) — Form 10.......................................................................................................................................................19 5.11 Notice of winding up order and appointment of liquidator — Form 11.............................................19 Division 6 – Provisional liquidators (Corporations Act Part 5.4B) ©

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Federal Court (Corporations) Rules 2000 (Cth) 6.1 6.2

Appointment of provisional liquidator (Corporations Act s 472) — Form 8...................................... 19 Notice of appointment of provisional liquidator — Form 12............................................................. 20

Division 7 – Liquidators 7.1 Resignation of liquidator (Corporations Act s 473(1)).......................................................................20 7.2 Filling vacancy in office of liquidator (Corporations Act s 473(7), s 502)......................................... 20 7.3 Report to liquidator as to company’s affairs (Corporations Act s 475)............................................. 20 7.4 ...........................................................................................................................................................21 Liquidator to file certificate and copy of settled list of contributories (Corporations Act s 478) 7.5 Release of liquidator and deregistration of company (Corporations Act s 480(c) and (d))..............21 7.6 Objection to release of liquidator — Form 13...................................................................................22 7.7 Report on accounts of liquidator (Corporations Act s 481)...............................................................22 7.8 Application for payment of call (Corporations Act s 483(3)(b)) — Form 14..................................... 23 7.9 Distribution of surplus by liquidator with special leave of the Court (Corporations Act s 488(2)) — Form 15........................................................................................................................ 23 7.10 Powers delegated to liquidator by the Court (Corporations Act s 488)............................................ 23 7.11 Inquiry into conduct of liquidator (Corporations Act s 536(1) and (2))............................................. 23 Division 8 – Special managers (Corporations Act Part 5.4B) 8.1 Application for appointment of special manager (Corporations Act s 484)...................................... 24 8.2 Security given by special manager (Corporations Act s 484)...........................................................24 8.3 Special manager’s receipts and payments (Corporations Act s 484)...............................................24 Division 9 – Remuneration of office-holders 9.1 Remuneration of receiver (Corporations Act s 425(1)) — Form 16................................................. 24 9.2 Determination by Court of remuneration of administrator (Corporations Act s 449E(1)(c) and (1A)(c)) — Form 16........................................................................................................................... 25 9.2A Review of remuneration of administrator (Corporations Act s 449E(2))...........................................26 9.3 Remuneration of provisional liquidator (Corporations Act s 473(2)) — Form 16............................. 27 9.4 Determination by Court of liquidator’s remuneration (Corporations Act s 473(3)(b)(ii))................... 28 9.4A Review of remuneration of liquidator (Corporations Act s 473(5) and (6) and 504(1))....................29 9.5 Remuneration of special manager (Corporations Act s 484(2)) — Form 16....................................30 Division 10 – Winding up generally 10.1 Determination of value of debts or claims (Corporations Act s 554A(2))......................................... 31 10.2 Disclaimer of contract (Corporations Act s 568(1A))........................................................................ 31 10.3 Winding up Part 5.7 bodies (Corporations Act s 583, s 585) and registered schemes (Corporations Act s 601ND).............................................................................................................. 31 Division 11 – Examinations and orders (Corporations Act Part 5.9, Divisions 1 and 2) 11.1 Definition for Division 11....................................................................................................................31 11.2 Application for examination or investigation under s 411(9)(b), s 423 or s 536(3) of the Corporations Act................................................................................................................................ 31 11.3 Application for examination summons (Corporations Act s 596A, s 596B) — Form 17.................. 32 11.4 Service of examination summons..................................................................................................... 33 11.5 Discharge of examination summons................................................................................................. 33 11.6 Filing of record of examination (Corporations Act s 597(13))...........................................................33 11.7 Authentication of transcript of examination (Corporations Act s 597(14))........................................ 33 11.8 Inspection of record or transcript of examination or investigation under s 411, s 423 or s 536 of the Corporations Act..................................................................................................................... 33 11.9 Entitlement to record or transcript of examination held in public..................................................... 34 11.10 Default in relation to examination......................................................................................................34 11.11 Service of application for order in relation to breaches etc by person concerned with corporation (Corporations Act s 598)................................................................................................ 34 Division 11A – Warrants (Corporations Act s 486B and Part 5.4B, Division 3, Subdivision B) 11A.01 Arrest of person (Corporations Act s 486B) — Form 17A................................................................35 Division 12 – Takeovers, acquisitions of shares etc (Corporations Act Chapters 6 to 6D) and Securities (Corporations Act Chapter 7) 12.1 Service on ASIC in relation to proceedings under Chapter 6, 6A, 6B, 6C, 6D or 7 of the Corporations Act................................................................................................................................ 35 12.1A Reference to Court of question of law arising in proceeding before Takeovers Panel 4

Corporations – Court Rules and Related Legislation 2017

(Corporations Act s 659A)................................................................................................................. 35 Notification to Court where proceeding is commenced before end of takeover bid period (Corporations Act s 659B)................................................................................................................. 35 Application for summons for appearance of person (Corporations Act s 1071D(4)) — Form 18.......................................................................................................................................................35 Application for orders relating to refusal to register transfer or transmission of securities (Corporations Act s 1071F)............................................................................................................... 36

12.1B 12.2 12.3

Division 13 – The futures industry (Chapter 8 of the Law) [Repealed] Division 14 – Powers of Courts (Corporations Act Part 9.5) 14.1 Appeal from act, omission or decision of administrator, receiver or liquidator etc (Corporations Act s 554A, s 1321)....................................................................................................36 Division 15 – Proceedings under the ASIC Act 15.1 Reference to Court of question of law arising at hearing of ASIC (ASIC Act s 61)......................... 36 15.2 Reference to Court of question of law arising at hearing of Corporations and Securities Panel (s 196 of the ASIC Law) [Repealed].......................................................................................37 15.3 Application for inquiry (ASIC Act s 70, s 201, s 219)....................................................................... 37 Division 15A 15A.1 15A.2 15A.3 15A.4 15A.5 15A.6 15A.7 15A.8 15A.9

– Proceedings under the Cross-Border Insolvency Act Application of this Division and other rules of the Court.................................................................. 37 Expressions used in the Cross-Border Insolvency Act..................................................................... 37 Application for recognition................................................................................................................. 37 Application for provisional relief under article 19 of the Model Law.................................................38 Official liquidator’s consent to act..................................................................................................... 38 Notice of filing of application for recognition..................................................................................... 38 Notice of order for recognition, withdrawal etc................................................................................. 38 Relief after recognition...................................................................................................................... 39 Application to modify or terminate an order for recognition or other relief.......................................39

Division 16 – Powers of Registrars 16.1 Powers of Registrars......................................................................................................................... 40 16.2 Reference by Registrar..................................................................................................................... 40

SCHEDULE 1 – FORMS Form Form Form Form Form Form Form Form Form Form Form Form Form Form Form Form Form Form Form Form Form Form Form Form Form ©

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 16A 17 17A 18 19 20 21 22 23

Document title................................................................................................................................... 41 Originating process........................................................................................................................... 42 Interlocutory process......................................................................................................................... 44 Notice of appearance........................................................................................................................ 45 Notice of intervention by ASIC.......................................................................................................... 46 Notice of hearing to approve compromise or arrangement.............................................................. 47 Affidavit accompanying statutory demand........................................................................................ 48 Consent of liquidator/provisional liquidator....................................................................................... 49 Notice of application for winding up order........................................................................................ 50 Notice of application for winding up order by substituted plaintiff.................................................... 51 Notice of winding up order and of appointment of liquidator............................................................52 Notice of appointment of provisional liquidator................................................................................. 53 Notice by creditor or contributory of objection to release of liquidator............................................. 54 Affidavit in support of application for order for payment of call........................................................ 55 Notice of application for leave to distribute a surplus.......................................................................56 Notice of intention to apply for remuneration....................................................................................57 Notice of intention to apply for review of remuneration.................................................................... 58 Summons for examination................................................................................................................ 59 Arrest warrant.................................................................................................................................... 60 Summons for appearance in relation to registration of transfer of interests.................................... 61 Consent to act as designated person............................................................................................... 62 Notice of filing of application for recognition of foreign proceeding..................................................63 Notice of making of order under the Cross-Border Insolvency Act 2008......................................... 64 Notice of dismissal or withdrawal of application for recognition of foreign proceeding....................65 Notice of filing of application to modify or terminate an order for recognition or other relief...........66

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Cth

Table of provisions

Federal Court (Corporations) Rules 2000 (Cth) SCHEDULE 2 – POWERS OF THE COURT THAT MAY BE EXERCISED BY A REGISTRAR Part 1 – Corporations Act.................................................................................................................. 67 Part 2 – ASIC Act...............................................................................................................................73 SCHEDULE 3 – NOTES TO THESE RULES..............................................................................................74

6

Corporations – Court Rules and Related Legislation 2017

Table of Amending Legislation

Table of Amending Legislation Number

Federal Court (Corporations) 359 of 1999 Rules 2000

Date of gazettal/ assent/registration 22 Dec 1999

This legislation (formerly titled Corporations Law Rules 2000) has been Amending legislation Number Date of gazettal/ assent/registration Corporations Law Amendment 333 of 2000 8 Dec 2000 Rules 2000 (No 1) Federal Court (Corporations) 127 of 2001 7 Jun 2001 Amendment Rules 2001 (No 1) Federal Court (Corporations) 97 of 2002 14 May 2002 Amendment Rules 2002 (No 1) Federal Court (Corporations) 132 of 2003 19 Jun 2003 Amendment Rules 2003 (No 1) Federal Court (Corporations) 376 of 2003 23 Dec 2003 Amendment Rules 2003 (No 2) Federal Court (Corporations) 84 of 2005 25 May 2005 Amendment Rules 2005 (No 1) Federal Court (Corporations) 204 of 2006 31 Jul 2006 Amendment Rules 2006 (No 1) Federal Court (Corporations) 81 of 2007 2 Apr 2007 Amendment Rules 2007 (No 1) Federal Court (Corporations) 345 of 2007 15 Oct 2007 Amendment Rules 2007 (No 2) Federal Court (Corporations) 61 of 2008 14 Apr 2008 Amendment Rules 2008 (No 1) Federal Court (Corporations) 206 of 2008 14 Oct 2008 Amendment Rules 2008 (No 2) Federal Court (Corporations) 251 of 2009 6 Oct 2009 Amendment Rules 2009 (No 1) Federal Court (Corporations) 47 of 2010 15 Mar 2010 Amendment Rules 2010 (No 1) ©

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Date of commencement

Cth

Amending legislation

1 Jan 2000

amended as follows: Date of commencement Sch 1: 1 Jan 2000 Sch 1: 30 Jun 2001

Sch 1: 14 May 2002

Sch 1: 19 Jun 2003

Sch 1: 23 Dec 2003

Sch 1: 26 May 2005

Sch 1: 1 Aug 2006

Sch 1: 3 Apr 2007

Sch 1: 16 Oct 2007

Sch 1: 15 Apr 2008

Sch 1: 15 Oct 2008

Sch 1: 7 Oct 2009

Sch 1: 16 Mar 2010

7

Federal Court (Corporations) Rules 2000 (Cth) Amending legislation

Number

Federal Court (Corporations) 359 of 1999 Rules 2000

Date of gazettal/ assent/registration 22 Dec 1999

This legislation (formerly titled Corporations Law Rules 2000) has been Amending legislation Number Date of gazettal/ assent/registration Federal Court (Corporations) 170 of 2011 13 Sep 2011 Amendment Rules 2011 (No 1) Federal Court (Corporations) 175 of 2012 31 Jul 2012 Amendment Rules 2012 (No 1) Federal Court (Corporations) 52 of 2015 1 May 2015 Amendment (Examination Summons) Rules 2015

8

Date of commencement 1 Jan 2000

amended as follows: Date of commencement Sch 1: 14 Sep 2011 Sch 1: 1 Aug 2012

Sch 1 item 1: 2 May 2015

Corporations – Court Rules and Related Legislation 2017

Division 1 – Preliminary r 1.4

DIVISION 1 – PRELIMINARY Cth

1.1 Citation These Rules may be cited as the Federal Court (Corporations) Rules 2000. [R 1.1 subst SR 333 of 2000, r 3 and Sch 1 item 1, with effect from 1 Jan 2001]

1.2 Commencement These Rules commence on 1 January 2000. 1.3 Application of these Rules and other rules of the Court (1) Unless the Court otherwise orders: (a) these Rules apply to a proceeding in the Court under the Corporations Act, or the ASIC Act, that is commenced on or after the commencement of these Rules; and (b) Division 15A applies to a proceeding in the Court under the Cross-Border Insolvency Act. [Subr (1) subst SLI 206 of 2008, r 3 and Sch 1 item 1, with effect from 15 Oct 2008; am SR 132 of 2003, r 3 and Sch 1 item 30, with effect from 19 Jun 2003; SR 333 of 2000, r 3 and Sch 1 item 32, with effect from 1 Jan 2001]

(2) The other rules of the Court apply, to the extent that they are relevant and not inconsistent with these Rules: (a) to a proceeding in the Court under the Corporations Act, or the ASIC Act, that is commenced on or after the commencement of these Rules; and (b) to a proceeding in the Court under the Cross-Border Insolvency Act that is commenced on or after the commencement of Division 15A. [Subr (2) subst SLI 206 of 2008, r 3 and Sch 1 item 1, with effect from 15 Oct 2008; am SR 132 of 2003, r 3 and Sch 1 item 30, with effect from 19 Jun 2003; SR 333 of 2000, r 3 and Sch 1 item 32, with effect from 1 Jan 2001]

(3) Unless the Court otherwise orders, the rules applying to a proceeding in the Court under the Corporations Act, or the ASIC Act, as in force immediately before the commencement of these Rules, continue to apply to a proceeding under the Corporations Act, or the ASIC Act, that was commenced before the commencement of these Rules. [Subr (3) am SR 132 of 2003, r 3 and Sch 1 item 30, with effect from 19 Jun 2003; SR 333 of 2000, r 3 and Sch 1 item 32, with effect from 1 Jan 2001] Note: By virtue of the definition of this Act in section 9 of the Corporations Act, a reference to the Corporations Act includes a reference to the Corporations Regulations. [R 1.3 am SLI 206 of 2008; SR 132 of 2003, r 3 and Sch 1 item 1, with effect from 19 Jun 2003; SR 333 of 2000]

1.4 Expressions used in the Corporations Act Unless the contrary intention appears, an expression used in these Rules and in the Corporations Act has the same meaning in these Rules as it has in the Corporations Act. Note: Expressions used in these Rules (including the notes to these Rules) that are defined in the Corporations Act include: ABN (short for ‘Australian Business Number’) — see section 9 [Def insrt SLI 345 of 2007, r 3 and Sch 1 item 1, with effect from 16 Oct 2007] ACN (short for ‘Australian Company Number’) — see section 9 ARBN (short for ‘Australian Registered Body Number’) — see section 9 ASIC — see section 9 [Def insrt SLI 61 of 2008, r 3 and Sch 1 item 1, with effect from 15 Apr 2008] body — see section 9 body corporate — see section 9 books — see section 9 Commission [Repealed] [Def rep SLI 61 of 2008, r 3 and Sch 1 item 2, with effect from 15 Apr 2008] company — see section 9 corporation — see section 57A daily newspaper — see section 9 ©

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r 1.4

Federal Court (Corporations) Rules 2000 (Cth)

foreign country [Repealed] [Def rep SLI 175 of 2012, r 3 and Sch 1 item 1, with effect from 1 Aug 2012] foreign company — see section 9 [Def insrt SLI 175 of 2012, r 3 and Sch 1 item 1, with effect from 1 Aug 2012] futures broker [Repealed] [Def rep SLI 175 of 2012, r 3 and Sch 1 item 1, with effect from 1 Aug 2012] Gazette [Repealed] [Def rep SLI 175 of 2012, r 3 and Sch 1 item 1, with effect from 1 Aug 2012] officer [Repealed] [Def rep SLI 175 of 2012, r 3 and Sch 1 item 1, with effect from 1 Aug 2012] official liquidator — see section 9 Part 5.1 body — see section 9 Part 5.7 body — see section 9 register — see section 9 registered liquidator — see section 9 registered office — see section 9 statutory demand — see section 9. [R 1.4 am SLI 175 of 2012; SLI 61 of 2008; SR 345 of 2007; SR 132 of 2003, r 3 and Sch 1 items 30 and 31, with effect from 19 Jun 2003]

1.5 Definitions for these Rules 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. [Def insrt SR 132 of 2003, r 3 and Sch 1 item 2, with effect from 19 Jun 2003]

Corporations Act means the Corporations Act 2001. [Def insrt SR 132 of 2003, r 3 and Sch 1 item 2, with effect from 19 Jun 2003]

Corporations Regulations means the Corporations Regulations 2001. [Def insrt SR 132 of 2003, r 3 and Sch 1 item 2, with effect from 19 Jun 2003]

Cross-Border Insolvency Act means the Cross-Border Insolvency Act 2008 including, unless the contrary intention appears, the Model Law. [Def insrt SLI 206 of 2008, r 3 and Sch 1 item 2, with effect from 15 Oct 2008]

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. [Def am SLI 206 of 2008, r 3 and Sch 1 item 3, with effect from 15 Oct 2008; SR 132 of 2003, r 3 and Sch 1 item 30, with effect from 19 Jun 2003; SR 333 of 2000, r 3 and Sch 1 item 32, with effect from 1 Jan 2001]

interlocutory process means an interlocutory process in accordance with Form 3. Model Law means the Model Law on Cross-Border 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. [Def insrt SLI 206 of 2008, r 3 and Sch 1 item 4, with effect from 15 Oct 2008]

originating process means an originating process in accordance with Form 2. plaintiff means a person claiming relief (except interlocutory relief) under the Corporations Act, the ASIC Act or the Cross-Border Insolvency Act, whether in the originating process or not. [Def am SLI 206 of 2008, r 3 and Sch 1 item 5, with effect from 15 Oct 2008; SR 132 of 2003, r 3 and Sch 1 item 30, with effect from 19 Jun 2003; SR 333 of 2000, r 3 and Sch 1 item 32, with effect from 1 Jan 2001]

respondent means a person against whom interlocutory relief is claimed in a proceeding. 10

Corporations – Court Rules and Related Legislation 2017

Division 2 – Proceedings generally r 2.2 the Law [Repealed] Cth

[Def rep SR 132 of 2003, r 3 and Sch 1 item 3, with effect from 19 Jun 2003] [R 1.5 am SLI 206 of 2008; SR 132 of 2003; SR 333 of 2000]

1.6 References to rules and forms In these Rules, unless the contrary intention appears: (a) a reference to a rule is a reference to a rule in these Rules; and (b) a reference to a form followed by a number is a reference to the form so numbered in Schedule 1 to these Rules. 1.7 Substantial compliance with forms (1) It is sufficient compliance with these Rules in relation to a document that is required to be in accordance with a form in Schedule 1 if the document is substantially in accordance with the form required or has only such variations as the nature of the case requires. (2) Without limiting subrule (1), the Registrar must not reject a document for filing only because a term used to describe a party in the document differs from the term used in these Rules. 1.8 Court’s power to give directions The Court may give directions in relation to the practice and procedure to be followed in a proceeding if it is satisfied, in the circumstances of the proceeding, that: (a) the provisions of the Corporations Act, the ASIC Act, or the rules of this Court do not adequately provide for the practice and procedure to be followed in the proceeding; or (b) a difficulty arises, or doubt exists, in relation to the practice and procedure to be followed in the proceeding. [R 1.8 am SR 132 of 2003, r 3 and Sch 1 item 30, with effect from 19 Jun 2003; SR 333 of 2000, r 3 and Sch 1 item 32, with effect from 1 Jan 2001]

1.9 Calculation of time (1) If, for any purpose, these Rules: (a) prohibit, permit or require an act or thing to be done within, by, or before the end of; or (b) otherwise prescribe, allow or provide for; a period of time before or after a particular day, act or event, the period is to be calculated without counting that day, or the day of the act or event, as the case may be. (2) Without limiting subrule (1), in calculating how many days a particular day, act or event is before or after another day, act or event, only the first day, or the day of the first act or event, is to be counted. (3) If the last day of any period prescribed or allowed by these Rules for an act or thing to be done falls on a day that is not a business day in the place where the act or thing is to be or may be done, the act or thing may be done on the first business day in the place after that day. (4) In calculating a period of time for the purposes of these Rules, the period beginning on 25 December in a year and ending at the end of 1 January in the next year is not to be counted. 1.10 Extension and abridgment of time Unless the Corporations Act, the ASIC Act, or these Rules otherwise provide, the rules of this Court that provide for the extension or abridgment of a period of time fixed for the doing of any act or thing in relation to a proceeding apply to a proceeding to which these Rules apply. [R 1.10 am SR 132 of 2003, r 3 and Sch 1 item 30, with effect from 19 Jun 2003; SR 333 of 2000, r 3 and Sch 1 item 32, with effect from 1 Jan 2001]

DIVISION 2 – PROCEEDINGS GENERALLY 2.1 Title of documents in a proceeding — Form 1 The title of a document filed in a proceeding must be in accordance with Form 1. 2.2 Originating process and interlocutory process — Forms 2 and 3 (1) Unless these Rules otherwise provide, a person must make an application required or permitted by the Corporations Act to be made to the Court: ©

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r 2.2

Federal Court (Corporations) Rules 2000 (Cth) (a) if the application is not made in a proceeding already commenced in the Court — by filing an originating process; and (b) in any other case, and whether interlocutory relief or final relief is claimed — by filing an interlocutory process.

[Subr (1) am SLI 84 of 2005, r 3 and Sch 1 item 1, with effect from 26 May 2005; SR 132 of 2003, r 3 and Sch 1 item 30, with effect from 19 Jun 2003]

(2) Unless the Court otherwise directs, a person may make an application to the Court in relation to a proceeding in respect of which final relief has been granted by filing an interlocutory process in that proceeding. (3) An originating process must: (a) be in accordance with Form 2; and (b) state: (i) each section of the Corporations Act or the ASIC Act, or each regulation of the Corporations Regulations, under which the proceeding is brought; and (ii) the relief sought. [Subr (3) am SR 132 of 2003, r 3 and Sch 1 item 30, with effect from 19 Jun 2003; SR 333 of 2000, r 3 and Sch 1 item 32, with effect from 1 Jan 2001]

(4) An interlocutory process must: (a) be in accordance with Form 3; and (b) state: (i) if appropriate, each section of the Corporations Act or the ASIC Act, or each regulation of the Corporations Regulations, or each rule of Court under which the application is made; and (ii) the relief sought. Note: In an application for winding up in insolvency on the ground that the company has failed to comply with a statutory demand, the applicant should consider completing Part C of Form 2 as shown in Schedule 3 (Notes to these Rules). [Subr (4) am SLI 81 of 2007, r 3 and Sch 1 item 1, with effect from 3 Apr 2007; SR 132 of 2003, r 3 and Sch 1 item 4, with effect from 19 Jun 2003; SR 333 of 2000, r 3 and Sch 1 item 32, with effect from 1 Jan 2001] [R 2.2 am SLI 81 of 2007; SLI 84 of 2005; SR 132 of 2003; SR 333 of 2000]

2.3 Fixing of hearing On receiving an originating process or interlocutory process, the Registrar: (a) must fix a time, date and place for hearing and endorse those details on the originating process or interlocutory process; and (b) may seal a sufficient number of copies for service and proof of service. 2.4 Supporting affidavits (1) Unless the Court otherwise directs, an originating process, or interlocutory process, must be supported by an affidavit stating the facts in support of the process. (2) Subject to rule 2.4A, an affidavit in support of an originating process must annex a record of a search of the records maintained by ASIC, in relation to the company that is the subject of the application to which the originating process relates, carried out no earlier than 7 days before the originating process is filed. Note: An example of the affidavit in support of an application for winding up in insolvency for failure to comply with a statutory demand is shown in Schedule 3 (Notes to these Rules). [Subr (2) am SLI 61 of 2008, r 3 and Sch 1 item 38, with effect from 15 Apr 2008; SR 132 of 2003, r 3 and Sch 1 item 5, with effect from 19 Jun 2003; SR 127 of 2001, r 3 and Sch 1 item 1, with effect from 30 Jun 2001] [R 2.4 am SLI 61 of 2008; SR 132 of 2003; SR 127 of 2001]

2.4A Application for order setting aside statutory demand (Corporations Act s 459G) (1) This rule applies, and subrule 2.4(2) does not apply, to an application by a company under section 459G of the Corporations Act for an order setting aside a statutory demand served on the company. [Subr (1) am SR 132 of 2003, r 3 and Sch 1 item 30, with effect from 19 Jun 2003]

(2) The plaintiff may file with the originating process seeking the order a copy of the statutory demand and 12

Corporations – Court Rules and Related Legislation 2017

Division 2 – Proceedings generally r 2.8 (3) The plaintiff must: (a) no earlier than 7 days before the originating process is filed, and no later than the day before the hearing of the application, carry out a search of the records maintained by ASIC in relation to the plaintiff; and (b) either: (i) annex the record of the search to the affidavit in support of the originating process; or (ii) file the record of the search before or tender it on the hearing of the application. [Subr (3) am SLI 61 of 2008, r 3 and Sch 1 item 38, with effect from 15 Apr 2008; SLI 81 of 2007, r 3 and Sch 1 item 2, with effect from 3 Apr 2007] [R 2.4A am SLI 61 of 2008; SLI 81 of 2007; SR 132 of 2003, r 3 and Sch 1 items 30 and 31, with effect from 19 Jun 2003; insrt SR 127 of 2001, r 3 and Sch 1 item 2, with effect from 30 Jun 2001]

2.5 Affidavits made by creditors Subject to rule 5.4, an affidavit that is to be made by a creditor may be made: (a) if the creditor is a corporation — by a director, secretary, or other principal officer of the corporation, or by a person employed by the corporation who is authorised to make the affidavit on its behalf; or (b) if the creditor is a company to which a liquidator, provisional liquidator, receiver, administrator or controller has been appointed — by that person; or (c) in any other case — by the creditor or a person authorised by the creditor to make the affidavit on behalf of the creditor. 2.6 Form of affidavits An affidavit must be in a form that complies with: (a) the rules of the Court; or (b) the rules of the Supreme Court of the State (if any) or Territory (if any) where the affidavit was sworn or affirmed. 2.7 Service of originating process or interlocutory process and supporting affidavit (1) As soon as practicable after filing an originating process and, in any case, at least 5 days before the date fixed for hearing, the plaintiff must serve a copy of the originating process and any supporting affidavit on: (a) each defendant (if any) to the proceeding; and (b) if the corporation to which the proceeding relates is not a party to the proceeding — the corporation. (2) As soon as practicable after filing an interlocutory process and, in any case, at least 3 days before the date fixed for hearing, the applicant must serve a copy of the interlocutory process and any supporting affidavit on: (a) each respondent (if any) to the application in the interlocutory process; and (b) if the corporation to which the application in the interlocutory process relates is not a party to the application in the interlocutory process — the corporation. [Subr (2) am SLI 81 of 2007, r 3 and Sch 1 item 3, with effect from 3 Apr 2007] [R 2.7 am SLI 81 of 2007]

2.8 Notice of certain applications to be given to ASIC (1) This rule has effect in addition to the requirements of the Corporations Act that, in relation to a proceeding, particular documents are to be served on ASIC or notice of particular matters is to be given to ASIC. [Subr (1) am SLI 61 of 2008, r 3 and Sch item 38, with effect from 15 Apr 2008; SR 132 of 2003, r 3 and Sch 1 item 30, with effect from 19 Jun 2003]

(2) This rule does not apply to a person making an application if the person is ASIC or a person authorised by ASIC. [Subr (2) am SLI 61 of 2008, r 3 and Sch 1 item 38, with effect from 15 Apr 2008] ©

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a copy of any affidavit that accompanied the statutory demand.

r 2.8

Federal Court (Corporations) Rules 2000 (Cth)

(3) Unless the Court otherwise orders, if a person makes an application under a provision of the Corporations Act mentioned in column 2 of an item of the following table, the person must serve on ASIC, a reasonable time before the hearing of the application, a copy of the originating process, or interlocutory process, and supporting affidavit in respect of the application. Item 1

Provision Section 480

2

Subsection 482(1)

3 4

Subsection 509(6) Subsection 536(1)

5

Subsection 601AH(2)

6

Subsection 601CC(8)

7

Subsection 601CL(9)

8 9

Chapter 6, 6A, 6B, 6C, 6D or 7 Subsections 1317S(2), (4) and (5)

Description of application For the release of a liquidator of a company and the deregistration of the company For the stay or termination of a winding up For the deregistration of a company For an inquiry into the conduct of a liquidator To reinstate the registration of a company To restore the name of an Australian body to the register To restore the name of a foreign company to the register Any application under these Chapters For relief from liability for contravention of a civil penalty provision

[Subr (3) am SLI 61 of 2008, r 3 and Sch 1 items 4 and 38, with effect from 15 Apr 2008; subst SR 132 of 2003, r 3 and Sch 1 item 30, with effect from 19 Jun 2003; SR 333 of 2000, r 3 and Sch 1 item 2, with effect from 1 Jan 2001] [R 2.8 am SLI 61 of 2008, r 3 and Sch 1 item 39, with effect from 15 Apr 2008; SR 132 of 2003; SR 333 of 2000]

2.9 Notice of appearance (Corporations Act s 465C) — Form 4 (1) A person who intends to appear before the Court at the hearing of an application must, before appearing: (a) file: (i) a notice of appearance in accordance with Form 4; and (ii) if appropriate — an affidavit stating any facts on which the person intends to rely; and (b) serve on the plaintiff a copy of the notice of appearance and any affidavit not later than: (i) if the person is named in an originating process — 3 days before the date fixed for hearing; or (ii) if the person is named in an interlocutory process — 1 day before the date fixed for hearing. (2) If the person intends to appear before the Court to oppose an application for winding up, the person may include in the notice of appearance the notice of the grounds on which the person opposes the application required by section 465C of the Corporations Act. [Subr (2) am SR 132 of 2003, r 3 and Sch 1 item 30, with effect from 19 Jun 2003]

(3) The period prescribed for filing and serving the notice and affidavit required by section 465C of the Corporations Act is the period mentioned in subparagraph (1)(b)(i). [Subr (3) am SR 132 of 2003, r 3 and Sch 1 item 30, with effect from 19 Jun 2003] Note: Under section 465C of the Corporations Act, a person may not, without the leave of the Court, oppose an application for winding up unless, within the period prescribed by the rules (see subrule (3) of this rule), the person has filed, and served on the plaintiff, notice of the grounds on which the person opposes the application and an affidavit verifying the matters stated in the notice. [R 2.9 am SR 132 of 2003, r 3 and Sch 1 item 31, with effect from 19 Jun 2003]

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Corporations – Court Rules and Related Legislation 2017

Division 2 – Proceedings generally r 2.13

(1) If ASIC intends to intervene in a proceeding, ASIC must file a notice of intervention in accordance with Form 5. [Subr (1) am SLI 61 of 2008, r 3 and Sch 1 item 38, with effect from 15 Apr 2008]

(2) Not later than 3 days before the date fixed for the hearing at which ASIC intends to appear in the proceeding, ASIC must serve a copy of the notice, and any affidavit on which it intends to rely, on the plaintiff and on any other party to the proceeding. [Subr (2) am SLI 61 of 2008, r 3 and Sch 1 item 38, with effect from 15 Apr 2008] [R 2.10 am SLI 61 of 2008, r 3 and Sch 1 item 39, with effect from 15 Apr 2008; SR 132 of 2003, r 3 and Sch 1 item 31, with effect from 19 Jun 2003]

2.11 Publication of notices [Repealed] [R 2.11 rep SLI 175 of 2012, r 3 and Sch 1 item 2, with effect from 1 Aug 2012; am SR 132 of 2003]

2.12 Proof of publication (1) This rule applies in relation to any matter published in connection with a proceeding. (2) Unless these Rules otherwise provide, or the Court otherwise orders, the person responsible for the publication of the matter, or the person’s legal practitioner, must file: (a) an affidavit made by the person, or the person’s legal practitioner, that states the date of publication and to which is annexed or exhibited a copy of the published matter; or (b) a memorandum signed by the person, or the person’s legal practitioner, that states the date of publication and refers to and annexes a copy of the published matter. (3) The affidavit or memorandum is prima facie evidence that the publication took place on the date and otherwise as stated in the affidavit or memorandum. 2.13 Leave to creditor, contributory or officer to be heard (1) The Court may grant leave to any person who is, or who claims to be: (a) a creditor, contributory or officer of a corporation; or (b) an officer of a creditor, or contributory, of a corporation; or (c) any other interested person; to be heard in a proceeding without becoming a party to the proceeding. [Subr (1) am SR 333 of 2000, r 3 and Sch 1 items 3 and 4, with effect from 1 Jan 2001]

(2) If the Court considers that the attendance of a person to whom leave has been granted under subrule (1) has resulted in additional costs for any party, or the corporation, which should be borne by the person to whom leave was granted, the Court may: (a) direct that the person pay the costs; and (b) order that the person not be heard further in the proceeding until the costs are paid or secured to the Court’s satisfaction. (3) The Court may order that a person who is, or who claims to be, a creditor, contributory or officer of a corporation be added as a defendant to the proceeding. (4) The Court may grant leave to a person under subrule (1), or order that a person be added as a defendant to a proceeding under subrule (3): (a) on application by the person or a party to the proceeding; or (b) on the Court’s own initiative. (5) The Court may: (a) appoint a creditor or contributory to represent all or any class of the creditors or contributories on any question, or in relation to any proceeding, before the Court, at the expense of the corporation; and (b) remove any person so appointed. [R 2.13 am SR 333 of 2000]

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2.10 Intervention in proceeding by ASIC (Corporations Act s 1330) — Form 5

r 2.14

Federal Court (Corporations) Rules 2000 (Cth)

2.14 Inquiry in relation to corporation’s debts etc The Court may direct an inquiry in relation to the debts, claims or liabilities, or a class of debts, claims or liabilities, of or affecting a corporation to which a proceeding relates. 2.15 Meetings ordered by the Court Subject to the Corporations Act, these Rules and any direction of the Court to the contrary, regulations 5.6.11 to 5.6.36A of the Corporations Regulations apply to meetings ordered by the Court. [R 2.15 am SLI 61 of 2008, r 3 and Sch 1 item 3, with effect from 15 Apr 2008; SR 132 of 2003, r 3 and Sch 1 item 30, with effect from 19 Jun 2003]

DIVISION 3 – COMPROMISES AND ARRANGEMENTS IN RELATION TO PART 5.1 BODIES 3.1 Application of Division 3 This Division applies if an application is made to the Court for approval of a compromise or arrangement between a Part 5.1 body and its creditors or members, or any class of its creditors or members. 3.2 Nomination of chairperson for meeting Before the hearing of an application under subsection 411(1), (1A) or (1B) of the Corporations Act, the plaintiff must file an affidavit stating: (a) the names of the persons who have been nominated to be the chairperson and alternate chairperson of the meeting; and (b) that each person nominated: (i) is willing to act as chairperson; and (ii) has had no previous relationship or dealing with the body, or any other person interested in the proposed compromise or arrangement, except as disclosed in the affidavit; and (iii) has no interest or obligation that may give rise to a conflict of interest or duty if the person were to act as chairperson of the meeting, except as disclosed in the affidavit; and (c) the name of the person (if any) proposed to be appointed to administer the proposed compromise or arrangement; and (d) that the person does not fall within paragraphs 411(7)(a) to (f) of the Corporations Act, except as disclosed in the affidavit. [R 3.2 am SR 132 of 2003, r 3 and Sch 1 item 30, with effect from 19 Jun 2003]

3.3 Order for meetings to identify proposed scheme (1) An order under subsection 411(1) or (1A) of the Corporations Act ordering a meeting or meetings in relation to a proposed compromise or arrangement must set out in a schedule, or otherwise identify, a copy of the proposed compromise or arrangement. [Subr (1) am SR 132 of 2003, r 3 and Sch 1 item 30, with effect from 19 Jun 2003]

(2) Unless the Court otherwise orders, a meeting of members ordered under section 411 of the Corporations Act must be convened, held and conducted in accordance with: (a) the provisions of Part 2G.2 of the Corporations Act that apply to the members of a company; and (b) the provisions of the plaintiff’s constitution that apply in relation to meetings of members and are not inconsistent with Part 2G.2 of the Corporations Act. [Subr (2) am SR 132 of 2003, r 3 and Sch 1 item 30, with effect from 19 Jun 2003]

(3) Unless the Court otherwise orders, a meeting of a class of holders of convertible securities ordered under section 411 of the Corporations Act must be convened, held and conducted as if: (a) the holders were a separate class of members; and (b) the meeting were a meeting of members convened, held and conducted under subrule (2); but in accordance with, and subject to, the applicable provisions of the instrument under which the securities were issued. [Subr (3) am SR 132 of 2003, r 3 and Sch 1 item 30, with effect from 19 Jun 2003] [R 3.3 am SR 132 of 2003; subst SR 127 of 2001, r 3 and Sch 1 item 3, with effect from 30 Jun 2001] 16

Corporations – Court Rules and Related Legislation 2017

Div 5 – Winding up proceedings r 5.2

(1) This rule applies to: (a) an application, under subsection 411(4) of the Corporations Act, for an order approving a proposed compromise or arrangement in relation to a Part 5.1 body; and (b) an application, under subsection 413(1) of the Corporations Act, for an order in relation to the reconstruction of a Part 5.1 body, or Part 5.1 bodies, or the amalgamation of 2 or more Part 5.1 bodies. [Subr (1) am SR 132 of 2003, r 3 and Sch 1 item 30, with effect from 19 Jun 2003]

(2) Unless the Court otherwise orders, the plaintiff must publish a notice of the hearing of the application. (3) The notice must be: (a) in accordance with Form 6; and (b) published at least 5 days before the date fixed for the hearing of the application. [Subr (3) am SLI 175 of 2012, r 3 and Sch 1 item 3, with effect from 1 Aug 2012] [R 3.4 am SLI 175 of 2012; SR 132 of 2003, r 3 and Sch 1 item 31, with effect from 19 Jun 2003]

3.5 Copy of order approving compromise or arrangement to be lodged with ASIC If the Court makes an order under subsection 411(1), (1A) or (4), or 413(1) of the Corporations Act, the plaintiff must, as soon as practicable after the order is made: (a) have the order sealed; and (b) lodge an office copy of the order with ASIC; and [Para (b) am SLI 61 of 2008, r 3 and Sch 1 item 38, with effect from 15 Apr 2008]

(c) serve an office copy of the order on any person appointed to administer the compromise or arrangement. [R 3.5 am SLI 61 of 2008, r 3 and Sch 1 item 39, with effect from 15 Apr 2008; SR 132 of 2003, r 3 and Sch 1 item 30, with effect from 19 Jun 2003]

DIVISION 4 – RECEIVERS AND OTHER CONTROLLERS OF CORPORATION PROPERTY (CORPORATIONS ACT PART 5.2) [Div 4 heading subst SR 132 of 2003, r 3 and Sch 1 item 31, with effect from 19 Jun 2003]

4.1 Inquiry into the conduct of controller (Corporations Act s 423) A complaint to the Court under paragraph 423(1)(b) of the Corporations Act about an act or omission of a receiver, or a controller appointed by the Court, must be made by an originating process seeking an inquiry in relation to the complaint. [R 4.1 am SR 132 of 2003, r 3 and Sch 1 items 30 and 31, with effect from 19 Jun 2003]

DIVISION 5 – WINDING UP PROCEEDINGS (INCLUDING OPPRESSION PROCEEDINGS WHERE WINDING UP IS SOUGHT) 5.1 Application of Division 5 This Division applies to the following applications for the winding up of a company: (a) an application for an order under Part 2F.1 of the Corporations Act; (b) an application under Part 5.4 or Part 5.4A of the Corporations Act. [R 5.1 am SR 132 of 2003, r 3 and Sch 1 item 30, with effect from 19 Jun 2003; SR 333 of 2000, r 3 and Sch 1 item 5, with effect from 1 Jan 2001]

5.2 Affidavit accompanying statutory demand (Corporations Act s 459E(3)) — Form 7 For the purposes of subsection 459E(3) of the Corporations Act, the affidavit accompanying a statutory demand relating to a debt, or debts, owed by a company must: (a) be in accordance with Form 7 and state the matters mentioned in that Form; and (b) be made by the creditor or by a person with the authority of the creditor or creditors; and (c) not state a proceeding number, or refer to a Court proceeding, in any heading or title to the affidavit. [R 5.2 am SR 132 of 2003, r 3 and Sch 1 items 30 and 31, with effect from 19 Jun 2003]

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3.4 Notice of hearing (Corporations Act s 411(4), s 413(1)) — Form 6

r 5.3

Federal Court (Corporations) Rules 2000 (Cth)

5.3 Application for leave to apply for winding up in insolvency (Corporations Act s 459P(2)) An application for leave to apply to the Court for an order that a company be wound up in insolvency may be made at the same time as the application for an order that the company be wound up in insolvency is made. [R 5.3 am SR 132 of 2003, r 3 and Sch 1 item 31, with effect from 19 Jun 2003]

5.4 Affidavit in support of application for winding up (Corporations Act s 459P, s 462, s 464) (1) The affidavit in support of an originating process seeking an order that a company be wound up must be made by the plaintiff or by a person with the authority of the plaintiff or plaintiffs. (2) If the application is made in reliance on a failure by the company to comply with a statutory demand, the affidavit must: (a) verify service of the demand on the company; and (b) verify the failure of the company to comply with the demand; and (c) state whether and, if so, to what extent the debt, or each of the debts, to which the demand relates is still due and payable by the company at the date when the affidavit is made. Note: An example of the affidavit in support of an application for winding up in insolvency for failure to comply with a statutory demand is shown in Schedule 3 (Notes to these Rules). [Subr (2) am SR 132 of 2003, r 3 and Sch 1 item 6, with effect from 19 Jun 2003]

(3) If the application is made in reliance on the ground mentioned in paragraph 461(1)(a) of the Corporations Act, the affidavit must: (a) state whether the company is able to pay all its debts as and when they become due and payable; and (b) refer to the company’s most recent balance sheet and profit and loss statement as an annexure or exhibit to the affidavit, or explain their absence. [Subr (3) am SR 132 of 2003, r 3 and Sch 1 item 30, with effect from 19 Jun 2003]

(4) The affidavit must be made within 7 days before the originating process is filed. [R 5.4 am SR 132 of 2003, r 3 and Sch 1 item 31, with effect from 19 Jun 2003]

5.5 Consent of liquidator (Corporations Act s 532(9)) — Form 8 (1) In this rule: liquidator does not include a provisional liquidator. (2) For the purposes of subsection 532(9) of the Corporations Act, the consent of an official liquidator to act as liquidator of a company must be in accordance with Form 8. [Subr (2) am SR 132 of 2003, r 3 and Sch 1 item 30, with effect from 19 Jun 2003]

(3) In an application for an order that a company be wound up, the plaintiff must: (a) before the hearing of the application, file the consent mentioned in subrule (2) of an official liquidator who would be entitled to be appointed as liquidator of the company; and (b) serve a copy of the consent on the company at least 1 day before the hearing. [R 5.5 am SR 132 of 2003, r 3 and Sch 1 item 31, with effect from 19 Jun 2003]

5.6 Notice of application for winding up — Form 9 (1) Unless the Court otherwise orders, the plaintiff must publish a notice of the application for an order that a company be wound up. (2) The notice must be: (a) in accordance with Form 9; and (b) published: (i) at least 3 days after the originating process is served on the company; and (ii) at least 7 days before the date fixed for hearing of the application. [Subr (2) am SLI 175 of 2012, r 3 and Sch 1 item 4, with effect from 1 Aug 2012] [R 5.6 am SLI 175 of 2012]

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Corporations – Court Rules and Related Legislation 2017

Division 6 – Provisional liquidators (Corporations Act Part 5.4B) r 6.1

A copy of any document filed in a proceeding to which this Division applies must be available at the plaintiff’s address for service for inspection by a creditor, contributory or officer of the company, or an officer of a creditor or contributory of the company. 5.8 Discontinuance of application for winding up An application for an order that a company be wound up may not be discontinued except with the leave of the Court. 5.9 Appearance before Registrar After filing an originating process seeking an order that a company be wound up, the plaintiff must, if required: (a) appear before the Registrar on a date to be appointed by the Registrar; and (b) satisfy the Registrar that the plaintiff has complied with the Corporations Act and these Rules in relation to applications for a winding up order. [R 5.9 am SR 132 of 2003, r 3 and Sch 1 item 30, with effect from 19 Jun 2003]

5.10 Order substituting plaintiff in application for winding up (Corporations Act s 465B) — Form 10 (1) If the Court makes an order under section 465B of the Corporations Act, the Court may also order that the substituted plaintiff or plaintiffs publish a notice stating that the substituted plaintiff or plaintiffs intend to apply for an order that the company be wound up. [Subr (1) am SR 132 of 2003, r 3 and Sch 1 item 30, with effect from 19 Jun 2003]

(2) The notice must be: (a) in accordance with Form 10; and (b) published: (i) at least 7 days before the date fixed for the hearing of the application; or (ii) as otherwise directed by the Court. [Subr (2) am SLI 175 of 2012, r 3 and Sch 1 item 5, with effect from 1 Aug 2012; SR 376 of 2003, r 3 and Sch 1 item 1, with effect from 23 Dec 2003] [R 5.10 am SLI 175 of 2012; SR 376 of 2003; SR 132 of 2003, r 3 and Sch 1 item 31, with effect from 19 Jun 2003]

5.11 Notice of winding up order and appointment of liquidator — Form 11 (1) This rule applies if the Court orders that a company be wound up and an official liquidator be appointed as liquidator of the company. (2) Not later than the day after the order is made, the plaintiff must inform the liquidator of the appointment. (3) As soon as practicable after being informed of the appointment, the liquidator must publish a notice of the winding up order and the liquidator’s appointment. (4) The notice must be in accordance with Form 11. [Subr (4) subst SLI 175 of 2012, r 3 and Sch 1 item 6, with effect from 1 Aug 2012]

(5) In this rule: liquidator does not include a provisional liquidator. [R 5.11 am SLI 175 of 2012]

DIVISION 6 – PROVISIONAL LIQUIDATORS (CORPORATIONS ACT PART 5.4B) [Div 6 heading subst SR 132 of 2003, r 3 and Sch 1 item 31, with effect from 19 Jun 2003]

6.1 Appointment of provisional liquidator (Corporations Act s 472) — Form 8 (1) An application for an official liquidator to be appointed, under subsection 472(2) of the Corporations Act, as a provisional liquidator of a company must be accompanied by the written consent of the official liquidator. [Subr (1) subst SLI 84 of 2005, r 3 and Sch 1 item 2, with effect from 26 May 2005; am SR 132 of 2003, r 3 and Sch 1 item 30, with effect from 19 Jun 2003] ©

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5.7 Applicant to make copies of documents available

r 6.1

Federal Court (Corporations) Rules 2000 (Cth)

(2) The consent must be in accordance with Form 8. (3) If: (a) an order is made appointing a provisional liquidator; and (b) the order provides that the provisional liquidator may take into the provisional liquidator’s custody part only of the property of the company; the order must include a short description of the part of the property of the company that the provisional liquidator may take into custody. [Subr (3) subst SR 333 of 2000, r 3 and Sch 1 item 6, with effect from 1 Jan 2001]

(4) The Court may require the plaintiff to give an undertaking as to damages. [R 6.1 am SLI 84 of 2005; SR 132 of 2003, r 3 and Sch 1 item 31, with effect from 19 Jun 2003; SR 333 of 2000]

6.2 Notice of appointment of provisional liquidator — Form 12 (1) This rule applies if the Court orders that an official liquidator be appointed as a provisional liquidator of a company. (2) Not later than the day after the order is made, the plaintiff must: (a) except if the plaintiff is ASIC — lodge an office copy of the order with ASIC; and (b) serve an office copy of the order on the company (except if the plaintiff is the company) and on any other person as directed by the Court; and (c) give to the provisional liquidator an office copy of the order and a written statement that the order has been served as required by paragraph (b). [Subr (2) am SLI 61 of 2008, r 3 and Sch 1 item 38, with effect from 15 Apr 2008]

(3) As soon as practicable after the order is made, the provisional liquidator must publish a notice of the provisional liquidator’s appointment. (4) The notice must be in accordance with Form 12. [Subr (4) subst SLI 175 of 2012, r 3 and Sch 1 item 7, with effect from 1 Aug 2012] [R 6.2 am SLI 175 of 2012; SLI 61 of 2008]

DIVISION 7 – LIQUIDATORS 7.1 Resignation of liquidator (Corporations Act s 473(1)) (1) A liquidator appointed by the Court who wishes to resign office must file with the Registrar, and lodge with ASIC, a memorandum of resignation. [Subr (1) am SLI 61 of 2008, r 3 and Sch 1 item 38, with effect from 15 Apr 2008]

(2) The resignation takes effect on the filing and lodging of the memorandum. [R 7.1 am SLI 61 of 2008; SR 132 of 2003, r 3 and Sch 1 item 31, with effect from 19 Jun 2003]

7.2 Filling vacancy in office of liquidator (Corporations Act s 473(7), s 502) (1) If, for any reason, there is no liquidator acting in a winding up, the Court may: (a) in the case of a winding up by the Court — appoint another official liquidator whose written consent in accordance with Form 8 has been filed; and (b) in the case of a voluntary winding up — appoint another registered liquidator whose written consent in accordance with Form 8 has been filed. (2) The Court may make the appointment: (a) in any case — on application by ASIC, a creditor or a contributory; or (b) in the case of a winding up by the Court — on its own initiative. [Subr (2) am SLI 61 of 2008, r 3 and Sch 1 item 38, with effect from 15 Apr 2008] [R 7.2 am SLI 61 of 2008; SR 132 of 2003, r 3 and Sch 1 item 31, with effect from 19 Jun 2003]

7.3 Report to liquidator as to company’s affairs (Corporations Act s 475) (1) If a person is required under section 475 of the Corporations Act to submit and verify a report as to the affairs of a company, the liquidator must give to the person the appropriate forms and instructions for the preparation of the report. [Subr (1) am SR 132 of 2003, r 3 and Sch 1 item 30, with effect from 19 Jun 2003] 20

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Division 7 – Liquidators (2) Except by order of the Court, no person is to be allowed out of the property of a company any costs or expenses incurred in relation to the preparation of the report that have not been: (a) sanctioned by the liquidator before being incurred; or (b) taxed or assessed. (3) The liquidator must report to the Court any default in complying with the requirements of section 475 of the Corporations Act. [Subr (3) am SR 132 of 2003, r 3 and Sch 1 item 30, with effect from 19 Jun 2003]

(4) In this rule: liquidator includes a provisional liquidator. [R 7.3 am SR 132 of 2003, r 3 and Sch 1 item 31, with effect from 19 Jun 2003]

7.4 Liquidator to file certificate and copy of settled list of contributories (Corporations Act s 478) If, in a winding up by the Court, a liquidator has settled and certified a list, or supplementary list, of contributories, the liquidator must, within 14 days after doing so, file the certificate and a copy of the list. [R 7.4 am SR 132 of 2003, r 3 and Sch 1 item 31, with effect from 19 Jun 2003]

7.5 Release of liquidator and deregistration of company (Corporations Act s 480(c) and (d)) (1) This rule applies to an application by the liquidator of a company: (a) for an order that the liquidator be released; or (b) for an order that the liquidator be released and that ASIC deregister the company. [Subr (1) am SLI 61 of 2008, r 3 and Sch 1 item 38, with effect from 15 Apr 2008]

(2) The interlocutory process seeking the order must include: (a) a notice stating that any objection to the release of the liquidator must be made by filing and serving a notice of objection, in the prescribed form, within 21 days after the date of service of the interlocutory process; and (b) a statement setting out the terms of subsection 481(3) of the Corporations Act. Note: Subsection 481(3) of the Corporations Act provides that an order of the Court releasing a liquidator discharges the liquidator from all liability in respect of any act done or default made by the liquidator in the administration of the affairs of the company, or otherwise in relation to the liquidator’s conduct as liquidator, but any such order may be revoked on proof that it was obtained by fraud or by suppression or by concealment of any material fact. [Subr (2) am SR 132 of 2003, r 3 and Sch 1 item 30, with effect from 19 Jun 2003]

(3) The supporting affidavit must include details of the following matters: (a) whether the whole of the company’s property has been realised or whether so much of the company’s property has been realised as, in the liquidator’s opinion, can be realised without needlessly protracting the winding up; (b) any calls made on contributories in the course of the winding up; (c) any dividends paid in the course of the winding up; (d) whether the committee of inspection (if any) has passed a resolution approving the liquidator’s release; (e) whether ASIC has appointed an auditor to report on an account or statement of the position in the winding up under subsection 539(2) of the Corporations Act; (f) whether the Court has ordered a report on the accounts of the liquidator to be prepared; (g) whether any objection to the release of the liquidator has been received by the liquidator from: (i) an auditor appointed by ASIC or by the Court; or (ii) any creditor, contributory or other interested person; (h) whether any report has been submitted by the liquidator to ASIC under section 533 of the Corporations Act; (i) whether the liquidator considers it necessary to report on the affairs of the company or any of its officers; (j) any property disclaimed in the course of the winding up; (k) any remuneration paid or payable to the liquidator and how such remuneration was determined; ©

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r 7.5

Federal Court (Corporations) Rules 2000 (Cth)

(l) any costs, charges or expenses payable by the liquidator if the Court grants the liquidator’s release; (m) if the application is made under paragraph 480(c) of the Corporations Act — the facts and circumstances by reason of which it is submitted that the company should not be deregistered. [Subr (3) am SLI 61 of 2008, r 3 and Sch 1 item 38, with effect from 15 Apr 2008; SR 132 of 2003, r 3 and Sch 1 item 30, with effect from 19 Jun 2003]

(4) The liquidator must include in the supporting affidavit the statements set out in paragraphs (a) and (b) of this subrule, including, if appropriate, the words in brackets: (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 [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 [except as disclosed in this affidavit]’. (5) The liquidator must file with, or annex to, the supporting affidavit: (a) a statement of the financial position of the company at the date when the interlocutory process seeking release was filed; and (b) a summary of the liquidator’s receipts and payments in winding up the company. (6) Unless the Court otherwise orders, the liquidator must serve by prepaid post, on each creditor who has proved a debt in the course of the winding up, and on each contributory, a copy of the interlocutory process accompanied by: (a) a copy of the summary of the liquidator’s receipts and payments in winding up the company; and (b) a copy of the statement of the financial position of the company at the date when the interlocutory process seeking release was filed. [R 7.5 am SLI 61 of 2008; SR 132 of 2003, r 3 and Sch 1 item 31, with effect from 19 Jun 2003]

7.6 Objection to release of liquidator — Form 13 (1) A creditor or contributory of a company who wishes to object to the release of the liquidator of the company must, within 21 days after the date of service of the interlocutory process seeking release: (a) file: (i) a notice of objection in accordance with Form 13; and (ii) if appropriate, an affidavit stating any facts relied on; and (b) serve a copy of the notice and the affidavit (if any) on the liquidator. (2) If the liquidator is served with a notice of objection by a creditor or contributory, the liquidator must, within 3 days after being served, serve on the creditor or contributory a copy of the affidavit supporting the interlocutory process. 7.7 Report on accounts of liquidator (Corporations Act s 481) (1) If the Court orders that a report on the accounts of a liquidator be prepared under subsection 481(1) of the Corporations Act, the liquidator must give to the auditor appointed to prepare the report all information, books and vouchers required to prepare the report. [Subr (1) am SR 132 of 2003, r 3 and Sch 1 item 30, with effect from 19 Jun 2003]

(2) On completing the report, the auditor must: (a) file a copy of the report in a sealed envelope that is marked with the title and number of the proceeding and the words ‘Auditor’s report under subsection 481(1) of the Corporations Act 2001’; and (b) serve a copy of the report on the liquidator; and (c) lodge a copy of the report with ASIC. [Subr (2) am SLI 61 of 2008, r 3 and Sch 1 item 38, with effect from 15 Apr 2008; SR 132 of 2003, r 3 and Sch 1 item 30, with effect from 19 Jun 2003]

(3) Except with the leave of the Court, a report is not available for inspection by any person except the liquidator or ASIC. [Subr (3) am SLI 61 of 2008, r 3 and Sch 1 item 38, with effect from 15 Apr 2008] [R 7.7 am SLI 61 of 2008; SR 132 of 2003, r 3 and Sch 1 item 31, with effect from 19 Jun 2003] 22

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Division 7 – Liquidators r 7.11

The affidavit in support of an application by the liquidator of a company, under paragraph 483(3)(b) of the Corporations Act for an order for the payment of a call must be in accordance with Form 14. [R 7.8 am SR 132 of 2003, r 3 and Sch 1 items 30 and 31, with effect from 19 Jun 2003]

7.9 Distribution of surplus by liquidator with special leave of the Court (Corporations Act s 488(2)) — Form 15 (1) The affidavit in support of an application for special leave to distribute a surplus must state how the liquidator intends to distribute the surplus including the name and address of each person to whom the liquidator intends to distribute any part of the surplus. (2) At least 14 days before the date fixed for hearing of the application, the liquidator must publish a notice of the application. (3) The notice must be in accordance with Form 15. [Subr (3) subst SLI 175 of 2012, r 3 and Sch 1 item 8, with effect from 1 Aug 2012] [R 7.9 am SLI 175 of 2012; SR 132 of 2003, r 3 and Sch 1 item 31, with effect from 19 Jun 2003]

7.10 Powers delegated to liquidator by the Court (Corporations Act s 488) Subject to the Corporations Act, the Corporations Regulations, these Rules, and any order of the Court, the powers and duties conferred or imposed on the Court by Part 5.4B of the Corporations Act in respect of the matters mentioned in subsection 488(1) of the Act may be exercised or performed by a liquidator appointed by the Court as an officer of the Court and subject to the control of the Court. [R 7.10 am SLI 81 of 2007, r 3 and Sch 1 item 4, with effect from 3 Apr 2007; SR 132 of 2003, r 3 and Sch 1 items 30 and 31, with effect from 19 Jun 2003]

7.11 Inquiry into conduct of liquidator (Corporations Act s 536(1) and (2)) (1) A complaint to the Court under paragraph 536(1)(b) of the Corporations Act must be made: (a) in the case of a winding up by the Court — by an interlocutory process seeking an inquiry; and (b) in the case of a voluntary winding up — by an originating process seeking an inquiry. [Subr (1) am SR 132 of 2003, r 3 and Sch 1 item 30, with effect from 19 Jun 2003]

(2) A report to the Court by ASIC under subsection 536(2) of the Corporations Act must be made: (a) in the case of a winding up by the Court — by filing: (i) an interlocutory process seeking orders under the subsection; and (ii) a written report in a sealed envelope that is marked with the title and number of the proceeding; and (b) in the case of a voluntary winding up — by filing: (i) an originating process seeking orders under the subsection; and (ii) a written report in a sealed envelope that is marked with the title of the proceeding and provision for its number. [Subr (2) am SLI 61 of 2008, r 3 and Sch 1 item 38, with effect from 15 Apr 2008; SR 132 of 2003, r 3 and Sch 1 item 30, with effect from 19 Jun 2003]

(3) The contents of a report filed under subrule (2) need not, at the time of filing, be verified by an affidavit. (4) Except with the leave of the Court, a report made under subsection 536(2) of the Corporations Act is not available for inspection by any person except the liquidator or ASIC. [Subr (4) am SLI 61 of 2008, r 3 and Sch 1 item 38, with effect from 15 Apr 2008; SR 132 of 2003, r 3 and Sch 1 item 30, with effect from 19 Jun 2003]

(5) In this rule: liquidator includes a provisional liquidator. [R 7.11 am SLI 61 of 2008; SR 132 of 2003, r 3 and Sch 1 item 31, with effect from 19 Jun 2003; SR 333 of 2000, r 3 and Sch 1 item 7, with effect from 1 Jan 2001]

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7.8 Application for payment of call (Corporations Act s 483(3)(b)) — Form 14

r 8.1

Federal Court (Corporations) Rules 2000 (Cth)

DIVISION 8 – SPECIAL MANAGERS (CORPORATIONS ACT PART 5.4B) [Div 8 heading subst SR 132 of 2003, r 3 and Sch 1 item 31, with effect from 19 Jun 2003]

8.1 Application for appointment of special manager (Corporations Act s 484) (1) An application by a liquidator for the appointment of a special manager in relation to a company must state the powers which, in the liquidator’s opinion, should be entrusted by the Court to the special manager. (2) The supporting affidavit must state: (a) the circumstances making it proper that a special manager be appointed; and (b) details of the remuneration proposed to be paid to the special manager; and (c) whether any committee of inspection in the winding up, or a meeting of creditors, has approved the appointment of a special manager. [R 8.1 am SR 132 of 2003, r 3 and Sch 1 item 31, with effect from 19 Jun 2003]

8.2 Security given by special manager (Corporations Act s 484) (1) The Court may, from time to time, direct that the amount of security given by a special manager be varied. (2) Unless the Court otherwise directs, the costs of furnishing the security given by a special manager in respect of a particular winding up: (a) are the personal expenses of the special manager; and (b) must not be charged against the property of the company as an expense incurred in the winding up. [R 8.2 am SR 132 of 2003, r 3 and Sch 1 item 31, with effect from 19 Jun 2003]

8.3 Special manager’s receipts and payments (Corporations Act s 484) (1) A special manager must give to the liquidator: (a) an account of the special manager’s receipts and payments; and (b) a statutory declaration verifying the account. (2) If the liquidator approves the account, the liquidator must include the total amounts of the special manager’s receipts and payments in the liquidator’s accounts. [R 8.3 am SR 132 of 2003, r 3 and Sch 1 item 31, with effect from 19 Jun 2003]

DIVISION 9 – REMUNERATION OF OFFICE-HOLDERS 9.1 Remuneration of receiver (Corporations Act s 425(1)) — Form 16 (1) This rule applies to an application by a receiver of property of a corporation for an order under subsection 425(1) of the Corporations Act fixing the receiver’s remuneration. Note 1: Under paragraph 425(2)(b) of the Corporations Act, the Court may exercise its power to make an order fixing the remuneration of a receiver appointed under an instrument even if the receiver has died, or has ceased to act, before the making of the order or the application for the order. Note 2: The amendment to section 425 of the Corporations Act made by the Corporations Amendment (Insolvency) Act 2007 applies in relation to a receiver appointed on or after 31 December 2007 — see Corporations Act s 1480(5). [Subr (1) am SLI 61 of 2008, r 3 and Sch 1 item 5, with effect from 15 Apr 2008; SR 132 of 2003, r 3 and Sch 1 item 30, with effect from 19 Jun 2003; SR 333 of 2000, r 3 and Sch 1 item 8, with effect from 1 Jan 2001]

(2) At least 21 days before filing an originating process, or interlocutory process, seeking the order, the receiver must serve a notice in accordance with Form 16 of the receiver’s intention to apply for the order, and a copy of any affidavit on which the receiver intends to rely, on the following persons: (a) the person who appointed the receiver; (b) any creditor holding security over all or any of the same property of the corporation (except if the creditor is the person who appointed the receiver); (c) any administrator, liquidator or provisional liquidator of the corporation; (d) any administrator of a deed of company arrangement executed by the corporation; (e) if there is no person of the kind mentioned in paragraph (c) or (d): (i) each of the 5 largest (measured by amount of debt) unsecured creditors of the corporation; and 24

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Division 9 – Remuneration of office-holders r 9.2 each member of the corporation whose shareholding represents at least 10 per cent of the issued capital of the corporation.

(3) Within 21 days after the last service of the documents mentioned in subrule (2), any creditor or contributory, or any person mentioned in paragraph (2)(c), (d) or (e), may give to the receiver a notice of objection to the remuneration claimed, stating the grounds of objection. (4) If the receiver does not receive a notice of objection within the period mentioned in subrule (3): (a) the receiver may file an affidavit, made after the end of that period, in support of the originating process, or interlocutory process, seeking the order stating: (i) the date, or dates, when the notice and affidavit required to be served under subrule (2) were served; and (ii) that the receiver has not received any notice of objection to the remuneration claimed within the period mentioned in subrule (3); and (b) the receiver may endorse the originating process, or interlocutory process, with a request that the application be dealt with in the absence of the public and without any attendance by, or on behalf of, the receiver; and (c) the application may be so dealt with. (5) If the receiver receives a notice of objection within the period mentioned in subrule (3), the receiver must serve a copy of the originating process, or interlocutory process, seeking the order on each creditor or contributory, or other person, who has given a notice of objection. (6) An (a) (b) (c) (d) (e) (f)

affidavit in support of the originating process, or interlocutory process, seeking the order must: include evidence of the matters mentioned in subsection 425(8) of the Corporations Act; and state the nature of the work performed or likely to be performed by the receiver; and state the amount of remuneration claimed; and include a summary of the receipts taken and payments made by the receiver; and state particulars of any objection of which the receiver has received notice; and if the receivership is continuing — give details of any matters delaying the completion of the receivership.

[Subr (6) subst SLI 61 of 2008, r 3 and Sch 1 item 6, with effect from 15 Apr 2008; am SR 333 of 2000, r 3 and Sch 1 item 9, with effect from 1 Jan 2001] [R 9.1 am SLI 61 of 2008; SR 132 of 2003, r 3 and Sch 1 item 31, with effect from 19 Jun 2003; SR 333 of 2000, r 3 and Sch 1 item 31, with effect from 1 Jan 2001]

9.2 Determination by Court of remuneration of administrator (Corporations Act s 449E(1)(c) and (1A)(c)) — Form 16 (1) This rule applies to an application by the administrator of a company under administration, or of a deed of company arrangement, for an order under paragraph 449E(1)(c) or (1A)(c) of the Corporations Act determining the administrator’s remuneration. (2) At least 21 days before filing an originating process, or interlocutory process, seeking the order, the administrator must serve a notice in accordance with Form 16 of the administrator’s intention to apply for the order, and a copy of any affidavit on which the administrator intends to rely, on the following persons: (a) each creditor who was present, in person or by proxy at any meeting of creditors; (b) each member of any committee of creditors or committee of inspection; (c) if there is no committee of creditors or committee of inspection, and no meeting of creditors has been convened and held, each of the 5 largest (measured by amount of debt) creditors of the company; (d) each member of the company whose shareholding represents at least 10% of the issued capital of the company. (3) Within 21 days after the last service of the documents mentioned in subrule (2), any creditor or contributory may give to the administrator a notice of objection to the remuneration claimed, stating the grounds of objection. (4) If the administrator does not receive a notice of objection within the period mentioned in subrule (3): ©

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Federal Court (Corporations) Rules 2000 (Cth) (a) the administrator may file an affidavit, made after the end of that period, in support of the originating process, or interlocutory process, seeking the order stating: (i) the date, or dates, when the notice and affidavit required to be served under subrule (2) were served; and (ii) that the administrator has not received any notice of objection to the remuneration claimed within the period mentioned in subrule (3); and (b) the administrator may endorse the originating process, or interlocutory process, with a request that the application be dealt with in the absence of the public and without any attendance by, or on behalf of, the administrator; and (c) the application may be so dealt with.

(5) If the administrator receives a notice of objection within the period mentioned in subrule (3), the administrator must serve a copy of the originating process, or interlocutory process, seeking the order on each creditor or contributory who has given a notice of objection. (6) An (a) (b) (c) (d) (e) (f)

affidavit in support of the originating process, or interlocutory process, seeking the order must: include evidence of the matters mentioned in subsection 449E(4) of the Corporations Act; and state the nature of the work performed or likely to be performed by the administrator; and state the amount of remuneration claimed; and include a summary of the receipts taken and payments made by the administrator; and state particulars of any objection of which the administrator has received notice; and if the administration is continuing — give details of any matters delaying the completion of the administration.

[R 9.2 subst SLI 61 of 2008, r 3 and Sch 1 item 7, with effect from 15 Apr 2008; am SR 132 of 2003; SR 333 of 2000]

9.2A Review of remuneration of administrator (Corporations Act s 449E(2)) (1) This rule applies to an application for review of the amount of the remuneration of an administrator under subsection 449E(2) of the Corporations Act. Note: The amendment to section 449E of the Corporations Act made by the Corporations Amendment (Insolvency) Act 2007 applies in relation to an administrator appointed on or after 31 December 2007 — see Corporations Act s 1480(6).

(2) The application may be made only after the remuneration has been determined under paragraph 449E(1)(a) or (b) or (1A)(a) or (b) of the Corporations Act. (3) At least 21 days before filing the originating process, or the interlocutory process, applying for a review, the plaintiff or applicant must serve a notice, in accordance with Form 16A, of intention to apply for the review and a copy of any affidavit on which the plaintiff or applicant intends to rely (other than an affidavit required by subrule (9)), on the following persons: (a) if there is a committee of creditors or a committee of inspection — each member of the committee; (b) if the remuneration of the administrator was determined by the creditors — each creditor who was present, in person or by proxy, at the meeting of creditors at which the remuneration was determined; (c) each member of the company whose shareholding represents at least 10% of the issued capital of the company. (4) Within 21 days after the last service of the documents mentioned in subrule (3), any person on whom the notice has been served may serve on the plaintiff or applicant a notice: (a) stating the person’s intention to appear at the hearing of the application for review; and (b) setting out the issues that the person seeks to raise before the Court. (5) A person mentioned in subrule (3) is entitled to be heard on the application for review, but only (unless the Court otherwise orders) if the person has served on the plaintiff or applicant a notice in accordance with subrule (4). (6) If the plaintiff or applicant is served with a notice in accordance with subrule (4), the plaintiff or applicant must serve a copy of the originating process or interlocutory process applying for the review on each person who has served such a notice. (7) The administrator must file an affidavit stating the following matters: 26

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Division 9 – Remuneration of office-holders (a) the matters mentioned in subsection 449E(4) of the Corporations Act; (b) the nature of the work performed or likely to be performed by the administrator; (c) the amount of remuneration claimed by the administrator if that amount is different from the amount of remuneration that has been determined; (d) a summary of the receipts taken and payments made by the administrator; (e) particulars of any objection to the remuneration as determined, of which the administrator has received notice; (f) if the administration is continuing — details of any matters delaying the completion of the administration. (8) The affidavit mentioned in subrule (7) must annex a copy of the report that the administrator was required to prepare before remuneration was determined. (9) The plaintiff or applicant must: (a) file an affidavit stating whether any notice or notices under subrule (4) has or have been served; and (b) annex or exhibit to the affidavit a copy of any such notice. [R 9.2A insrt SLI 61 of 2008, r 3 and Sch 1 item 7, with effect from 15 Apr 2008]

9.3 Remuneration of provisional liquidator (Corporations Act s 473(2)) — Form 16 (1) This rule applies to an application by a provisional liquidator of a company for an order under subsection 473(2) of the Corporations Act determining the provisional liquidator’s remuneration. [Subr (1) am SR 132 of 2003, r 3 and Sch 1 item 30, with effect from 19 Jun 2003]

(2) The application must be made by interlocutory process in the winding up proceeding. (3) At least 21 days before filing the interlocutory process seeking the order, the provisional liquidator must serve a notice in accordance with Form 16 of the provisional liquidator’s intention to apply for the order, and a copy of any affidavit on which the provisional liquidator intends to rely, on the following persons: (a) any liquidator (except the provisional liquidator) of the company; (b) each member of any committee of inspection or, if there is no committee of inspection, each of the 5 largest (measured by amount of debt) creditors of the company; (c) each member of the company whose shareholding represents at least 10 per cent of the issued capital of the company. [Subr (3) am SLI 61 of 2008, r 3 and Sch 1 item 8, with effect from 15 Apr 2008; SR 333 of 2000, r 3 and Sch 1 items 13 and 14, with effect from 1 Jan 2001]

(4) Within 21 days after the last service of the documents mentioned in subrule (3), the liquidator, or any creditor or contributory, may give to the provisional liquidator a notice of objection to the remuneration claimed, stating the grounds of objection. (5) If the provisional liquidator does not receive a notice of objection within the period mentioned in subrule (4): (a) the provisional 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 provisional liquidator has not received any notice of objection to the remuneration claimed within the period mentioned in subrule (4); and (b) the provisional liquidator may endorse the interlocutory process with a request that the application be dealt with in the absence of the public and without any attendance by, or on behalf of, the provisional liquidator; and (c) the application may be so dealt with. (6) If the provisional liquidator receives a notice of objection within the period mentioned in subrule (4), the provisional liquidator must serve a copy of the interlocutory process seeking the order: (a) on each creditor or contributory who has given a notice of objection; and (b) on the liquidator (if any). ©

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r 9.3

r 9.3 (7) An (a) (b) (c) (d) (e)

Federal Court (Corporations) Rules 2000 (Cth) affidavit in support of the interlocutory process seeking the order must: state the nature of the work performed or likely to be performed by the provisional liquidator; and state the amount of remuneration claimed; and include a summary of the receipts taken and payments made by the provisional liquidator; and state particulars of any objection of which the provisional liquidator has received notice; and if the winding up proceeding has not been determined — give details of: (i) any reasons known to the provisional liquidator why the winding up proceeding has not been determined; and (ii) any reasons why the provisional liquidator’s remuneration should be determined before the determination of the winding up proceeding.

[Subr (7) am SLI 61 of 2008, r 3 and Sch 1 items 9 and 10, with effect from 15 Apr 2008; SR 333 of 2000, r 3 and Sch 1 item 15, with effect from 1 Jan 2001]

(8) The affidavit must also provide evidence of the matters mentioned in subsection 473(10) of the Corporations Act: (a) to the extent that they may be relevant to a provisional liquidator; and (b) as if references in that subsection to ‘liquidator’ were references to ‘provisional liquidator’. [Subr (8) insrt SLI 61 of 2008, r 3 and Sch 1 item 11, with effect from 15 Apr 2008] [R 9.3 am SLI 61 of 2008; SR 132 of 2003, r 3 and Sch 1 item 31, with effect from 19 Jun 2003; SR 333 of 2000]

9.4 Determination by Court of liquidator’s remuneration (Corporations Act s 473(3)(b)(ii)) (1) This rule applies to an application by a liquidator of a company for an order under subparagraph 473(3)(b)(ii) of the Corporations Act determining the liquidator’s remuneration. Note: The amendment to section 473 of the Corporations Act made by the Corporations Amendment (Insolvency) Act 2007 applies in relation to a liquidator appointed on or after 31 December 2007 — see Corporations Act s 1480(7). [Subr (1) am SLI 61 of 2008, r 3 and Sch 1 items 13 and 14, with effect from 15 Apr 2008; SR 132 of 2003, r 3 and Sch 1 item 30, with effect from 19 Jun 2003]

(2) The application: (a) must be made by interlocutory process in the winding up proceeding; and (b) must not be made until after the date of the meeting of creditors mentioned in subsection 473(4) of the Corporations Act. [Subr (2) am SR 132 of 2003, r 3 and Sch 1 item 30, with effect from 19 Jun 2003; SR 333 of 2000, r 3 and Sch 1 item 16, with effect from 1 Jan 2001]

(3) At least 21 days before filing the interlocutory process seeking the order, the liquidator must serve a notice in accordance with Form 16 of the liquidator’s intention to apply for the order, and a copy of any affidavit on which the liquidator intends to rely, on the following persons: (a) each creditor who was present, in person or by proxy, at any meeting of creditors at which the remuneration of the liquidator was considered; (b) each member of any committee of inspection; (c) if there is no committee of inspection, and no meeting of creditors has been convened and held — each of the 5 largest (measured by amount of debt) creditors of the company; (d) each member of the company whose shareholding represents at least 10% of the issued capital of the company. [Subr (3) am SLI 61 of 2008, r 3 and Sch 1 items 15–17, with effect from 15 Apr 2008; SR 333 of 2000, r 3 and Sch 1 item 17, with effect from 1 Jan 2001]

(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 28

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Division 9 – Remuneration of office-holders r 9.4A that the liquidator has not received any notice of objection to the remuneration claimed within the period mentioned in subrule (4); and (b) the liquidator may endorse the interlocutory process with a request that the application be dealt with in the absence of the public and without any attendance by, or on behalf of, the liquidator; and (c) the application may be so dealt with. (6) If the liquidator receives a notice of objection within the period mentioned in subrule (4), the liquidator must serve a copy of the interlocutory process seeking the order on each creditor or contributory who has given a notice of objection. (7) An (a) (b) (c) (d) (e) (f)

affidavit in support of the interlocutory process seeking the order must: include evidence of the matters mentioned in subsection 473(10) of the Corporations Act; and state the nature of the work performed or likely to be performed by the liquidator; and state the amount of remuneration claimed; and include a summary of the receipts taken and payments made by the liquidator; and state particulars of any objection of which the liquidator has received notice; and if the winding up is continuing — give details of any matters delaying the completion of the winding up.

[Subr (7) subst SLI 61 of 2008, r 3 and Sch 1 item 18, with effect from 15 Apr 2008; am SR 333 of 2000, r 3 and Sch 1 item 18, with effect from 1 Jan 2001] [R 9.4 am SLI 61 of 2008, r 3 and Sch 1 item 12, with effect from 15 Apr 2008; SR 132 of 2003, r 3 and Sch 1 item 31, with effect from 19 Jun 2003; SR 333 of 2000]

9.4A Review of remuneration of liquidator (Corporations Act s 473(5) and (6) and 504(1)) (1) This rule applies to an application for review of the amount of the remuneration of a liquidator under subsection 473(5) or (6) or 504(1) of the Corporations Act. Note: The amendment to section 504 of the Corporations Act made by the Corporations Amendment (Insolvency) Act 2007 applies in relation to a liquidator appointed on or after 31 December 2007 — see Corporations Act s 1480(7).

(2) The application may be made only after remuneration has been determined under paragraph 473(3)(a) or subparagraph 473(3)(b)(i), or fixed under subsection 495(1) or 499(3), of the Corporations Act. (3) At least 21 days before filing the originating process or interlocutory process applying for a review, the plaintiff or applicant must serve a notice, in accordance with Form 16A, of intention to apply for the review and a copy of any affidavit on which the plaintiff or applicant intends to rely (other than an affidavit required by subrule (9)), on the following persons: (a) if there is a committee of inspection — each member of the committee; (b) if the remuneration of the liquidator was determined or fixed by the creditors — each creditor who was present, in person or by proxy, at the meeting of creditors at which the remuneration was determined or fixed; (c) each member of the company whose shareholding represents at least 10% of the issued capital of the company. (4) Within 21 days after the last service of the documents mentioned in subrule (3), any person on whom the notice has been served may serve on the plaintiff or applicant a notice: (a) stating the person’s intention to appear at the hearing of the application for review; and (b) setting out the issues that the person seeks to raise before the Court. (5) A person mentioned subrule (3) is entitled to be heard on the application for review, but only (unless the Court otherwise orders) if the person has served on the plaintiff or applicant a notice in accordance with subrule (4). (6) If the plaintiff or applicant is served with a notice in accordance with subrule (4), the plaintiff or applicant must serve a copy of the originating process or interlocutory process applying for the review on each person who has served such a notice. (7) The liquidator must file an affidavit stating the following matters: (a) for an application under subsection 473(5) or (6) of the Corporations Act — the matters mentioned in subsection 473(10) of the Corporations Act; ©

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(ii)

r 9.4A (b) (c) (d) (e) (f) (g)

Federal Court (Corporations) Rules 2000 (Cth) for an application under subsection 504(1) of the Corporations Act — the matters mentioned in subsection 504(2) of the Corporations Act; the nature of the work performed or likely to be performed by the liquidator; the amount of remuneration claimed by the liquidator if that amount is different from the amount of remuneration that has been determined or fixed; a summary of the receipts taken and payments made by the liquidator; particulars of any objection to the remuneration as determined or fixed of which the liquidator has received notice; if the winding up is continuing — details of any matters delaying the completion of the winding up.

(8) The affidavit under subrule (7) must annex a copy of the report that the liquidator was required to prepare before remuneration was determined or fixed. Note: For the requirement to prepare a report, see subsections 473(11) and (12), 495(5), and 499(6) and (7) of the Corporations Act.

(9) The plaintiff or applicant must: (a) file an affidavit stating whether any notice or notices under subrule (4) has or have been served; and (b) annex or exhibit to the affidavit a copy of any such notice. [R 9.4A insrt SLI 61 of 2008, r 3 and Sch 1 item 19, with effect from 15 Apr 2008]

9.5 Remuneration of special manager (Corporations Act s 484(2)) — Form 16 (1) This rule applies to an application by a special manager of the property or business of a company for an order under subsection 484(2) of the Corporations Act fixing the special manager’s remuneration. [Subr (1) am SR 132 of 2003, r 3 and Sch 1 item 30, with effect from 19 Jun 2003]

(2) The application must be made by interlocutory process in the winding up proceeding. (3) At least 21 days before filing the interlocutory process seeking the order, the special manager must serve a notice in accordance with Form 16 of the special manager’s intention to apply for the order, and a copy of any affidavit on which the special manager intends to rely, on the following persons: (a) the liquidator of the company; (b) each member of any committee of creditors or committee of inspection or, if there is no committee of creditors or committee of inspection, each of the 5 largest (measured by amount of debt) creditors of the company; (c) each member of the company whose shareholding represents at least 10 per cent of the issued capital of the company. [Subr (3) am SLI 61 of 2008, r 3 and Sch 1 item 20, with effect from 15 Apr 2008; SR 333 of 2000, r 3 and Sch 1 items 19 and 20, with effect from 1 Jan 2001]

(4) Within 21 days after the last service of the documents mentioned in subrule (3), the liquidator, or any creditor or contributory, may give to the special manager a notice of objection to the remuneration claimed, stating the grounds of objection. (5) If the special manager does not receive a notice of objection within the period mentioned in subrule (4): (a) the special manager 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 special manager has not received any notice of objection to the remuneration claimed within the period mentioned in subrule (4); and (b) the special manager may endorse the interlocutory process with a request that the application be dealt with in the absence of the public and without any attendance by, or on behalf of, the special manager; and (c) the application may be so dealt with. 30

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Division 11 – Examinations and orders (Corporations Act Part 5.9, Divisions 1 and 2) (6) If the special manager receives a notice of objection within the period mentioned in subrule (4), the special manager must serve a copy of the interlocutory process seeking the order: (a) on each creditor or contributory who has given a notice of objection; and (b) on the liquidator. (7) The affidavit in support of the interlocutory process seeking the order must: (a) state the nature of the work performed or likely to be performed by the special manager; and (b) state the amount of remuneration claimed; and (c) include a summary of the receipts taken and payments made by the special manager; and (d) state particulars of any objection of which the special manager has received notice; and (e) if the special management is continuing — give details of any matters delaying the completion of the special management. [Subr (7) am SLI 61 of 2008, r 3 and Sch 1 items 21 and 22, with effect from 15 Apr 2008; SR 333 of 2000, r 3 and Sch 1 item 21, with effect from 1 Jan 2001] [R 9.5 am SLI 61 of 2008; SR 132 of 2003, r 3 and Sch 1 item 31, with effect from 19 Jun 2003; SR 333 of 2000]

DIVISION 10 – WINDING UP GENERALLY 10.1 Determination of value of debts or claims (Corporations Act s 554A(2)) A reference to the Court by a liquidator of a company under paragraph 554A(2)(b) of the Corporations Act must be made: (a) in the case of a winding up by the Court — by filing an interlocutory process seeking an order estimating, or determining a method for working out, the value of the debt or claim; and (b) in the case of a voluntary winding up — by filing an originating process seeking an order estimating, or determining a method for working out, the value of the debt or claim. [R 10.1 am SR 132 of 2003, r 3 and Sch 1 items 30 and 31, with effect from 19 Jun 2003]

10.2 Disclaimer of contract (Corporations Act s 568(1A)) (1) The affidavit in support of an application by a liquidator, under subsection 568(1A) of the Corporations Act, for leave to disclaim a contract in relation to a company must: (a) specify the persons interested, and their interests, under the contract; and (b) state the facts on which it is submitted that the contract should be disclaimed. (2) The liquidator must serve the affidavit on each party to the contract (except the company) and on any person interested in the contract. [R 10.2 am SR 132 of 2003, r 3 and Sch 1 items 30 and 31, with effect from 19 Jun 2003]

10.3 Winding up Part 5.7 bodies (Corporations Act s 583, s 585) and registered schemes (Corporations Act s 601ND) These Rules apply, with any necessary adaptations, and in the same way as they apply to a company, in relation to the winding up of a Part 5.7 body or a registered scheme. [R 10.3 am SR 132 of 2003, r 3 and Sch 1 item 31, with effect from 19 Jun 2003]

DIVISION 11 – EXAMINATIONS AND ORDERS (CORPORATIONS ACT PART 5.9, DIVISIONS 1 AND 2) [Div 11 heading subst SR 132 of 2003, r 3 and Sch 1 item 31, with effect from 19 Jun 2003]

11.1 Definition for Division 11 In this Division: examination summons means a summons under section 596A or 596B of the Corporations Act for the examination of a person about a corporation’s examinable affairs. [R 11.1 am SR 132 of 2003, r 3 and Sch 1 item 30, with effect from 19 Jun 2003]

11.2 Application for examination or investigation under s 411(9)(b), s 423 or s 536(3) of the Corporations Act (1) An application for an order for the examination or investigation of a person under paragraph 411(9)(b), section 423 or subsection 536(3) of the Corporations Act may be made by: ©

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r 11.2

r 11.2 (a) (b) (c) (d)

Federal Court (Corporations) Rules 2000 (Cth) ASIC; or a person authorised by ASIC; or a creditor or contributory; or any other person aggrieved by the conduct of: (i) a person appointed to administer a compromise or arrangement; or (ii) a controller; or (iii) a liquidator or provisional liquidator.

[Subr (1) am SLI 61 of 2008, r 3 and Sch 1 item 38, with effect from 15 Apr 2008; SR 132 of 2003, r 3 and Sch 1 item 30, with effect from 19 Jun 2003; SR 333 of 2000, r 3 and Sch 1 item 23, with effect from 1 Jan 2001]

(2) The application may be made without notice to any person. [Subr (2) am SR 132 of 2003, r 3 and Sch 1 item 30, with effect from 19 Jun 2003; subst SR 127 of 2001, r 3 and Sch 1 item 4, with effect from 30 Jun 2001]

(3) The provisions of this Division that apply to an examination under Division 1 of Part 5.9 of the Corporations Act apply, with any necessary adaptations, to an examination or an investigation under paragraph 411(9)(b), section 423 or subsection 536(3) of the Corporations Act. [Subr (3) am SR 132 of 2003, r 3 and Sch 1 item 30, with effect from 19 Jun 2003; SR 333 of 2000, r 3 and Sch 1 item 23, with effect from 1 Jan 2001] [R 11.2 am SLI 61 of 2008; SR 132 of 2003, r 3 and Sch 1 item 31, with effect from 19 Jun 2003; SR 127 of 2001; SR 333 of 2000, r 3 and Sch 1 item 22, with effect from 1 Jan 2001]

11.3 Application for examination summons (Corporations Act s 596A, s 596B) — Form 17 (1) An application for the issue of an examination summons must be made by filing an interlocutory process or an originating process, as the case requires. (2) The application may be made without notice to any person. [Subr (2) subst SR 127 of 2001, r 3 and Sch 1 item 5, with effect from 30 Jun 2001; SR 333 of 2000, r 3 and Sch 1 item 24, with effect from 1 Jan 2000]

(3) The originating process, or interlocutory process, seeking the issue of the examination summons must be: (a) supported by an affidavit stating the facts in support of the process; and (b) accompanied by a draft examination summons. (4) If the originating process or interlocutory process, and supporting affidavit, are lodged with a Registry for filing (other than by being sent to the Registry by electronic communication), the originating process or interlocutory process, and the supporting affidavit, must be filed in a sealed envelope marked, as appropriate: (a) “Application and supporting affidavit for issue of summons for examination under section 596A of the Corporations Act 2001”; or (b) “Application and supporting affidavit for issue of summons for examination under section 596B of the Corporations Act 2001”. [Subr (4) subst SLI 52 of 2015, r 4 and Sch 1 item 1, with effect from 2 May 2015; am SR 132 of 2003, r 3 and Sch 1 item 30, with effect from 19 Jun 2003]

(4A) If the originating process or interlocutory process, and supporting affidavit, are sent by electronic communication to a Registry for filing, the originating process or interlocutory process, and supporting affidavit: (a) must be marked “Confidential”; and (b) must be accompanied by a statement that the originating process or interlocutory process, and supporting affidavit, are, as appropriate: (i) “Application and supporting affidavit for issue of summons for examination under section 596A of the Corporations Act 2001”; or (ii) “Application and supporting affidavit for issue of summons for examination under section 596B of the Corporations Act 2001”. [Subr (4A) insrt SLI 52 of 2015, r 4 and Sch 1 item 1, with effect from 2 May 2015]

(5) If the application is not made by the liquidator, the liquidator must be given notice of the application 32

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Division 11 – Examinations and orders (Corporations Act Part 5.9, Divisions 1 and 2) r 11.8

(6) If the application is not made by ASIC, ASIC must be given notice of the application and, if required by ASIC, served with a copy of the originating process, or interlocutory process, and the supporting affidavit. [Subr (6) am SLI 61 of 2008, r 3 and Sch 1 item 38, with effect from 15 Apr 2008]

(7) Unless the Court otherwise orders, an affidavit in support of an application for an examination summons is not available for inspection by any person. (8) An examination summons must be in accordance with Form 17. [Subr (8) am SR 333 of 2000, r 3 and Sch 1 item 25, with effect from 1 Jan 2001] [R 11.3 am SLI 52 of 2015; SLI 61 of 2008; SR 132 of 2003, r 3 and Sch 1 item 31, with effect from 19 Jun 2003; SR 127 of 2001; SR 333 of 2000]

11.4 Service of examination summons An examination summons issued by the Court must be personally served, or served in any other manner as the Court may direct, on the person who is to be examined at least 8 days before the date fixed for the examination. 11.5 Discharge of examination summons (1) This rule applies if a person is served with an examination summons. (2) Within 3 days after the person is served with the examination summons, the person may apply to the Court for an order discharging the summons by filing: (a) an interlocutory process seeking an order discharging the summons; and (b) an affidavit stating the facts in support of the interlocutory process. (3) As soon as practicable after filing the interlocutory process seeking the order and the supporting affidavit, the person must serve a copy of the interlocutory process and the supporting affidavit on: (a) the person who applied for the examination; and (b) unless that person is ASIC or a person authorised by ASIC — ASIC. [Subr (3) am SLI 61 of 2008, r 3 and Sch 1 item 38, with effect from 15 Apr 2008] [R 11.5 am SLI 61 of 2008]

11.6 Filing of record of examination (Corporations Act s 597(13)) If the Court makes an order in relation to an examination under subsection 597(13) of the Corporations Act, the Court may give directions for the filing of the written record of the examination. [R 11.6 am SR 132 of 2003, r 3 and Sch 1 items 30 and 31, with effect from 19 Jun 2003]

11.7 Authentication of transcript of examination (Corporations Act s 597(14)) For the purposes of subsection 597(14) of the Corporations Act, a transcript of an examination may be authenticated: (a) by the person, or persons, who prepared the record of examination, or under whose supervision the record was prepared, certifying in writing signed by the person or persons, that the record is a true transcript of the record of examination; or (b) by any person present at the examination, or any part of the examination, signing the person’s name at the bottom of each page of the written record that records a part of the examination at which the person was present. [R 11.7 am SR 132 of 2003, r 3 and Sch 1 items 30 and 31, with effect from 19 Jun 2003]

11.8 Inspection of record or transcript of examination or investigation under s 411, s 423 or s 536 of the Corporations Act (1) A written record or transcript of an examination or investigation under section 411, 423 or 536 is not available for inspection by any person except: (a) with the consent of the liquidator (if any) or ASIC; or (b) by leave of the Court. [Subr (1) am SLI 61 of 2008, r 3 and Sch 1 item 38, with effect from 15 Apr 2008] ©

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and, if required by the liquidator, served with a copy of the originating process, or interlocutory process, and the supporting affidavit.

r 11.8

Federal Court (Corporations) Rules 2000 (Cth)

(2) This rule does not apply to the liquidator, ASIC or any person authorised by ASIC. [Subr (2) am SLI 61 of 2008, r 3 and Sch 1 item 38, with effect from 15 Apr 2008] [R 11.8 am SLI 61 of 2008; SR 132 of 2003, r 3 and Sch 1 item 31, with effect from 19 Jun 2003]

11.9 Entitlement to record or transcript of examination held in public (1) This rule applies if: (a) an examination under section 597 of the Corporations Act is held wholly or partly in public; and (b) a written record or transcript of the examination is filed in the Court. [Subr (1) am SR 132 of 2003, r 3 and Sch 1 item 30, with effect from 19 Jun 2003]

(2) The person examined may apply to the Registrar, within 3 years after the date of completion of the examination, for a copy of the record or transcript of the part of the examination of the person held in public. (3) On receiving an application from a person under subrule (2), and any applicable fee, the Registrar must give a copy of the record or transcript to the person. [R 11.9 am SR 132 of 2003]

11.10 Default in relation to examination (1) This rule applies if a person is summoned or ordered by the Court to attend for examination, and: (a) without reasonable cause, the person: (i) fails to attend at the time and place appointed; or (ii) fails to attend from day to day until the conclusion of the examination; or (iii) refuses or fails to take an oath or make an affirmation; or (iv) refuses or fails to answer a question that the Court directs the person to answer; or (v) refuses or fails to produce books that the summons requires the person to produce; or (vi) fails to comply with a requirement by the Court to sign a written record of the examination; or (b) before the day fixed for the examination, the person who applied for the summons or order satisfies the Court that there is reason to believe that the person summoned or ordered to attend for examination has absconded or is about to abscond. (2) The Court may: (a) issue a warrant for the arrest of the person summoned or ordered to attend for examination; and (b) make any other orders that the Court thinks just or necessary. 11.11 Service of application for order in relation to breaches etc by person concerned with corporation (Corporations Act s 598) (1) This rule applies to a person applying for an order under section 598 of the Corporations Act. [Subr (1) am SR 132 of 2003, r 3 and Sch 1 item 30, with effect from 19 Jun 2003]

(2) In addition to complying with rules 2.7 and 2.8, the person must serve a copy of the originating process, or interlocutory process, as the case requires, and the supporting affidavit on any liquidator or provisional liquidator (except if the person is the liquidator or provisional liquidator) of the corporation or body. Note: Under rule 2.7, a plaintiff must serve a copy of the originating process, and any supporting affidavit, on a defendant to the proceeding and, if necessary, on the corporation to which the proceeding relates; and an applicant must serve a copy of an interlocutory process, and any supporting affidavit, on a respondent to the proceeding and, if necessary, on the corporation to which the proceeding relates. In certain cases, these documents may also be required to be served on ASIC — see rule 2.8. [Subr (2) am SLI 61 of 2008, r 3 and Sch 1 item 38, with effect from 15 Apr 2008] [R 11.11 am SLI 61 of 2008; SR 132 of 2003, r 3 and Sch 1 item 31, with effect from 19 Jun 2003]

DIVISION 11A – WARRANTS (CORPORATIONS ACT S 486B AND PART 5.4B, DIVISION 3, SUBDIVISION B) [Div 11A insrt SLI 61 of 2008, r 3 and Sch 1 item 23, with effect from 15 Apr 2008]

34

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Division 12 – Takeovers, acquisitions of shares etc & Securities r 12.2

(1) An application for the issue of a warrant under subsection 486B(1) of the Corporations Act for the arrest of a person must state the grounds for the issue of the warrant. (2) The application must be accompanied by an affidavit stating the facts in support of the application. (3) The warrant must be in accordance with Form 17A. (4) If a person is arrested under the warrant, the person who carried out the arrest must immediately give notice of the arrest to a Registrar in the Registry from which the warrant was issued. Note: Sections 489A to 489E of the Corporations Act, inserted by the Corporations Amendment (Insolvency) Act 2007, apply in relation to a warrant issued on or after 31 December 2007 — see Corporations Act s 1481(3). [R 11A.01 insrt SLI 61 of 2008, r 3 and Sch 1 item 23, with effect from 15 Apr 2008]

DIVISION 12 – TAKEOVERS, ACQUISITIONS OF SHARES ETC (CORPORATIONS ACT CHAPTERS 6 TO 6D) AND SECURITIES (CORPORATIONS ACT CHAPTER 7) [Div 12 heading am SR 132 of 2003, r 3 and Sch 1 item 31, with effect from 19 Jun 2003; SR 333 of 2000, r 3 and Sch 1 item 26, with effect from 1 Jan 2001]

12.1 Service on ASIC in relation to proceedings under Chapter 6, 6A, 6B, 6C, 6D or 7 of the Corporations Act If ASIC is not a party to an application made under Chapter 6, 6A, 6B, 6C, 6D or 7 of the Corporations Act, the plaintiff must serve a copy of the originating process and the supporting affidavit on ASIC as soon as practicable after filing the originating process. [R 12.1 am SLI 61 of 2008, r 3 and Sch 1 items 38 and 39, with effect from 15 Apr 2008; SR 132 of 2003, r 3 and Sch 1 items 30 and 31, with effect from 19 Jun 2003; subst SR 333 of 2000, r 3 and Sch 1 item 27, with effect from 1 Jan 2001]

12.1A Reference to Court of question of law arising in proceeding before Takeovers Panel (Corporations Act s 659A) Part 38 applies, with any necessary adaptations, to a reference of a question of law arising in a proceeding before the Takeovers Panel to the Court under section 659A of the Corporations Act. [R 12.1A am SLI 170 of 2011, r 3 and Sch 1 item 1, with effect from 14 Sep 2011; insrt SR 132 of 2003, r 3 and Sch 1 item 7, with effect from 19 Jun 2003]

12.1B Notification to Court where proceeding is commenced before end of takeover bid period (Corporations Act s 659B) (1) This rule applies to a party to a proceeding who suspects or becomes aware that: (a) the proceeding was commenced in relation to a takeover bid, or proposed takeover bid, before the end of the bid period; and (b) the proceeding falls within the definition of court proceedings in relation to a takeover bid or proposed takeover bid in subsection 659B(4) of the Corporations Act. (2) The party identified in subrule (1) must, immediately on suspecting or becoming aware of the matters mentioned in subrule (1), notify any other party to the proceeding and the Court of that suspicion or knowledge. (3) The party must comply with subrule (2), unless any other party to the proceeding has given a notice under this rule to the party. [R 12.1B insrt SLI 81 of 2007, r 3 and Sch 1 item 5, with effect from 3 Apr 2007]

12.2 Application for summons for appearance of person (Corporations Act s 1071D(4)) — Form 18 (1) An application for the issue of a summons under subsection 1071D(4) of the Corporations Act must be made by filing an originating process or an interlocutory process. [Subr (1) subst SR 132 of 2003, r 3 and Sch 1 item 8, with effect from 19 Jun 2003]

(2) The application may be made ex parte. (3) The originating process, or interlocutory process, seeking the issue of the summons must be: (a) supported by an affidavit stating the facts in support of the process; and ©

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11A.01 Arrest of person (Corporations Act s 486B) — Form 17A

r 12.2 (b)

Federal Court (Corporations) Rules 2000 (Cth) accompanied by a draft summons.

(4) Unless the Court otherwise orders, a summons issued under this rule is to be in accordance with Form 18. [R 12.2 am SR 132 of 2003, r 3 and Sch 1 item 31, with effect from 19 Jun 2003]

12.3 Application for orders relating to refusal to register transfer or transmission of securities (Corporations Act s 1071F) As soon as practicable after filing an originating process under section 1071F of the Corporations Act, the plaintiff must serve a copy of the originating process and the supporting affidavit on: (a) the company; and (b) any person against whom an order is sought. [R 12.3 subst SR 132 of 2003, r 3 and Sch 1 item 9, with effect from 19 Jun 2003]

DIVISION 13 – THE FUTURES INDUSTRY (CHAPTER 8 OF THE LAW) [REPEALED] [Div 13, rr 13.1 and 13.2, rep SR 132 of 2003, r 3 and Sch 1 item 10, with effect from 19 Jun 2003]

DIVISION 14 – POWERS OF COURTS (CORPORATIONS ACT PART 9.5) [Div 14 heading subst SR 132 of 2003, r 3 and Sch 1 item 31, with effect from 19 Jun 2003]

14.1 Appeal from act, omission or decision of administrator, receiver or liquidator etc (Corporations Act s 554A, s 1321) (1) All appeals to the Court authorised by the Corporations Act must be commenced by an originating process, or interlocutory process, stating: (a) the act, omission or decision complained of; and (b) in the case of an appeal against a decision — whether the whole or part only and, if part only, which part of the decision is complained of; and (c) the grounds on which the complaint is based. [Subr (1) am SR 132 of 2003, r 3 and Sch 1 item 30, with effect from 19 Jun 2003]

(2) Unless the Corporations Act or the Corporations Regulations otherwise provide, the originating process, or interlocutory process, must be filed within: (a) 21 days after the date of the act, omission or decision appealed against; or (b) any further time allowed by the Court. [Subr (2) am SR 132 of 2003, r 3 and Sch 1 item 30, with effect from 19 Jun 2003]

(3) The Court may extend the time for filing the originating process, or interlocutory process, either before or after the time for filing expires and whether or not the application for extension is made before the time expires. (4) As soon as practicable after filing the originating process, or interlocutory process, and, in any case, at least 5 days before the date fixed for hearing, the person instituting the appeal must serve a copy of the originating process, or interlocutory process, and any supporting affidavit, on each person directly affected by the appeal. (5) As soon as practicable after being served with a copy of the originating process, or interlocutory process, and any supporting affidavit, a person whose act, omission or decision is being appealed against must file an affidavit: (a) stating the basis on which the act, omission or decision was done or made; and (b) annexing or exhibiting a copy of all relevant documents that have not been put in evidence by the person instituting the appeal. [R 14.1 am SR 132 of 2003, r 3 and Sch 1 item 31, with effect from 19 Jun 2003]

DIVISION 15 – PROCEEDINGS UNDER THE ASIC ACT [Div 15 heading am SR 132 of 2003, r 3 and Sch 1 item 31, with effect from 19 Jun 2003; SR 333 of 2000, r 3 and Sch 1 item 32, with effect from 1 Jan 2001]

15.1 Reference to Court of question of law arising at hearing of ASIC (ASIC Act s 61) 36

Corporations – Court Rules and Related Legislation 2017

Division 15A – Proceedings under the Cross-Border Insolvency Act r 15A.3

[R 15.1 am SLI 170 of 2011, r 3 and Sch 1 item 2, with effect from 14 Sep 2011; SLI 61 of 2008, r 3 and Sch 1 items 38 and 39, with effect from 15 Apr 2008; SR 132 of 2003, r 3 and Sch 1 items 30 and 31, with effect from 19 Jun 2003; SR 333 of 2000, r 3 and Sch 1 item 32, with effect from 1 Jan 2001]

15.2 Reference to Court of question of law arising at hearing of Corporations and Securities Panel (s 196 of the ASIC Law) [Repealed] [R 15.2 rep SR 132 of 2003, r 3 and Sch 1 item 11, with effect from 19 Jun 2003; am SR 333 of 2000]

15.3 Application for inquiry (ASIC Act s 70, s 201, s 219) An application for an inquiry under subsection 70(3), 201(3) or 219(7) of the ASIC Act must be made by filing an originating process seeking an inquiry and orders under the relevant subsection. [R 15.3 am SR 132 of 2003, r 3 and Sch 1 items 30 and 31, with effect from 19 Jun 2003; SR 333 of 2000, r 3 and Sch 1 item 32, with effect from 1 Jan 2001]

DIVISION 15A – PROCEEDINGS UNDER THE CROSS-BORDER INSOLVENCY ACT [Div 15A insrt SLI 206 of 2008, r 3 and Sch 1 item 6, with effect from 15 Oct 2008]

15A.1 Application of this Division and other rules of the Court Unless the Court otherwise orders: (a) this Division applies to a proceeding in the Court, under the Cross-Border Insolvency Act, involving a debtor other than an individual; and (b) the rules in the other Divisions of these Rules, and the other rules of the Court, apply to a proceeding in the Court under the Cross-Border Insolvency Act if they are relevant and not inconsistent with this Division. Note: See rule 1.5 for definitions of Cross-Border Insolvency Act and Model Law. [R 15A.1 insrt SLI 206 of 2008, r 3 and Sch 1 item 6, with effect from 15 Oct 2008]

15A.2 Expressions used in the Cross-Border Insolvency Act (1) Unless the contrary intention appears, an expression that is used in this Division and in the Cross-Border Insolvency Act, whether or not a particular meaning is given to the expression by the Cross-Border Insolvency Act, has the same meaning in this Division as it has in the Cross-Border Insolvency Act. Note: The following expressions used in this Division (including in the notes to this Division) are defined in the Model Law as having the following meanings: establishment means any place of operations where the debtor carries out a non-transitory economic activity with human means and goods or services. foreign court means a judicial or other authority competent to control or supervise a foreign proceeding. foreign main proceeding means a foreign proceeding taking place in the State where the debtor has the centre of its main interests. foreign non-main proceeding means a foreign proceeding, other than a foreign main proceeding, taking place in a State where the debtor has an establishment within the meaning of subparagraph (f) of the present article. foreign proceeding means a collective judicial or administrative proceeding in a foreign State, including an interim proceeding, pursuant to a law relating to insolvency in which proceeding the assets and affairs of the debtor are subject to control or supervision by a foreign court, for the purpose of reorganization or liquidation. foreign representative means a person or body, including one appointed on an interim basis, authorized in a foreign proceeding to administer the reorganization or the liquidation of the debtor’s assets or affairs or to act as a representative of the foreign proceeding.

(2) This Division is to be interpreted in a manner that gives effect to the Cross-Border Insolvency Act. [R 15A.2 insrt SLI 206 of 2008, r 3 and Sch 1 item 6, with effect from 15 Oct 2008]

15A.3 Application for recognition (1) An application by a foreign representative for recognition of a foreign proceeding under article 15 of the Model Law must be made by filing an originating process in accordance with Form 2. (2) The originating process must: ©

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Part 38 applies, with any necessary adaptations, to a reference of a question of law arising at a hearing by ASIC to the Court under section 61 of the ASIC Act.

r 15A.3

Federal Court (Corporations) Rules 2000 (Cth)

(a) be accompanied by the statements referred to in article 15 of the Model Law and in section 13 of the Cross-Border Insolvency Act; and (b) name the foreign representative as the plaintiff and the debtor as the defendant; and (c) be accompanied by an affidavit verifying the matters mentioned in paragraphs 2 and 3 of article 15 of the Model Law and in section 13 of the Cross-Border Insolvency Act. (3) When filing the originating process, the foreign representative must file, but need not serve, an interlocutory process seeking directions as to service, and the Court may give any directions about service, and make any incidental orders, that it thinks just. (4) The plaintiff must serve a copy of the originating process and the other documents mentioned in subrule (2): (a) unless the Court otherwise orders, in accordance with subrule 2.7(1); and (b) on any other persons the Court may direct at the hearing of the interlocutory process. (5) A person who intends to appear before the Court at the hearing of an application for recognition must file and serve the documents mentioned in rule 2.9. [R 15A.3 insrt SLI 206 of 2008, r 3 and Sch 1 item 6, with effect from 15 Oct 2008]

15A.4 Application for provisional relief under article 19 of the Model Law (1) Any application by the plaintiff for provisional relief under article 19 of the Model Law must be made by filing an interlocutory process in accordance with Form 3. (2) Unless the Court otherwise orders, the interlocutory process and any supporting affidavit must be served in accordance with subrule 2.7(2). [R 15A.4 insrt SLI 206 of 2008, r 3 and Sch 1 item 6, with effect from 15 Oct 2008]

15A.5 Official liquidator’s consent to act If an application is made for an order: (a) under article 19 or 21 of the Model Law to entrust the administration or realisation of all or part of the debtor’s assets to a person designated by the Court (other than the foreign representative); or (b) under article 21 to entrust the distribution of all or part of the debtor’s assets to a person designated by the Court (other than the foreign representative); then, unless the Court otherwise orders, the person must: (c) be an official liquidator; and (d) have filed a Consent to Act, in accordance with Form 19, that specifies an address for service for the person within Australia. [R 15A.5 subst SLI 251 of 2009, r 3 and Sch 1 item 1, with effect from 7 Oct 2009; insrt SLI 206 of 2008, r 3 and Sch 1 item 6, with effect from 15 Oct 2008]

15A.6 Notice of filing of application for recognition (1) Unless the Court otherwise orders, the plaintiff in a proceeding mentioned in rule 15A.3 must: (a) send a notice of the filing of the application in accordance with Form 20 to each person whose claim to be a creditor of the defendant is known to the plaintiff; and (b) publish a notice of the filing of the application for recognition of a foreign proceeding in accordance with Form 20, in a daily newspaper circulating generally in the State or Territory where the defendant has its principal, or last known, place of business. [Subr (1) am SLI 175 of 2012, r 3 and Sch 1 item 9, with effect from 1 Aug 2012]

(2) The Court may direct the plaintiff to publish a notice in accordance with Form 20 in a daily newspaper circulating generally in any State or Territory not described in paragraph (1)(b). [Subr (2) am SLI 175 of 2012, r 3 and Sch 1 item 10, with effect from 1 Aug 2012] [R 15A.6 am SLI 175 of 2012; insrt SLI 206 of 2008, r 3 and Sch 1 item 6, with effect from 15 Oct 2008]

15A.7 Notice of order for recognition, withdrawal etc (1) If the Court makes an order for recognition of a foreign proceeding under article 17 of the Model Law, or makes any order under article 19 or 21 of the Model Law, the plaintiff must, as soon as practicable after the order is made, do all of the following: 38

Corporations – Court Rules and Related Legislation 2017

Division 15A – Proceedings under the Cross-Border Insolvency Act (a) have the order entered; (b) serve a copy of the entered order on the defendant; (c) send a notice of the making of the order in accordance with Form 21 to each person whose claim to be a creditor of the defendant is known to the plaintiff; (d) publish a notice of the making of the order in accordance with Form 21, in a daily newspaper circulating generally in the State or Territory where the defendant has its principal, or last known, place of business. [Subr (1) am SLI 175 of 2012, r 3 and Sch 1 item 11, with effect from 1 Aug 2012]

(2) The Court may direct the plaintiff to publish the notice in accordance with Form 21 in a daily newspaper circulating generally in any State or Territory not described in paragraph (1)(d). [Subr (2) am SLI 175 of 2012, r 3 and Sch 1 item 12, with effect from 1 Aug 2012]

(3) If the application for recognition is withdrawn or dismissed, the plaintiff must, as soon as practicable, do all of the following: (a) for a dismissal, have the order of dismissal entered; (b) serve a copy of the entered order of dismissal or notice of the withdrawal, on the defendant; (c) send a notice of the dismissal or withdrawal in accordance with Form 22 to each person whose claim to be a creditor of the defendant is known to the plaintiff; (d) publish a notice of the dismissal or withdrawal in accordance with Form 22, in a daily newspaper circulating generally in the State or Territory where the defendant has its principal, or last known, place of business. [Subr (3) am SLI 175 of 2012, r 3 and Sch 1 item 13, with effect from 1 Aug 2012]

(4) The Court may direct the plaintiff to publish the notice in accordance with Form 22 in a daily newspaper circulating generally in any State or Territory not described in paragraph (3)(d). [Subr (4) am SLI 175 of 2012, r 3 and Sch 1 item 14, with effect from 1 Aug 2012] [R 15A.7 am SLI 175 of 2012; insrt SLI 206 of 2008, r 3 and Sch 1 item 6, with effect from 15 Oct 2008]

15A.8 Relief after recognition (1) If the Court has made an order for recognition of a foreign proceeding, any application by the plaintiff for relief under paragraph 1 of article 21 of the Model Law must be made by filing an interlocutory process, and any supporting affidavit, in accordance with Form 3. (2) Unless the Court otherwise orders, an interlocutory process under subrule (1) and any supporting affidavit must be served, in accordance with subrule 2.7(2), but on the following persons: (a) the defendant; (b) any person that the Court directed be served with the originating process by which the application for recognition was made; (c) any other person that the Court directs. (3) A person who intends to appear before the Court at the hearing of an application under subrule (1) must file and serve the documents mentioned in rule 2.9. [R 15A.8 insrt SLI 206 of 2008, r 3 and Sch 1 item 6, with effect from 15 Oct 2008]

15A.9 Application to modify or terminate an order for recognition or other relief (1) This rule applies to: (a) an application under paragraph 4 of article 17 of the Model Law for an order modifying or terminating an order for recognition of a foreign proceeding; and (b) an application under paragraph 3 of article 22 of the Model Law for an order modifying or terminating relief granted under article 19 or 21 of the Model Law. (2) An application mentioned in subrule (1) must be made by filing an interlocutory process in accordance with Form 3. (3) An interlocutory process for an application under subrule (1) and any supporting affidavit must be served on: (a) for an application under paragraph (1)(a) — the defendant and other persons who were served with, or filed a notice of appearance in relation to, the application for recognition; and ©

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r 15A.9

r 15A.9 (b)

Federal Court (Corporations) Rules 2000 (Cth) for an application under paragraph (1)(b) — the defendant and other persons who were served with, or filed a notice of appearance in relation to, the application for relief under article 19 or 21.

(4) Unless the Court otherwise orders, a plaintiff who applies for an order under subrule (1) must: (a) send a notice of the filing of the application in accordance with Form 23 to each person whose claim to be a creditor of the defendant is known to the plaintiff; and (b) publish a notice of the filing of the application in accordance with Form 23, in a daily newspaper circulating generally in the State or Territory where the defendant has its principal, or last known, place of business. [Subr (4) am SLI 175 of 2012, r 3 and Sch 1 item 15, with effect from 1 Aug 2012]

(5) The Court may direct the applicant to publish the notice in accordance with Form 23 in a daily newspaper circulating generally in any State or Territory not described in paragraph (4)(b). [Subr (5) am SLI 175 of 2012, r 3 and Sch 1 item 16, with effect from 1 Aug 2012]

(6) A person who intends to appear before the Court at the hearing of an application under subrule (1) must file and serve the documents mentioned in rule 2.9. [R 15A.9 am SLI 175 of 2012; insrt SLI 206 of 2008, r 3 and Sch 1 item 6, with effect from 15 Oct 2008]

DIVISION 16 – POWERS OF REGISTRARS 16.1 Powers of Registrars (1) For the purposes of paragraph 35A(1)(h) of the Federal Court of Australia Act 1976, if the Court or a Judge so directs, a Registrar may exercise a power of the Court: (a) under a provision of the Corporations Act mentioned in column 2, or a provision of these Rules mentioned in column 3, of an item in Part 1 of Schedule 2; or (b) under a provision of the ASIC Act mentioned in column 2, or a provision of these Rules mentioned in column 3, of an item in Part 2 of Schedule 2. [Subr (1) am SR 132 of 2003, r 3 and Sch 1 item 30, with effect from 19 Jun 2003; SR 127 of 2001, r 3 and Sch 1 item 6, with effect from 30 Jun 2001; SR 333 of 2000, r 3 and Sch 1 item 32, with effect from 1 Jan 2001]

(2) A decision, direction or act of a Registrar made, given or done under these Rules, may be reviewed by the Court or a Judge. (3) An application for the review of a decision, direction or act of a Registrar made, given or done under these Rules, must be made within: (a) 21 days after the decision, direction or act complained of; or (b) any further time allowed by the Court. [R 16.1 am SR 132 of 2003; SR 127 of 2001; SR 333 of 2000]

16.2 Reference by Registrar (1) If a proceeding before a Registrar appears to the Registrar to be proper for the decision of the Court or a Judge, the Registrar may or, if required by a party to the proceeding, must, refer the matter to the Court or a Judge. (2) If the Registrar refers a matter to the Court or a Judge, the Court or a Judge may dispose of the matter or refer it back to the Registrar with any direction that the Court or the Judge considers appropriate.

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Schedule 1 – Forms Document title

Form 1

SCHEDULE 1 – FORMS Cth

(rule 1.6)

Form 1 – Document title (rule 2.1)

Federal Court of Australia No. .......... of 20 District Registry: [State] Division: [Division] IN THE MATTER OF [full name of corporation to which the proceeding relates and, if applicable, the words ‘(in liquidation)’, ‘(receiver appointed)’, ‘(receiver and manager appointed)’, ‘(controller acting)’, or ‘(administrator appointed)’] ABN or ACN or ARBN: [insert ABN or ACN or ARBN] [Name of First Plaintiff] [if 2 or more add ‘and [another/others] named in the schedule’] Plaintiff[s] [Name of First Defendant] [if 2 or more add ‘and [another/others] named in the schedule’] Defendant[s] [At the foot of the front page of each document filed in a proceeding, insert details of the filing party, including contact details and address for service] [*If more than one plaintiff or defendant, insert names of the second, third, fourth etc as required in this schedule. Delete schedule if not required.] Schedule Federal Court of Australia No. .......... of 20 District Registry: [State] Division: [Division] IN THE MATTER OF [full name of corporation to which the proceeding relates and, if applicable, the words ‘(in liquidation)’, ‘(receiver appointed)’, ‘(receiver and manager appointed)’, ‘(controller acting)’, or ‘(administrator appointed)’] ABN or ACN or ARBN: [insert ABN or ACN or ARBN] [*] Plaintiffs Second Plaintiff: [Name] [*etc] [*] Defendants Second Defendant: [Name] [*etc] Date: .......... [* delete if inapplicable] [Form 1 subst SLI 170 of 2011, r 3 and Sch 1 item 3, with effect from 14 Sep 2011; am SLI 345 of 2007; SR 376 of 2003]

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Form 2

Federal Court (Corporations) Rules 2000 (Cth)

Form 2 – Originating process (rules 2.2 and 15A.3)

[Title] A. DETAILS OF APPLICATION This application is made under *section/*regulation [number] of the *Corporations Act/*ASIC Act/*CrossBorder Insolvency Act/*Corporations Regulations. [State briefly the nature of the proceeding, eg application for winding-up on ground of insolvency; or complaint about a receiver.] On the facts stated in the supporting affidavit(s), the plaintiff claims: 1 2 etc AND Date: .................................................. Signature of plaintiff or plaintiff’s legal practitioner This application will be heard by .................................................. at [address of Court] at .......... *am/*pm on .......... . B. NOTICE TO DEFENDANT(S) (IF ANY) TO: [name and address of each defendant (if any). If you or your legal practitioner do not appear before the Court at the time shown above, the application may be dealt with, and an order made, in your absence. As soon after that time as the business of the Court will allow, any of the following may happen: (a) the application may be heard and final relief given; (b) directions may be given for the future conduct of the proceeding; (c) any interlocutory application may be heard. Before appearing before the Court, you must file a notice of appearance, in the prescribed form, in the Registry and serve a copy of it on the plaintiff. Note: Unless the Court otherwise orders, a defendant that is a corporation must be represented at a hearing by a legal practitioner. It may be represented at a hearing by a director of the corporation only if the Court grants leave. C. APPLICATION FOR WINDING UP ON GROUND OF INSOLVENCY [Complete this section if this originating process is seeking an order that a company be wound up in insolvency on the ground that the company has failed to comply with a statutory demand (see section 459Q of the Corporations Act)] [Set out particulars of service of the statutory demand on the company and of the failure to comply with the demand] [Attach to this originating process a copy of the statutory demand and, if the demand has been varied by an order made under subsection 459H(4) of the Corporations Act because of a dispute or offsetting claim, a copy of the order made under that subsection.] [The affidavit in support of this originating process must: (a) verify service of the demand on the company; and (b) verify the failure of the company to comply with the demand; and (c) state whether and, if so, to what extent the debt, or each of the debts, to which the demand relates is still due and payable at the date when the affidavit is made.]

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Form 2

Note 1: In an application for winding up in insolvency on the ground that the company has failed to comply with a statutory demand, the applicant should consider completing Part C of Form 2 as shown in Schedule 3 (Notes to these Rules). Note 2: An example of the affidavit in support of an application for winding up in insolvency for failure to comply with a statutory demand is shown in Schedule 3 (Notes to these Rules). D. FILING Date of filing: [date of filing to be entered by Registrar] .................................................. Registrar This originating process is filed by [name] for the plaintiff. E. SERVICE The plaintiff’s address for service is [address of plaintiff’s legal practitioner or of plaintiff]. * It is not intended to serve a copy of this originating process on any person. OR * It is intended to serve a copy of this originating process on each defendant and on any person listed below: [name of defendant and any other person on whom a copy of the originating process is to be served] [Complete the following section if the time for service has been abridged] The time by which a copy of this originating process is to be served has been abridged by order made by [name of Judge or other Court offıcer] on [date] to [time and date]. * Omit if not applicable [Form 2 am SLI 206 of 2008, r 3 and Sch 1 items 7 and 8, with effect from 15 Oct 2008; SR 132 of 2003, r 3 and Sch 1 items 12–14, with effect from 19 Jun 2003; SR 333 of 2000, r 3 and Sch 1 item 28, with effect from 1 Jan 2001]

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Schedule 1 – Forms Originating process

Form 3

Federal Court (Corporations) Rules 2000 (Cth)

Form 3 – Interlocutory process (rules 2.2, 15A.4, 15A.8 and 15A.9)

[Title] A. DETAILS OF APPLICATION This application is made under *section/*regulation [number] of the *Corporations Act/*ASIC Act/*CrossBorder Insolvency Act/*Corporations Regulations. On the facts stated in the supporting affidavit(s), the applicant, [name], applies for the following relief: 1 2 etc AND Date: .................................................. Signature of applicant making this application or applicant’s legal practitioner This application will be heard by ......................... at [address of Court] at .......... *am/*pm on .......... . B. NOTICE TO RESPONDENT(S) (IF ANY) TO: [name and address of each respondent to this interlocutory process (if any). If applicable, also state the respondent’s address for service.] If you or your legal practitioner do not appear before the Court at the time shown above, the application may be dealt with, and an order made, in your absence. Before appearing before the Court, you must, except if you have already done so or you are the plaintiff in this proceeding, file a notice of appearance, in the prescribed form, in the Registry and serve a copy of it on the plaintiff in the originating process. Note: Unless the Court otherwise orders, a respondent that is a corporation must be represented at a hearing by a legal practitioner. It may be represented at a hearing by a director of the corporation only if the Court grants leave. C. FILING This interlocutory process is filed by [name] for the applicant. D. SERVICE The applicant’s address for service is [address of applicant’s legal practitioner or of applicant]. * It is not intended to serve a copy of this interlocutory process on any person. OR * It is intended to serve a copy of this interlocutory process on each respondent and on any person listed below: [name of respondent and any other person on whom a copy of the interlocutory process is to be served] [Complete the following section if the time for service has been abridged] The time by which a copy of this interlocutory process is to be served has been abridged by order made by [name of Judge or other Court offıcer] on [date] to [time and date]. * Omit if not applicable [Form 3 am SLI 206 of 2008, r 3 and Sch 1 items 9 and 10, with effect from 15 Oct 2008; subst SLI 81 of 2007, r 3 and Sch 1 item 6, with effect from 3 Apr 2007; am SR 132 of 2003; SR 333 of 2000]

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Schedule 1 – Forms Notice of appearance

Form 4

Form 4 – Notice of appearance [Title] A. DETAILS OF PERSON INTENDING TO APPEAR Notice is given that [state full name and address], [briefly state your interest in the proceeding, eg a creditor for $ (amount), or a contributory, of the corporation] intends to appear before the Court at the hearing of the application to be heard at [name of Court and address] on [date] and, if applicable, to *oppose/*support the application. Note: Unless the Court otherwise orders, a defendant or respondent that is a corporation must be represented at a hearing by a legal practitioner. It may be represented at a hearing by a director of the corporation only if the Court grants leave. B. GROUNDS OF OPPOSITION TO WINDING UP [Complete this section only if you are opposing an application to wind up a company] The grounds on which I oppose the application for winding up are: 1 2 etc C. SERVICE [This section must be completed] The address for service of the person giving this notice is [address of person’s legal practitioner or of person]. .................................................. Signature of person giving notice or of person’s legal practitioner *

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Omit if not applicable

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(rule 2.9)

Form 5

Federal Court (Corporations) Rules 2000 (Cth)

Form 5 – Notice of intervention by ASIC (rule 2.10)

[Title] The Australian Securities and Investments Commission, whose address for service is [address], intervenes in this proceeding. Date: .................................................. Signed on behalf of ASIC Name of signatory: [name]. Capacity of signatory: [capacity]. [Form 5 am SLI 61 of 2008, r 3 and Sch 1 item 38, with effect from 15 Apr 2008]

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Schedule 1 – Forms Notice of hearing to approve compromise or arrangement

Form 6

Form 6 – Notice of hearing to approve compromise or arrangement TO all the creditors and members of [name of company]. TAKE NOTICE that at .......... *am/*pm on .......... , the ......................... at [address of Court] will hear an application by [name of plaintiff] seeking the approval of a compromise or arrangement between the above-named company and its *members/*creditors as proposed by a resolution passed by the meeting of the * members/*creditors of the company held on [date]. [Complete this section if applicable] The proposed compromise or arrangement as passed by the meeting was amended from the form of compromise or arrangement previously sent to you in the following respects: [Set out the details of any amendment made at the meeting] If you wish to oppose the approval of the compromise or arrangement, you must file and serve on the plaintiff a notice of appearance, in the prescribed form, together with any affidavit on which you wish to rely at the hearing. The notice of appearance and affidavit must be served on the plaintiff at its address for service at least 1 day before the date fixed for the hearing of the application. [This section must be completed] The address for service of the plaintiff is [address of plaintiff’s legal practitioner or of plaintiff]. Name of person giving notice or of person’s legal practitioner [name] * Omit if not applicable

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(rule 3.4)

Form 7

Federal Court (Corporations) Rules 2000 (Cth)

Form 7 – Affidavit accompanying statutory demand (rule 5.2)

[Name of creditor(s)] Creditor(s) [Name of debtor company] Debtor company I, [name] of [address and occupation], *say on oath/*affirm [or *make oath and say/*solemnly and sincerely declare and affirm]: 1 I am [state deponent’s relationship to the creditor(s), eg, ‘the creditor’, ‘(name), one of the creditors’, ‘a director of the creditor’, ‘a director of (name), one of the creditors’] in respect of *a debt of $[amount]/*debts totalling $[amount] owed by [name of debtor company] to *it/*them relating to [state nature of debt, or debts, ensuring that what is stated corresponds with the description of the debt, or debts, to be given in the proposed statutory demand, with which this affıdavit is to be served on the debtor company]. 2 [If the deponent is not the creditor, state the facts entitling the deponent to make the affıdavit, eg ‘I am authorised by the creditor(s) to make this affıdavit on its/their behalf’]. 3 [State the source of the deponent’s knowledge of the matters stated in the affıdavit in relation to the debt or each of the debts, eg ‘I am the person who, on behalf of the creditor(s), had the dealings with the debtor company that gave rise to the debt’, ‘I have inspected the business records of the creditor in relation to the debtor company’s account with the creditor’]. * The debt/*The total of the amounts of the debts, mentioned in paragraph 1 of this affidavit, is due and 4 payable by the debtor company. 5 I believe that there is no genuine dispute about the existence or amount of the *debt/*any of the debts. * Sworn/*affirmed at: [place of swearing or affırmation] on [date] OR * Sworn/*affirmed by the above-named deponent at: [place of swearing or affırmation] this ......................... day of [month] [year] .................................................. Signature of deponent Before me: .................................................. Signature and designation of person before whom deponent swears or affırms affıdavit * Omit if not applicable Note: The form of the opening words and the jurat of this affidavit may be changed to conform to the form of affidavit used in a particular State or Territory — see rule 2.6. [Form 7 am SR 127 of 2001, r 3 and Sch 1 items 7 and 8, with effect from 30 Jun 2001]

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Schedule 1 – Forms Consent of liquidator/provisional liquidator

Form 8

Form 8 – Consent of liquidator/provisional liquidator [Title] I, [name], of [address], an official liquidator, consent to be appointed by the Court and to act as the * liquidator/*provisional liquidator of [name of company]. I am not aware of any conflict of interest or duty that would make it improper for me to act as * liquidator/*provisional liquidator of the company. EITHER I am not aware of any relevant relationship mentioned in subsection 60(2) of the Corporations Act 2001. OR I have, or have had within the preceding 24 months, the following relevant relationships mentioned in subsection 60(2) of the Corporations Act 2001: [Set out all relevant relationships] The hourly rates currently charged in respect of work done as *liquidator/*provisional liquidator by me, and by my partners and employees who may perform work in this administration, are set out below or in the Schedule which is attached to this Consent. I acknowledge that my appointment by the Court does not constitute an express or implied approval by the Court of these hourly rates. Note: The requirement to disclose hourly rates should not be taken to imply that remuneration on an hourly basis is the most desirable or appropriate arrangement in every case. The Corporations Act acknowledges that another method of calculating remuneration may be appropriate (see, for example, s 473(2) and (3)). Date: .................................................. Signature of offıcial liquidator *

Omit if not applicable Schedule [description of hourly rate(s)]

[Form 8 am SLI 61 of 2008, r 3 and Sch 1 items 24 and 25, with effect from 15 Apr 2008; SR 132 of 2003, r 3 and Sch 1 items 16 and 17, with effect from 19 Jun 2003]

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(rules 5.5, 6.1)

Form 9

Federal Court (Corporations) Rules 2000 (Cth)

Form 9 – Notice of application for winding up order (rule 5.6)

IN THE [name of Court] No .......... of [year] [Name of company] ABN or ACN: [ABN or ACN of company to which proceeding relates] 1 A proceeding for the winding up of [name of company and, if applicable, the words ‘trading as’ and any trading name or names of the company] was commenced by the plaintiff, [name of plaintiff], on [date of filing of originating process] and will be heard by .................................................. at [address of Court] at .......... *am/*pm on .......... Copies of documents filed may be obtained from the plaintiff’s address for service. 2 The plaintiff’s address for service is [address of plaintiff’s legal practitioner or of plaintiff]. 3 Any person intending to appear at the hearing must file a notice of appearance, in accordance with the prescribed form, together with any affidavit on which the person intends to rely, and serve a copy of the notice and any affidavit on the plaintiff at the plaintiff’s address for service at least 3 days before the date fixed for the hearing. Date: Name of plaintiff or plaintiff’s legal practitioner: [name] * Omit if not applicable [Form 9 am SLI 175 of 2012, r 3 and Sch 1 item 17, with effect from 1 Aug 2012; SLI 345 of 2007, r 3 and Sch 1 item 3, with effect from 16 Oct 2007]

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Schedule 1 – Forms Notice of application for winding up order by substituted plaintiff

Form 10

Form 10 – Notice of application for winding up order by substituted plaintiff IN THE [name of Court] No .......... of [year] [Name of company] ABN or ACN: [ABN or ACN of company to which proceeding relates] 1 [Name of substituted plaintiff], who was, by order of the [name of Court], substituted as a plaintiff, will apply to the Court at .......... *am/*pm on .......... at [address of Court] for an order that the above company be wound up. 2 The address for service of the substituted plaintiff is [address of substituted plaintiff’s legal practitioner or of substituted plaintiff]. 3 Any person intending to appear at the hearing must file a notice of appearance, in accordance with the prescribed form, together with any affidavit on which the person intends to rely, and serve a copy of the notice and any affidavit on the substituted plaintiff at its address for service at least 3 days before the date fixed for the hearing. Date: Name of substituted plaintiff or substituted plaintiff’s legal practitioner: [name] * Omit if not applicable [Form 10 am SLI 345 of 2007, r 3 and Sch 1 item 3, with effect from 16 Oct 2007; SR 132 of 2003, r 3 and Sch 1 item 18, with effect from 19 Jun 2003]

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51

Cth

(rule 5.10)

Form 11

Federal Court (Corporations) Rules 2000 (Cth)

Form 11 – Notice of winding up order and of appointment of liquidator (rule 5.11)

IN 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] [Form 11 am SLI 345 of 2007, r 3 and Sch 1 item 3, with effect from 16 Oct 2007]

52

Corporations – Court Rules and Related Legislation 2017

Schedule 1 – Forms Notice of appointment of provisional liquidator

Form 12

Form 12 – Notice of appointment of provisional liquidator IN 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], 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] [Form 12 am SLI 345 of 2007, r 3 and Sch 1 item 3, with effect from 16 Oct 2007]

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53

Cth

(rule 6.2)

Form 13

Federal Court (Corporations) Rules 2000 (Cth)

Form 13 – Notice by creditor or contributory of objection to release of liquidator (rule 7.6)

[Title] [Name of creditor/contributory] of [address of creditor/contributory], a creditor of [name of company] for $[amount], or a contributory of [name of company] holding [number] shares in the company, objects to the grant of a release to [name of liquidator] of [address of liquidator], who is the liquidator of [name of company], on the following grounds: [set out the grounds upon which the objection is made] Date: .................................................. Signature of objector or objector’s legal practitioner Name of objector or objector’s legal practitioner: [name]. The objector’s address for service is [address of objector or objector’s legal practitioner].

54

Corporations – Court Rules and Related Legislation 2017

Schedule 1 – Forms Affidavit in support of application for order for payment of call

Form 14

Form 14 – Affidavit in support of application for order for payment of call [Title] I, [name] of [address], liquidator, *say on oath/*affirm [or *make oath and say/*solemnly and sincerely declare and affirm]: 1 I am the liquidator of [name of company] (the company). 2 On [date] I made a call of $[amount] per share on all the contributories of the company [or specify the class of contributories on whom the call was made]. *Annexed/*Exhibited and marked A is a copy of the notice of the call. Each contributory whose name is shown in the Schedule marked B was duly served with notice of the call in the form annexed or exhibited and marked A. 3 Each contributory of the company whose name is set out in column 2 of the Schedule marked B has not paid, or caused to be paid, to me the sum specified opposite the contributory’s name in column 5 of the Schedule, which is due from that contributory under the call. 4 The amount set out opposite the name of each contributory in column 6 of the Schedule is an estimate of the amount due by that contributory in respect of the costs of applying for and giving effect to the order for payment of the call. The estimate of the amounts so due by the several contributories has been reached by apportioning the costs among the contributories who have not paid the call according to the liability of the respective contributories to contribute. 5 The amount set out opposite the name of each contributory in column 7 of the Schedule is the total of the amount due by that contributory in respect of the call as set out in column 5 and the amount due in respect of costs as set out in column 6. * Sworn/*affirmed at: [place of swearing or affırmation] on [date] OR * Sworn/*affirmed by the above-named deponent at: [place of swearing or affırmation] this .......... day of [month] [year] .................................................. Signature of deponent Before me: .................................................. Signature and designation of person before whom deponent swears or affırms affıdavit * Omit if not applicable Note: The form of the opening words and the jurat of this affidavit may be changed to conform to the form of affidavit used in a particular State or Territory — see rule 2.6.

Number on list of Name contributories

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Schedule B Unpaid Address Character in which included in amount of call the list

Proportion of Total amount payable costs of application

55

Cth

(rule 7.8)

Form 15

Federal Court (Corporations) Rules 2000 (Cth)

Form 15 – Notice of application for leave to distribute a surplus (rule 7.9)

IN THE [name of Court and address] APPLICATION NO: IN THE MATTER OF [company name] ABN or ACN: [ABN or ACN of company to which proceeding relates] On ......................... at ......................... , the .................................................. will hear an application by the liquidator of [name of company] in Proceeding No. .......... of [year] for leave to distribute a surplus in respect of the liquidation of the company. Any person intending to appear at the hearing must file a notice of appearance, in accordance with the prescribed form, together with any affidavit on which the person intends to rely, and serve a copy of the notice and affidavit on the liquidator at the address shown below at least 3 days before the date fixed for the hearing. Name of liquidator: [name]. The liquidator’s address for service is [address]. .................................................. Signature of liquidator [Form 15 am SLI 345 of 2007, r 3 and Sch 1 item 3, with effect from 16 Oct 2007]

56

Corporations – Court Rules and Related Legislation 2017

Schedule 1 – Forms Notice of intention to apply for remuneration

Form 16

Form 16 – Notice of intention to apply for remuneration IN THE MATTER OF [company name] ABN or ACN: [ABN or ACN of company to which proceeding relates] TO: [name and address of person to whom notice is given] TAKE NOTICE that, not less than 21 days after this notice is served on you, I, [name and address], the * receiver/*administrator/*liquidator/*provisional liquidator/*special manager of the above company, intend to apply to the Court to determine my remuneration. If you object to my application, you must, within 21 days after being served with this notice, serve on me a notice of objection stating the grounds of objection to the remuneration claimed. Date: .................................................. *

Signature of receiver/*administrator/*liquidator/ * provisional liquidator/*special manager *

Omit if not applicable

[Form 16 am SLI 345 of 2007, r 3 and Sch 1 item 3, with effect from 16 Oct 2007]

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Cth

(rules 9.1, 9.2, 9.3, 9.4, 9.5)

Form 16A

Federal Court (Corporations) Rules 2000 (Cth)

Form 16A – Notice of intention to apply for review of remuneration (rules 9.2A, 9.4A)

IN THE MATTER OF [company name] ACN or ABN: [ACN or ABN of company to which proceeding relates] TO: [name and address of person to whom notice is given] TAKE NOTICE that, not less than 21 days after this notice is served on you, I, [name and address of plaintiff or applicant], *[the *administrator/*liquidator of the above company,] intend to apply to the Court to review * the remuneration of/*my remuneration as the *administrator/*liquidator of the above company. The amount of the remuneration that has been determined or fixed is [state the amount]. The remuneration was determined or fixed by [state who determined or fixed the remuneration] on [state the date when the remuneration was determined or fixed]. I intend to apply for an order to *confirm/*increase/*reduce the remuneration. [Set out the grounds upon which an order or orders will be sought. If an order to increase or reduce the remuneration is sought, set out the amount by which the remuneration is sought to be increased or reduced.] If you wish to appear at the hearing of the application, in order to raise any issues before the Court, you must, within 21 days after being served with this notice, serve on me a notice under subrule *9.2A(4)/*9.4A(4) of the Federal Court (Corporations) Rules 2000, stating your intention to appear at the hearing and setting out the issues that you seek to raise before the Court. Date: .................................................. Signature of plaintiff or applicant *

Omit if not applicable

[Form 16A insrt SLI 61 of 2008, r 3 and Sch 1 item 26, with effect from 15 Apr 2008]

58

Corporations – Court Rules and Related Legislation 2017

Schedule 1 – Forms Summons for examination

Form 17

Form 17 – Summons for examination [Title] A. DETAILS OF SUMMONS TO: [name and address of person to be examined] You are summoned under *section 596A/*section 596B of the Corporations Act to: (a) attend before .................................................. at [address of Court] at .......... *am/*pm on .......... , and from day to day until excused by the Court, to be examined on oath or affirmation about the examinable affairs of [name of corporation]; and (b) *to produce at the examination the following books [specify books — include in a schedule if necessary]. Date: .................................................. Registrar B. NOTICE TO PERSON TO BE EXAMINED The Court may order that the questions put to you and the answers given by you at the examination are to be recorded in writing and signed by you. If you do not attend the examination in accordance with this summons, without reasonable cause, you may be arrested and imprisoned without further notice. This summons is issued at the request of [name] whose address for service is [address of person’s legal practitioner or of person]. * Omit if not applicable [Form 17 am SR 132 of 2003, r 3 and Sch 1 item 19, with effect from 19 Jun 2003; SR 333 of 2000, r 3 and Sch 1 items 30 and 31, with effect from 1 Jan 2001]

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59

Cth

(rule 11.3)

Form 17A

Federal Court (Corporations) Rules 2000 (Cth)

Form 17A – Arrest warrant (Corporations Act 2001 s 486B and Federal Court (Corporations) Rules 2000 rule 11A.01)

[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 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 IS SATISFIED THAT [name of person]: * is about to leave Australia in order to avoid: (a) * paying money payable to the company; or (i) * being examined about the company’s affairs; or (ii) (iii) *complying with an order of the Court, or some other obligation, under Chapter 5 of the Corporations Act 2001 (Cth) in connection with the winding up; or * has concealed or removed property of the Company in order to prevent or delay the (b) taking of the property into the liquidator’s custody or control; or * has destroyed, concealed or removed books of the Company or is about to do so; (c) THIS WARRANT THEREFORE requires and authorises you to take [name of person] and to 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. THIS WARRANT ALSO requires and authorises you to seize any property or books of the company in the possession of [name of person] and to deliver them into the custody of the Registrar of the Court to be kept by that Registrar until the Court makes an order for their disposal. Note: Section 489A of the Corporations Act 2001 provides that if the Court issues a warrant under section 486B for a person to be arrested and brought before the Court, and the person is not in prison, then the person named in the warrant may be arrested by an officer of the police force of the State or Territory in which the person is found, or the Sheriff of that State or Territory or any of the Sheriff’s officers, or a member or special member of the Australian Federal Police. Date: .................................................. Signature of Registrar *

Omit if not applicable

[Form 17A insrt SLI 61 of 2008, r 3 and Sch 1 item 27, with effect from 15 Apr 2008]

60

Corporations – Court Rules and Related Legislation 2017

Schedule 1 – Forms Summons for appearance in relation to registration of transfer of interests

Form 18

Cth

Form 18 – Summons for appearance in relation to registration of transfer of interests (rule 12.2)

[Title] TO: [name and address] You are required to appear before the .................................................. at [address of Court] at .......... *am/*pm on .......... and show cause why the document(s) specified in the Schedule should not be *delivered up/*produced at the office of [name of company] at [address of company] within [period as ordered], as required by the attached notice. The address for service of the person applying for this summons is [address of person’s legal practitioner or of person]. Date: .................................................. Registrar *

Omit if not applicable Schedule [description of document(s)]

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61

Form 19

Federal Court (Corporations) Rules 2000 (Cth)

Form 19 – Consent to act as designated person (rule 15A.5)

[Title] I, [name], of [address], an official liquidator, consent to be appointed by the Court and to act as the person designated by the Court under *article 19/*article 21 of the Model Law to *administer/*realise/*distribute the assets of [name of company]. I am not aware of any conflict of interest or duty that would make it improper for me to act as the person designated by the Court. The hourly rates currently charged in respect of work done as the person designated by the Court by me, and by my partners and employees who may perform work in this administration, are set out below or in the Schedule which is attached to this Consent. I acknowledge that my appointment by the Court does not constitute an express or implied approval by the Court of these hourly rates. Date: .................................................. Signature of offıcial liquidator *

Omit if not applicable Schedule [description of hourly rate(s)]

[Form 19 am SLI 47 of 2010, r 3 and Sch 1 item 1, with effect from 16 Mar 2010; insrt SLI 206 of 2008, r 3 and Sch 1 item 11, with effect from 15 Oct 2008]

62

Corporations – Court Rules and Related Legislation 2017

Schedule 1 – Forms Notice of filing of application for recognition of foreign proceeding

Form 20

Cth

Form 20 – Notice of filing of application for recognition of foreign proceeding (rule 15A.6)

IN THE [name of Court] No. .......... of [year] [Name of company] ABN or ACN: [ABN or ACN of company to which proceeding relates] TO all the creditors of [name of company]. TAKE NOTICE that: 1. An application under the Cross-Border Insolvency Act 2008 for recognition of a foreign proceeding in relation to [name of company] was commenced by the plaintiff, [name of plaintiff], on [date of filing of originating process] and will be heard by .................................................. at [address of Court] at .......... *am/*pm on .......... Copies of documents filed may be obtained from the plaintiff’s address for service. 2. The plaintiff’s address for service is [name and address of plaintiff’s legal practitioner or, if there is no legal practitioner, address of the plaintiff]. 3. Any person intending to appear at the hearing must file a notice of appearance, in accordance with the prescribed form, together with any affidavit on which the person intends to rely, and serve a copy of the notice and any affidavit on the plaintiff at the plaintiff’s address for service at least 3 days before the date fixed for the hearing. 4. If you are a foreign creditor you must file in the registry of the Court at the address mentioned in paragraph 1 an affidavit setting out the details of any claim, secured or unsecured, that you may have against the company above at least 3 days before the date fixed for the hearing. Date: .......... Name of plaintiff or plaintiff’s legal practitioner: [name] * Omit if not applicable [Form 20 insrt SLI 206 of 2008, r 3 and Sch 1 item 11, with effect from 15 Oct 2008]

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63

Form 21

Federal Court (Corporations) Rules 2000 (Cth)

Form 21 – Notice of making of order under the Cross-Border Insolvency Act 2008 (rule 15A.7)

IN THE [name of Court] No .......... of [year] [Name of company] ABN or ACN: [ABN or ACN of company to which proceeding relates] TO all the creditors of [name of company]. TAKE NOTICE that: 1. On [date], the [name of Court] in Proceeding No. .......... of [year], commenced by the plaintiff [name of plaintiff], made the following orders under the Cross-Border Insolvency Act 2008 in relation to [name of company]: [insert details of order]. 2. The plaintiff’s address for service is [name and address of plaintiff’s legal practitioner or, if there is no legal practitioner, address of the plaintiff]. 3. The name and address of the foreign representative is [insert name and address]. 4. The name and address of the person entrusted with distribution of the company’s assets is [insert name and address].* Date: .......... Name of plaintiff or plaintiff’s legal practitioner: [name] * Omit if not applicable [Form 21 insrt SLI 206 of 2008, r 3 and Sch 1 item 11, with effect from 15 Oct 2008]

64

Corporations – Court Rules and Related Legislation 2017

Schedule 1 – Forms Notice of dismissal/withdrawal of application for recognition of foreign proceeding Form 22

Cth

Form 22 – Notice of dismissal or withdrawal of application for recognition of foreign proceeding (rule 15A.7)

IN THE [name of Court] No .......... of [year] [Name of company] ABN or ACN: [ABN or ACN of company to which proceeding relates] TO all the creditors of [name of company]. TAKE NOTICE that the application under the Cross-Border Insolvency Act 2008 for recognition of a foreign proceeding in relation to [name of company] commenced by the plaintiff, [name of plaintiff], on [date of filing of originating process] was dismissed*/withdrawn* on [date of dismissal/withdrawal] Date: .......... Name of person giving notice or of person’s legal practitioner [name] * Omit if not applicable [Form 22 insrt SLI 206 of 2008, r 3 and Sch 1 item 11, with effect from 15 Oct 2008]

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65

Form 23

Federal Court (Corporations) Rules 2000 (Cth)

Form 23 – Notice of filing of application to modify or terminate an order for recognition or other relief (rule 15A.9)

IN THE [name of Court] No .......... of [year] [Name of company] ABN or ACN: [ABN or ACN of company to which proceeding relates] TO all the creditors of [name of company]. TAKE NOTICE that: * 1. An application under the Cross-Border Insolvency Act 2008 for an order *modifying/*terminating an order for recognition of a foreign proceeding in relation to [name of company] was filed by the applicant, [name of applicant], on [date of filing of interlocutory process] and will be heard by .................................................. at [address of Court] at .......... *am/*pm on .......... Copies of documents filed may be obtained from the applicant’s address for service. * 1. An application under the Cross-Border Insolvency Act 2008 for an order *modifying/*terminating relief granted under *article 19/*article 21 of the Model Law in relation to [name of company] was filed by the applicant, [name of applicant], on [date of filing of interlocutory process] and will be heard by .................................................. at [address of Court] at .......... *am/*pm on .......... Copies of documents filed may be obtained from the applicant’s address for service. 2. The applicant’s address for service is [name and address of applicant’s legal practitioner or of applicant]. 3. Any person intending to appear at the hearing must file a notice of appearance (if the person has not already done so), in accordance with the prescribed form, together with any affidavit on which the person intends to rely, and serve a copy of the notice (if applicable) and any affidavit on the applicant at the applicant’s address for service at least 3 days before the date fixed for the hearing. Date: .......... Name of applicant or applicant’s legal practitioner: [name] * Omit if not applicable [Form 23 insrt SLI 206 of 2008, r 3 and Sch 1 item 11, with effect from 15 Oct 2008] [Sch 1 am SLI 175 of 2012; SLI 170 of 2011; SLI 47 of 2010; SLI 206 of 2008; SLI 61 of 2008; SLI 345 of 2007; SLI 81 of 2007; SLI 376 of 2003; SLI 132 of 2003; SLI 127 of 2001; SLI 333 of 2000]

66

Corporations – Court Rules and Related Legislation 2017

Schedule 2 – Powers of the Court that may be exercised by a Registrar

SCHEDULE 2 – POWERS OF THE COURT THAT MAY BE EXERCISED BY A REGISTRAR (rule 16.1)

Part 1 – Corporations Act Item

Provision of the Corporations Act

Rule

Description (for information only)

1 2

1.8 2.13

3

2.14

Power to give directions Power to grant leave to creditor, contributory or officer to be heard in proceeding or be added as a defendant, etc Power to direct an inquiry in relation to a corporation’s debts, etc Power to declare that conditions prescribed by Division 3 of Part 2E.1 have been satisfied Power to order inspection of books Power to order meeting of members of registered scheme Power to extend period for lodgment of notice in respect of charge Power to give leave to enforce charge Power to rectify register of charges Power to appoint body corporate as trustee for debenture holders Power to make an order for meeting of debenture holders to direct trustee Power to give directions or determine any questions of application of trustee for debenture holders Power to make an order in relation to borrowing corporations Power to order security for debentures to be enforceable Power to make an order in relation to administration of compromise or arrangement etc

4

section 227

5 6

sections 247A and 247B section 252E

7

subsection 266(4)

8 9 9A

subsection 267(3) section 274 paragraph 283AE(2)(a)

9B

section 283EC

9C

section 283HA

9D

subsection 283HB(1)

9E

paragraph 283HB(1)(c)

10

section 411

11

section 418A

12

section 419

13 14

section 419A section 420B

15

section 420C

16

section 423

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3.3 3.4 3.5

4.1

Power to make declaration as to validity of controller’s appointment and in relation to control of property Power to make an order relieving person who incurs liability in belief that properly appointed as a receiver Power to relieve controller from liability Power to authorise managing controller to dispose of property despite prior charge Power to authorise receiver to carry on corporation’s business during the winding up Power to inquire into conduct of controller 67

Cth

Schedule 2

Federal Court (Corporations) Rules 2000 (Cth) Item

Rule

17

Provision of the Corporations Act section 424

18 19 20 21 21A

section 425 subsection 429(3) section 434B section 438D subsection 439A(6)

9.1

22

section 440B

23 24

section 440C section 440D

25

section 440F

26

subsection 440G(7)

27

section 440J

28

section 441D

29

section 441H

30

section 442C

31

subsection 443B(8)

32

subsection 444B(2)

33

subsection 444C(2)

34

subsection 444E(3)

35

section 444F

36

section 445B

37

section 445D

38

section 445G

68

Schedule 2

Description (for information only) Power to give directions in relation to controller’s functions and powers Power to fix amount of remuneration of a receiver Power to extend time for report Power to remove redundant controller Power to direct administrator to lodge a report Power to extend the convening period fixed by subsection 439A(5) Power to grant leave to enforce a charge if an administrator has been appointed Power to grant leave to take possession of property Power to grant leave to begin or proceed with a proceeding in a court against a company which is in administration, or in relation to any of its property Power to grant leave to begin or proceed with enforcement process in relation to the property of a company Power to authorise a court officer to take action or to make a payment which would be prohibited Power to grant leave to take enforcement action under a guarantee Power to limit powers of chargee in relation to charged property Power to limit powers of receiver etc in relation to property used by company Power to grant leave to administrator to dispose of encumbered property Power to grant relief of administrator from personal liability for rent Power to extend time for execution of deed of company arrangement Power to grant leave to act inconsistently with deed of company arrangement Power to grant leave to person bound by deed of company arrangement to begin or proceed with enforcement process in relation to property of company Power to order secured creditor or owner or lessor of property not to take certain actions Power to make an order cancelling a variation of a deed of company arrangement Power to make an order terminating a deed of company arrangement Power to avoid or validate a deed of company arrangement Corporations – Court Rules and Related Legislation 2017

Schedule 2 – Powers of the Court that may be exercised by a Registrar Schedule 2

39

Provision of the Corporations Act section 447A

40

section 447B

41

section 447C

42 43

section 447D section 447E

44

section 449B

45

sections 449C and 449D

46

49

paragraphs 449E(1)(c) 9.2 and (1A)(c) subsection 449E(2) 9.2A sections 459F, 459H, 459J, 459L, 459M and 459N Div 5 sections 459A, 459B (except in respect of applications under Part 2F.1), 459C, 459D, 459P, 459R, 459S, 459T, 461, 462, 464 and 465B, 465C, 466, 467, 467A and 467B (except in respect of applications under Part 2F.1) section 468

49A

section 468A

50

paragraph 470(2)(b)

51

section 472

52 53

subsection 473(1) subsection 473(2)

54 54A

subsection 473(3) subsections 473(5) and (6)

46A 47

48

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Rule

5.5 6.1 7.1 9.3 9.4 9.4A

Description (for information only) Cth

Item

Power to make an order to bring an administration to an end Power to make an order to protect interests of company’s creditors during an administration Power to declare whether administrator is validly appointed Power to give directions to an administrator Power to make an order as to supervision of administrator of company or deed of company arrangement Power to make an order as to removal and appointment of administrator Power to make an order in respect of vacancy in office of administrator of company or in office of administrator of deed of company arrangement Power to determine remuneration of administrator Power to review remuneration of administrator Power to make an order in relation to statutory demands Power to make orders in relation to winding up applications

Power in relation to validation of disposition of property Power in relation to authorisation of the transfer of shares Power to direct service of copy of order on another person Power to appoint official liquidator or provisional liquidator Power to remove liquidator Power to determine provisional liquidator’s remuneration Power to determine remuneration of liquidator Power to review remuneration of liquidator

69

Federal Court (Corporations) Rules 2000 (Cth) Item 55 56

Provision of the Corporations Act subsection 473(7) subsection 473(8)

57 58

subsection 474(2) subsection 475(8)

59

section 479

60 61

section 480 section 481

61A

section 482

62

subsection 483(1)

62A 63 63A

subsection 483(2) subsection 483(3) subsection 483(4)

64

section 484

65

section 486

66 67

subsection 488(2) section 490

68

subsection 495(4)

69

subsection 496(3)

70

subsection 497(3)

72

section 500

73 74

section 502 section 503

70

Schedule 2

Rule

Description (for information only)

7.2

Power to fill vacancy in office of official liquidator Power to declare what may be done by liquidator, where more than one liquidator is appointed by the Court Power to order that property vest in liquidator Power to grant leave for payment of costs and expenses incurred in preparing a report under section 475 Power to give directions in matters arising in a winding up Power to release liquidator and deregister company Power to order preparation of report on accounts of liquidator Power to make an order: (a) to stay the winding up of a company either indefinitely or for a limited time; or (b) to terminate the winding up of a company on a day specified in the order

7.3

7.5 7.7

7.8

8.1 8.2 8.3

7.9

7.2

Power to require payment of money or transfer of property Power to order payment of money Power to order payment of a call Power to order payment of amount due into a bank named in the order Power to appoint special manager

Power to make an order for inspection of books by creditors or contributories Power to grant leave to distribute a surplus Power to grant leave to company to wind up voluntarily Power to make an order in relation to conduct of meeting in course of members’ voluntary winding up Power to order that list of creditors be sent to creditors in members’ voluntary winding up Power to order that list of creditors be sent to creditors in creditors’ voluntary winding up Power to make an order as to execution and civil proceedings Power to appoint liquidator Power to remove liquidator

Corporations – Court Rules and Related Legislation 2017

Schedule 2 – Powers of the Court that may be exercised by a Registrar Item 75

Provision of the Corporations Act section 504

76

subsection 507(6)

77 78

subsection 507(9) subsection 507(10)

79

subsection 509(6)

80

subsection 510(3)

81

paragraph 511(1)(a)

82

paragraph 511(1)(b)

83

subsection 532(2)

84

section 536

85

paragraph 542(3)(a)

86

subsection 543(1)

87

subsection 544(2)

88

section 545

89

section 551

90

section 552

91

section 554A

92

section 554G

93

section 564

94

sections 568, 568B, 568E and 568F sections 583 and 585

95

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Rule

Description (for information only)

9.4A

Power to review liquidator’s remuneration in voluntary winding up Power to sanction resolution to accept shares as consideration for sale of property of company Power to give directions necessary for arbitration Power to approve liquidator’s exercise of powers in creditors’ voluntary winding up Power to order ASIC to deregister company on specified day Power to settle dispute as to value of security or lien or amount of debt or set-off Power to determine question in winding up of company Power to make an order in relation to an application to the Court to exercise powers which might be exercised if a company were being wound up by the Court Power to grant leave for person to be appointed as liquidator Power to make an order in relation to supervision of liquidators

7.11 11.2 11.8

14.1

10.2 10.3

Power to give directions in relation to destruction of books of company Power to make an order as to the investment of surplus funds Power to order account of funds in hands of liquidator, audit or payment of money by liquidator Power to direct to liquidator to incur particular expense Power to give leave for member of committee of inspection to accept extra benefit etc Power to give direction or permission where no committee of inspection is appointed Power to estimate or determine value of debts and claims of uncertain value in liquidation Power to grant leave to secured creditor to amend valuation of security in proof of debt Power to make an order in favour of creditors who give company indemnity for costs of litigation Power to make an order in relation to disclaimer of onerous property Power in relation to winding up Part 5.7 bodies

71

Cth

Schedule 2

Federal Court (Corporations) Rules 2000 (Cth) Item 96

97

Provision of the Corporations Act sections 596A, 596B, 596F, 597, 597A and 597B

97A

sections 600A to 600D (inclusive) subsection 601AH(2)

97B

subsection 601AH (3)

98

subsection 601BJ(2)

99

subsection 601CC(9)

100

subsection 601CL(10)

101

section 1071D

102

section 1071F

103

subsection 1071H(6)

109

section 1274

110

section 1303

111 112

section 1319 section 1321

113 113A

section 1322 section 1325D

114

section 1335

Schedule 2

Rule

Description (for information only)

11.3

Power to make an order in relation to ex aminations

11.6 11.7 11.9 Power to make an order in relation to creditor’s resolutions Power to order reinstatement of registration of a company Power to: (a) validate anything done between deregistration of a company and its reinstatement; and (b) make any other order the Court considers appropriate

12.2

14.1

Power to approve modification in constituent documents of registered company Power to order restoration of name of registered Australian body to the Register Power to order restoration of name of registered foreign company to the Register Power to make an order in relation to a person summoned Power to make an order in relation to a company’s refusal to register a share transfer Power to make an order to remedy default in issuing certificate etc Power to make an order where failure to lodge, amend etc a document Power to order that books be available for inspection Power to give directions with respect to meetings Power to make an order in appeal from decision of receiver or liquidator Power to make an order in relation to irregularities Power to make an order where contravention of a provision of Chapter 6 due to inadvertence Power to make an order as to costs

[Pt 1 am SLI 61 of 2008, r 3 and Sch 1 items 28–37, with effect from 15 Apr 2008; SLI 345 of 2007, r 3 and Sch 1 item 4, with effect from 16 Oct 2007; SLI 204 of 2006, r 3 and Sch 1 items 1 and 2, with effect from 1 Aug 2006; SR 132 of 2003, r 3 and Sch 1 items 20–26, with effect from 19 Jun 2003; SR 97 of 2002, r 3 and Sch 1 item 1, with effect from 14 May 2002]

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Schedule 2 – Powers of the Court that may be exercised by a Registrar Schedule 2

Part 2 – ASIC Act

1

Provision of the ASIC Act subsection 79(4)

Rule

Description (for information only)

Cth

Item

Power to extend period to give notice of intention to have statements made at examination admitted

[Pt 2 am SR 132 of 2003, r 3 and Sch 1 items 27 and 28, with effect from 19 Jun 2003; SR 333 of 2000, r 3 and Sch 1 item 32, with effect from 1 Jan 2001] [Sch 2 am SLI 61 of 2008; SLI 345 of 2007; SLI 204 of 2006; SLI 132 of 2003; SLI 97 of 2002; SLI 333 of 2000]

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SCHEDULE 3 – NOTES TO THESE RULES (rules 2.2, 2.4 and 5.4)

Note 1 to these rules — see rule 2.2 (Form 2 Part C) C. APPLICATION FOR WINDING UP ON GROUND OF INSOLVENCY 1. The plaintiff relies on failure by the defendant to comply with a statutory demand. A copy of the demand, marked A, is attached to this originating process. 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/*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/*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. * Omit if not applicable Note 2 to these rules — see rule 2.4 and subrule 5.4(2) (Affidavit in support) * AFFIDAVIT IN SUPPORT/*AFFIDAVIT IN SUPPORT OF APPLICATION FOR WINDING UP IN INSOLVENCY 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/*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. 2. Annexed to this affidavit is a current and historical extract of the records maintained by the Australian Securities and Investments Commission with respect to the defendant. 3. [Where the defendant is registered or taken to be registered in a State or Territory other than that of this Registry, state any facts — apart from the defendant’s principal place of business — which bear upon jurisdiction being exercised in the State or Territory of this Registry, rather than in another State or Territory.] 4. The following facts are within my own personal knowledge save as otherwise stated. 5. The defendant was on [state date of statutory demand or other relevant date] indebted to the plaintiff in the sum of $ [amount] for [state concisely the consideration, for example, goods sold and delivered etc] which sum was then due and payable. 6. The demand, a copy of which is attached to the originating process, was signed by or on behalf of the plaintiff. I served the demand [or the demand and the accompanying affidavit] as referred to in the originating process [or X.Y. has been instructed to make an affidavit of service of the demand [or the demand and the accompanying affidavit]]. 7. The matters stated in the originating process concerning the demand and failure of the defendant to comply with it are true and correct. 8. The sum demanded remains due and payable by the defendant to me [or the plaintiff]. Sworn, etc. * Omit if not applicable

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Schedule 3 – Notes to these Rules Schedule 3

Cth

[Sch 3 am SR 376 of 2003, r 3 and Sch 1 item 3, with effect from 23 Dec 2003; insrt SR 132 of 2003, r 3 and Sch 1 item 29, with effect from 19 Jun 2003]

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Commercial and corporations practice note (C&C-1) – National Practice Area Practice Note ................................................................................................................................[FEDPN.10] Cross-border insolvency practice note: cooperation with foreign courts or foreign representatives (GPN-XBDR) – General Practice Note ................................................[FEDPN.20] Central practice note: national court framework and case management (CPN-1) – Central Practice Note .................................................................................................................[FEDPN.30] Expert evidence practice notes (GPN-EXPT) – General Practice Note ............................[FEDPN.40] Freezing orders practice note (GPN-FRZG) – (Also known as “Mareva Orders” or “Asset Preservation Orders”) – General Practice Note ............................................................[FEDPN.50] Search orders practice note (GPN-SRCH) – (Also known as “Anton Piller Orders”) – General Practice Note ...................................................................................................[FEDPN.60] Costs practice note (GPN-COSTS) – General Practice Note ............................................[FEDPN.70] Lists of authorities and citations practice note (GPN-AUTH) – General Practice Note ....[FEDPN.80]

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FEDERAL COURT PRACTICE NOTES

Federal Court Practice Notes

[FEDPN.10]

[FEDPN.10] Commercial and corporations practice note (C&C-1) – National Practice Area Practice Note 1. INTRODUCTION 1.1 This practice note sets out the arrangements for the management of commercial and corporations cases within the National Court Framework (“NCF”). It: (a) is to be read together with the: • Central Practice Note (CPN-1), which sets out the fundamental principles concerning the NCF of the Federal Court and key principles of case management procedure. The Central Practice Note is an essential guide to practice in this Court in all proceedings; and • the Federal Court of Australia Act 1976 (Cth) (“Federal Court Act”) and the Federal Court Rules 2011 (Cth) (“Federal Court Rules”; (b) takes effect from the date it is issued and to, the extent practicable, applies to proceedings whether filed before, or after, the date of issuing; (c) sets out the arrangements for the management of commercial and corporations proceedings. It is intended to set out guiding principles for the conduct of these proceedings and is not intended to be inflexibly applied. 1.2 This practice note takes effect from the date it is issued and, to the extent practicable, applies to proceedings whether filed before, or after, the date of issuing. 2. OVERVIEW AND DEFINITION 2.1 The Commercial and Corporations NPA covers commercial and corporations disputes within federal jurisdiction, including commercial contract disputes; disputes concerning the conduct of corporations and their officers; commercial class actions; insurance disputes; financial and transactional disputes; insolvency matters, both corporate and personal; consumer claims (including regulator claims); competition matters (including economic regulator-related matters); and international commercial arbitration disputes. 2.2 Within the NCF’s Commercial and Corporations NPA, there are six “Sub-areas”. The Sub-areas broadly correspond with the core subject matter set out in paragraph 2.1 above. The Sub-areas are: • Commercial Contracts, Banking, Finance and Insurance • Corporations and Corporate Insolvency • General and Personal Insolvency • Regulator and Consumer Protection • Economic Regulator, Competition and Access • International Commercial Arbitration 2.3 Some of the Sub-areas are more specialised than others. The judges dealing with the work in the Sub-areas are listed on the Court’s website. 2.4 When considering any matter raised in this practice note, where relevant, regard should also be had to the matters set out in the following schedules (attached to this practice note) with respect to the following Sub-areas: • Corporations and Corporate Insolvency (“Schedule 1”); • Corporations and Corporate Insolvency (“Schedule 1”); • International Commercial Arbitration (“Schedule 3”). 3. OPERATION OF COMMERCIAL AND CORPORATIONS NPA 3.1 The operation of the Commercial and Corporations NPA will be consistent across the Court nationally. This includes the following key features: • A national allocations system, with a dedicated group of judges with expertise in the Commercial and Corporations NPA who will be allocated commercial and corporations matters. • The Court will facilitate the use of mechanisms for the commencement of proceedings and case management that are tailored for commercial disputes so that proceedings are commenced and managed in the manner best suited to the character and needs of each 78

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case. These mechanisms include a method for applicants to expedite proceedings, state their case concisely and the ability to utilise targeted document production and evidence procedures akin to those commonly adopted in international commercial arbitration. • A specialised “direct to chambers” duty mechanism for practitioners filing urgent commercial and corporations matters, with self-represented litigants assisted by skilled registry officers. • The first case management hearing, which may be expedited, is critical in the case management of all commercial and corporations matters to ensure that the matter is case managed efficiently and is ready for trial at the earliest appropriate time. 4. URGENT APPLICATIONS 4.1 Commercial and corporations duty processes will take place as set out below. Urgent Originating Applications 4.2 Practitioners will liaise with Commercial and Corporations Duty Judges’ chambers directly. This will ensure that genuinely urgent matters are heard by dedicated commercial and corporations duty judges as soon as practicable and with a view to addressing the special issues arising in each matter and the needs of the parties. 4.3 Self-represented litigants will be supported by the registry (including the NCF Coordinator), rather than dealing directly with judge’s chambers, in order to assist them through the application process efficiently. 4.4 A list of the Commercial and Corporations Duty Judges in each registry is available on the Court’s website. Contact information for applications to the Commercial and Corporations Duty Judge is available on the Court’s website from the Daily Court List webpage and the Duty Judge Contact webpage. Urgent Interlocutory Applications 4.5 Urgent (and non-urgent) interlocutory applications should be brought to the attention of the docket judge (or the provisional docket judge / list judge as the case may be) who has the responsibility for hearing or case managing the proceeding at the time of the filing of the interlocutory application. 4.6 If, after approaching the chambers of the docket judge, it is clear that the docket judge is uncontactable or otherwise clearly unavailable to hear the urgent interlocutory application within the timeframes relevant to that application (eg. the judge is on extended leave and the matter requires immediate attention), then the urgent interlocutory application should be brought to the immediate attention of the relevant Commercial and Corporations Duty Judge in the same manner as set out for urgent originating applications (see paragraphs 4.2 and 4.4 above). 5. COMMENCING PROCEEDINGS 5.1 Subject to the matters clarified below, the Federal Court Rules and forms, Federal Court (Corporations) Rules 2000 (Cth) (“Corporations Rules”) and Federal Court (Bankruptcy) Rules 2016 (Cth) (“Bankruptcy Rules”) apply to the commencement of proceedings in this NPA. 5.2 A proceeding within this NPA must be commenced by filing an originating application1 (see r 8.01 of the Federal Court Rules, r 2.2 of the Corporations Rules and r 2.01 of the Bankruptcy Rules). 5.3 Material supporting the originating application may take one (or more) of the following forms: (a) a document entitled “concise statement”; or (b) a statement of claim or affidavit. Concise Statement Method 5.4 A party commencing a proceeding may file a concise statement in support of an originating application. The purpose of a concise statement is to enable the applicant to bring to the attention of the respondent and the Court the key issues and key facts at the heart of the dispute and the essential relief sought from the Court before what might be the considerable cost of preparation of detailed pleadings is incurred. While the form of the concise statement is described in more detail below, it must first be emphasised that the concise statement is not intended to substitute the traditional form of pleading with a short form of pleading, but instead should be prepared more in the nature of a pleading summons, and may be drafted in a narrative form. ©

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Federal Court Practice Notes

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5.5 If a concise statement is filed with the originating application, no further originating material in support (whether by statement of claim or affidavit) is required to be filed until the Court orders that to be done. 5.6 The concise statement must not exceed 5 pages (including formal parts) and the Court would expect that ordinarily (except in complex cases) less than 5 pages will be necessary. It will be plain, concise and direct in every regard. It will omit unnecessary repetition and will do no more than summarise: (a) the important facts giving rise to the claim; (b) the relief sought from the Court (and against whom); (c) the primary legal grounds (causes of action) for the relief sought; and (d) the alleged harm suffered by the applicant, including - wherever possible - a conservative and realistic estimate or range of loss and damage. 5.7 Where a concise statement is filed, an expedited case management hearing will take place with the specific aims described in Part 8 of the Central Practice Note and at Part 6 of this practice note below. Included within the range of options for the Court at the first case management hearing may be that the respondent be required to file a concise statement in response, which may also be drafted in a narrative form. 5.8 The Court anticipates that the majority of commercial and corporations matters will be assisted by being commenced with a concise statement. Applicants are encouraged to consider the alternatives carefully and to select the use of a concise statement unless it is clearly not an appropriate mechanism. Pleading or Affıdavit Method 5.9 Alternatively, a party may file a statement of claim or affidavit in support of an originating application (see r 8.05 of the Federal Court Rules) or an affidavit in support of an originating process for corporations matters (see r 2.4 of the Corporations Rules). 5.10 Where an affidavit is filed, it will be treated as a statement of the applicant’s substantive factual case in the proceeding. 5.11 The statement of claim or affidavit should have four key components to clearly explain the applicant’s case, namely: (a) the material facts giving rise to the claim; (b) the relief sought by the applicant (and against whom); (c) the legal grounds for the relief sought; and (d) the alleged harm suffered by the applicant, including - wherever possible - a conservative and realistic estimate or range of loss and damage. 5.12 In the supporting material (whether statement of claim or affidavit), the applicant should: (a) avoid prolixity and a statement of claim should, wherever possible, be kept to no more than 15 pages; (b) not engage in unnecessary repetition or exhaustively list peripheral alternative claims; (c) where stating facts, concisely state only the material facts – that is, only the facts important to proving the claim; and (d) where identifying legal grounds, concisely identify only the legal grounds that are realistically provable and relevant to the applicant proving the claim. 5.13 The Court anticipates that a minority of commercial and corporations matters will be more effectively commenced by a statement of claim or affidavit. Such matters are likely to be simple, have narrow grounds of dispute, may be in the lower range of quantum claims, and will benefit from a “one-step” pleadings process. Request for Expedition (previously “Fast Track”) 5.14 As noted in paragraph 6.5 of the Central Practice Note, where it is appropriate to do so, parties may seek an expedited or truncated hearing process and a tailored or concise pleading processes in any proceeding. 5.15 The former Fast Track mechanisms permitted parties to seek a quicker or more truncated hearing process than usually available and to use less formal pleadings. The Fast Track procedure was effectively a commercial list procedure and such a procedure, or other effective and commercially 80

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sensible methods of commencing or expediting proceedings or introducing informal pleadings processes, remains open to the parties in this NPA. 5.16 If it is appropriate for the proceeding to be expedited, the Court will attempt to provide a judge who has the necessary time available to devote to an expedited process and hearing. The parties should make plain at the time of filing any request for a truly expedited procedure and hearing. 5.17 The parties should otherwise make plain at the first case management hearing (see further below) any request for an informal or abbreviated pleadings process. 6. CASE MANAGEMENT 6.1 Parties and their representatives should familiarise themselves with the guiding case management information set out in the Central Practice Note. This practice note should always be read with the Central Practice Note. Approach to Case Management 6.2 While the Court will manage and, where necessary, determine the issues in dispute, the proceeding is always the parties’ proceeding. In everything they do, the parties should approach their role as the primary actors responsible for identifying the issues in dispute. 6.3 The Court will encourage (and expects) the parties to develop collaboratively a case management approach tailored to resolving the issues in their case in a just, quick, inexpensive and effective manner. The Court will have an open mind to innovative case management techniques suggested by the parties and will discourage forensic-style litigation processes that may be unfair, lengthy, expensive or of questionable utility. 6.4 It is expected that trial counsel will be briefed at the earliest possible opportunity so as to facilitate efficient case management and to give it the necessary focus. 6.5 In commercial matters it is particularly important that parties and their lawyers approach the litigation in a thoughtful, practical and common-sense way. The approach to case management should reflect a practical business-like method of resolving a problem that eliminates unnecessary “process-driven” costs. Case Management Hearings 6.6 Case management hearings are integral to case management. The aim of case management hearings is to identify issues at the earliest possible stage. Depending on the particular method that the applicant has used to commence the proceeding, the parties should prepare for the first case management hearing and subsequent case management hearings as noted in Part 8 of the Central Practice Note and below. 6.7 At the first case management hearing, the parties should address, and the Court will consider, the following: (a) the Case Management Imperatives as set out in paragraph 8.5 of the Central Practice Note; (b) whether the proceeding is better suited to a modified and efficient form of pleading, including the use of concise forms of pleading, agreed statements of fact, or a more detailed pleading method; (c) the timing of the trial (including any need for an expedited or truncated hearing process), the parties’ estimates of trial length and their available dates for trial; and (d) appropriately tailored case management orders, by consent or otherwise. First Case Management Hearing – Concise Statement Method 6.8 If the applicant has commenced the proceeding by way of a concise statement (or otherwise makes a genuine request, at the time of filing, for an expedited hearing process in accordance with Part 5 of this practice note), the first case management hearing will, wherever possible, take place within 2 to 3 weeks of the filing of the application. In light of the shorter timeframe for the listing of the first case management hearing in concise statement or expedited circumstances, filing-parties should not only comply with the requirements for service within the Federal Court Rules, but should serve the relevant material at the earliest possible time prior to the first case management hearing in order to facilitate meaningful communication between the parties before the hearing takes place (see paragraph 8.9 of the Central Practice Note). ©

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6.9 The first case management hearing in this method seeks to “triage” the case, ie. to assess accurately the true character of the legal disputes and establish the most appropriate way to prepare the case for trial and any alternative dispute resolution (“ADR”) process. First Case Management Hearing – Pleadings or Affıdavit Method 6.10 If the applicant has commenced the proceeding by way of statement of claim or affidavit, the first case management hearing will, wherever possible, take place within 3 – 5 weeks of the filing of the application. 6.11 The first case management hearing will flexibly organise the interlocutory steps in the proceeding so that the proceeding may be conducted as effectively and efficiently as possible and, where appropriate, a final hearing date will be set. 7. ALTERNATIVE DISPUTE RESOLUTION 7.1 Parties and their representatives should familiarise themselves with the guiding ADR information set out in Part 9 of the Central Practice Note. The thoughtful and creative use of ADR techniques (including confidential conferences) for both substantive and procedural issues should be recognised by the parties as potentially very important in resolving or streamlining the running of commercial cases. 8. DISCOVERY, REDFERN AND MEMORIAL PROCEDURES 8.1 Parties and their representatives should familiarise themselves with the guiding discovery information set out in Part 10 of the Central Practice Note. 8.2 Discovery can be a particularly burdensome problem in commercial cases unless it is firmly controlled by the parties, their lawyers and the Court. Parties and their lawyers have a responsibility not to allow discovery to increase costs unnecessarily or disproportionately to the nature, size and complexity of the case. 8.3 The Central Practice Note deals with the approach to discovery generally, but there are techniques that may be of particular utility in commercial cases: for example, the Redfern discovery procedure (“Redfern Discovery Procedure”) and the memorial procedure for discovery and evidence. Redfern Discovery Procedure 8.4 A party may request, or the Court may direct, that a Redfern Discovery Procedure apply in the proceeding. The Redfern Discovery Procedure (so-called in international commercial arbitration) involves the preparation of a schedule, which is prepared collaboratively by the parties and supervised by the Court. It should be an expeditious process which takes account of the financial and operational burden of litigation on commercial parties. 8.5 The key characteristics of the Redfern Discovery Procedure are: (a) the exchange of requests for specific documents or limited categories of documents; (b) the requests clarify why the documents are relevant and material in nature by specific reference to any pleading, affidavit, concise statement or evidence; (c) the other party to the request consents or objects to each request and provides reasons for objections; (d) the parties prepare a schedule containing the requests and responses; and (e) the Court determines each disputed request. 8.6 Requests may be rejected by the Court for a number of reasons, including where the request: (a) relates to documents that are insufficiently relevant or immaterial; (b) relates to documents that are specially protected (eg. through legal professional privilege); (c) places an unreasonable burden on the party requested to provide documents (d) is disproportionate to the case or unfair in the circumstances. 8.7 Where the Redfern Discovery Procedure is used it will be flexibly informed by Article 9 of the International Bar Association Rules (as amended). Memorial Procedure for Evidence and Early Documentary Disclosure 8.8 In an appropriate case a party may request, or the Court may direct, that a “memorial”-style process be adopted for the provision of key documents and evidence, similar to that used in international commercial arbitrations but managed within the framework of the Federal Court Act and Federal Court Rules. 82

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8.9 Such a memorial procedure involves the parties filing their pleading-related material together with key documents and evidence in one consolidated process at an early stage in the proceeding. 8.10 A party seeking to enliven this procedure should make that request in its concise statement or other pleading document or at any stage prior to the filing of a substantive pleading document. 8.11 The memorial procedure may assist in identifying the real issues quickly and in promoting early and realistic case evaluations. This in turn may facilitate the early settlement of disputes, particularly for substantial commercial disputes that may otherwise be lengthy and expensive. However, the procedure also involves bringing forward some of the steps (and therefore the costs) which often occur later in a proceeding and may not be suitable for every commercial dispute. 9. INTERLOCUTORY STEPS, EVIDENCE, PRE-TRIAL CASE MANAGEMENT HEARINGS 9.1 Parties and their representatives should familiarise themselves with the information in the Central Practice Note on these matters (see Parts 11 to 13). 10. FURTHER PRACTICE INFORMATION AND RESOURCES 10.1 This practice note relates to all commercial and corporations matters. Specific information relating to 3 of the Sub-areas in this NPA is included in the following Schedules to this practice note: • Corporations and Corporate Insolvency Sub-area – Schedule 1; • General and Personal Insolvency Sub-area - Schedule 2; • International Commercial Arbitration Sub-area – Schedule 3. 10.2 However, additional requirements of particular relevance in this NPA exist in other practice notes and practice information. This includes the following documents and information available on the Court’s website: • Practice and procedure information and resources for this NPA on the Court’s Commercial and Corporations NPA “homepage”; • Class Actions Practice Note (GPN-CA); • Expert Evidence Practice Note (GPN-EXPT); • Survey Evidence Practice Note (GPN-SURV); • Cross-Border Insolvency Practice Note (GPN-XBDR); • Freezing Orders Practice Note (GPN-FRZG), Search Orders Practice Note (GPN-SRCH) and Usual Undertaking as to Damages Practice Note (GPN-UNDR); • Other relevant general practice notes including the: Subpoenas and Notices to Produce Practice Note (GPN-SUPB); Costs Practice Note (GPN-COSTS) and Lists of Authorities and Citations Practice Note (GPN-AUTH). 10.3 Further information to assist litigants, including a range of helpful guides, is also available on the Court’s website. This information may be particularly helpful for litigants who are representing themselves. Enquiries and Contact Information 10.4 General queries concerning the practice arrangements in the Commercial and Corporations NPA should be raised, at first instance, with your local registry. If a registry officer is unable to answer your query, please ask to speak to the NCF Coordinator in your local registry. Contact details for your local registry are available on the Court’s website. J L B ALLSOP Chief Justice 25 October 2016 Schedule 1 Corporations and Corporate Insolvency Sub-Area SCOPE OF SUB-AREA – CORPORATIONS MATTERS 1. The expression “corporations matters” applies to matters in the Corporations and Corporate Insolvency Sub-area and includes matters arising under or in relation to: • the Corporations Act 2001 (Cth) (“Corporations Act”); • the Australian Securities and Investment Commission Act 2001 (Cth); ©

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• the Cross-Border Insolvency Act 2008 (Cth); • transfers and amalgamations of insurance businesses under Part 9 of the Life Insurance Act 1995 (Cth) and Division 3A of Part III of the Insurance Act 1973 (Cth); • all corporate insolvency matters, but not personal bankruptcy matters (the latter being in the General and Personal Insolvency Sub-area). OPERATION OF SUB-AREA 2. The Commercial and Corporations Practice Note (C&C-1) (to which this schedule is attached) applies to all corporations matters. Corporations Lists and Corporations Judges 3. All registries nationally have a corporations list and dedicated corporations judges. The corporations judges in each registry are set out on the Court’s website. The corporations list in each registry will operate on consistent NCF principles for corporations matters and according to the workflow and needs of the particular registry. Information regarding the corporations list, including the corporations judges, is available on the Court’s website. 4. On the return date for the application (which will generally be between 2–5 weeks from the date of filing), depending on the needs of the parties and the character of the matter, the corporations judge will either substantively determine the matter or deal with any case management, interlocutory or procedural matters that arise and explore the suitability of making a mediation order. 5. Shorter corporations matters (eg. an application for extension of a convening period for a meeting of a company’s creditors) will likely be dealt with on the return date or soon after. For larger or more complex corporations matters, parties should consider whether the innovative case management procedures set out in the commercial and corporations practice note may be applied. URGENT APPLICATIONS 6. The following originating corporations applications may be dealt with by the Commercial and Corporations Duty Judge: • any urgent Commercial and Corporations NPA matters; • applications without a defendant, such as, but not limited to, applications under Part 5.1 (Arrangements and Reconstructions) and Part 5.3A (Administration with a view to Deed of Company Arrangement) of the Corporations Act and insurance business transfers and amalgamations; • ex parte applications in respect of corporations matters, such as abridgement of time for service, interlocutory injunctions, search and freezing orders; • any other application that may arise in respect of a corporations matter that is not conveniently accommodated by filing a corporations matter in the corporations list in the usual way; and • so far as is practicable, a referral from a registrar’s corporations list on the same day the application is listed for hearing before a registrar. Commercial and Corporations Duty Judges 7. Originating commercial and corporations duty matters will be heard by dedicated commercial and corporations judges who will be regularly available to the parties for genuinely urgent matters based on a regular roster system. 8. Arrangements for hearing originating applications in respect of Commercial and Corporations Duty Judge matters and relevant contact information is set out in Part 4 of the Commercial and Corporations Practice Note. Urgent Interlocutory Applications 9. Urgent interlocutory matters will be heard by the docket judge as set out in Part 4 of the Commercial and Corporations Practice Note. FILING APPLICATIONS AND SUPPORTING MATERIAL 10. When filing an originating application in a corporations matter, an originating process should be used (Form 2 of the Federal Court (Corporations) Rules 2000 (Cth) (“Corporations Rules”)). 11. When filing an interlocutory application in a corporations matter, an interlocutory process should be used (Form 3 of the Corporations Rules). This includes interlocutory applications seeking final relief, such as: 84

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(a) a claim by a defendant in the nature of a cross-claim; (b) a claim for indemnity by the Commissioner of Taxation against a company director where certain payments have been set aside (see s 588FGA(4) of the Corporations Act and Condon v Commissioner of Taxation [2004] NSWSC 481). 12. In some circumstances it may not be immediately apparent to a filing party whether an application should be properly commenced by way of an interlocutory process (brought within a current or pre-existing proceeding in this Court) or an originating process (commencing a new proceeding). This can be an important decision which may affect the case management of the matter and the applicable filing fee. Prescribed Circumstances 13. As to whether an interlocutory or originating process should be filed may be prescribed by relevant Acts or Rules, namely the Corporations Act, the Federal Court Rules 2011 (Cth) (“Federal Court Rules”) and the Corporations Rules. The following are two (non-exhaustive) illustrations where the form of the application is prescribed: • Originating process required – an application concerning an act or omission of a receiver, or a controller appointed by the Court (see s 423(1)(b) of the Corporations Act and r 4.1 of the Corporations Rules); • Interlocutory process required – seeking a determination of a liquidator’s remuneration (See s 473(b)(ii) of the Corporations Act and r 9.4(2)(a) of the Corporations Rules). Non-prescribed Circumstances 14. In circumstances where the relevant Acts or Rules do not expressly prescribe which type of application should be used, regard should be had to the following when deciding whether it is appropriate to file an interlocutory process (rather than an originating process) in a current or pre-existing proceeding: (a) whether the parties in the earlier proceeding and the application are common; (b) the legal and factual nexus between the earlier proceeding and the application; (c) whether the earlier proceeding has been finally determined; and (d) the length and complexity of the application. Request for Pleadings 15. Given that originating and interlocutory processes are accompanied by supporting affidavits, any application seeking an order for pleadings should be included in an originating or interlocutory process. An originating or interlocutory process should not be amended so as to be converted into a pleading. OPPRESSIVE CONDUCT OF AFFAIRS OF A COMPANY 16. Subject to options available to parties as set out in the commercial and corporations practice note, applications for relief under s 233 of the Corporations Act (whether or not other relief is sought) are to be made by originating process supported by an affidavit which: (a) should be as brief as possible and in any event no more than 5 pages in length; (b) sets out a clear and succinct summary of the facts alleged to constitute the acts of oppression; (c) exhibits only a current ASIC search of the company, and no other exhibits. 17. The application will be returnable before the Commercial and Corporations Duty Judge. The parties (as well as their legal representatives) will be expected to attend that hearing. 18. At that initial hearing, in addition to the case management imperatives (referred to in paragraph 6.7 of the Commercial and Corporations Practice Note) the parties will be expected to have considered the following and be in a position to address the Court on: (a) whether the matter can be resolved at that hearing and, if so, on what terms; (b) what steps, if any, are necessary before the matter can be resolved (eg. access to the books and records of the company, a valuation required etc); (c) what information, if any, is required before the dispute can be resolved, and why. 19. If the matter does not resolve at that initial hearing, the matter will usually be referred to a registrar for mediation. In the event that the matter does not settle at the mediation, the registrar may conduct ©

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a case management conference immediately following the mediation to consider the most economic and efficient means of proceeding to and conducting the trial, at which conference the registrar may make case management orders. SCHEMES OF ARRANGEMENT – FORM OF NOTICE FOR MEETING 20. When making an order under s 411(1) of the Corporations Act the Court will require that the explanatory statement or a document accompanying the explanatory statement, prominently display a notice in the following form or to the following effect: IMPORTANT NOTICE ASSOCIATED WITH COURT ORDER UNDER SUBSECTION 411(1) OF CORPORATIONS ACT 2001 (Cth) The fact that under subsection 411(1) of the Corporations Act 2001 (Cth) the Court has ordered that a meeting be convened and has approved the explanatory statement required to accompany the notices of the meeting does not mean that the Court: (a) has formed any view as to the merits of the proposed scheme or as to how members / creditors should vote (on this matter members / creditors must reach their own decision); or (b) has prepared, or is responsible for the content of, the explanatory statement. CORPORATIONS MATTERS BEFORE A REGISTRAR 21. A significant proportion of corporations matters are heard and determined by registrars of the Court. This includes winding up applications, applications to set aside a statutory demand and examinations pursuant to ss 596A and 596B of the Corporations Act. Corporations matters within the delegated jurisdiction of a registrar are set out in Schedule 2 of the Corporations Rules. 22. Arrangements for hearing corporations matters before a registrar and relevant information for registrar corporations lists in each registry is available on the Court’s website. Schedule 2 General and Personal Insolvency Sub-Area SCOPE OF SUB-AREA – BANKRUPTCY MATTERS 1. This Sub-area principally involves matters related to general and personal insolvency under the Bankruptcy Act 1966 (Cth) (“Bankruptcy Act”), and does not include corporate insolvency. Relevant matters include: • applications by trustees in the management of bankrupt estates (eg. voidable transactions); • applications by bankrupts contesting decisions of a trustee; • applications for annulment of bankruptcy; and • bankruptcy matters referred to a judge by a registrar. OPERATION OF SUB-AREA 2. The Commercial and Corporations Practice Note (to which this schedule is attached) applies to all bankruptcy matters. 3. Shorter bankruptcy matters will likely be dealt with at the first hearing date or soon after. For larger or more complex bankruptcy matters (eg. voidable transaction cases), parties should consider whether the innovative case management procedures set out in the commercial and corporations practice note may be applied. URGENT APPLICATIONS 4. All urgent originating bankruptcy applications will be dealt with by the Commercial and Corporations Duty Judge. The arrangements and contact information for such matters are set out in Part 4 of the Commercial and Corporations Practice Note and in the “Urgent Applications” section of Schedule 1 of the Commercial and Corporations Practice Note. 5. Urgent interlocutory matters will be heard by the docket judge as set out in the commercial and corporations practice note in Part 4. BANKRUPTCY MATTERS BEFORE A REGISTRAR 6. A significant proportion of bankruptcy matters are case managed and determined by registrars of the Court. This includes creditors’ petitions, applications to set aside bankruptcy notices and examinations pursuant to s 81 of the Bankruptcy Act. 86

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7. Arrangements for hearing bankruptcy matters before a registrar and relevant information for registrar bankruptcy lists in each registry is available on the Court’s website. Schedule 3 International Commercial Arbitration Sub-Area SCOPE OF SUB-AREA – INTERNATIONAL COMMERCIAL ARBITRATION 1. The Court has jurisdiction in respect of international commercial arbitration matters specifically vested by the International Arbitration Act 1974 (Cth) (“International Arbitration Act”) and in relation to matters arising under the International Arbitration Act through s 39B(1A)(c) of the Judiciary Act 1903 (Cth). 2. This Sub-area principally encompasses proceedings before the Court in which orders are sought under the International Arbitration Act and Division 28.5 of the Federal Court Rules 2011 (Cth) (“Federal Court Rules”). 3. The Court’s jurisdiction in relation to international commercial arbitration matters includes jurisdiction in relation to: (a) applications for an order to stay a proceeding or part of a proceeding that is before the Court and which involves the determination of a matter that is capable of settlement by arbitration pursuant to an arbitration agreement between the parties; (b) the enforcement of a foreign award under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards; (c) the enforcement of international arbitral awards made in Australia;2 (d) applications under Article 6 of the UNCITRAL Model Law on International Commercial Arbitration (“Model Law”) for orders concerning: (i) the appointment and termination of an arbitrator (Articles 11 and 14 of the Model Law); (ii) challenges against an arbitrator on the basis that the arbitrator lacks impartiality or independence or the necessary qualifications (Article 13); (iii) whether an arbitral tribunal has jurisdiction to deal with the issues before the tribunal (Article 16); (iv) the recognition and enforcement of an interim measure (Article 17H and Article 17I); (v) ensuing interim measures (Article 17J); (vi) assisting an arbitral tribunal to take evidence (Article 27); (e) the enforcement of an award under the Convention on the Settlement of Investment Disputes between States and Nationals of Other States. OPERATION OF THE SUB-AREA 4. Proceedings concerning international commercial arbitration will generally be managed within the International Commercial Arbitration Sub-area of the Commercial and Corporations National Practice Area (“NPA”). However, depending on the character of the case, such proceedings may be managed within the Admiralty and Maritime NPA. 5. A national allocations system is in place, with a dedicated group of judges with special expertise in international commercial arbitration who will be allocated these matters. A comprehensive list of all International Commercial Arbitration Judges is available on the Court’s website. 6. International commercial arbitration cases will be overseen and managed by National and Registry Coordinating Judges who will harmonise procedure so that they are dealt with expeditiously and consistently by the Court nationally. CASE MANAGEMENT 7. A party to a proceeding under the International Arbitration Act who wants to rely on a document that is not in English must provide the Court and the other parties with a certified English translation of the document (see r 28.50 of the Federal Court Rules). 8. Early mediation by a registrar or a third party will be encouraged and sometimes ordered by the Court. The parties are expected to discuss the utility of mediation or other assisted dispute resolution mechanisms. Mediation can be used to help identify and reduce issues in dispute, or to eliminate ©

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procedural arguments, as well as for the purposes of resolving the whole matter. Parties and practitioners should also refer to the Part 9 of the Central Practice Note. 1 In this practice note (including Schedule 1), with respect to all “corporations matters” (as referred to in Schedule 1) unless otherwise expressly referred to – a reference to an “originating application” is intended to refer to an “originating process” under the Corporations Rules. Equally, a reference to an “interlocutory application” is intended to refer to an “interlocutory process” and a reference to applicant(s) or respondent(s) is intended to refer to plaintiff(s) or defendant(s) under the Corporations Rules. 2 See TCL Air Conditioner (Zhongshan) Co Ltd v Judges of the Federal Court of Australia [2013] 251 HCA 5.

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1. INTRODUCTION 1.1 This practice note applies to any proceeding in the Court which involves cross-border insolvency. It takes effect from the date it is issued and, to the extent practicable, applies to proceedings whether filed before, or after, the date of issuing. 2. CROSS-BORDER INSOLVENCY1 2.1 The Cross-Border Insolvency Act 2008 (Cth) (“Cross-Border Insolvency Act”) provides in s 6 that, subject to the Act, the Model Law on Cross-Border Insolvency of the United Nations Commission on International Trade Law (“UNCITRAL”) (“Model Law”), with the modifications set out in Part 2 of the Cross-Border Insolvency Act, has the force of law in Australia. The English text of the Model Law is set out in Schedule 1 to the Cross-Border Insolvency Act. 2.2 Chapter IV of the Model Law, comprising Articles 25 – 27, provides for cooperation with foreign courts and foreign representatives in the cross-border insolvency matters that are referred to in Article 1 of the Model Law. 2.3 Articles 25 and 27 of the Model Law, as modified by s 11 of the Cross-Border Insolvency Act, and as presently relevant, provide: Article 25 Cooperation and direct communication between [this Court] and foreign courts or foreign representatives 1. In matters referred to in article 1, the court shall cooperate to the maximum extent possible with foreign courts or foreign representatives, either directly or through a registered liquidator (within the meaning of section 9 of the Corporations Act 2001 (Cth)). 2. The court is entitled to communicate directly with, or to request information or assistance directly from, foreign courts or foreign representatives. Article 27 Forms of cooperation Cooperation referred to in [article 25] may be implemented by any appropriate means, including: (a) Appointment of a person or body to act at the direction of the court; (b) Communication of information by any means considered appropriate by the court; (c) Coordination of the administration and supervision of the debtor’s assets and affairs; (d) Coordination of the administration and supervision of the debtor’s assets and affairs; (e) Coordination of concurrent proceedings regarding the same debtor; (f) [The enacting State may wish to list additional forms or examples of cooperation]. [Section 18 of the Cross-Border Insolvency Act provides that no additional forms or examples of cooperation are added.] 2.4 The manner of cooperation appropriate to each particular case will depend on the circumstances of that case. As experience and jurisprudence in this area develop, it may be possible for later versions of this practice note to lay down certain parameters or guidelines. 2.4 Cooperation between the Court and a foreign court or foreign representative under Article 25 will generally occur within a framework or protocol that has previously been approved by the Court, and is known to the parties, in the particular proceeding. Ordinarily it will be the parties who will draft the framework or protocol. In doing so, the parties should have regard to: • Guidelines Applicable to Court-to-Court Communication in Cross-Border Cases published by the American Law Institute and the International Insolvency Association;2 and • UNCITRAL3 Practice Guide on Cross-Border Insolvency Cooperation 2009.4 3. APPLICATIONS RELATING TO A SHIP OWNER 3.1 Where an application under the Cross-Border Insolvency Act relates to an owner of a ship or ships engaged in any commercial trade, that matter must be brought to the Court’s attention before, or at the time, the application is filed together with a copy of the reasons of the Court in Yu v STX Pan Ocean Co Ltd5. ©

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4. FURTHER PRACTICE INFORMATION AND RESOURCES 4.1 Where a matter relates to cross-border insolvency, parties and practitioners should also note of the following, which are available on the Court’s website: (a) the Central Practice Note (CPN-1), which sets out the fundamental principles concerning the NCF of the Federal Court and key principles of case management procedure. The Central Practice note is an essential guide to practice in this Court in all proceedings; (b) the relevant National Practice Area (“NPA”) practice note, noting that cross-border insolvency matters will generally fall within the Commercial and Corporations NPA or Admiralty and Maritime NPA and the Court’s General Practice Notes; (c) Commercial and Corporations NPA Practice Note – Schedule 3: International Commercial Arbitration Sub-area. 4.2 Further information to assist litigants, including a range of helpful guides, is also available on the Court’s website. This information may be particularly helpful for litigants who are representing themselves. J L B ALLSOP Chief Justice 25 October 2016 1 Part 2 of this Practice Note is harmonised in accordance with the advice of the Council of Chief Justices’ Rules Harmonisation Committee and Part 14 of the Federal Court (Bankruptcy) Rules 2016 (Cth) contains rules that have been harmonised in accordance with the advice of the Council of Chief Justices’ Rules Harmonisation Committee. 2 https://www.iiiglobal.org/node/939 3 The United Nations commission on International Trade Law (UNICITRAL) 4 http://www.uncitral.org/uncitral/en/uncitral_texts/insolvency/2009PracticeGuide.html 5 (2013) 223 FCR 189; [2013] FCA 680 at [2], [3] and [39] et seq.

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1. INTRODUCTION 1.1 This Central Practice Note (CPN-1) sets out the fundamental principles concerning the National Court Framework (“NCF”) of the Federal Court, together with key principles of case management procedure. All other practice notes are to be read within the framework established in this practice note and parties should not commence or take steps in proceedings without first considering the principles set out in this practice note. 1.2 This practice note takes effect from the date it is issued and, to the extent practicable, applies to proceedings whether filed before, or after, the date of issuing. 1.3 Under the NCF, the work of the Court will be broadly divided into nine National Practice Areas (“NPAs”), some of which have Sub-areas. 1.4 NPA practice notes have been developed that set out NPA-specific matters. Those practice notes are important and should be read together with this Central Practice Note. In addition, a number of general practice notes exist to address specific practice and procedure within the Court – for example: expert evidence or class actions. All practice notes are available on the Court’s website. 2. NATIONAL COURT 2.1 The Court is a national court, although a significant amount of its work is international in character. The division into NPAs is along the lines of established areas of law. This structure exists in order to foster: • consistent national practice; • the utilisation of specialised judicial and registrar skills; and • the effective, orderly and expeditious discharge of the business of the Court. 3. NATIONAL PRACTICE AREAS 3.1 Once filed, a matter will be allocated to a judge in the relevant NPA. The NPAs of the Court are: • Administrative and Constitutional Law and Human Rights • Native Title • Employment and Industrial Relations • Commercial and Corporations • Taxation • Intellectual Property • Admiralty and Maritime • Federal Crime and Related Proceedings • Other Federal Jurisdiction Further information about the nature of the cases that fall within each NPA is available on the Court’s website, including at each NPA’s “homepage”. 3.2 Due to the scope of the cases that may fall within the Other Federal Jurisdiction NPA, it is impractical to seek to define exhaustively that NPA. However, it is important to note that the NPA covers cases which fall outside the scope of all other NPAs, including a broad variety of cases “arising under” a federal law, such as common law claims for negligence, equity suits and defamation actions.1 3.3 The Court recognises the need for a degree of specialisation. This will be reflected in the NPAs and Sub-areas, and the judges assigned to them, to the extent necessary. 3.4 The Commercial and Corporations NPA Sub-areas are: • Commercial Contracts, Banking, Finance and Insurance • Corporations and Corporate Insolvency • General and Personal Insolvency • Economic Regulator, Competition and Access • Regulator and Consumer Protection • International Commercial Arbitration ©

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3.5 The Intellectual Property NPA Sub-areas are: • Patents and Associated Statutes • Trade Marks • Copyright and Industrial Designs 3.6 The NPAs will be managed nationally by National Coordinating Judges, together with one or more Registry Coordinating Judges in each registry. The National and Registry Coordinating Judges in each NPA will be assisted nationally by registrars with specialised knowledge or skill. The National Operations Registrar, supported by national registrars, will coordinate the operations of the NCF, including managing the first instance and appellate work of the Court. 3.7 Further information about the NCF generally, each of the NPAs and Sub-areas, a list of judges in each NPA and Sub-area, and additional practice and contact information is available on the Court’s website. 4. THE INDIVIDUAL DOCKET SYSTEM AND ALLOCATION PRINCIPLES Docket System 4.1 The individual docket system remains in place and is an integral feature of the management of the Court’s work under the NCF. The essential element of the individual docket system is that a case is allocated to the docket of a particular judge at or about the time of filing with the intention that, subject to any necessary reallocation, it will remain with that judge for case management and disposition. Allocation Principles 4.2 When filing, parties will nominate a relevant NPA (and Sub-area, if relevant). The appropriate NPA (and Sub-area, if relevant) will then be promptly identified and set by the Court. The nomination by the party is not determinative. The identification by the Court may involve a question of judgment about the dominant character of the matter. The matter will then be allocated to a judge in the relevant NPA (and Sub-area, if relevant). 4.3 Subject to, availability of judges in the NPA in the registry of filing, to considerations of balance of workload and commitments of judges, and in limited and likely rare circumstances the character of a matter calling for a different approach, matters will be allocated in rotation to judges in the NPA or Sub-area in the registry of filing. 5. URGENT APPLICATIONS 5.1 The Court will assist parties to bring on urgent applications, including injunctions, which may require listing at the earliest appropriate time. Parties and their legal representatives should be familiar with the requirements of giving an undertaking as to damages if an injunction is sought and of the requirements and information set out in the Freezing Orders Practice Note (GPN-FRZG), the Search Orders Practice Note (GPN-SRCH) and the Usual Undertaking as to Damages Practice Note (GPN-UNDR), which are available on the Court’s website. Where an injunction application falls into one of the specialised practice notes referred to in this paragraph, the procedures in the relevant practice note should be followed. Otherwise, the injunction application should be brought in accordance with Part 5 of this practice note. Urgent Originating Applications 5.2 A “direct to chambers” duty mechanism applies for practitioners filing urgent originating applications in all NPAs, with self-represented litigants assisted by skilled registry officers. 5.3 In each Registry, duty procedures for urgent originating applications operate as follows: • Commercial and Corporations – Urgent originating applications will be dealt with by dedicated Commercial and Corporations Duty Judges – see the Commercial and Corporations Practice Note (C&C-1)); • Admiralty and Maritime – Urgent originating applications should be taken directly to the Admiralty and Maritime Registry Coordinating Judge in the relevant registry or, in his or her absence, to a judge in the NPA in the registry or to the National Operations Registrar – see the Admiralty and Maritime Practice Note (A&M-1); and • Other NPAs – Urgent originating applications should be taken directly to the General Duty Judge in the relevant registry. Unless otherwise indicated in individual NPA practice 92

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notes, if an urgent application is brought before the General Duty Judge and that judge is not a judge within the relevant NPA, the Court will arrange, where appropriate, to have the application referred to a judge in that NPA. 5.4 Contact information for applications to the Commercial and Corporations or General Duty Judges are available on the Court’s website from the Daily Court List webpage and the Duty Judge Contact webpage. Admiralty and maritime judges in each registry (including the identity of the Registry Coordinating Judge) are also identified on the Court’s website. Urgent Interlocutory Applications 5.5 Urgent (and non-urgent) interlocutory applications should be brought to the attention of the docket judge (or the provisional docket judge / list judge as the case may be) who has the responsibility for hearing or case managing the proceeding at the time of the filing of the interlocutory application. 5.6 If, after approaching the chambers of the docket judge, it is clear that the docket judge is uncontactable or otherwise clearly unavailable to hear the urgent interlocutory application within the timeframes relevant to that application (eg. the judge is on extended leave and the matter requires immediate attention), then the urgent interlocutory application should be brought to the immediate attention of the relevant duty or coordinating judge in the same manner as set out for urgent originating applications (see paragraphs 5.2–5.4 above). 6. COMMENCING PROCEEDINGS 6.1 Unless otherwise specified in this practice note or individual NPA or general practice notes, the Federal Court Rules 2011 (Cth) (“Federal Court Rules”) and forms apply to the commencement of proceedings in the Court. 6.2 Flexible procedures for the commencement of proceedings or the filing of tailored pleading material are set out in a number of NPA practice notes. Previous Practice and Procedure, Fast Track 6.3 Under the reforms introduced as part of the NCF, this practice note, the NPA practice notes and the general practice notes now set out the arrangements for practice, procedure and case management within the Court. Any pre-existing practice notes or administrative notices are superseded by these new practice notes; this includes practice documents that previously applied to Fast Track proceedings.2 There are no longer any registry-specific administrative notices within the Court. Innovative Pleadings Processes and Expedited Hearings 6.4 The former Fast Track mechanisms permitted parties to seek a quicker or more truncated hearing process than usually available and to use more informal pleadings than usual. Historically, the use of such procedures was limited and was confined to commercial and intellectual property cases only. The Fast Track procedure was effectively a commercial list procedure. 6.5 Under the NCF reforms and new practice documents, parties may now seek an expedited or truncated hearing process and a tailored or concise pleading process in any NPA, where appropriate. They may seek to adopt a process set out in one NPA practice note for use in a different NPA (see, for example, the flexible and streamlined procedures for the commencement of proceedings, use of concise statements and tailored discovery and evidence procedures set out in the Commercial and Corporations Practice Note). If a Fast Track or other expedited proceeding process is appropriate, the Court will attempt to provide a judge who has the necessary time available to devote to an expedited process and hearing. 6.6 The key focus of the Court will be to ensure that the most appropriate and efficient mechanisms for case management, including appropriate mechanisms suggested by the parties, are adopted when considering the nature of each case and the needs of the parties. Parties should request any truncated or expedited hearing process or modified pleading process at or before the first case management hearing. 6..7 The parties should make plain at the time of filing any request for a truly expedited procedure and hearing. 7. OVERARCHING PURPOSE 7.1 The overarching purpose of civil practice and procedure and case management within the individual docket system is to facilitate the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible (see ss 37M and 37N of the Federal Court of Australia Act 1976 (Cth) (“Federal Court Act”)). ©

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7.2 The parties and their lawyers are expected, and have a statutory duty, to co-operate with the Court and among themselves to assist in achieving the overarching purpose and, in particular, in identifying the real issues in dispute early and in dealing with those issues efficiently. There are no exceptions to this expectation because of the size or nature of the matter. 7.3 This co-operation requires (and the Court expects) that the parties and their lawyers think about the best way to run their cases conformably with the overarching purpose. The parties and their lawyers can expect that the Court will engage with them in a dialogue to achieve the overarching purpose. The Court’s Rules should never be viewed as inflexible. The overarching purpose includes the elimination of unnecessary “process-driven” costs. The Court expects parties and their lawyers to have in mind at all times the cost of each step in the proceeding, and whether it is necessary. 7.4 While the Court will manage the issues in dispute, the proceeding is always the parties’ proceeding. In everything they do, the parties should approach their role as the primary actors responsible for identifying the issues in dispute and in ascertaining the most efficient, including cost efficient, method of its resolution. 8. CASE MANAGEMENT 8.1 The key objective of case management is to reduce costs and delay so that there are: • fewer issues in contest; • in relation to those issues, no greater factual investigation than justice requires; and • as few interlocutory applications as necessary for the just and efficient disposition of matters. 8.2 As part of that key objective, the Court will make available, and encourages parties to use any technology available within the Court, or appropriate external technology suggested by the parties, that may make the management or hearing of cases, trials and Alternative Dispute Resolution (“ADR”) processes more efficient or useful. Included in that range of technology are the Court provided systems of: • eLodgment (e-filing of documents with the court as part of the Electronic Court File system); • eTrials (conducting hearings through electronic processes); • eCourtroom (a virtual-courtroom process useful for a range of applications that avoids the need for an in-person appearance in appropriate applications, being especially useful for the resolution of interlocutory disputes); and • video link and audio link hearing arrangements. 8.3 An eRegistrar or the District Registrar is available in each registry to assist in facilitating electronic processes within the Court. Parties are directed to the Technology and the Court Practice Note (GPN-TECH) for further information. Case Management Hearings 8.4 The first case management hearing is integral to case management. The aim of the hearing is to identify issues at the earliest possible stage. At the first case management hearing, consideration will be given, in particular, to the following: • the appropriate course of efficient preparation of the matter and the steps truly required, including: any need for discovery, the most appropriate method of preparation and presentation of evidence in light of the issues truly or likely to be in contest, and the most appropriate method of trial; • the possibility of listing the matter for hearing: the Court will endeavour, where possible, within 6 months of the case management hearing, to set a date for hearing with a hearing date as early as reasonably possible, bearing in mind at all times the legitimate interests of all parties to the litigation; and • the available dispute resolution options, including mediation. 8.5 Commensurate with the above approach, prior to any case management hearing (including the first) the following matters should be considered by the parties in their preparation. Such matters are not a checklist applicable to all cases, but are the kinds of matters the parties may well have to consider in their preparation. Of course, some cases are simpler than others and consideration of the matters 94

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below should fit the case and the circumstances. Straightforward cases should be dealt with straightforwardly. One of the aims of the parties and their lawyers should be to eliminate all unnecessary process and procedural costs. The following can be viewed as the Court’s Case Management Imperatives: (a) identifying and narrowing the issues in dispute, including in any possible cross-claim, as soon as possible and the early identification and joinder of any further necessary parties and whether any Constitutional issue arises that would involve a notice under s78B of the Judiciary Act 1903 (Cth); (b) taking to trial only the critical point(s) in issue; (c) considering whether the proceeding is more appropriately heard in the Federal Circuit Court or whether the matter should, or is required, to be heard by a Full Court; (d) considering the use of, and timing for, any alternative dispute resolution, including mediation; (e) considering how best to manage justiciable issues, such as possible separation of liability and quantum or penalty, preliminary issues of fact and law and whether or not some or all issues are susceptible to being referred to a referee under s 54A of the Federal Court Act and Division 28.6 of the Federal Court Rules; (f) considering how best to manage lay and expert evidence efficiently and how to limit it to what is necessary; and considering how best to put forward relevant evidence - whether by affidavit, statement, oral evidence or a combination thereof; (g) setting an appropriately early trial date and maintaining that date; (h) eliminating or minimising the number of interlocutory hearings, and any interlocutory disputes being determined “on the papers” wherever possible; (i) eliminating or reducing the burden of discovery; (j) using collaborative tools to minimise the length of the trial hearing, including: • using cross-party statements of agreed facts or law or an agreed chronology; • agreeing on the time for trial and how it may be divided (eg. a “chess-clock” approach); (k) making appropriate admissions in relation to the facts and matters which are not seriously in dispute; (l) capping the amount of costs to be recoverable; and (m) receiving short-form reasons for judgment to facilitate the expeditious delivery of any judgment. Proper preparation for any case management hearing includes parties considering their own legal, personal and commercial interests and communicating with all other parties before any hearing to endeavour to agree on the most appropriate method to approach and prepare the matter and in particular to achieve or address the relevant Case Management Imperatives. Any proposed orders of the parties should be provided to judge’s chambers as early as possible before any case management hearing (preferably by the working day before the hearing). Notwithstanding that proposed orders may have been provided by the parties to the Court, parties should assume that attendance is required at all case management hearings unless otherwise advised by the Court. Any proposed orders of the parties should be provided to judge’s chambers as early as possible before any case management hearing (preferably by the working day before the hearing). Notwithstanding that proposed orders may have been provided by the parties to the Court, parties should assume that attendance is required at all case management hearings unless otherwise advised by the Court. he importance of the first case management hearing is that, if conducted properly, it should minimise or eliminate the need for further case management hearings. The Court expects the parties and practitioners to communicate with each other in a meaningful way about matters to be raised at any case management hearing at an appropriate time before that hearing takes place. To that end, filing-parties are not only required to comply with the requirements for service within the Federal Court Rules, but should serve the relevant material at the earliest possible time prior to the case

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management hearing in order to facilitate the engagement between the parties referred to above. The Court expects, wherever possible, that counsel retained in the matter or the lawyer with carriage of, and familiarity with, the matter will attend the first and any subsequent case management hearings. 9.1 The Court has a broad range of options to facilitate ADR and expects that parties will always consider or seek an early resolution of matters utilising the ADR options available under s 53A of the Federal Court Act and Part 28 of the Federal Court Rules, including mediation. The ADR options should be viewed by the parties not only as a means of possible resolution of the whole dispute, but also as a means of limiting or resolving issues by agreement and of resolving interlocutory disputes. 9.2 Registrars of the Court have skill and training in various types of ADR for disputes in all NPAs, including mediation, confidential conferences, case management support (such as helping to resolve discovery disputes) and conducting expert witness conferences. 9.3 Where appropriate, the ADR skills of registrars will be drawn on by the Court to help parties resolve issues (whether substantive or procedural) at the earliest and most effective stage of the proceeding and the Court will utilise its technology and innovative meeting arrangements to help to conduct ADR processes in an efficient and cost-effective manner. 9.4 The Court expects parties to place themselves in the most informed position possible for any ADR process, including agreeing on categories of information or limited documentation necessary to exchange in advance of mediation and other ADR processes so that those processes are truly effective. 9.5 When attending mediation, parties and their legal representatives must attend for the purpose of participating in good faith negotiations and must have the ability, in a practical way and with flexible instructions, to participate meaningfully in negotiations with a view to narrowing the issues in dispute and reaching a mutually acceptable resolution between them by way of compromise. 9.6 Further information about ADR is available on the Court’s website, including guiding information about court-ordered mediations. 10. DISCOVERY 10.1 In this part: Discovery Applicant Discovery Respondent Request Response

means means means means

any party making a request for discovery any party responding to a request for discovery a request for discovery a response to a Request

Approach to Discovery 10.2 Discovery is dealt with in Part 20 of the Federal Court Rules, with which parties should be familiar. In particular, it is to be recalled that no party is to give, and so no party has a right to, discovery (in the sense of provision of a list of documents under the Federal Court Rules) without an order (r 20.12). A Discovery Applicant should not make a Request unless it will facilitate the just resolution of the proceeding as quickly, inexpensively and efficiently as possible (r 20.11). 10.3 Discovery can be extremely burdensome. Matters in some NPAs will rarely need discovery. Where discovery is necessary, the Court expects the parties and their representatives to take all steps to minimise its burden. This involves co-operation between the parties. Informal exchange of documents may minimise the use of formal procedures. Parties should also consider the possible benefits of utilising innovative discovery techniques, including the Redfern Discovery Procedure set out in paragraph 8.4 to 8.7 of the Commercial and Corporations Practice Note. 10.4 By way of assistance to the parties, the guidelines below should be considered and where appropriate followed by the parties in order to minimise costs and unnecessary process and expense related to procedure. 10.5 Prior to the Discovery Applicant approaching the Court with a Request, the Court expects that the parties will have discussed discovery issues between them and, if possible, agreed on a protocol for discovery. Such a protocol may involve consensual measures agreed to by the parties which may 96

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obviate the need for strict compliance with the Federal Court Rules (such as avoiding the need for a list of documents). The Court will consider the parties’ suggestions and may approve them if the Court considers them appropriate. The Court will not approve expansive or unjustified Requests and will generally only consider approving a Request in one or more of the following circumstances – where: (a) the Request facilitates the just resolution of the proceeding as quickly, inexpensively and efficiently as possible; (b) to do so will effectively facilitate a forthcoming mediation (or other ADR process); (c) the Court and the parties are sufficiently informed of the nature of the case and issues in dispute so that the appropriateness of the Request can be properly considered (eg. possibly only after key evidence has been filed); (d) the Discovery Applicant has adequately justified the need for the Request, including demonstrating: (i) the utility of the Request and the appropriateness of discovery occurring at that time; (ii) the relevance and importance of the documentation or information sought; (iii) the limited and targeted nature of the Request; and (iv) that the documents sought are, or are very likely to be, significantly probative in nature, or the documents materially support, or are materially adverse to, any party’s case in the proceeding. A Request must be proportionate to the nature, size and complexity of the case – ie. the Request should not amount to an unreasonable economic or administrative burden on the Discovery Respondent. If the Court approves a Request, a Discovery Respondent’s search for and production of documents pursuant to a Request must be: made in good faith, uninfluenced by any negative impact on the Discovery Respondent (other than legitimate considerations such as genuine legal professional privilege or commercial confidentiality), and should be comprehensive, but proportionate. If an order for discovery has been made, the parties have a continuing obligation to make discovery (in accordance with r 20.20 of the Federal Court Rules). Where a Request has been approved by the Court, a Discovery Respondent must, if requested to do so by a Discovery Applicant, provide a brief description of the steps taken by the Discovery Respondent to conduct a good faith proportionate search to locate discoverable documents, such as what records have been searched for, what search criteria or terms have been used, or what databases have been searched. Where a Discovery Respondent asserts that documents are unavailable or burdensome to access and discover, the Discovery Respondent must clarify to the Discovery Applicant (unless there is demonstrably no need to do so), how the Discovery Respondent manages, stores, accesses, destroys and disposes of documents. The Court may require a Discovery Respondent to depose to such information. Where a genuine contest relating to discovery arises, the Court will likely apply the Federal Court Rules relating to discovery strictly (eg. how a party gives discovery: r 20.16). How a discovery dispute is resolved by the docket judge will be a matter for him or her. It may be that the dispute can be the subject of a mediation or a confidential conference with a registrar. If there is to be a dispute, one possible approach is not to prepare what might be extensive and expensive affidavit evidence, but to brief the advocates who are to appear in the matter to address the docket judge orally as to relevance, necessity or oppression or any other relevant consideration. The Court expects the parties and their representatives to display common-sense and moderation in requests for discovery, in disputes about discovery and in expending costs on both.

11. EVIDENCE AND WITNESSES 11.1 In respect of evidence, parties are entitled to know, with sufficient notice and clarity, the evidence upon which other parties intend to rely. This is important not only to the running of the case, but also to facilitating an early resolution of the case. ©

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11.2 Parties should avoid preparing and filing evidence that is unnecessary, lengthy and only of peripheral relevance. Parties should focus on providing evidence (whether written or oral) that is sufficiently relevant to the case and material to its outcome. 11.3 At an early stage in the proceedings parties should consider and confer about an approach to the management of evidence. That consideration should cover the best way to lead evidence – whether written or oral. 11.4 The parties’ approach should have in mind the most effective, efficient and economical way to manage evidence. Innovative tools relating to managing evidence will be encouraged by the Court, including the use of: • statements of agreed and disputed facts; • joint reports and concurrent expert evidence; and • organisation of evidence, where appropriate, into discrete components (eg. preliminary issue(s), splitting liability and quantum etc). 11.5 The choice between written evidence (whether by affidavit or statement) and oral evidence (or a combination of both) will depend upon the nature of the case and the nature of the evidence in the relevant NPA or Sub-area. One of the Court’s primary aims is a consistency of approach within NPAs, and in that regard, parties should give careful consideration to the relevant NPA practice note. In many cases of contested oral evidence or contested state of mind evidence, oral evidence (properly disclosed beforehand to avoid surprise) may be preferable to the use of affidavits or statements. Relatively uncontentious evidence, especially that which draws together sequences of events, may be better adduced in writing. In some cases, it may be that the interlocutory process of evidence exchange will be influenced by the need for the parties to have a very precise understanding of the evidence intended to be given if mediation or early settlement is likely to be successful. Much will depend upon the nature of the case and the practice in the relevant NPA. What is to be aimed at above all is consistency of approach within NPAs. Therefore, it is to be expected that NPA practice notes, to the extent necessary, will deal with this topic. 11.6 In considering the question of written evidence the parties should attempt to eliminate the use of unnecessary or prolix affidavits. Parties should consider exchanging proofs of evidence of witnesses at an early stage. Such proofs do not have to be in admissible form and may not require large expense in preparation. They can be exchanged to show the nature of the case to be met; and they will usually be exchanged under order of the Court that prohibits cross-examination upon them or their tendering, except with the leave of the Court. 11.7 The proper choice of what evidence to lead and the best way to lead it is a central responsibility of the parties, their lawyers and most particularly the advocates retained to run the hearing. 11.8 Parties should limit the number of witnesses they rely on to the minimum necessary to prove or disprove those issues truly in dispute. 11.9 Parties should also be familiar with the requirements and information set out in the Expert Evidence Practice Note (GPN-EXPT), Survey Evidence Practice Note (GPN-SURV) and Subpoenas and Notices to Produce Practice Note (GPN-SUBP), which are available on the Court’s website. 12. ANY FURTHER INTERLOCUTORY STEPS 12.1 Interlocutory hearings should be kept to a minimum. In many cases there should be no need for them. Most interlocutory disputes can be avoided or resolved through proper dialogue between the parties and their legal representatives. Where necessary or appropriate the parties should consider the use of court registrars for mediations or confidential conferences over nascent interlocutory disputes. 12.2 Before an interlocutory dispute is listed for hearing the Court would expect that the parties or their legal representatives have conferred in good faith for the purpose of avoiding the need for intervention by the Court and to identify and narrow the issues in dispute. This will involve (other than in genuine ex parte or confidential applications) the moving party raising the relevant issue with the responding party with reasonable notice, and the responding party giving genuine consideration to the issue and responding in good faith, before the matter is raised with the Court. 12.3 If there is a dispute of substance that cannot be resolved between the parties, the Court will usually set a timetable for the filing and service of supporting material and written submissions limited in 98

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page-length. The matter will be dealt with, wherever possible, without the need for appearances and oral argument so that the issue can be determined swiftly “on the papers”. If the matter can be addressed shortly, orally and without detailed evidence, the parties should consider that approach. 12.4 Court registrars may be utilised, where appropriate, to assist in case management and to facilitate a co-operative dialogue between the parties. 13. PRE-TRIAL CASE MANAGEMENT HEARING 13.1 13.1 A pre-trial case management hearing will generally be held, where appropriate, approximately 3 weeks prior to the scheduled trial date, with the lawyers involved in the case including the advocates retained to run the case and, if appropriate, the parties attending. The pre-trial case management hearing is an opportunity for the parties and the Court to deal with any outstanding matters or applications before the start of the trial. 13.2 Prior to any pre-trial case management hearing, it is expected that the parties will have conferred in an effort to identify and agree on the most efficient trial process and proposed pre-trial orders for consideration by the Court. Proposed orders should be forwarded to the docket judge as soon as possible before the case management hearing (preferably by the working day before that hearing). 13.3 At the pre-trial case management hearing, the parties will be expected to have considered, and be in a position to properly address the Court on, the following issues: (a) whether all efforts have been exhausted to resolve the disputes between the parties through ADR or whether a mediation or other ADR process is warranted prior to trial; (b) whether all pleadings or pleading materials are finalised; (c) whether all interlocutory steps are concluded, including evidence and any subpoena processes; (d) how the trial will best be managed, including an accurate estimate of the hearing time, the order and timing of witnesses (including any agreed “chess-clock” approach) and any special requirements relating to witnesses (eg. availability, video link requests, the need for interpreters etc). 14. WRITTEN SUBMISSIONS AND LIST OF AUTHORITIES 14.1 Written submissions can be a very useful method of shortening addresses in both final and interlocutory hearings. Sometimes, however, their usefulness is limited by how they are prepared. They should be seen as a way of summarising and simplifying issues to assist the Court, especially assisting the Court in writing a judgment. Wherever possible, the parties should attempt to agree on and use common headings for the parties’ written submissions. To ensure their utility, written submissions should be signed by, and be the responsibility of, the advocate who is to address the Court at the relevant hearing. Voluminous, repetitive and prolix submissions may be rejected by the Court with consequential costs orders. 14.2 Parties and their lawyers should be familiar with the requirements and information set out in the List of Authorities and Citations Practice Note (GPN-AUTH). 15. PARTIES’ CONDUCT AND COMMUNICATION WITH THE COURT 15.1 At all times, parties are expected to communicate courteously with each other, the Court and all Court staff. 15.2 In their communication with chambers staff of a judge or registrar, unless in the nature of an ex parte application, parties should only communicate with chambers where it is appropriate to do so, and such communications must always be open and uncontroversial. Communications with chambers staff of a judge or registrar must only occur with the prior knowledge or consent of all other parties to the proceeding where any issue of controversy exists or is likely to arise in respect of the issue being addressed. In these circumstances, this is not satisfied by mere copying in of others to the communication, which may be adequate in entirely uncontroversial communications. 15.3 For further information about communicating with the Court, parties and their lawyers are referred to the following guides on the Court’s website: • Guide to Communications with Chambers Staff; • Guide to Communications with Registry Staff. ©

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16. JUDGMENT 16.1 The Court aims to deliver judgment as soon as is reasonably practicable. In the ordinary course (and subject to the size and complexity of the matter) the Court will endeavour to deliver judgment resolving the substantive dispute within 3 months of the receipt of the final submissions. If a judgment is not forthcoming within 6 months, the Court will inform the parties of the anticipated time for delivery of judgment. 16.2 If a party wishes to make an enquiry about a reserved judgment, all parties should be told of the wish to make the enquiry. The enquiry is best directed through the Law Society or Bar Association in the relevant registry or to the Chief Justice directly. It is not appropriate for parties or their lawyers to contact a judge’s chambers directly about such an enquiry. 17. COSTS 17.1 The Court recognises that the determination of the quantum of costs for a successful party should not be delayed. To this end the Court will: • where appropriate, facilitate the making of lump-sum costs orders at the determination of, or as soon as possible after determination of, liability and quantum, with the assistance of registrars (as taxing officers, referees or mediators); or • where a lump-sum costs order is not made the Court will endeavour to deal with costs issues promptly upon the filing of bills of costs (within 30 - 60 days, depending upon their complexity) using, where possible, ADR processes to resolve issues. 17.2 Guidance as to costs procedures is available in the Costs Practice Note (GPN-COSTS), including information concerning applications for lump-sum costs. 18. FURTHER PRACTICE INFORMATION AND RESOURCES 18.1 Further information about practice and procedure, including NPA-specific information and guidance as to the preparation of court-related documents is available on the Court’s website. 18.2 Further information to assist litigants, including a range of helpful guides, is also available on the Court’s website. This information may be particularly helpful for litigants who are representing themselves. Enquiries and Contact Information 18.3 General queries concerning practice and procedure should be raised, at first instance, with your local registry. If a registry officer is unable to answer your query, please ask to speak to the NCF Coordinator in your local registry. J L B ALLSOP Chief Justice 25 October 2016 1 See s 39B(1A)(c) of the Judiciary Act 1903 (Cth), LNC Industries Ltd v BMW (Australia) Ltd [1983] HCA 31, Australian Solar Mesh Sales Pty Ltd v Anderson [2000] FCA 864 and CGU Insurance Ltd v Blakeley [2016] HCA 2. 2 Former Practice Note: CM8 – Fast Track; and former Administrative Notices: ACT2, NSW3, NT1, QLD4, SA1, TAS1, WA2 and VIC2 – Proceedings Conducted in Accordance with the Fast Track Directions.

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1. INTRODUCTION 1.1 This practice note, including the Harmonised Expert Witness Code of Conduct (“Code”) (see Annexure A) and the Concurrent Expert Evidence Guidelines (“Concurrent Evidence Guidelines”) (see Annexure B), applies to any proceeding involving the use of expert evidence and must be read together with: (a) the Central Practice Note (CPN-1), which sets out the fundamental principles concerning the National Court Framework (“NCF”) of the Federal Court and key principles of case management procedure; (b) the Federal Court of Australia Act 1976 (Cth) (“Federal Court Act”); (c) the Evidence Act 1995 (Cth) (“Evidence Act”), including Part 3.3 of the Evidence Act; (d) Part 23 of the Federal Court Rules 2011 (Cth) (“Federal Court Rules”); and (e) where applicable, the Survey Evidence Practice Note (GPN-SURV). 1.2 This practice note takes effect from the date it is issued and, to the extent practicable, applies to proceedings whether filed before, or after, the date of issuing. 2. APPROACH TO EXPERT EVIDENCE 2.1 An expert witness may be retained to give opinion evidence in the proceeding, or, in certain circumstances, to express an opinion that may be relied upon in alternative dispute resolution procedures such as mediation or a conference of experts. In some circumstances an expert may be appointed as an independent adviser to the Court. 2.2 The purpose of the use of expert evidence in proceedings, often in relation to complex subject matter, is for the Court to receive the benefit of the objective and impartial assessment of an issue from a witness with specialised knowledge (based on training, study or experience - see generally s 79 of the Evidence Act). 2.3 However, the use or admissibility of expert evidence remains subject to the overriding requirements that: (a) to be admissible in a proceeding, any such evidence must be relevant (s 56 of the Evidence Act); and (b) even if relevant, any such evidence, may be refused to be admitted by the Court if its probative value is outweighed by other considerations such as the evidence being unfairly prejudicial, misleading or will result in an undue waste of time (s 135 of the Evidence Act). 2.4 An expert witness’ opinion evidence may have little or no value unless the assumptions adopted by the expert (ie. the facts or grounds relied upon) and his or her reasoning are expressly stated in any written report or oral evidence given. 2.5 The Court will ensure that, in the interests of justice, parties are given a reasonable opportunity to adduce and test relevant expert opinion evidence. However, the Court expects parties and any legal representatives acting on their behalf, when dealing with expert witnesses and expert evidence, to at all times comply with their duties associated with the overarching purpose in the Federal Court Act (see ss 37M and 37N). 3. INTERACTION WITH EXPERT WITNESSES 3.1 Parties and their legal representatives should never view an expert witness retained (or partly retained) by them as that party’s advocate or “hired gun”. Equally, they should never attempt to pressure or influence an expert into conforming his or her views with the party’s interests. 3.2 A party or legal representative should be cautious not to have inappropriate communications when retaining or instructing an independent expert, or assisting an independent expert in the preparation of his or her evidence. However, it is important to note that there is no principle of law or practice and there is nothing in this practice note that obliges a party to embark on the costly task of engaging a “consulting expert” in order to avoid “contamination” of the expert who will give evidence. Indeed the Court would generally discourage such costly duplication. 3.3 Any witness retained by a party for the purpose of preparing a report or giving evidence in a proceeding as to an opinion held by the witness that is wholly or substantially based in the specialised knowledge of the witness1 should, at the earliest opportunity, be provided with: ©

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(a) a copy of this practice note, including the Code (see Annexure A); and (b) all relevant information (whether helpful or harmful to that party’s case) so as to enable the expert to prepare a report of a truly independent nature. 3.4 Any questions or assumptions provided to an expert should be provided in an unbiased manner and in such a way that the expert is not confined to addressing selective, irrelevant or immaterial issues. 4. ROLE AND DUTIES OF THE EXPERT WITNESS 4.1 The role of the expert witness is to provide relevant and impartial evidence in his or her area of expertise. An expert should never mislead the Court or become an advocate for the cause of the party that has retained the expert. 4.2 It should be emphasised that there is nothing inherently wrong with experts disagreeing or failing to reach the same conclusion. The Court will, with the assistance of the evidence of the experts, reach its own conclusion. 4.3 However, experts should willingly be prepared to change their opinion or make concessions when it is necessary or appropriate to do so, even if doing so would be contrary to any previously held or expressed view of that expert. Harmonised Expert Witness Code of Conduct 4.4 Every expert witness giving evidence in this Court must read the Harmonised Expert Witness Code of Conduct (attached in Annexure A) and agree to be bound by it. 4.5 The Code is not intended to address all aspects of an expert witness’ duties, but is intended to facilitate the admission of opinion evidence, and to assist experts to understand in general terms what the Court expects of them. Additionally, it is expected that compliance with the Code will assist individual expert witnesses to avoid criticism (rightly or wrongly) that they lack objectivity or are partisan. 5. CONTENTS OF AN EXPERT’S REPORT AND RELATED MATERIAL 5.1 The contents of an expert’s report must conform with the requirements set out in the Code (including clauses 3 to 5 of the Code). 5.2 In addition, the contents of such a report must also comply with r 23.13 of the Federal Court Rules. Given that the requirements of that rule significantly overlap with the requirements in the Code, an expert, unless otherwise directed by the Court, will be taken to have complied with the requirements of r 23.13 if that expert has complied with the requirements in the Code and has complied with the additional following requirements. The expert shall: (a) acknowledge in the report that: (i) the expert has read and complied with this practice note and agrees to be bound by it; and (ii) the expert’s opinions are based wholly or substantially on specialised knowledge arising from the expert’s training, study or experience; (b) identify in the report the questions that the expert was asked to address; (c) sign the report and attach or exhibit to it copies of: (i) documents that record any instructions given to the expert; and (ii) documents and other materials that the expert has been instructed to consider. 5.3 Where an expert’s report refers to photographs, plans, calculations, analyses, measurements, survey reports or other extrinsic matter, these must be provided to the other parties at the same time as the expert’s report. 6. CASE MANAGEMENT CONSIDERATIONS 6.1 Parties intending to rely on expert evidence at trial are expected to consider between them and inform the Court at the earliest opportunity of their views on the following: (a) whether a party should adduce evidence from more than one expert in any single discipline; (b) whether a common expert is appropriate for all or any part of the evidence; (c) the nature and extent of expert reports, including any in reply; 102

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(d) the identity of each expert witness that a party intends to call, their area(s) of expertise and availability during the proposed hearing; (e) the issues that it is proposed each expert will address; (f) the arrangements for a conference of experts to prepare a joint-report (see Part 7 of this practice note); (g) whether the evidence is to be given concurrently and, if so, how (see Part 8 of this practice note); and (h) whether any of the evidence in chief can be given orally. 6.2 It will often be desirable, before any expert is retained, for the parties to attempt to agree on the question or questions proposed to be the subject of expert evidence as well as the relevant facts and assumptions. The Court may make orders to that effect where it considers it appropriate to do so. 7. CONFERENCE OF EXPERTS AND JOINT-REPORT 7.1 Parties, their legal representatives and experts should be familiar with aspects of the Code relating to conferences of experts and joint-reports (see clauses 6 and 7 of the Code attached in Annexure A). 7.2 In order to facilitate the proper understanding of issues arising in expert evidence and to manage expert evidence in accordance with the overarching purpose, the Court may require experts who are to give evidence or who have produced reports to meet for the purpose of identifying and addressing the issues not agreed between them with a view to reaching agreement where this is possible (“conference of experts”). In an appropriate case, the Court may appoint a registrar of the Court or some other suitably qualified person (“Conference Facilitator”) to act as a facilitator at the conference of experts. 7.3 It is expected that where expert evidence may be relied on in any proceeding, at the earliest opportunity, parties will discuss and then inform the Court whether a conference of experts and/or a joint-report by the experts may be desirable to assist with or simplify the giving of expert evidence in the proceeding. The parties should discuss the necessary arrangements for any conference and/or joint-report. The arrangements discussed between the parties should address: (a) who should prepare any joint-report; (b) whether a list of issues is needed to assist the experts in the conference and, if so, whether the Court, the parties o r the experts should assist in preparing such a list; (c) the agenda for the conference of experts; and (d) arrangements for the provision, to the parties and the Court, of any joint-report or any other report as to the outcomes of the conference (“conference report”). Conference of Experts 7.4 The purpose of the conference of experts is for the experts to have a comprehensive discussion of issues relating to their field of expertise, with a view to identifying matters and issues in a proceeding about which the experts agree, partly agree or disagree and why. For this reason the conference is attended only by the experts and any Conference Facilitator. Unless the Court orders otherwise, the parties’ lawyers will not attend the conference but will be provided with a copy of any conference report. 7.5 The Court may order that a conference of experts occur in a variety of circumstances, depending on the views of the judge and the parties and the needs of the case, including: (a) while a case is in mediation. When this occurs the Court may also order that the outcome of the conference or any document disclosing or summarising the experts’ opinions be confidential to the parties while the mediation is occurring; (b) before the experts have reached a final opinion on a relevant question or the facts involved in a case. When this occurs the Court may order that the parties exchange draft expert reports and that a conference report be prepared for the use of the experts in finalising their reports; (c) after the experts’ reports have been provided to the Court but before the hearing of the experts’ evidence. When this occurs the Court may also order that a conference report be prepared (jointly or otherwise) to ensure the efficient hearing of the experts’ evidence. 7.6 Subject to any other order or direction of the Court, the parties and their lawyers must not involve themselves in the conference of experts process. In particular, they must not seek to encourage an expert not to agree with another expert or otherwise seek to influence the outcome of the conference ©

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of experts. The experts should raise any queries they may have in relation to the process with the Conference Facilitator (if one has been appointed) or in accordance with a protocol agreed between the lawyers prior to the conference of experts taking place (if no Conference Facilitator has been appointed). 7.7 Any list of issues prepared for the consideration of the experts as part of the conference of experts process should be prepared using non-tendentious language. 7.8 The timing and location of the conference of experts will be decided by the judge or a registrar who will take into account the location and availability of the experts and the Court’s case management timetable. The conference may take place at the Court and will usually be conducted in-person. However, if not considered a hindrance to the process, the conference may also be conducted with the assistance of visual or audio technology (such as via the internet, video link and/or by telephone). 7.9 Experts should prepare for a conference of experts by ensuring that they are familiar with all of the material upon which they base their opinions. Where expert reports in draft or final form have been exchanged prior to the conference, experts should attend the conference familiar with the reports of the other experts. Prior to the conference, experts should also consider where they believe the differences of opinion lie between them and what processes and discussions may assist to identify and refine those areas of difference. Joint-report 7.10 At the conclusion of the conference of experts, unless the Court considers it unnecessary to do so, it is expected that the experts will have narrowed the issues in respect of which they agree, partly agree or disagree in a joint-report. The joint-report should be clear, plain and concise and should summarise the views of the experts on the identified issues, including a succinct explanation for any differences of opinion, and otherwise be structured in the manner requested by the judge or registrar. 7.11 In some cases (and most particularly in some native title cases), depending on the nature, volume and complexity of the expert evidence a judge may direct a registrar to draft part, or all, of a conference report. If so, the registrar will usually provide the draft conference report to the relevant experts and seek their confirmation that the conference report accurately reflects the opinions of the experts expressed at the conference. Once that confirmation has been received the registrar will finalise the conference report and provide it to the intended recipient(s). 8. CONCURRENT EXPERT EVIDENCE 8.1 The Court may determine that it is appropriate, depending on the nature of the expert evidence and the proceeding generally, for experts to give some or all of their evidence concurrently at the final (or other) hearing. 8.2 Parties should familiarise themselves with the Concurrent Expert Evidence Guidelines (attached in Annexure B). The Concurrent Evidence Guidelines are not intended to be exhaustive but indicate the circumstances when the Court might consider it appropriate for concurrent expert evidence to take place, outline how that process may be undertaken, and assist experts to understand in general terms what the Court expects of them. 8.3 If an order is made for concurrent expert evidence to be given at a hearing, any expert to give such evidence should be provided with the Concurrent Evidence Guidelines well in advance of the hearing and should be familiar with those guidelines before giving evidence. 9. FURTHER PRACTICE INFORMATION AND RESOURCES 9.1 Further information regarding Expert Evidence and Expert Witnesses is available on the Court’s website. 9.2 Further information to assist litigants, including a range of helpful guides, is also available on the Court’s website. This information may be particularly helpful for litigants who are representing themselves. J L B ALLSOP Chief Justice 25 October 2016 104

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HARMONISED EXPERT WITNESS CODE OF CONDUCT2 APPLICATION OF CODE 1. This Code of Conduct applies to any expert witness engaged or appointed: (a) to provide an expert’s report for use as evidence in proceedings or proposed proceedings; or (b) to give opinion evidence in proceedings or proposed proceedings. GENERAL DUTIES TO THE COURT 2. An expert witness is not an advocate for a party and has a paramount duty, overriding any duty to the party to the proceedings or other person retaining the expert witness, to assist the Court impartially on matters relevant to the area of expertise of the witness. CONTENT OF REPORT 3. Every report prepared by an expert witness for use in Court shall clearly state the opinion or opinions of the expert and shall state, specify or provide: (a) the name and address of the expert; (b) an acknowledgment that the expert has read this code and agrees to be bound by it; (c) the qualifications of the expert to prepare the report; (d) the assumptions and material facts on which each opinion expressed in the report is based [a letter of instructions may be annexed]; (e) the reasons for and any literature or other materials utilised in support of such opinion; (f) (if applicable) that a particular question, issue or matter falls outside the expert’s field of expertise; (g) any examinations, tests or other investigations on which the expert has relied, identifying the person who carried them out and that person’s qualifications; (h) the extent to which any opinion which the expert has expressed involves the acceptance of another person’s opinion, the identification of that other person and the opinion expressed by that other person; (i) a declaration that the expert has made all the inquiries which the expert believes are desirable and appropriate (save for any matters identified explicitly in the report), and that no matters of significance which the expert regards as relevant have, to the knowledge of the expert, been withheld from the Court; (j) any qualifications on an opinion expressed in the report without which the report is or may be incomplete or inaccurate; (k) whether any opinion expressed in the report is not a concluded opinion because of insufficient research or insufficient data or for any other reason; and (l) where the report is lengthy or complex, a brief summary of the report at the beginning of the report. SUPPLEMENTARY REPORT FOLLOWING CHANGE OF OPINION 4. Where an expert witness has provided to a party (or that party’s legal representative) a report for use in Court, and the expert thereafter changes his or her opinion on a material matter, the expert shall forthwith provide to the party (or that party’s legal representative) a supplementary report which shall state, specify or provide the information referred to in paragraphs (a), (d), (e), (g), (h), (i), (j), (k) and (I) of clause 3 of this code and, if applicable, paragraph (f) of that clause. 5. In any subsequent report (whether prepared in accordance with clause 4 or not) the expert may refer to material contained in the earlier report without repeating it. DUTY TO COMPLY WITH THE COURT’S DIRECTIONS 6. If directed to do so by the Court, an expert witness shall: (a) confer with any other expert witness; (b) provide the Court with a joint-report specifying (as the case requires) matters agreed and matters not agreed and the reasons for the experts not agreeing; and (c) abide in a timely way by any direction of the Court. CONFERENCE OF EXPERTS ©

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7. Each expert witness shall: (a) exercise his or her independent judgment in relation to every conference in which the expert participates pursuant to a direction of the Court and in relation to each report thereafter provided, and shall not act on any instruction or request to withhold or avoid agreement; and (b) endeavour to reach agreement with the other expert witness (or witnesses) on any issue in dispute between them, or failing agreement, endeavour to identify and clarify the basis of disagreement on the issues which are in dispute. ANNEXURE B CONCURRENT EXPERT EVIDENCE GUIDELINES APPLICATION OF THE COURT’S GUIDELINES 1. The Court’s Concurrent Expert Evidence Guidelines (“Concurrent Evidence Guidelines”) are intended to inform parties, practitioners and experts of the Court’s general approach to concurrent expert evidence, the circumstances in which the Court might consider expert witnesses giving evidence concurrently and, if so, the procedures by which their evidence may be taken. OBJECTIVES OF CONCURRENT EXPERT EVIDENCE TECHNIQUE 2. The use of concurrent evidence for the giving of expert evidence at hearings as a case management technique3 will be utilised by the Court in appropriate circumstances (see r 23.15 of the Federal Court Rules 2011 (Cth)). Not all cases will suit the process. For instance, in some patent cases, where the entire case revolves around conflicts within fields of expertise, concurrent evidence may not assist a judge. However, patent cases should not be excluded from concurrent expert evidence processes. 3. In many cases the use of concurrent expert evidence is a technique that can reduce the partisan or confrontational nature of conventional hearing processes and minimises the risk that experts become “opposing experts” rather than independent experts assisting the Court. It can elicit more precise and accurate expert evidence with greater input and assistance from the experts themselves. 4. When properly and flexibly applied, with efficiency and discipline during the hearing process, the technique may also allow the experts to more effectively focus on the critical points of disagreement between them, identify or resolve those issues more quickly, and narrow the issues in dispute. This can also allow for the key evidence to be given at the same time (rather than being spread across many days of hearing); permit the judge to assess an expert more readily, whilst allowing each party a genuine opportunity to put and test expert evidence. This can reduce the chance of the experts, lawyers and the judge misunderstanding the opinions being expressed by the experts. 5. It is essential that such a process has the full cooperation and support of all of the individuals involved, including the experts and counsel involved in the questioning process. Without that cooperation and support the process may fail in its objectives and even hinder the case management process. CASE MANAGEMENT 6. Parties should expect that, the Court will give careful consideration to whether concurrent evidence is appropriate in circumstances where there is more than one expert witness having the same expertise who is to give evidence on the same or related topics. Whether experts should give evidence concurrently is a matter for the Court, and will depend on the circumstances of each individual case, including the character of the proceeding, the nature of the expert evidence, and the views of the parties. 7. Although this consideration may take place at any time, including the commencement of the hearing, if not raised earlier, parties should raise the issue of concurrent evidence at the first appropriate case management hearing, and no later than any pre-trial case management hearing, so that orders can be made in advance, if necessary. To that end, prior to the hearing at which expert evidence may be given concurrently, parties and their lawyers should confer and give general consideration as to: (a) the agenda; (b) the order and manner in which questions will be asked; and (c) whether cross-examination will take place within the context of the concurrent evidence or after its conclusion. 106

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8. At the same time, and before any hearing date is fixed, the identity of all experts proposed to be called and their areas of expertise is to be notified to the Court by all parties. 9. The lack of any concurrent evidence orders does not mean that the Court will not consider using concurrent evidence without prior notice to the parties, if appropriate. CONFERENCE OF EXPERTS & JOINT-REPORT OR LIST OF ISSUES 10. The process of giving concurrent evidence at hearings may be assisted by the preparation of a joint-report or list of issues prepared as part of a conference of experts. 11. Parties should expect that, where concurrent evidence is appropriate, the Court may make orders requiring a conference of experts to take place or for documents such as a joint-report to be prepared to facilitate the concurrent expert evidence process at a hearing (see Part 7 of the Expert Evidence Practice Note). PROCEDURE AT HEARING 12. Concurrent expert evidence may be taken at any convenient time during the hearing, although it will often occur at the conclusion of both parties’ lay evidence. 13. At the hearing itself, the way in which concurrent expert evidence is taken must be applied flexibly and having regard to the characteristics of the case and the nature of the evidence to be given. 14. Without intending to be prescriptive of the procedure, parties should expect that, when evidence is given by experts in concurrent session: (a) the judge will explain to the experts the procedure that will be followed and that the nature of the process may be different to their previous experiences of giving expert evidence; (b) the experts will be grouped and called to give evidence together in their respective fields of expertise; (c) the experts will take the oath or affirmation together, as appropriate; (d) the experts will sit together with convenient access to their materials for their ease of reference, either in the witness box or in some other location in the courtroom, including (if necessary) at the bar table; (e) each expert may be given the opportunity to provide a summary overview of their current opinions and explain what they consider to be the principal issues of disagreement between the experts, as they see them, in their own words; (f) the judge will guide the process by which evidence is given, including, where appropriate: (i) using any joint-report or list of issues as a guide for all the experts to be asked questions by the judge and counsel, about each issue on an issue-by-issue basis; (ii) ensuring that each expert is given an adequate opportunity to deal with each issue and the exposition given by other experts including, where considered appropriate, each expert asking questions of other experts or supplementing the evidence given by other experts; (iii) inviting legal representatives to identify the topics upon which they will cross-examine; (iv) ensuring that legal representatives have an adequate opportunity to ask all experts questions about each issue. Legal representatives may also seek responses or contributions from one or more experts in response to the evidence given by a different expert; and (v) allowing the experts an opportunity to summarise their views at the end of the process where opinions may have been changed or clarifications are needed. 15. The fact that the experts may have been provided with a list of issues for consideration does not confine the scope of any cross-examination of any expert. The process of cross-examination remains subject to the overall control of the judge. 16. The concurrent session should allow for a sensible and orderly series of exchanges between expert and expert, and between expert and lawyer. Where appropriate, the judge may allow for more traditional cross-examination to be pursued by a legal representative on a particular issue exclusively with one expert. Where that occurs, other experts may be asked to comment on the evidence given. ©

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Federal Court Practice Notes

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17. Where any issue involves only one expert, the party wishing to ask questions about that issue should let the judge know in advance so that consideration can be given to whether arrangements should be made for that issue to be dealt with after the completion of the concurrent session. Otherwise, as far as practicable, questions (including in the form of cross-examination) will usually be dealt with in the concurrent session. 18. Throughout the concurrent evidence process the judge will ensure that the process is fair and effective (for the parties and the experts), balanced (including not permitting one expert to overwhelm or overshadow any other expert), and does not become a protracted or inefficient process. 1 Such a witness includes a “Court expert” as defined in r 23.01 of the Federal Court Rules. For the definition of “expert”, “expert evidence” and “expert report” see the Dictionary, in Schedule 1 of the Federal Court Rules. 2 Approved by the Council of Chief Justices’ Rules Harmonisation Committee 3 Also known as the “hot tub” or as “expert panels”.

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Federal Court Practice Notes

1. INTRODUCTION 1.1 This practice note applies to any proceeding involving an application made for a freezing order. It takes effect from the date it is issued and, to the extent practicable, applies to proceedings whether filed before, or after, the date of issuing. 1.2 Most applications for a freezing order are urgent in nature. As such, practitioners should familiarise themselves with Part 5 of the Central Practice Note (CPN-1), as well as the part contained within the relevant National Practice Area (“NPA”) practice note relating to “Urgent Applications”. 2. FREEZING ORDERS 2.1 This practice note supplements Division 7.4 of the Federal Court Rules 2011 (Cth) (“Federal Court Rules”) relating to freezing orders1 (also known as “Mareva orders” after Mareva Compania Naviera SA v International Bulkcarriers SA (The Mareva) [1975] 2 Lloyd’s Rep 509, or “asset preservation orders”). 2.2 This practice note addresses (among other things) the Court’s usual practice relating to the making of a freezing order and the usual terms of such an order. While a standard practice has benefits, this practice note and the example form of order annexed to it do not, and cannot, limit the judicial discretion to make such order as is appropriate in the circumstances of the particular case. 2.3 Words and expressions in this practice note that are defined in r 7.31 of the Federal Court Rules have the meanings given to them in that Rule. 2.4 An example form of a freezing order made without notice is annexed to this practice note (“Annexure A”). The example form may be adapted to meet the circumstances of the particular case. It may be adopted for a freezing order made with notice as indicated in the footnotes to the example form (the footnotes and references to footnotes should not form part of the order as made). The example form contains provisions aimed at achieving the permissible objectives of the order consistently with the proper protection of the respondent and third parties. 2.5 The purpose of a freezing order is to prevent frustration or abuse of the process of the Court, not to provide security in respect of a judgment or order. 2.6 A freezing order should be viewed as an extraordinary interim remedy because it can restrict the right to deal with assets even before judgment, and is commonly granted without notice. 2.7 The respondent is often the person said to be liable on a substantive cause of action of the applicant. However, the respondent may also be a third party, in the sense of a person who has possession, custody or control, or even ownership, of assets which he or she may be obliged ultimately to disgorge to help satisfy a judgment against another person. Rule 7.35(5) of the Federal Court Rules addresses the minimum requirements that must ordinarily be satisfied on an application for a freezing order against such a third party before the discretion is enlivened. The third party will not necessarily be a party to the substantive proceeding, (see Cardile v LED Builders Pty Ltd (1999) 198 CLR 380) but will be a respondent to the application for the freezing or ancillary order. Where a freezing order against a third party seeks only to freeze the assets of another person in the third party’s possession, custody or control (but not ownership), the example form will require adaptation. In particular, the references to “your assets” and “in your name” should be changed to refer to the other person’s assets or name (eg. “John Smith’s assets”, “in John Smith’s name”). 2.8 A freezing or ancillary order may be limited to assets in Australia or in a defined part of Australia, or may extend to assets anywhere in the world, and may cover all assets without limitation, assets of a particular class, or specific assets (such as the amounts standing to the credit of identified bank accounts). 2.9 The duration of a freezing order made without notice should be limited to a period terminating on the return date on the application, which should be as early as practicable (usually not more than a day or two) after the order is made, when the respondent will have the opportunity to be heard. The applicant will then bear the onus of satisfying the Court that the order should be continued or renewed. 2.10 A freezing order should reserve liberty for the respondent to apply on short notice. An application by the respondent to discharge or vary a freezing order will normally be treated by the Court as urgent. ©

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[FEDPN.50] Freezing orders practice note (GPN-FRZG) – (Also known as “Mareva Orders” or “Asset Preservation Orders”) – General Practice Note

Federal Court Practice Notes

[FEDPN.50]

2.11 The value of the assets covered by a freezing order should not exceed the likely maximum amount of the applicant’s claim, including interest and costs. Sometimes it may not be possible to satisfy this principle (for example, an employer may discover that an employee has been making fraudulent misappropriations, but does not know how much has been misappropriated at the time of the discovery and at the time of the approach to the Court). 2.12 The order should exclude dealings by the respondent with its assets for legitimate purposes, in particular: (a) payment of ordinary living expenses; (b) payment of reasonable legal expenses; (c) dealings and dispositions in the ordinary and proper course of the respondent’s business, including paying business expenses bona fide and properly incurred; and (d) dealings and dispositions in the discharge of obligations bona fide and properly incurred under a contract entered into before the order was made. 2.13 Where a freezing order extends to assets outside Australia, the order should provide for the protection of persons outside Australia and third parties. Such provisions are included in the example form of freezing order. 2.14 The Court may make ancillary orders. The most common example of an ancillary order is an order for disclosure of assets. The example form provides for such an order in paragraph 8 and for the privilege against self-incrimination in paragraph 9. Section 128A of the Evidence Act 1995 (Cth) governs objections to compliance on the self-incrimination ground. In particular paragraphs 2 (c) to (e) of s 128A govern the procedure to be followed after objection is taken in accordance with paragraph 9 of the example form of freezing order annexed to this practice note. 2.15 The rules of court confirm that certain restrictions expressed in The Siskina [1979] AC 210 do not apply in this jurisdiction. First, the Court may make a freezing order before a cause of action has accrued (a “prospective” cause of action). Secondly, the Court may make a free-standing freezing order in aid of foreign proceedings in prescribed circumstances. Thirdly, where there are assets in Australia, service out of Australia is permitted under a new “long arm” service rule. 2.16 As a condition of the making of a freezing order, the Court will normally require appropriate undertakings by the applicant to the Court, including the usual undertaking as to damages (see Schedule A of Annexure A of this practice note). 2.17 If it is demonstrated that the applicant has or may have insufficient assets within the jurisdiction of the Court to provide substance for the usual undertaking as to damages, the applicant may be required to support the undertaking by providing security. There is provision for such security in the example form of freezing order. 2.18 The order to be served should be endorsed with a notice which meets the requirements of r 41.06 of the Federal Court Rules. 2.19 An applicant for a freezing order made without notice is under a duty to make full and frank disclosure of all material facts to the Court. This includes disclosure of possible defences known to the applicant and of any information which may cast doubt on the applicant’s ability to meet the usual undertaking as to damages from assets within Australia. 2.20 The affidavits relied on in support of an application for a freezing or ancillary order should, if possible, address the following: (a) information about the judgment that has been obtained, or, if no judgment has been obtained, the following information about the cause of action: (i) the basis of the claim for substantive relief; (ii) the amount of the claim; and (iii) if the application is made without notice to the respondent, the applicant’s knowledge of any possible defence; (b) the nature and value of the respondent’s assets, so far as they are known to the applicant, within and outside Australia; (c) the matters referred to in r 7.35 of the Federal Court Rules; and (d) the identity of any person, other than the respondent, who, the applicant believes, may be affected by the order, and how that person may be affected by it. 110

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3. FURTHER PRACTICE INFORMATION AND RESOURCES 3.1 When making an application for a freezing order, parties and practitioners should also familiarise themselves with: (a) the Central Practice Note (CPN-1), which sets out the fundamental principles concerning the NCF of the Federal Court and key principles of case management procedure; (b) Division 7.4 of the Federal Court Rules; (c) the NPA practice note relevant to the NPA within which the freezing order is applied for, such as the Commercial and Corporations NPA Practice Note (C&C-1) or the Intellectual Property NPA Practice Note (IP-1); and (d) to the extent applicable, any of the Court’s General Practice Notes that may be relevant, including the: Endorsement, Enforcement and Contempt Practice Note (GPN-ENF) and Usual Undertaking as to Damages Practice Note (GPN-UNDR). 3.2 Further information to assist litigants, including a range of helpful guides, is also available on the Court’s website. This information may be particularly helpful for litigants who are representing themselves. J L B ALLSOP Chief Justice 25 October 2016 Annexure A EXAMPLE FORM OF A FREEZING ORDER (MADE WITHOUT NOTICE) No. .......... of 20 .......... Federal Court of Australia District Registry: [State] Division: [Division] [Name of First Applicant] [if 2 or more add “and another” or “and others”] Applicant[s] [Name of First Respondent] [if 2 or more add “and another” or “and others”] Respondent[s] PENAL NOTICE TO: [name of person against whom the order is made] IF YOU (BEING THE PERSON BOUND BY THIS ORDER): (A) REFUSE OR NEGLECT TO DO ANY ACT WITHIN THE TIME SPECIFIED IN THIS ORDER FOR THE DOING OF THE ACT; OR (B) DISOBEY THE ORDER BY DOING AN ACT WHICH THE ORDER REQUIRES YOU NOT TO DO, YOU WILL BE LIABLE TO IMPRISONMENT, SEQUESTRATION OF PROPERTY OR OTHER PUNISHMENT. ANY OTHER PERSON WHO KNOWS OF THIS ORDER AND DOES ANYTHING WHICH HELPS OR PERMITS YOU TO BREACH THE TERMS OF THIS ORDER MAY BE SIMILARLY PUNISHED. TO: [name of person against whom the order is made] This is a ‘freezing order’ made against you on [insert date] by Justice [insert name of Judge] at a hearing without notice to you after the Court was given the undertakings set out in Schedule A to this order and after the Court read the affidavits listed in Schedule B to this order2. THE COURT ORDERS: INTRODUCTION (1) ©

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Federal Court Practice Notes

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(a) The application for this order is made returnable immediately. (b) The time for service of the application, supporting affidavits and originating process is abridged and service is to be effected by [insert time and date]3. (2) Subject to the next paragraph, this order has effect up to and including [insert date] (the Return Date). On the Return Date at [insert time] am/pm there will be a further hearing in respect of this order before Justice [insert name of Judge]4. (3) Anyone served with or notified of this order, including you, may apply to the Court at any time to vary or discharge this order or so much of it as affects the person served or notified. (4) In this order: (a) ‘applicant’, if there is more than one applicant, includes all the applicants; (b) ‘you’, where there is more than one of you, includes all of you and includes you if you are a corporation; (c) ‘third party’ means a person other than you and the applicant; (d) ‘unencumbered value’ means value free of mortgages, charges, liens or other encumbrances. (5) (a) If you are ordered to do something, you must do it by yourself or through directors, officers, partners, employees, agents or others acting on your behalf or on your instructions. (b) If you are ordered not to do something, you must not do it yourself or through directors, officers, partners, employees, agents or others acting on your behalf or on your instructions or with your encouragement or in any other way. FREEZING OF ASSETS [For order limited to assets in Australia] (6) (a) You must not remove from Australia or in any way dispose of, deal with or diminish the value of any of your assets in Australia (‘Australian assets’) up to the unencumbered value of AUD$[ .......... ] (‘the Relevant Amount’). (b) If the unencumbered value of your Australian assets exceeds the Relevant Amount, you may remove any of those assets from Australia or dispose of or deal with them or diminish their value, so long as the total unencumbered value of your Australian assets still exceeds the Relevant Amount. [If the Court makes a worldwide order, the following additional paragraph (c) also applies.] (c) If the unencumbered value of your Australian assets is less than the Relevant (i) You must not dispose of, deal with or diminish the value of any of your Australian assets and ex-Australian assets up to the unencumbered value of your Australian and ex-Australian assets of the Relevant Amount; and (ii) You may dispose of, deal with or diminish the value of any of your ex-Australian assets, so long as the unencumbered value of your Australian assets and ex-Australian assets still exceeds the Relevant Amount. [For either form of order] (7) For the purposes of this order, (1) your assets include: (i) all your assets, whether or not they are in your name and whether they are solely or co-owned; (ii) any asset which you have the power, directly or indirectly, to dispose of or deal with as if it were your own (you are to be regarded as having such power if a third party holds or controls the asset in accordance with your direct or indirect instructions); and (iii) the following assets in particular: (A) the property known as [title/address] or, if it has been sold, the net proceeds of the sale; (B) the assets of your business [known as [name]] [carried on at [address]] or, if any or all of the assets have been sold, the net proceeds of the sale; and 112

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Federal Court Practice Notes

(C) any money in account [numbered account number] [in the name of] at [name of bank and name and address of branch]. (2) the value of your assets is the value of the interest you have individually in your assets. PROVISION OF INFORMATION5 (8) Subject to paragraph 9, you must: (a) at or before the further hearing on the Return Date (or within such further time as the Court may allow) to the best of your ability inform the applicant in writing of all your assets in [Australia] [world-wide], giving their value, location and details (including any mortgages, charges or other encumbrances to which they are subject) and the extent of your interest in the assets; (b) within [ ......................... ] working days after being served with this order, swear and serve on the applicant an affidavit setting out the above information. (9) (a) This paragraph (9) applies if you are not a corporation and you wish to object to complying with paragraph 8 on the grounds that some or all of the information required to be disclosed may tend to prove that you: (i) have committed an offence against or arising under an Australian law or a law of a foreign country; or (ii) are liable to a civil penalty. (b) This paragraph (9) also applies if you are a corporation and all of the persons who are able to comply with paragraph 8 on your behalf and with whom you have been able to communicate, wish to object to your complying with paragraph 8 on the grounds that some or all of the information required to be disclosed may tend to prove that they respectively: (i) have committed an offence against or arising under an Australian law or a law of a foreign country; or (ii) are liable to a civil penalty. (c) You must: (i) disclose so much of the information required to be disclosed to which no objection is taken; and (ii) prepare an affidavit containing so much of the information required to be disclosed to which objection is taken, and deliver it to the Court in a sealed envelope; and (iii) file and serve on each other party a separate affidavit setting out the basis of the objection. EXCEPTIONS TO THIS ORDER (10) This order does not prohibit you from: (a) paying [up to $ ......................... a week/day on] [your ordinary] living expenses; (b) paying [$ ......................... on] [your reasonable] legal expenses; (c) dealing with or disposing of any of your assets in the ordinary and proper course of your business, including paying business expenses bona fide and properly incurred; and (d) in relation to matters not falling within (a), (b) or (c), dealing with or disposing of any of your assets in discharging obligations bona fide and properly incurred under a contract entered into before this order was made, provided that before doing so you give the applicant, if possible, at least two working days written notice of the particulars of the obligation. (11) You and the applicant may agree in writing that the exceptions in the preceding paragraph are to be varied. In that case the applicant or you must as soon as practicable file with the Court and serve on the other a minute of a proposed consent order recording the variation signed by or on behalf of the applicant and you, and the Court may order that the exceptions are varied accordingly. (12) (a) This order will cease to have effect if you: (i) pay the sum of $[ ......................... ] into Court; or ©

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(13) (14)

(15)

(16) (a) (b)

(17)

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(ii) pay that sum into a joint bank account in the name of your lawyer and the lawyer for the applicant as agreed in writing between them; or (iii) provide security in that sum by a method agreed in writing with the applicant to be held subject to the order of the Court. (b) Any such payment and any such security will not provide the applicant with any priority over your other creditors in the event of your insolvency. (c) If this order ceases to have effect pursuant 12(a) above, you must as soon as practicable file with the Court and serve on the applicant notice of that fact. COSTS The costs of this application are reserved to the Court hearing the application on the Return Date. PERSONS OTHER THAN THE APPLICANT AND RESPONDENT Set off by banks This order does not prevent any bank from exercising any right of set off it has in respect of any facility which it gave you before it was notified of this order. Bank withdrawals by the respondent No bank need inquire as to the application or proposed application of any money withdrawn by you if the withdrawal appears to be permitted by this order. [For world-wide order] Persons outside Australia Except as provided in subparagraph (b) below, the terms of this order do not affect or concern anyone outside Australia. The terms of this order will affect the following persons outside Australia: (i) you and your directors, officers, employees and agents (except banks and financial institutions); (ii) any person (including a bank or financial institution) who: (A) is subject to the jurisdiction of this Court; and (B) has been given written notice of this order, or has actual knowledge of the substance of the order and of its requirements; and (C) is able to prevent or impede acts or omissions outside Australia which constitute or assist in a disobedience of the terms of this order; and (iii) any other person (including a bank of financial institution), only to the extent that this order is declared enforceable by or is enforced by a court in a country or state that has jurisdiction over that person or over any of that person’s assets. [For world-wide order] Assets located outside Australia Nothing in this order shall, in respect of assets located outside Australia, prevent any third party from complying or acting in conformity with what it reasonably believes to be its bona fide and properly incurred legal obligations, whether contractual or pursuant to a court order or otherwise, under the law of the country or state in which those assets are situated or under the proper law of any contract between a third party and you, provided that in the case of any future order of a court of that country or state made on your or the third party’s application, reasonable written notice of the making of the application is given to the applicant.

SCHEDULE A UNDERTAKINGS GIVEN TO THE COURT BY THE APPLICANT (1) The applicant undertakes to submit to such order (if any) as the Court may consider to be just for the payment of compensation (to be assessed by the Court or as it may direct) to any person (whether or not a party) affected by the operation of the order. (2) As soon as practicable, the applicant will file and serve upon the respondent copies of: (a) this order; (b) the application for this order for hearing on the return date; (c) the following material in so far as it was relied on by the applicant at the hearing when the order was made: (i) affidavits (or draft affidavits); 114

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(5)

(6)

(7)

(8)

Federal Court Practice Notes

(ii) exhibits capable of being copied; (iii) any written submission; and (iv) any other document that was provided to the Court. (d) a transcript, or, if none is available, a note, of any exclusively oral allegation of fact that was made and of any exclusively oral submission that was put, to the Court; (e) the originating process, or, if none was filed, any draft originating process produced to the Court. As soon as practicable, the applicant will cause anyone notified of this order to be given a copy of it. The applicant will pay the reasonable costs of anyone other than the respondent which have been incurred as a result of this order, including the costs of finding out whether that person holds any of the respondent’s assets. If this order ceases to have effect6 the applicant will promptly take all reasonable steps to inform in writing anyone to who has been notified of this order, or who he has reasonable grounds for supposing may act upon this order, that it has ceased to have effect. The applicant will not, without leave of the Court, use any information obtained as a result of this order for the purpose of any civil or criminal proceedings, either in or outside Australia, other than this proceeding. The applicant will not, without leave of the Court, seek to enforce this order in any country outside Australia or seek in any country outside Australia an order of a similar nature or an order conferring a charge or other security against the respondent or the respondent’s assets. The applicant will: (a) on or before [date] cause an irrevocable undertaking to pay in the sum of $[ .......... ] to be issued by a bank with a place of business within Australia, in respect of any order the court may make pursuant to undertaking (1) above; and (b) immediately upon issue of the irrevocable undertaking, cause a copy of it to be served on the respondent.7

SCHEDULE B8 AFFIDAVITS RELIED ON Name of deponent (1) [ ......................... ] (2) [ ......................... ] (3) [ ......................... ]

Date affidavit made [ ......................... ] [ ......................... ] [ ......................... ]

NAME AND ADDRESS OF APPLICANT’S LAWYERS The applicant’s lawyers are: [Name, address, reference, fax and telephone numbers both in and out of offıce hours and email] 1 Division 7.4 of the Federal Court Rules and Part 2 of this practice note are harmonised in accordance with the advice of the Council of Chief Justices’ Rules Harmonisation Committee. 2 The words ‘without notice to you’ and ‘and after the Court has read the affıdavits listed in Schedule B to this order’ are appropriate only where the order was made without notice. 3 Paragraph 1 is appropriate only where the order was made without notice. 4 Paragraph 2 is appropriate only in the case where the order was made without notice. 5 See Practice Note paragraph 2.14. 6 For example, if the respondent pays money into Court or provides security, as provided for in paragraph 12 of this example order. 7 See paragraph 2.17 of the practice note. 8 Schedule B is appropriate only in the case of an order without notice.

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[FEDPN.60] Search orders practice note (GPN-SRCH) – (Also known as “Anton Piller Orders”) – General Practice Note 1. INTRODUCTION 1.1 This practice note applies to any proceeding involving an application made for a search order. It takes effect from the date it is issued and to the extent practicable applies to proceedings whether filed before, or after, the date of issuing. 1.2 Most applications for search orders are urgent in nature. Practitioners should familiarise themselves with Part 5 of the Central Practice Note (CPN-1), as well as the part contained within the relevant National Practice Area (“NPA”) practice note relating to “Urgent Applications”. 2. SEARCH ORDERS 2.1 This practice note supplements Division 7.5 of the Federal Court Rules 2011 (Cth) (“Federal Court Rules”) relating to search orders1 (also known as “Anton Piller orders”, after Anton Piller KG v Manufacturing Processes Ltd [1976] Ch 55). 2.2 This practice note addresses (among other things) the Court’s usual practice relating to the making of a search order and the usual terms of such an order. While a standard practice has benefits, this practice note and the example form of order annexed to it do not, and can not, limit the judicial discretion to make such order as is appropriate in the circumstances of the particular case. 2.3 Words and expressions in this practice note that are defined in r 7.41 of the Federal Court Rules have the meanings given to them in that rule. 2.4 Ordinarily, a search order is made without notice and compels the respondent to permit persons specified in the order (“search party”) to enter premises and to search for, inspect, copy and remove the things described in the order. The order is designed to preserve important evidence pending the hearing and determination of the applicant’s claim in a proceeding brought or to be brought by the applicant against the respondent or against another person. The order is an extraordinary remedy in that it is intrusive, potentially disruptive, and made without notice and prior to judgment. 2.5 An example form of a search order made without notice is annexed to this practice note (“Annexure A”) (the footnotes and references to footnotes in the example form should not form part of the order as made). The example form may be adapted to meet the circumstances of the particular case. It contains provisions which are aimed at achieving the permissible objectives of a search order, while minimising the potential for disruption or damage to the respondent and for abuse of the Court’s process. 2.6 The search party must include an independent lawyer who will supervise the search and a lawyer or lawyers representing the applicant. It may be necessary that it include other persons, such as an independent computer expert, and a person able to identify things being searched for if difficulties of identification may arise. Ordinarily, the search party should not include the applicant or the applicant’s directors, officers, employees or partners or any other person associated with the applicant (other than the applicant’s lawyer). 2.7 The order should be clear about the maximum number of persons permitted to be in the search party. The number of people in the search party should be as small as is reasonably practicable. The example form contemplates that they will be named in the order. This is desirable but if it is not possible the order should at least give a description of the class of person who will be there (eg. “one lawyer employed by A, B and Co”). 2.8 The affidavits in support of an application for a search order should include the following information: (a) a description of the things or the categories of things, in relation to which the order is sought; (b) the address or location of any premises in relation to which the order is sought and whether they are private or business premises; (c) why the order is sought, including why there is a real possibility that the things to be searched for will be destroyed or otherwise made unavailable for use in evidence before the Court unless the order is made; (d) the prejudice, loss or damage likely to be suffered by the applicant if the order is not made; (e) the name, address, firm, and commercial litigation experience of an independent lawyer who consents to being appointed to serve the order, supervise its execution, and do such other things as the Court considers appropriate; and 116

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(f) if the premises to be searched are or include residential premises, whether or not the applicant believes that the only occupant of the premises is likely to be: (i) a female; or (ii) a child under the age of 18; or (iii) any other person (“vulnerable person”) that a reasonable person would consider to be in a position of vulnerability because of that person’s age, mental capacity, infirmity or English language ability; or (g) any combination of (i), (ii) and (iii), and any one or more of such persons. If it is envisaged that specialised computer expertise may be required to search the respondent’s computers for documents, or if the respondent’s computers are to be imaged (i.e. hard drives are to be copied wholesale, thereby reproducing documents referred to in the order and other documents indiscriminately), special provision will need to be made, and an independent computer specialist will need to be appointed who should be required to give undertakings to the Court. The applicant’s lawyer must undertake to the Court to pay the reasonable costs and disbursements of the independent lawyer and of any independent computer expert. The independent lawyer is an important safeguard against abuse of the order. The independent lawyer must not be a member or employee of the applicant’s firm of lawyers. The independent lawyer should be a lawyer experienced in commercial litigation, preferably in the execution of search orders. The Law Society / Institute has been requested to maintain a list of lawyers who have indicated willingness to be appointed as an independent lawyer for the purpose of executing search orders, but it is not only persons on such a list who may be appointed. The responsibilities of the independent lawyer are important and ordinarily include the following: (a) serve the order, the application for it, the affidavits relied on in support of the application, and the originating process; (b) offer to explain, and, if the offer is accepted, explain the terms of the search order to the respondent; (c) explain to the respondent that the respondent has the right to obtain legal advice; (d) supervise the carrying out of the order; (e) before removing things from the premises, make a list of them, allow the respondent a reasonable opportunity to check the correctness of the list, sign the list, and provide the parties with a copy of the list; (f) take custody of all things removed from the premises until further order of the Court; (g) if the independent lawyer considers it necessary to remove a computer from the premises for safekeeping or for the purpose of copying its contents electronically or printing out information in documentary form, remove the computer from the premises for that purpose, and return the computer to the premises within any time prescribed by the order together with a list of any documents that have been copied or printed out; (h) submit a written report to the Court within the time prescribed by the order as to the execution of the order; and (i) attend the hearing on the return date of the application, and have available to be brought to the Court all things that were removed from the premises. On the return date the independent lawyer may be required to release material in his or her custody which has been removed from the respondent’s premises or to provide information to the Court, and may raise any issue before the Court as to execution of the order. Ordinarily, the applicant is not permitted, without the leave of the Court, to inspect things removed from the premises or copies of them, or to be given any information about them by members of the search party. Ordinarily, a search order should be served between 9:00am and 2:00pm on a business day in order to permit the respondent more readily to obtain legal advice. However, there may be circumstances in which such a restriction is not appropriate. A search order must not be executed at the same time as the execution of a search warrant by the police or by a regulatory authority.

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2.15 If the premises are or include residential premises and the applicant is aware that when service of the order is effected the only occupant of the residential premises is likely to be any one or more of a female, a child under the age of 18, or a vulnerable person, the Court will give consideration to whether: (a) if the occupants are likely to include a female or child, the independent lawyer should be a woman or the search party should otherwise include a woman; and (b) if the occupants are likely to include a vulnerable person, the search party should include a person capable of addressing the relevant vulnerability. 2.16 Any period during which the respondent is to be restrained from informing any other person (other than for the purposes of obtaining legal advice) of the existence of the search order should be as short as possible and not extend beyond 4:30pm on the Return Date. 2.17 At the hearing of the application on the return date when the parties including the respondent are present, the Court will consider the following issues: (a) what is to happen to any things removed from the premises or to any copies which have been made; (b) how any commercial confidentiality of the respondent is to be maintained; (c) any claim of privilege by the respondent; (d) any application by a party; and (e) any issue raised by the independent lawyer. 2.18 Appropriate undertakings to the Court will be required of the applicant, the applicant’s lawyer and the independent lawyer, as conditions of the making of the search order. The undertakings required of the applicant will normally include the Court’s usual undertaking as to damages (see Schedule B to Annexure A of this practice note). The applicant’s lawyer’s undertaking includes an undertaking not to disclose to the applicant any information that the lawyer has acquired during or as a result of execution of the search order, without the leave of the Court. Release from this undertaking in whole or in part may be sought on the return date. 2.19 If it is demonstrated that the applicant has or may have insufficient assets within the jurisdiction of the Court to provide substance for the usual undertaking as to damages, the applicant may be required to provide security for the due performance of that undertaking. The security may, for example, take the form of a bank’s irrevocable undertaking to pay or a payment into Court. The example form of search order contains provision for an irrevocable undertaking. 2.20 An applicant for a search order made without notice is under a duty to the Court to make full and frank disclosure of all material facts to the Court. This includes disclosure of possible defences known to the applicant and of any financial information which may cast doubt on the applicant’s ability to meet the usual undertaking as to damages from assets within Australia. 2.21 The order to be served should be endorsed with a notice which meets the requirements of rule 41.06 of the Federal Court Rules. 2.22 The example form of search order refers to privilege in paragraphs 21 and 24. Section 128A of the Evidence Act 1995 (Cth) governs objection to compliance on the self-incrimination ground. In particular paragraphs 2(c) to (e) of s 128A govern the procedure to be followed after objection is taken in accordance with paragraphs 21 and 24 of the example form of search order annexed to this practice note (see Annexure A). 3. FURTHER INFORMATION 3.1 When making an application for a search order, parties and practitioners should also familiarise themselves with: (a) the Central Practice Note (CPN-1), which sets out the fundamental principles concerning the NCF of the Federal Court and key principles of case management procedure; (b) Division 7.4 of the Federal Court Rules; (c) the NPA practice note relevant to the NPA within which the search order is applied for, such as the Intellectual Property NPA Practice Note (IP-1); and (d) to the extent applicable, any of the Court’s General Practice Notes that may be relevant, including the: Endorsement, Enforcement and Contempt Practice Note (GPN-ENF) and Usual Undertaking as to Damages Practice Note (GPN-UNDR). 118

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3.2 Further information to assist litigants, including a range of helpful guides, is also available on the Court’s website. This information may be particularly helpful for litigants who are representing themselves. J L B ALLSOP Chief Justice 25 October 2016 Annexure A EXAMPLE FORM OF SEARCH ORDER No. .......... of 20 .......... Federal Court of Australia District Registry: [State] Division: [Division] [Name of First Applicant] [if 2 or more add “and another” or “and others”] Applicant[s] [Name of First Respondent] [if 2 or more add “and another” or “and others”] Respondent[s] PENAL NOTICE TO: [name of person against whom the order is made] IF YOU (BEING THE PERSON BOUND BY THIS ORDER): (A) REFUSE OR NEGLECT TO DO ANY ACT WITHIN THE TIME SPECIFIED IN THE ORDER FOR THE DOING OF THE ACT; OR (B) DISOBEY THE ORDER BY DOING AN ACT WHICH THE ORDER REQUIRES YOU NOT TO DO, YOU WILL BE LIABLE TO IMPRISONMENT, SEQUESTRATION OF PROPERTY OR OTHER PUNISHMENT. ANY OTHER PERSON WHO KNOWS OF THIS ORDER AND DOES ANYTHING WHICH HELPS OR PERMITS YOU TO BREACH THE TERMS OF THIS ORDER MAY BE SIMILARLY PUNISHED. TO: [name of person against whom the order is made] This is a ‘search order’ made against you on [insert date] by Justice [insert name of Judge] at a hearing without notice to your after the Court was given the undertakings set out in Schedule B to this order and after the Court read the affidavits listed in Schedule C to this order. THE COURT ORDERS: INTRODUCTION 1. (a) the application for this order is made returnable immediately. (b) the time for service of the application, supporting affidavits and originating process is abridged and service is to be effected by [insert time and date]. 2. Subject to the next paragraph, this order has effect up to and including [insert date] (‘the Return Date’). On the Return Date at [insert time] am/pm there will be a further hearing in respect of this order before Justice [insert name of Judge]. 3. You may apply to the Court at any time to vary or discharge this order; including, if necessary, by telephone to the judge referred to in the immediately preceding paragraph (phone No. .......... ) or to the Duty Judge (phone No. .......... ). 4. This order may be served only between [insert time] am/pm and [insert time] am/pm [on a business day]2. 5. In this order: ©

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(a) ‘applicant’ means the person who applied for this order, and if there is more than one applicant, includes all the applicants. (b) ‘independent computer expert’ means the person (if any) identified as the independent computer expert in the search party referred to in Schedule A to this order. (c) ‘independent lawyer’ means the person identified as the independent lawyer in the search party referred to in Schedule A to this order. (d) ‘listed thing’ means any thing referred to in Schedule A to this order. (e) ‘premises’ means the premises and any of the premises identified in Schedule A to this order, including any vehicles and vessels that are under the respondent’s control on or about the premises or that are otherwise identified in Schedule A. (f) ‘search party’ means the persons identified or described as constituting the search party in Schedule A to this order. (g) ‘thing’ includes a document. (h) ‘you’, where there is more than one of you, includes all of you and includes you if you are a corporation. (i) any requirement that something be done in your presence means: (i) in the presence of you or of one of the persons described in (6) below; or (ii) if there is more than one of you, in the presence of each of you, or, in relation to each of you, in the presence of one of the persons described in (6) below. This order must be complied with by: (a) yourself; (b) any director, officer, partner, employee or agent of yourself; or (c) any other person having responsible control of the premises. This order must be served by, and be executed under the supervision of, the independent lawyer. ENTRY, SEARCH AND REMOVAL Subject to paragraphs 10 to 20 below, upon service of this order you must permit members of the search party to enter the premises so that they can carry out the search and other activities referred to in this order. Having permitted members of the search party to enter the premises, you must: (a) permit them to leave and re-enter the premises on the same and the following day until the search and other activities referred to in this order are complete; (b) permit them to search for and inspect the listed things and to make or obtain a copy, photograph, film, sample, test or other record of the listed things; (c) disclose to them the whereabouts of all the listed things in the respondent’s possession, custody or power, whether at the premises or otherwise; (d) disclose to them the whereabouts of all computers, computer disks and electronic information storage devices or systems at the premises in which any documents among the listed things are or may be stored, located or recorded and cause and permit those documents to be printed out; (e) do all things necessary to enable them to access the listed things, including opening or providing keys to locks and enabling them to access and operate computers and providing them with all necessary passwords; (f) permit the independent lawyer to remove from the premises into the independent lawyer’s custody: (i) the listed things or things which reasonably appear to the independent lawyer to be the listed things and any things the subject of dispute as to whether they are listed things; and (ii) the copies, photographs, films, samples, tests, other records and printed out documents referred to above; and (g) permit the independent computer expert (if there is one) to search any computer and make a copy or digital copy of any computer hard drive and permit the independent computer expert (if any) or the independent lawyer to remove any computer hard drive and computer from the premises as set out in paragraphs 20 and 21 below. Corporations – Court Rules and Related Legislation 2017

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RESTRICTIONS ON ENTRY, SEARCH AND REMOVAL 10. This order may not be executed at the same time as a search warrant (or similar process) is executed by the police or by a regulatory authority. 11. You are not required to permit anyone to enter the premises until: (a) the independent lawyer serves you with copies of this order and any affidavits referred to in Schedule C (confidential exhibits, if any, need not be served until further order of the Court); and (b) you are given an opportunity to read this order and, if you so request, the independent lawyer explains the terms of this order to you. 12. Before permitting entry to the premises by anyone other than the independent lawyer, you, for a time (not exceeding two hours from the time of service or such longer period as the independent lawyer may permit):(a) may seek legal advice; (b) may ask the Court to vary or discharge this order; (c) (provided you are not a corporation) may gather together any things which you believe may tend to incriminate you or make you liable to a civil penalty and hand them to the independent lawyer in (if you wish) a sealed envelope or container; and (d) may gather together any documents that passed between you and your lawyers for the purpose of obtaining legal advice or that are otherwise subject to legal professional privilege or client legal privilege, and hand them to the independent lawyer in (if you wish) a sealed envelope or container. 13. Subject to paragraph 22 below, the independent lawyer must not inspect or permit to be inspected by anyone, including the applicant and the applicant’s lawyers, any thing handed to the independent lawyer in accordance with subparagraphs 12(c) and (d) above and the independent lawyer must deliver it to the Court at or prior to the hearing on the Return Date. 14. During any period referred to in paragraph 12 above, you must: (a) inform and keep the independent lawyer informed of the steps being taken; (b) permit the independent lawyer to enter the premises but not to start the search; (c) not disturb or remove any listed things; and (d) comply with the terms of paragraphs 25 and 26 below. 15. Any thing the subject of a dispute as to whether it is a listed thing must promptly be handed by you to the independent lawyer for safekeeping pending resolution of the dispute or further order of the Court. 16. Before removing any listed things from the premises (other than things referred to in the immediately preceding paragraph), the independent lawyer must supply a list of them to you, give you a reasonable time to check the correctness of the list, and give you and the applicant’s lawyers a copy of the list signed by the independent lawyer. 17. The premises must not be searched, and things must not be removed from the premises, except in the presence of you or of a person who appears to the independent lawyer to be your director, officer, partner, employee, agent or other person acting on your behalf or on your instructions. 18. If the independent lawyer is satisfied that full compliance with the immediately preceding paragraph is not reasonably practicable, the independent lawyer may permit the search to proceed and the listed things to be removed without full compliance. 19. The applicant’s lawyer and the independent lawyer must not allow the applicant in person to inspect or have copies of any thing removed from the premises nor communicate to the applicant information about its contents or about anything observed at the premises until 4:30pm on the return date or other time fixed by further order of the Court. COMPUTERS 20. (a) If it is expected that a computer will be searched, the search party must include a computer expert who is independent of the applicant and of the applicant’s lawyers (‘the independent computer expert’). (b) Any search of a computer must be carried out only by the independent computer expert. ©

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(c) The independent computer expert may make a copy or digital copy of the computer hard drive and remove that copy or digital copy from the premises. (d) The independent computer expert may search the computer or the copy or digital copy of the computer hard drive at the premises and/or away from the premises for listed things and may copy the listed things electronically or in hard copy or both. (e) The independent computer expert must as soon as practicable and, in any event, prior to the hearing on the return date, deliver the copy or digital copy of the computer hard drive and all electronic and hard copies of listed things to the independent lawyer, together with a report of what the independent computer expert has done including a list of such electronic and hard copies. (f) The independent lawyer must, at or prior to the hearing on the return date, deliver to the Court all things received from the independent computer expert and serve a copy of the latter’s report on the parties. (g) If no independent computer expert has been appointed, but the independent lawyer considers it necessary to remove a computer from the premises for safekeeping or for the purpose of copying its contents electronically and printing out information in documentary form, the independent lawyer may remove the computer from the premises for that purpose and cause that purpose to be achieved. 21. (a) This paragraph (21) applies if you are not a corporation and you wish to object to complying with paragraph 20 on the grounds that some or all of the information required to be disclosed may tend to prove that you: (i) have committed an offence against or arising under an Australian law or a law of a foreign country; or (ii) are liable to a civil penalty. (b) This paragraph (21) applies if you are a corporation and all of the persons who are able to comply with paragraph 20 on your behalf and with whom you have been able to communicate, wish to object to your complying with paragraph 20 on the grounds that some or all of the information required to be disclosed may tend to prove that they respectively: (i) have committed an offence against or arising under an Australian law or a law of a foreign country; or (ii) are liable to a civil penalty. (c) You must: (i) disclose so much of the information required to be disclosed to which no objection is taken; and (ii) prepare an affidavit containing so much of the information required to be disclosed to which objection is taken, and deliver it to the Court in a sealed envelope; and (iii) file and serve on each other party a separate affidavit setting out the basis of the objection. INSPECTION 22. Prior to the Return Date, you or your lawyer or representative shall be entitled, in the presence of the independent lawyer, to inspect any thing removed from the premises and to: (a) make copies of the same; and (b) provide the independent lawyer with a signed list of things which are claimed to be privileged or confidential and which you claim ought not to be inspected by the applicant. PROVISION OF INFORMATION 23. Subject to paragraph 24 below, you must: (a) at or before the further hearing on the Return Date (or within such further time as the Court may allow) to the best of your ability inform the applicant in writing as to: (i) the location of the listed things; 122

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(ii) the name and address of everyone who has supplied you, or offered to supply you, with any listed thing; (iii) the name and address of every person to whom you have supplied, or offered to supply, any listed thing; and (iv) details of the dates and quantities of every such supply and offer. (b) within [ ......................... ] working days after being served with this order, make and serve on the applicant an affidavit setting out the above information. 24. (a) This paragraph (24) applies if you are not a corporation and you wish to object to complying with paragraph 23 on the grounds that some or all of the information required to be disclosed may tend to prove that you: (i) have committed an offence against or arising under an Australian law or a law of a foreign country; or (ii) are liable to a civil penalty. (b) This paragraph (24) also applies if you are a corporation and all of the persons who are able to comply with paragraph 23 on your behalf and with whom you have been able to communicate, wish to object to your complying with paragraph 23 on the grounds that some or all of the information required to be disclosed may tend to prove that they respectively: (i) have committed an offence against or arising under an Australian law or a law of a foreign country; or (ii) are liable to a civil penalty. (c) You must: (i) disclose so much of the information required to be disclosed to which no objection is taken; and (ii) prepare an affidavit containing so much of the information required to be disclosed to which objection is taken, and deliver it to the Court in a sealed envelope; and (iii) file and serve on each other party a separate affidavit setting out the basis of the objection. PROHIBITED ACTS 25. Except for the sole purpose of obtaining legal advice, you must not, until 4:30pm on the Return Date, directly or indirectly inform any person of this proceeding or of the contents of this order, or tell any person that a proceeding has been or may be brought against you by the applicant. 26. Until 4:30pm on the Return Date you must not destroy, tamper with, cancel or part with possession, power, custody or control of the listed things otherwise than in accordance with the terms of this order or further order of the Court. COSTS 27. The costs of this application are reserved to the Court hearing the application on the Return Date. SCHEDULE A Premises The premises located at [insert address or addresses] including any vehicle or vehicles under the respondent’s control on or about those premises. Listed Things 1. [ ......................... ] 2. [ ......................... ] 3. [ ......................... ] Search Party 1. The independent lawyer: [insert name and address] 2. The applicant’s lawyer or lawyers: (a) [insert name and address] [or description e.g. a partner or employee lawyer of A, B and Co]. ©

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(b) [insert name and address] [or description e.g. a partner or employee lawyer of A, B and Co]. (c) [insert name and address] [or description e.g. a partner or employee lawyer of A, B and Co]. 3. Other members of the search party: (a) [insert name and address] in the capacity of [e.g. an independent computer expert] (b) [insert name and address] in the capacity of [insert capacity] SCHEDULE B UNDERTAKINGS GIVEN TO THE COURT Undertakings given to the Court by the applicant: 1. The applicant undertakes to submit to such order (if any) as the Court may consider to be just for the payment of compensation (to be assessed by the Court or as it may direct) to any person (whether or not a party) affected by the operation of the order. 2. The applicant will not, without leave of the Court, use any information, document or thing obtained as a result of the execution of this order for the purpose of any civil or criminal proceeding, either within or outside Australia, other than this proceeding. 3. The applicant will not inform any other person of the existence of this proceeding except for the purposes of this proceeding until after 4:30pm on the Return Date. 4. If the applicant has not already done so, as soon as practicable the applicant will file an interlocutory application for hearing on the Return Date and an originating process [in the form of the draft produced to the Court]. 5. The applicant will insure the things removed from the premises against loss or damage for an amount that reasonably appears to the applicant to be their full value.3 6. The applicant will4: (a) on or before [insert date] cause a written irrevocable undertaking to pay in the sum of $[insert amount] to be issued from a bank with a place of business within Australia, in respect of any order the Court may make referred to in the undertaking as to damages contained in paragraph (1) above; and (b) immediately upon issue of the irrevocable undertaking to pay, cause a copy of it to be served on the respondent. Undertakings given to the Court by the applicant’s lawyer 1. The applicant’s lawyer will pay the reasonable costs and disbursements of the independent lawyer and of any independent computer expert. 2. The applicant’s lawyer will provide to the independent lawyer for service on the respondent copies of the following documents: (a) this order; (b) the application for this order for hearing on the Return Date; (c) the following material in so far as it was relied on by the applicant at the hearing when the order was made: (i) affidavits (or draft affidavits); (ii) exhibits capable of being copied (other than confidential exhibits); (iii) any written submission; and (iv) any other document that was provided to the Court. (d) a transcript, or, if none is available, a note, of any exclusively oral allegation of fact that was made and of any exclusively oral submission that was put, to the Court; and (e) the originating process, or, if none was filed, any draft originating process produced to the Court. 3. The applicant’s lawyer will answer to the best of the lawyer’s ability any question as to whether a particular thing is a listed thing. 4. The applicant’s lawyer will use the lawyer’s best endeavours to act in conformity with the order and to ensure that the order is executed in a courteous and orderly manner and in a manner that minimises disruption to the respondent. 124

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5. The applicant’s lawyer will not, without leave of the Court, use any information, document or thing obtained as a result of the execution of this order for the purpose of any civil or criminal proceeding, either within or outside Australia, other than this proceeding. 6. The applicant’s lawyer will not inform any other person of the existence of this proceeding except for the purposes of this proceeding until after 4:30pm on the Return Date. 7. The applicant’s lawyer will not disclose to the applicant any information that the lawyer acquires during or as a result of execution of the search order, without the leave of the Court. 8. The applicant’s lawyer will use best endeavours to follow all directions of the independent lawyer. Undertakings given to the Court by the independent lawyer 1. The independent lawyer will use his or her best endeavours to serve the respondent with this order and the other documents referred to in undertaking Part B (2) of the above (undertakings by the applicant’s lawyer or lawyers). 2. Before entering the premises, the independent lawyer will:(a) offer to explain the terms and effect of the search order to the person served with the order and, if the offer is accepted, do so; and (b) inform the respondent of his or her right to take legal advice. 3. Subject to undertaking (4) below, the independent lawyer will retain custody of all things removed from the premises by the independent lawyer pursuant to this order until delivery to the Court or further order of the Court. 4. At or before the hearing on the Return Date, the independent lawyer will provide a written report on the carrying out of the order to the Court and provide a copy to the applicant’s lawyers and to the respondent or the respondent’s lawyers. The report will attach a copy of any list made pursuant to the order and a copy of any report received from an independent computer expert. 5. The independent lawyer will use best endeavours to ensure that members of the search party act in conformity with the order and that the order is executed in a courteous and orderly manner and in a manner that minimises disruption to the respondent, and will give such reasonable directions to other members of the search party as are necessary or convenient for the execution of the order. 6. The independent lawyer will not, without leave of the Court, use any information, document or thing obtained as a result of the execution of this order for the purpose of any civil or criminal proceeding, either within or outside Australia, other than this proceeding. 7. The independent lawyer will not inform any other person of the existence of this proceeding except for the purposes of this proceeding until after 4:30pm on the Return Date. Undertakings given to the Court by the independent computer expert 1. The independent computer expert will use his or her best endeavours to act in conformity with the order and to ensure that the order, so far as it concerns the independent computer expert, is executed in a courteous and orderly manner and in a manner that minimises disruption to the respondent. 2. The independent computer expert will not, without leave of the Court, use any information, document or thing obtained as a result of the execution of this order for the purpose of any civil or criminal proceeding, either within or outside Australia, other than this proceeding. 3. The independent computer expert will not inform any other person of the existence of this proceeding except for the purposes of this proceeding until after 4:30pm on the Return Date. 4. The independent computer expert will use best endeavours to follow all directions of the independent lawyer.

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SCHEDULE C AFFIDAVITS RELIED ON Name of deponent (1) [ ......................... ] (2) [ ......................... ] (3) [ ......................... ]

Date affidavit made [ ......................... ] [ ......................... ] [ ......................... ]

NAME AND ADDRESS OF APPLICANT’S LAWYERS The Applicant’s lawyers are: [Insert name, address, reference, email address, fax and telephone numbers both in and out offıce hours]. 1 Division 7.5 of the Rules and Part 2 of this practice note are harmonised in accordance with the advice of the Council of Chief Justices’ Rules Harmonisation Committee. 2 Normally the order should be served between 9:00am and 2:00pm on a business day to enable the respondent more readily to obtain legal advice. 3 Depending on the nature of the things likely to be removed and their likely value, and the likely particular risks of their being lost or damaged, this undertaking or a more elaborate one may be required. 4 See Practice Note paragraph 2.19.

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1. INTRODUCTION 1.1 This practice note applies to all proceedings in the Federal Court (noting however paragraph 2.2 below). It: (a) is to be read together with: • the Central Practice Note (CPN-1) which sets out the fundamental principles concerning the National Court Framework of the Federal Court and key principles of case management procedure; • the provisions relating to costs set out in the Federal Court of Australia Act 1976 (Cth) (“Federal Court Act”) and the Federal Court Rules 2011 (Cth) (“Federal Court Rules”);1 and • the further information listed in Part 7 of this practice note; (b) takes effect from the date it is issued and, to the extent practicable, applies to proceedings whether filed before, or after, the date of issuing; (c) is not intended to be inflexibly applied. 2. OVERVIEW AND DEFINITIONS 2.1 When considering costs-related issues, parties and their lawyers should familiarise themselves with: (a) sections 37M and 37N of the Federal Court Act dealing with the overarching purpose of civil practice and procedure in the Court and special costs orders against parties or their lawyers for failure to comply with the overarching purpose (see also r 40.07 of the Federal Court Rules); (b) section 43 of the Federal Court Act relating to costs generally; (c) Part 40 of the Federal Court Rules, including the rules relating to: • party and party costs (r 40.01; see also the Dictionary,2 which defines party and party costs as costs “fairly and reasonably incurred”); • lump-sum and other costs orders, including indemnity costs (r 40.02; see also the Dictionary which defines costs “on an indemnity basis”); • what happens when no order for costs is made at a hearing (r 40.04); • the timing of any taxation in the context of an interlocutory application (r 40.13); • an estimate of a long form bill (r 40.20); (d) the Central Practice Note, including Part 7 (Overarching Purpose) and Part 17 (Costs); and (e) the further material listed in Part 7 of this practice note. 2.2 In proceedings within certain areas of law, specific statutory or other legal considerations may apply in respect of costs (see for example s 43 of the Federal Court Act). Such areas of law include: (a) Class Actions – see for example ss 43(1A), 33ZJ, 33V(2) and 33ZF of the Federal Court Act; (b) Fair Work matters - see for example s 570 of the Fair Work Act 2009 (Cth); (c) Native Title matters - see for example s 85A of the Native Title Act 1993 (Cth). Such requirements may, to a degree, render parts of this practice note less applicable in certain proceedings. However, this practice note should, to the extent that it may be relevant and of utility to do so, be applied as far as practicable to the costs issues in such proceedings.

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2.3 In this practice note:3 Costs Applicant Costs Respondent

means a party (or non-party) in whose favour a costs order has been made or who seeks such an order in their favour; means a party (or non-party) liable or potentially liable to pay costs.

3. COSTS PRINCIPLES AND CASE MANAGEMENT 3.1 The Court recognises that the procedure for determining the quantum of costs for a party successful at a final hearing should not be delayed and should be as inexpensive and efficient as possible. 3.2 To this end the Court expects parties to make a genuine effort, wherever it is practicable to do so, to negotiate with a view to resolving costs issues between them at the earliest opportunity. Parties are also encouraged, where appropriate, to utilise formal “offers to compromise” (see Part 25 of the Federal Court Rules, including r 25.14) or otherwise make offers to settle costs disputes. 3.3 For those costs issues that are unable to be resolved by negotiation and require the involvement of the Court, the Court’s preference is to avoid, where possible, the making of costs orders that lead to potentially expensive and lengthy taxation of costs hearings. Rather, the Court will seek to adopt, and will encourage parties to utilise, the appropriate use of sophisticated costs orders and procedures, including lump-sum costs orders, consolidated costs orders, estimate of costs processes and Alternative Dispute Resolution (“ADR”).4 Taxation of costs hearings should be the exception and be confined to those matters that have genuinely been unable to be otherwise resolved or determined. Early Determination of Costs 3.4 The early determination of costs involves the determination of who is entitled to be paid the costs of a proceeding and on what basis – eg. on a “party and party” or “indemnity” basis (“costs entitlement question”).5 The costs entitlement question may be determined in the judgment or order following the trial as to liability and/or quantum or penalties (“judgment”)6 or will otherwise be determined at the earliest practicable and appropriate time following judgment. 3.5 The early determination of costs also involves the determination of the quantum of the costs to be paid (“quantum of costs question”). The quantum of costs question will usually be determined through one of the following procedures: (a) in appropriate cases, by the judge, through a lump-sum costs procedure within approximately 6 weeks after determination of the costs entitlement question (see Part 4 below); or (b) by a registrar7 through the estimate of costs procedure (see Part 40 of the Federal Court Rules and Part 5 below). Use of Consolidated Costs Orders 3.6 In some proceedings a mix of potential costs entitlements may arise. This can be the case when, for example, interlocutory costs orders and final costs orders favour opposing parties, where parties succeed in only a small or partial component of their claims, or where both claims and cross-claims are wholly or partially successful. Historically, this would often lead to the burden of multiple or apportioned costs orders, multiple bills of costs and multi-layered taxation processes in the one proceeding. 3.7 In these or other similar circumstances, the Court will, if it considers it appropriate to do so, make a consolidated costs order which has the effect of consolidating multiple or competing costs entitlements and future costs processes. This process may involve offsetting one party’s costs entitlement against another party’s costs entitlement and awarding the balance in one global costs order on a percentage basis, or making no order as to costs in respect of one or more costs entitlements. Wherever possible, the aim is to consolidate multiple or competing costs entitlements into one consolidated costs order to simplify any future costs process. Such consolidated costs orders may also be awarded as lump-sum costs orders where appropriate. 3.8 Whether or not a consolidated costs order is appropriate in a particular case will always be at the discretion of the judge. The parties will have a fair opportunity to present their views as to the appropriateness of any such order being made. 128

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3.9 No formal application for a consolidated costs order is required. However, a party requesting such an order should, wherever it is practicable to do so, give notice in writing (including a brief explanation as to the basis for the request) to the Court and to all other parties in advance of any hearing at which the request will be made. “Costs Capping” Orders in Particular Proceedings 3.10 Parties may suggest to the Court, and the Court may otherwise consider, the appropriateness of tailored costs orders arising from the particular character of the case. For instance, the Central Practice Note (see paragraph 8.5(l)) encourages parties to consider, as part of the Case Management Imperatives, whether the capping of the amount of costs to be recoverable may be relevant and appropriate in any particular case. 3.11 The Court will consider the consequences of making such an order from the perspective of all parties in the proceeding. Relevant matters that may be taken into consideration include: the timing of the application, the complexity of the factual or legal issues raised, the quantum of damages claimed and the nature of the remedies sought, the impact on the parties of making such an order, whether there is a public interest element to the case, the proportionality of the costs being incurred and the substance of the case.8 Allocations of Costs Events 3.12 When allocating costs events to a registrar (such as making an estimate of a bill of costs, conducting mediations, confidential conferences and taxations of costs) a registrar will be allocated to conduct such events based on the Court’s view of the most just, effective and efficient basis for doing so. For example, if considered appropriate in a particular case, it may be that a taxation of costs is conducted by the same registrar who conducted the estimate of the bill of costs.9 General Costs Principles 3.13 The purpose of a costs order is to compensate a successful party rather than punish an unsuccessful party. However, the Court will consider the appropriateness of the making of a special costs order in circumstances which may warrant it, including where parties have failed to comply with their pre-litigation “genuine steps” obligations,10 where the “overarching purpose” duty has not been met, where parties engage in an abuse of process, raise unmeritorious arguments before the Court or otherwise conduct themselves inappropriately in the litigation. 3.14 A party should never embark on a costs-related process within this Court as a strategic device to gain advantage in the litigation, such as to delay the litigation process. 3.15 Parties should be realistic in their claims for costs and not seek to misuse or misapply the Federal Court Scale of Costs (“Scale”).11 It is inappropriate to make a claim which contains unrealistic, unmeritorious or ambit claims. 3.16 Equally, a party should never seek to obtain a windfall from any costs process. A fundamental principle of the law relating to costs is that the amount of costs recovered by a party in whose favour the costs order is made must not exceed the amount of costs for which the Costs Applicant is liable (otherwise generally known as the “indemnity principle”).12 To this end, a lawyer or costs consultant (with a practicing certificate) must verify, among other things, the accuracy of the claim for costs and compliance with the indemnity principle. If the Costs Applicant is unrepresented, the Costs Applicant must make the verification (contained in the example bill of costs on the Court’s website). 3.17 Subject to any special costs-related order that may be made by the Court (such as one involving costs arising from multiple related proceedings), parties should not make claims for costs that are unconnected or tenuously connected to the subject matter and conduct of the litigation or the ambit of the costs order. 4. COSTS OBTAINED VIA A LUMP-SUM COSTS ORDER 4.1 The Court’s preference, wherever it is practicable and appropriate to do so, is for the making of a lump-sum costs order.13 4.2 Utilisation of a lump-sum costs procedure will always be at the discretion of the judge. The parties will be given a fair opportunity to present their views as to the appropriateness of utilising a lump-sum costs procedure. ©

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Timing of Lump-Sum Costs Procedure 4.3 Unless the Court has previously determined the quantum of costs question (such as in the judgment on liability) or costs issues have otherwise been resolved in advance by the parties, then for those cases for which a lump-sum procedure is appropriate, the parties should expect to address the Court in relation to the making of a lump-sum costs order as noted below. “Regular” costs scenario 4.4 In regular, lengthy and complex cases or where more complex costs issues arise, the costs hearing dealing with lump-sum costs will take place within 6 weeks following the determination of the costs entitlement question, or as soon as possible at any other time considered appropriate by the judge. More complex costs issues include situations where indemnity costs, consolidated costs, Offers to compromise or similar offers may apply. 4.5 At the time of listing the costs hearing, or soon after, the judge will timetable the filing of relevant costs material. “Simple” costs scenario 4.6 In particularly short and simple cases and where straight forward costs orders are sought (ie. on a simple party and party basis), the costs hearing dealing with lump-sum costs will take place during closing submissions at trial or as soon as possible thereafter. 4.7 In such a scenario, it may be appropriate for the lump-sum costs matters to be addressed before or immediately following the determination of the costs entitlement question. However, given that this procedure may involve the parties preparing for costs matters in advance of trial, such a process is one that lends itself to the most straightforward of cases and therefore while the Court encourages parties to utilise it, parties should not consider themselves compelled to utilise it (unless the judge has previously directed that they should). Early notification 4.8 Parties are encouraged to notify the Court and all other parties of their views on the appropriateness of utilising the lump-sum costs procedure, succinctly, at the earliest practicable stage in the proceeding including at the pre-trial case management hearing or at the trial stage. Registrar Assistance 4.9 The judge may involve a registrar in a number of capacities when dealing with a lump-sum costs procedure, including as a consultant on costs and to facilitate any ADR process. This may include: (a) considering the relevant costs issues with a registrar before, during or after the costs hearing; (b) having the registrar attend the costs hearing with the judge; and/or (c) in appropriate cases, referring the costs dispute to mediation or to registrar as a referee. Material in Support 4.10 Unless the Court otherwise directs, no formal application for a lump-sum costs order is required. However, in cases where a lump-sum costs procedure is to take place, the Costs Applicant should file an affidavit in support of the lump-sum claim (“Costs Summary”) in accordance with the timetable set by the judge. The Costs Summary should succinctly address the relevant matters set out in Part ;B of “Annexure ;A - Guide for Preparing a Costs Summary” and must also verify the matters set out in Part ;A of Annexure ;A. 4.11 The Costs Summary must be clear, concise and direct and not resemble a bill of costs in taxable form, nor should it contain submissions on the law. The intention of the lump-sum costs procedure is to streamline and expedite the determination or resolution of the quantum of costs question and not to replicate the taxation process. 4.12 Unless leave is given by the Court in advance of filing, the Costs Summary must not exceed 5 pages in length (omitting formal parts) or, in large or complex cases, no more than 10 pages. The Costs Applicant is not required to exhibit to the Costs Summary the source material verifying the costs and disbursements claimed. However, such material must be available at the costs hearing. Material in Response 4.13 The Costs Respondent may file an affidavit responding to the matters raised in the Costs Summary (“Costs Response”) in accordance with the timetable set by the judge. 130

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4.14 Any Costs Response must be clear, concise and direct and briefly summarise the categories of any disputes arising in respect of the Costs Summary. The summary should not resemble formal costs objections (as prepared for a taxation of costs) nor contain submissions on the law. The Costs Response should make clear which of the costs issues arising from the Costs Summary are in dispute and which are not, and should not exceed 4 pages in length (omitting formal parts) or, in large or complex cases, no more than 8 pages. Submissions 4.15 If the parties are given leave by the Court to do so, they may file short written submissions addressing the law as to costs on relevant issues in accordance with any timetable set by the Court. Unless leave is given by the Court in advance of filing, any submissions must not exceed 3 pages in length. Proposed Orders for Costs Timetable 4.16 In a “regular costs scenario” (see paragraphs 4.4 to 4.5 above), unless the Court has already set the timetable, the parties are encouraged to discuss between them, at the earliest opportunity after the determination of the costs entitlement question, appropriate proposed orders addressing the timetable for the costs hearing and related matters. 4.17 Parties should file proposed orders, preferably by consent, as soon as possible before the costs timetable is to be addressed by the judge. Co-operation, Consent and Matters Resolved 4.18 During the lump-sum costs procedure, including in advance of the costs hearing, the parties must at all times adopt a practical approach and co-operate with each other. This includes a costs party promptly responding to any sensible query raised by another costs party arising from the material filed during the procedure which, if clarified, may narrow the issues in dispute or which, if left unclarified, may make the lump-sum costs process less efficient. 4.19 Where a Costs Respondent does not wish to oppose a Costs Summary, the Costs Respondent should notify the Court, the Costs Applicant and any other party or interested person in writing as soon as possible so that the judge may consider whether the costs hearing should be vacated. 4.20 Where, at any stage of the lump-sum procedure, the Costs Applicant and Costs Respondent resolve the costs dispute by agreement, the parties to such an agreement should notify the Court as soon as possible in writing indicating that a resolution has been reached and provide proposed consent orders. The Court may make an order in accordance with the proposed consent orders or any other order considered appropriate, and may vacate the costs hearing. Costs at the Conclusion of Hearings Before a Registrar 4.21 In corporations and bankruptcy proceedings listed before a registrar the Court will generally fix costs at the conclusion of the hearing based on a “Schedule of Costs” lodged via eLodgment in advance of the hearing or as may otherwise be permitted by the presiding registrar. A guide on such matters is available on the Court’s website. 4.22 In order to finalise costs issues swiftly at the costs hearing, parties are encouraged, to utilise the procedures set out in the guide in Annexure ;A rather than to file a short or long form bill of costs after the conclusion of the hearing. 5. COSTS OBTAINED OTHER THAN VIA A LUMP-SUM COSTS ORDER General matters 5.1 In circumstances where a lump-sum costs order has not been made, the procedures set out in Part 40 of the Federal Court Rules will usually apply (see in particular Divisions 40.2 and 40.3). 5.2 The Court will endeavour to deal with costs issues promptly upon the filing of a bill of costs and will regularly use mediation to resolve costs issues swiftly. If parties have not already commenced a negotiation process, parties are encouraged to negotiate without delay to resolve their differences on costs, rather than awaiting a response from a registrar or a more formal ADR process at a later time. Short Form Bill of Costs 5.3 A short form bill of costs may be filed in respect of: ©

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(a) an application to wind up a corporation under the Corporations Act 2001 (Cth) (rr 40.41 and 40.42 of the Federal Court Rules); (b) appeals from a judgment of the Federal Circuit Court relating to a migration decision (r 40.43 of the Federal Court Rules); (c) a creditor’s petition under the Bankruptcy Act 1966 (Cth) (r 13.03 of the Federal Court (Bankruptcy) Rules 2016 (Cth)). 5.4 The purpose of a short form bill is to provide for a truncated and speedier bill of costs process which does not require a detailed itemised bill (as with long form bills). Fixed sums apply for costs which represent fair compensation for the costs incurred. One of the chief benefits of the short form bill process is the considerable saving of the time and cost associated with the long form bills process (which may involve an estimate, mediation and taxation hearing) and the Court encourages parties to utilise short form bills in permissible proceedings if no lump-sum order has been made. 5.5 The short form bill of costs may only seek: (a) certain short form amounts allowed for professional costs set out in items 13, 14 or 15 of the Scale (as at the date that the relevant proceeding was commenced); and (b) out-of-pocket disbursements that have been incurred (item 18 of the Scale). 5.6 Further information is available in the Corporations Guide and Bankruptcy Guide on the Court’s website. Long Form Bill of Costs 5.7 Embarking on a long form bill of costs process may result in a lengthier and more costly process than the lump-sum process set out in this practice note. 5.8 Parties should be familiar with the key elements of the long form bill process, including the conducting of estimates (r 40.20 of the Federal Court Rules and following), the objections process (r 40.21 and following), confidential conferences (r 40.21(2) and following) and taxation hearings (r 40.27 and following). 5.9 A bill of costs should be in accordance with r 40.18 of the Federal Court Rules and the example bill of costs on the Court’s website. In addition, Costs Applicants and their representatives should carefully consider “Annexure ;B - Guide for Preparing a Bill of Costs”. Service of a Bill of Costs 5.10 A Costs Applicant must not only comply with the minimum service requirement in r 40.19 of the Federal Court Rules, but is also expected by the Court to serve the bill on each party interested in the bill at the earliest practicable time after it has been filed. The Costs Applicant should also promptly notify the registry in writing of having done so. Certain areas of law may have other specific statutory or legal requirements, for example, in some matters such as bankruptcy and corporations matters listed before a registrar, parties are required to file an affidavit of service of the bill of costs.14 Estimate of Costs Process 5.11 When a long form bill of costs is filed it will be allocated to a registrar to make an estimate of the approximate total for which, if the bill were to be taxed, the certificate of taxation would be likely to issue. This process must take place before any taxation hearing can occur (r 40.20(1) of the Federal Court Rules). 5.12 The Court will inform the parties (via a formal endorsement under the Federal Court Rules or otherwise) of the anticipated date by which the registrar will conduct the estimate.15 The estimate will be made, wherever possible, within 30 – 60 days of the filing of the bill of costs, depending on the complexity of the bill. The Court will keep the parties to the bill informed of any change in timing for the estimate being made. 5.13 It is important to note that an estimate is not a taxation. An estimate is intended to be quite distinct from a taxation process and has a number of key features, including that: (a) it is, by definition, an estimate only of the amount that “would be likely to issue” if the bill were taxed. Accordingly, unlike a taxation, it is not a precise item-by-item assessment or determination of the bill (r 40.20(2) of the Federal Court Rules); 132

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(b) it is, however, an important and persuasive guide for the parties to assist them in assessing their respective risks as to embarking on a contested taxation process and may also assist the parties in any formal or informal ADR process; (c) by default, if the notice of estimate is not objected to within 21 days, the amount of the estimate is the amount for which the certificate of taxation will be issued (r 40.20(4) of the Federal Court Rules); (d) it also gives rise to important considerations relating to liability for the costs of proceeding to a taxation hearing, particularly if the relevant threshold set out in r 40.33 of the Federal Court Rules is not bettered by the party objecting to the estimate (known as the “15% rule”). Estimates and Submissions 5.14 A further key feature of the estimate is that it is required to be made “in the absence of the parties” (r 40.20(2) of the Federal Court Rules). Accordingly, the registrar making the estimate will usually rely only on the bill and any key file documents (such as costs orders and relevant reasons for judgment). Submissions in support of the bill or in opposition to it will not be permitted during the estimate process and if they are received by the Court without notice will not be taken into consideration, unless they arise in the circumstances noted below. 5.15 In appropriate cases, it is customary for bills to contain some very brief commentary regarding any loading for “skill, care and responsibility” or with respect to exceptional circumstances (eg. clarifying how costs have been claimed as part of an issue-based costs order). The Court is willing to permit such clarifications only if they are essential for the proper understanding of the bill and are stated concisely. Any abuse of this exception may result in the Costs Applicant being required to redraft and re-file the bill.16 5.16 Sometimes a serious defect of an objective nature is contained in the bill (eg. a major calculation error or reliance on the wrong costs order), as opposed to a subjectively-based disagreement about items claimed in the bill. Such defects impact on the amount correctly claimable and impair the estimate process. In such circumstances, (assuming the Costs Respondent has identified the defect), the Costs Respondent should immediately and concisely notify the Court, the Costs Applicant and any other parties to the bill in writing of the defect, and the parties should: (a) co-operatively discuss how best to address the defect (eg. withdrawal and refiling of the bill or the filing of an amended bill by consent); and (b) promptly and concisely notify the Court in writing of their agreed proposal (or separate proposals) to address the defect. The registrar may or may not proceed in accordance with the proposal(s) of the parties. Post-estimate process 5.17 Parties should expect that “provisional taxations” under r 40.23 of the Federal Court Rules will not be conducted other than in exceptional circumstances. 5.18 It is expected that, given the Court’s approach to lump-sum costs orders, the guidance provided by the estimates process and the fact that ADR processes will be regularly applied, notices of objection and taxation hearings will be required infrequently. 5.19 A notice of objection to an estimate cannot proceed unless a party objecting files a Form 128 Notice of Objection within 21 days and pays the required security for costs into the Litigants’ Fund (r 40.21(1)). 5.20 Any objection to an estimate will be dealt with under the Federal Court Rules, with a particular focus on a resolution of the costs dispute by way of a “confidential conference” (see r 40.21(2) of the Federal Court Rules). A confidential conference of a taxation dispute will ordinarily be conducted in the same manner as a mediation (but tailored to suit the nature of the costs dispute and the needs of the parties). Parties should therefore familiarise themselves with the guiding ADR principles set out in the Central Practice Note [LINK] and further information regarding ADR processes on the Court’s website. 5.21 At all times during any objection or taxation process, parties must take care to adhere to the overarching purpose and, wherever possible and appropriate, narrow the issues in dispute. ©

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6. GOODS AND SERVICES TAX (GST) 6.1 The principles concerning GST set out in this Part are relevant not only to long form bills of costs, but also to the other costs processes referred to in this practice note, including lump-sum costs and short form bills of costs (to the extent applicable). GST and the Federal Court Scale of Costs17 6.2 The Scale does not expressly refer to GST and, in the most part, simply constitutes a series of charges which reflect the maximum price for legal services under the Federal Court Rules capable of being recovered18 for the items, irrespective of the tax implications which may arise for any particular Costs Applicant. 6.3 Nevertheless, the Court recognises that, as a matter of practicality and given the nature of some of the items in the Scale, Cost Applicants may be influenced as to what amount to claim under such items by whether the GST appears to be applicable and whether they are able to claim an input tax credit. The Court understands the realities of how costs are usually incurred by litigants and seeks to adopt a practical and common sense approach to the GST issue. Equally, the Court seeks to ensure that Cost Applicants are treated as equitably as possible in respect of the GST, given that not all Cost Applicants are able to obtain an input tax credit.19 6.4 Accordingly, the information below is designed to give parties greater guidance on how to address GST-related costs issues and to ensure a consistent and national approach to the treatment of GST and costs in this Court (see also the guidance contained in Annexures ;A and B and the example Bill of Costs). 6.5 With respect to including or excluding GST in a bill of costs, if the Costs Applicant is entitled to claim input tax credits (as, for example, many corporations are) then fairly and reasonably incurred costs and disbursements should be claimed in accordance with the Scale and exclusive of GST (ie no GST is added). 6.6 Alternatively, if the Costs Applicant is not entitled to claim input tax credits (as, for example, many individuals are not) then fairly and reasonably incurred costs and disbursements should be claimed as follows: (a) disbursements should be claimed in the amount incurred inclusive of GST; (b) costs should be claimed: (i) inclusive of GST for: Scale items 1.1 and any other Scale item that expressly requires or permits the application of item 1.1, however in all circumstances the amount claimed must not exceed the cap listed in Item 1.1, inclusive or exclusive of GST20 or Scale Item 12; and (ii) otherwise in accordance with the Scale (ie. no GST is added). GST Disclosure 6.7 Within any Costs Summary or bill of costs, the Costs Applicant must make a GST disclosure clarifying whether the Costs Applicant is registered for GST purposes and entitled to claim an input tax credit (“GST Disclosure”) (refer to the verification in Part ;A of Annexure ;A or the certificate in the example bill of costs on the Court’s website). 6.8 If a Costs Applicant fails to make a GST Disclosure or otherwise make clear their status for GST purposes, the Court will proceed with the estimate or other costs process on the basis that the Costs Applicant is entitled to claim the input tax credit and therefore any GST component of the costs or disbursements claimed will be excluded in accordance with paragraph 6.6 above. 7. FURTHER PRACTICE INFORMATION & RESOURCES 7.1 When parties are required to provide written notification to the Court of a matter in accordance with this practice note, unless otherwise directed, they should lodge a brief letter with the registry (via eLodgment) appropriately addressed to the chambers staff of the relevant judge or registrar. 7.2 Specific information relevant to class actions and costs is available in the Class Actions Practice Note (GPN-CA). 7.3 Guides to assist Cost Applicants seeking costs at the conclusion of a hearing before a registrar in relation to corporations and bankruptcy proceedings is available on the Court’s website. 7.4 General information to assist parties in relation to costs is available as follows: 134

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(a) for the lump-sum costs process: the Guide for Preparing a Costs Summary in Annexure ;A; (b) for preparing Bill of Costs: the Guide for Preparing a Bill of Costs in Annexure ;B; (c) the example bill of costs on the Court’s website; (d) the Federal Court’s National Guide to Counsel Fees; (e) the Federal Court’s National Guide to Discretionary Items in Bills of Costs; and (f) general costs information on the Court’s website. 7.5 Further information to assist litigants, including a range of helpful guides, is also available on the Court’s website. This information may be particularly helpful for litigants who are representing themselves. J L B Allsop Chief Justice 25 October 2016 Annexure A GUIDE FOR PREPARING A COSTS SUMMARY (Supporting a lump-sum costs order request) This guide sets out how to prepare a Costs Summary in support of a request for a lump-sum costs order. For more information on lump-sum costs orders, refer to Part 4 of the Costs Practice Note (GPN-COSTS). The Costs Summary should be in the form of an Affidavit (Form 59). PART A - VERIFICATION The deponent must verify the following in the Costs Summary,21 that: 1. the deponent has read the Federal Court Costs Practice Note; and 2. the Costs Applicant* [name of party with the benefit of the costs order] is [entitled/not entitled] to claim input tax credits in respect of any GST relevant to the claims in the Costs Summary and has complied with Part 6 of the Costs Practice Note; and 3. in the Costs Summary: (a) the Costs Applicant is not claiming more than the Costs Applicant is liable to pay for costs and disbursements; (b) the calculations made are correct; (c) the matters noted are a fair and accurate summary of the costs and disbursements that the Costs Applicant is entitled to claim; and 4. the amounts claimed are capable of further verification through source material (such as file records, tax invoices and receipts for payment) should such material be required by the Court to be produced. PART B – CONTENT 1. When preparing a Costs Summary the deponent should succinctly set out the following information (to the extent relevant) in the Costs Summary: (a) clarify in the costs summary whether it has been prepared with the assistance of an expert as to costs (eg. costs consultant); (b) who is liable, according to the Costs Applicant, to pay the costs claimed in the Costs Summary (including any non-party if applicable) and on what basis (eg. as between “party and party” or on an indemnity basis). (c) any relevant costs orders or rules relied on in support of the costs claim should be referred to in the Costs Summary; (d) the amount of the lump-sum sought; (e) how the lump-sum has been calculated (including any GST portion) and if any discounts have been applied; (f) a summary of the categories of the work fairly and reasonably incurred in the conduct of the litigation, including, an estimate (in percentage terms) of the proportion that each category of work constitutes of the total costs claimed (eg. discovery 15%); ©

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(g) in respect of each person who has performed costs work the subject of the claim: i) a summary of each person’s hourly rate and total hours worked; and ii) an estimate (in percentage terms) of the proportion of the total sum claimed attributable to that person (eg. Penny White 5%); (h) a summary (with any applicable hourly and/or daily rates) of disbursements fairly and reasonably incurred in the conduct of the litigation, including fees charged by counsel and any expert witness. Further, in respect of counsel, an estimate (in percentage terms) of the proportion of the total sum claimed attributable to counsel fees (collectively); (i) a clarification of the amount of any “skill, care and responsibility” claimed and how it has been calculated (including any percentage applied) and the bases for it being claimed;22 (j) where applicable, a description of any special or unusual costs arrangements underpinning the costs claimed (eg. conditional fee agreements pro-bono arrangements fixed fee arrangements per Scale item 12 etc); (k) whether the amounts claimed relevantly fall within or outside the following: i) the amounts permissible for any item under the Scale; ii) the Federal Court’s National Guide to Counsel’s Fees; iii) the Federal Court’s National Guide to Discretionary Items in Bills of Costs; and (l) any special features of the case which may impact the assessment of costs or any other relevant and important matters not mentioned above. Annexure B GUIDE FOR PREPARING A BILL OF COSTS This guide is prepared to assist the Costs Applicant in preparing the bill of costs. It is in the Costs Applicant’s interests to follow this guide to assist the taxing officer to make an estimate. Before preparing a bill of costs (bill), ensure that you are familiar with the: • Federal Court’s Scale of Costs;23 • Costs Practice Note and its attachments and the example bill of costs on the website; • Federal Court’s National Guide to Discretionary Items in Bills of Costs; • Federal Court’s National Guide to Counsel Fees. When preparing the bill, keep in mind at all times that a Costs Applicant: • must claim costs referencing the most directly relevant item in the Scale and not attempt to “shoehorn” that claim into a Scale item that is less relevant or less suitable for that claim; • should never seek to claim compensation more than once for any one legal task sought to be claimed, even if that work could be claimed under more than one item in the Scale. PART A - CERTIFICATE 1. Complete the certificate (amend the wording of the certificate as needed to adjust for more than one Costs Applicant). The GST Disclosure in paragraph 2 of the certificate must be consistent with the treatment of GST throughout the bill; 2. The certificate must be signed by the lawyer or costs consultant who prepared the bill, noting however, that if the costs consultant does not hold a practicing certificate, then it must be signed by the lawyer who files the bill. If the Costs Applicant is unrepresented, it must be signed by the Costs Applicant. The certificate is an important representation made to the Court and other parties – ensure that it is correct. Note If a bill is filed with an unsigned certificate, then the taxing officer will require an appropriately signed bill be provided before they process it. PART B - TABLES OF RATES 136

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1. Complete each table of rates for lawyers and counsel and make clear whether GST is included or excluded in the rates noted. 2. When completing the “Years of Experience of lawyer and counsel” column, based on the actual number of years practicing, insert “less than 3 years”, “3-6 years” or “more than 10 years”. 3. When completing the hourly rates columns, where during the course of the proceeding any hourly rates have changed, set out the rate or rates that apply to each lawyer and/or counsel relevant to the bill of costs on separate rows, and the period or periods in respect of which the rate or rates apply. For example: (i) Lawyers Name of lawyer

Position Years of / title experience

Penny White [PW]

Partner

Penny White [PW]

Partner

More than 10 years More than 10 years

Hourly Rate Excluding GST $

(1 Jul 14 – 30 Jun 15) 600.00 (1 Jul 15 – 30 Jun 16) 650.00

Hourly Rate Including GST $ 660.00

715.00

PART C – SPECIAL NOTES 1. As required and as succinctly as possible, complete the Orders / Rules, relevant claim period, exceptional circumstances and loading (see paragraphs 5.14 and 5.15 of the Costs Practice Note). Note Any special comments relating to the bill should not be included in the table of claim for costs. Note Any prolix special notes may be ignored or rejected by the Court. PARTS D AND E – TABLES OF CLAIMS FOR COSTS AND DISBURSEMENTS 1. List costs and disbursements in separate tables (a) In the first table, insert costs claimed for work done by lawyers, law graduates, paralegal staff etc; (b) In the second table, insert for disbursements incurred. 2. Insert details in the costs and disbursements tables (a) In chronological order, insert the claim number, date, Scale item and description of [work done / disbursement incurred] and the amount claimed (editing the table to appropriately select “inclusive” or “exclusive” of GST); (b) In the costs table: (i) Ensure that for each of the particulars of work done the relevant Scale item is referenced and, where applicable, the initials of the lawyer who undertook the work. Also, ensure that, as applicable, the relevant time taken or category of word-count is noted (eg “1.5 hrs” or “< 50 words”); (ii) Describe the work done succinctly, but in sufficient detail to enable the taxing officer to determine if the costs were fairly and reasonably incurred (eg. rather than “attend conference”, use “conference with counsel re discovery and inspection”); (iii) Do not group distinct categories of work into one bill item (eg. call to client, conference with counsel and drafting letter of demand), especially where such work spans multiple Scale items; ©

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(iv) Where options exist in a Scale item for selecting a rate or amount, do not automatically select the top rate / amount. Consider not only who undertook the work and their applicable rate but also ensure that the amount claimed correlates to the nature of the work undertaken. For example, if a partner undertook clerical work, the appropriate lower amount commensurate with a clerk undertaking the work should be claimed, not the partner’s rate; (v) Photocopying is a discretionary item in the Scale. When claiming photocopying, consider the Federal Court’s National Guide to Discretionary Items in Bills of Costs; (vi) When including GST in the claims in the bill (see Part 6 of the Costs Practice Note), do so by incorporating the GST into each relevant amount claimed for the Scale item. Do not include one bulk-item for GST at the end of the bill; Note Where the Costs Applicant is not entitled to claim input tax credits, then costs may be claimed inclusive of GST for Scale items 1.1 and 12. This includes those Scale items that expressly require or permit the application of item 1.1, which are: items 3.1, 4.1, 5.1, 6.2, 7.1(a) and 11.1(1). Note Where GST is claimed on a Scale item other than 1.1 (eg. 3.1) the relevant Scale item followed by “/1.1” should be noted to show that the amount claimed has been calculated in accordance with Scale item 1.1 (eg. 3.1/1.1). (vii) When claiming any loading for skill, care and responsibility, list the amount of the loading claimed and how it has been calculated (including any percentage applied) together with a concise clarification of the bases for it being claimed (see paragraph 5.15 of the Costs Practice Note, item 11 of the Scale and the Federal Court’s Guide to Discretionary Items in Bills of Costs); (c) Any claim for the preparation of the bill itself should be claimed in the disbursements table if a third party (eg. costs consultant) was engaged to prepare the bill. If the bill was prepared by a “in-house”, it should be claimed in the costs table; (d) Ensure that the bottom of each of the costs and disbursements claims tables are totalled; and (e) Leave the “Amount taxed off” column blank. This is for use by the taxing officer. PART F – TOTALS CLAIMED – COSTS AND DISBURSEMENTS 1. Ensure that the Total of Claims table is completed. 2. Check that the amount claimed in the bill does not exceed the relevant costs that the Costs Applicant is liable to pay (“indemnity principle”). This is important for every bill and is particularly at risk of occurrence with bills prepared on an indemnity basis. 3. Leave the column marked “Amount taxed and allowed” blank. This is for use by the taxing officer. ATTACHMENTS 1. For all bills, copies of receipts for each paid disbursement and copies of relevant accounts for each unpaid disbursement must accompany or be attached to the bill (r 40.18(b) of the Federal Court Rules). Each attachment should be attached in the order of the “claim number” in the Table of Disbursements (where practicable) and should reference that claim number at the bottom right-hand-side of the attachment. 2. For bills where a Costs Applicant is not entitled to claim an input tax credit (and therefore claims GST in the bill), a short cover-letter should accompany the bill to briefly clarify the basis of the non-entitlement (see paragraph 6.5 and 6.8 of the Costs Practice Note). If no letter is attached, the bill may be assessed on the assumption that the party is entitled to claim an input tax credit. AFTER FILING THE BILL 138

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1. Ensure that the bill is served on each party interested in the bill (see r 40.19 of the Federal Court Rules and paragraph 5.10 of the Costs Practice Note), together with any attached or accompanying correspondence / documents filed with the bill. 1 See also other relevant legislative instruments which may make reference to costs, such as the Federal Court (Corporations) Rules 2000 (Cth) and the Federal Court (Bankruptcy) Rules 2016 (Cth). 2 The Dictionary is found at Schedule 1 of the Federal Court Rules (r 1.51). 3 Where applicable, this practice note is also intended to cover third-parties not formally the subject of a costs order, such as insurers. 4 In this context, “ADR” includes mediation (including a form of mediation for costs disputes described as a “confidential conference” in the Federal Court Rules, see 40.21 and following) and may involve a registrar as a consultant as to costs, or as part of an ADR process under Part 28 of the Federal Court Rules, or as a referee under Division 28.6 of the Federal Court Rules. 5 See also rr 40.03 and 40.04 regarding when costs “follow the event” or are taken to be costs “in the cause”. 6 The use of the defined term “judgment” in the practice note is for convenience and is not intended to vary or derogate from that term’s more formal meaning in the Act (see s 4 of the Federal Court Act) or the Federal Court Rules (see Dictionary). 7 A taxing officer is a registrar under the Federal Court Rules – see the Dictionary. The use of the term “registrar” in this practice note is not intended to vary or derogate from a registrar’s role when acting in a formal capacity as a “taxing officer” under the Federal Court Rules. 8 See generally: Corcoran v Virgin Blue Airlines Pty Ltd [2008] FCA 864; Haraksin v Murrays Australia Ltd [2010] FCA 1133; King v Virgin Australia Airlines Pty Ltd [2014] FCA 36 and Shurat HaDin, Israel Law Center v Lynch (No 2) [2014] FCA 413. 9 Territory Realty Pty Ltd v Garraway (No 3) Pty Ltd [2013] FCA 914. 10 Under the Civil Dispute Resolution Act 2011 (Cth) the Court, when exercising a discretion to award costs, may take into account whether a party took genuine steps to resolve the dispute pre-litigation (see s 12 of that Act). 11 “Scale”, in this practice note, means the Federal Court scale of costs, being Schedule 3 to the Federal Court Rules costs allowable for work done and services performed. 12 This description of the indemnity principle is intended as a summary only and it is not intended to vary or derogate from the well-established description of the indemnity principle in relevant case law. 13 Although it may be applied in certain appropriate circumstances, the lump-sum costs procedure is not intended to apply generally to interlocutory costs orders unless otherwise ordered. Parties are reminded of timing considerations in respect of interlocutory costs orders (see r 40.13 of the Federal Court Rules). 14 See the “Guide for Practitioners and Parties in Bankruptcy matters listed before a Registrar” and the “Guide for Practitioners and Parties in Corporations matters listed before a Registrar”. 15 Rule 40.19 requires service of the bill as “endorsed” by the Registrar. Since the introduction of the Electronic Court File (“ECF”), such endorsement on the bill (physically) no longer occurs and the timing of the estimate will be notified to the parties by way of correspondence from the Court. 16 Any details for “loading” or “exceptional circumstances” may be included in Part C – Special Notes of the Form 127 – Bill of Costs. 17 The guidance set out in this practice note is relevant to the manner in which costs and the GST are dealt with in the Court and should not be taken to apply beyond that to such matters as how lawyers should charge their clients. 18 Keen v Telstra Corporation Limited [2006] FCA 834. 19 In this endeavour, for those Costs Applicants that are not entitled to claim input tax credits, the Court will facilitate (in respect of certain Scale items) a method of claiming that takes that circumstance into account. The Court will also review the Federal Court Rules and Scale to further consider how best to address the GST and costs. 20 The Scale items that expressly requires or permits the application of item 1.1 are: items 3.1, 4.1, 5.1, 6.2, 7.1(a) and 11.1(1). 21 Amend the wording of the verification as needed to adjust for more than one Costs Applicant. 22 For guidance – see item 11 of the Scale, Annexure B to this practice note and the Federal Court’s National Guide to Discretionary Items in Bills of Costs. 23 “Scale”, in this guide, means the Federal Court scale of costs, being Schedule 3 to the Federal Court Rules - costs allowable for work done and services performed.

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Federal Court Practice Notes

[FEDPN.80]

[FEDPN.80] Lists of authorities and citations practice note (GPN-AUTH) – General Practice Note 1. INTRODUCTION 1.1 This practice note provides guidance for the use of Lists of Authorities in all final hearings1 (including appeals), unless or to the extent that the Court otherwise orders. It applies to all parties, including those parties that are not represented by a lawyer. 1.2 This practice note takes effect from the date it is issued and, to the extent practicable, applies to proceedings whether filed before, or after, the date of issuing. 1.3 When reading this practice note, parties should have regard to the Definitions (which are set out in “Annexure A”). 2. FORM AND CONTENT OF LIST OF AUTHORITIES 2.1 Where a party is required to file a List of Authorities (“List”), the List must be divided into: (a) Part “A”: which must contain only authorities from which passages are to be read; and (b) Part “B”: which must contain authorities to which a party might refer, but from which passages are not to be read. 2.2 Given that a List is ordinarily filed electronically via eLodgment, parties should prepare the List in electronic form in such a manner so as to hyperlink each case citation to an online resource (so that the full case is easily accessible via the hyperlink). In filing the List parties should: (a) eLodge the List; and (b) email the List in Microsoft Word format to the relevant chambers. References to Legislation 2.3 References to legislation must specify the jurisdiction and the relevant sections, regulations, rules or clauses. 2.4 If the legislation is to be considered as it was at a particular point of time, the reference should state the point of time. References to Cases 2.5 A reference to a case must include: (a) the name under which the case is reported or, where the case is unreported, the names of the parties to the case; (b) its citation in an authorised series of reports (if available) or another series of reports (if the case has not been reported in an authorised series), or the medium neutral citation; and (c) reference to the relevant page or paragraph numbers. 2.6 Example citations in the form described above are: Reported case: D’Arcy v Myriad Genetics Inc (2014) 224 FCR 479 Medium neutral citation Warner-Lambert Company LLC v Apotex Pty Ltd [2014] FCAFC 59 (MNC): Unreported judgment Repatriation Commission v Smith (unreported, Federal Court of Australia, Sundberg J, 16 June 1997) (pre-MNC): 2.7 With respect to page and paragraph references at the end of citations, the Court prefers: Page references: Paragraph references:

for example use: “at 481” for example use: “at [29]”

2.8 The Court prefers the following reports for citation: • the Federal Court Reports (if the case has been reported in those reports); and • authorised reports, rather than reports that are not authorised, for cases decided in other courts. 140

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3. FILING AND SERVING THE LIST 3.1 The applicant2 must file, and serve on each other party, the applicant’s List no later than 4.00 pm, 5 business days3 before the hearing date. 3.2 The respondent must file, and serve on each other party, the respondent’s List no later than 4.00 pm, 4 business days before the hearing date. Default 3.3 Where a party defaults under paragraphs 3.1 or 3.2, any non-defaulting party must bring the default to the attention of the chambers of the judge hearing the matter (or the chambers of the presiding judge if there is more than one judge hearing the matter) so that appropriate orders may be made. At the same time, that party must also notify the other parties to the proceeding. 4. SUPPLY OF AUTHORITIES 4.1 The Court will supply, for the use of the judge or judges hearing the matter: (a) up to (but not more than) 15 cases in Part “A” of the List that are reported in the Commonwealth Law Reports, Federal Court Reports, Australian Law Reports and the authorised reports of the Supreme Court of the State or Territory in which the application is to be heard. Where more than 15 cases are listed in Part “A” of the party’s List, the party must identify with a single asterisk the 15 cases that the party wishes the Court to provide for the judge; and (b) a copy of the current compilation of the legislation referred to in Part “A” of the List. A party wishing to refer to legislation as at a particular point of time (i.e. which is no longer the current version in force) must provide the judge (or each judge) with a copy of that legislation. 4.2 All other authorities must be supplied by the parties. J L B ALLSOP Chief Justice 25 October 2016 Annexure A DEFINITIONS To assist practitioners with citations and preparing Lists of Authorities, in this practice note: Authorised Reports:are report series that contain judgments that have been reviewed by the judges or their associate, prior to the publication. They are therefore considered to be accurate record of the judgment. The reports usually indicate in the opening pages of each volume that they are “authorised reports”. Australian authorised report series: Court / Jurisdiction High Court of Australia Federal Court of Australia Administrative Appeals Tribunal Fair Work Commission (Australian Industrial Relations Commission; Fair Work Australia) Australian Capital Territory New South Wales

Northern Territory

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Report Series CLR FCR ALD IR

Years 1903 1984 1976 2006 -

ACTR4 ACTLR SR (NSW) NSWR NSWLR NTR5 NTLR

1973 2007 1901 1960 1971 1979 1990

– – – – -

2008 1959 1970 1991

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Federal Court Practice Notes Court / Jurisdiction Queensland South Australia Tasmania

Victoria Western Australia

Report Series QSR Qd R SALR SASR Tas LR Tas SR Tas R VLR VR WALR WAR

Years 1902 – 1958 1899 – 1921 1904 – 1941 – 1979 1875 – 1957 1898 – 1958 -

1957 1920 1940 1978 1956 1958

Unauthorised Reports:are report series that are a legitimate record of court decisions. In some cases, the unauthorised report may be the only source for certain cases, particularly matters from local courts and tribunals. They can be “generalist” or “subject-specific” report series. Commonly used Unauthorised reports include: ALR, ALJR, FLR, Fam LR and NTR; Unreported Judgments:are decisions of courts that have not been published in a report series. The elements for citing an Unreported Judgment are: Case Name (in Unreported, Court Judge(s), Full Date) Pin-point italics) MNC:means a Medium Neutral Citation, which is a citation assigned by a court or tribunal independent to any citation that commercial publishers may give to a judgment or decision. This format can be used for citing cases where there is no reported version and the Court has assigned a MNC. The elements for citing an MNC are: Case Name (in [Year] Unique Court Judgment (Full Date) [Pin-point] italics) Identifier Number Legislation references:A reference to legislation should include the: • Short Title of the Act (unless the Act does not contain one, then the a Long Title of the Act) in italics; • Year, in italics; • Jurisdiction, in brackets (ie. (Cth)); and • any pinpoint (ie. s 3) 1 The Court may apply this practice note in an interlocutory hearing. 2 In this practice note any reference to “applicant” is also intended to be a reference to an “appellant” with respect to appeals and a “plaintiff” with respect to corporations matters. Likewise, any reference to “respondent” is intended to refer to a defendant for corporations matters. 3 See Schedule 1 – Dictionary of Federal Court Rules 2011 (Cth) for definition of “business day”. 4 NOTE: The ACTR Report Series between 1973 – 2008 is in the ALR 5 NOTE: The NTR Report Series between 1979 – 1991 is in the ALR

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New South Wales Supreme Court (Corporations) Rules 1999 (NSW) ........................................................................ 145 NSW Practice Notes ....................................................................................................................... 211

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Division 1 – Preliminary 1.1 Name of Rules................................................................................................................................ 151 1.2 Commencement.............................................................................................................................. 151 1.3 Application of these Rules and other rules of the Court.................................................................151 1.4 Expressions used in the Corporations Act...................................................................................... 151 1.5 Definitions for these Rules.............................................................................................................. 152 1.6 References to rules and forms........................................................................................................153 1.7 Substantial compliance with forms..................................................................................................153 1.8 Court’s power to give directions......................................................................................................153 1.9 Calculation of time...........................................................................................................................153 1.10 Extension and abridgment of time.................................................................................................. 153 Division 2 – Proceedings generally 2.1 Title of documents in a proceeding—Form 1..................................................................................153 2.2 Originating process and interlocutory process—Forms 2 and 3.................................................... 153 2.3 Fixing of hearing..............................................................................................................................154 2.4 Supporting affidavits........................................................................................................................ 154 2.4A Application for order setting aside statutory demand (Corporations Act s 459G).......................... 154 2.5 Affidavits made by creditors............................................................................................................ 155 2.6 Form of affidavits.............................................................................................................................155 2.7 Service of originating process or interlocutory process and supporting affidavit........................... 155 2.8 Notice of certain applications to be given to ASIC......................................................................... 155 2.9 Notice of appearance (Corporations Act s 465C)—Form 4............................................................156 2.10 Intervention in proceeding by ASIC (Corporations Act s 1330)—Form 5.......................................156 2.11 Publication of notices [Repealed]....................................................................................................157 2.12 Proof of publication......................................................................................................................... 157 2.13 Leave to creditor, contributory or officer to be heard......................................................................157 2.14 Inquiry in relation to corporation’s debts etc................................................................................... 157 2.15 Meetings ordered by the Court....................................................................................................... 157 Division 3 – Compromises and arrangements in relation to Part 5.1 bodies 3.1 Application of Division 3.................................................................................................................. 158 3.2 Nomination of chairperson for meeting........................................................................................... 158 3.3 Order for meetings to identify proposed scheme............................................................................158 3.4 Notice of hearing (Corporations Act s 411(4), s 413(1))—Form 6..................................................158 3.5 Copy of order approving compromise or arrangement to be lodged with ASIC............................ 159 Division 4 – Receivers and other controllers of corporation property (Corporations Act Part 5.2) 4.1 Inquiry into conduct of controller (Corporations Act s 423)............................................................ 159 Division 5 – Winding up proceedings (including oppression proceedings where winding up is sought) 5.1 Application of Division 5.................................................................................................................. 159 5.2 Affidavit accompanying statutory demand (Corporations Act s 459E(3))—Form 7........................ 159 5.3 Application for leave to apply for winding up in insolvency (Corporations Act s 459P(2)).............159 5.4 Affidavit in support of application for winding up (Corporations Act s 459P, s 462, s 464)........... 160 5.5 Consent of liquidator (Corporations Act s 532(9))—Form 8........................................................... 160 5.6 Notice of application for winding up—Form 9.................................................................................160 5.7 Applicant to make copies of documents available..........................................................................161 5.8 Discontinuance of application for winding up..................................................................................161 5.9 Appearance before Registrar.......................................................................................................... 161 5.10 .........................................................................................................................................................161 Order substituting plaintiff in application for winding up (Corporations Act s 465B)—Form 10 5.11 Notice of winding up order and appointment of liquidator—Form 11............................................. 161 Division 6 – Provisional liquidators (Corporations Act Part 5.4B) 6.1 Appointment of provisional liquidator (Corporations Act s 472)—Form 8...................................... 161 ©

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Supreme Court (Corporations) Rules 1999 (NSW) 6.2

Notice of appointment of provisional liquidator—Form 12..............................................................162

Division 7 – Liquidators 7.1 Resignation of liquidator (Corporations Act s 473(1)).....................................................................162 7.2 Filling vacancy in office of liquidator (Corporations Act s 473(7), s 502)....................................... 162 7.3 Report to liquidator as to company’s affairs (Corporations Act s 475)........................................... 162 7.4 .........................................................................................................................................................163 Liquidator to file certificate and copy of settled list of contributories (Corporations Act s 478) 7.5 Release of liquidator and deregistration of company (Corporations Act s 480(c) and (d))............163 7.6 Objection to release of liquidator—Form 13................................................................................... 164 7.7 Report on accounts of liquidator (Corporations Act s 481).............................................................164 7.8 Application for payment of call (Corporations Act s 483(3)(b))—Form 14..................................... 165 7.9 Distribution of surplus by liquidator with special leave of the Court (Corporations Act s 488(2))—Form 15......................................................................................................................... 165 7.10 Powers delegated to liquidator by the Court (Corporations Act s 488).......................................... 165 7.11 Inquiry into conduct of liquidator (Corporations Act s 536(1) and (2))........................................... 165 Division 8 – Special managers (Corporations Act Part 5.4B) 8.1 Application for appointment of special manager (Corporations Act s 484).................................... 166 8.2 Security given by special manager (Corporations Act s 484).........................................................166 8.3 Special manager’s receipts and payments (Corporations Act s 484).............................................166 Division 9 – Remuneration of office-holders 9.1 Remuneration of receiver (Corporations Act s 425(1))—Form 16..................................................166 9.2 Determination by Court of remuneration of administrator (Corporations Act s 449E(1)(c) and (1A)(c))—Form 16........................................................................................................................... 167 9.2A Review of remuneration of administrator (Corporations Act s 449E(2)).........................................168 9.3 Remuneration of provisional liquidator (Corporations Act s 473(2))—Form 16..............................169 9.4 Determination by Court of liquidator’s remuneration (Corporations Act s 473(3)(b)(ii))................. 170 9.4A Review of remuneration of liquidator (Corporations Act s 473(5) and (6) and s 504(1))...............171 9.5 Remuneration of special manager (Corporations Act s 484(2))—Form 16.................................... 172 Division 10 – Winding up generally 10.1 Determination of value of debts or claims (Corporations Act s 554A(2))....................................... 173 10.2 Disclaimer of contract (Corporations Act s 568(1A))...................................................................... 173 10.3 Winding up Part 5.7 bodies (Corporations Act s 583, s 585) and registered schemes (Corporations Act s 601ND)............................................................................................................ 173 Division 11 – Examinations and orders (Corporations Act Part 5.9, Divisions 1 and 2) 11.1 Definition for Division 11..................................................................................................................173 11.2 Application for examination or investigation under s 411(9)(b), s 423 or s 536(3) of the Corporations Act.............................................................................................................................. 174 11.3 Application for examination summons (Corporations Act s 596A, s 596B)—Form 17...................174 11.4 Service of examination summons................................................................................................... 175 11.5 Discharge of examination summons............................................................................................... 175 11.6 Filing of record of examination (Corporations Act s 597(13)).........................................................175 11.7 Authentication of transcript of examination (Corporations Act s 597(14))...................................... 175 11.8 Inspection of record or transcript of examination or investigation under s 411, s 423 or s 536 of the Corporations Act................................................................................................................... 175 11.9 Entitlement to record or transcript of examination held in public................................................... 175 11.10 Default in relation to examination....................................................................................................176 11.11 Service of application for order in relation to breaches etc by person concerned with corporation (Corporations Act s 598).............................................................................................. 176 Division 11A – Warrants (Corporations Act s 486B and Part 5.4B, Division 3, Subdivision B) 11A.1 Arrest of person (Corporations Act s 486B)—Form 17A................................................................ 176 Division 12 – Takeovers, acquisitions of shares etc (Corporations Act Chapters 6 to 6D) and securities (Corporations Act Chapter 7) 12.1 Service on ASIC in relation to proceedings under Chapter 6, 6A, 6B, 6C, 6D or 7 of the Corporations Act.............................................................................................................................. 177 12.1A Reference to Court of question of law arising in proceeding before Takeovers Panel (Corporations Act s 659A)............................................................................................................... 177 146

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Table of provisions 12.1B

Notification to Court where proceeding is commenced before end of takeover bid period (Corporations Act s 659B)............................................................................................................... 177 Application for summons for appearance of person (Corporations Act s 1071D(4))—Form 18.....................................................................................................................................................177 Application for orders relating to refusal to register transfer or transmission of securities (Corporations Act s 1071F)............................................................................................................. 177

12.2 12.3

Division 13 – The futures industry (Chapter 8 of the Law) [Repealed]

Division 15 – Proceedings under the ASIC Act 15.1 Reference to Court of question of law arising at hearing of ASIC (ASIC Act s 61)....................... 178 15.2 Reference to Court of question of law arising at hearing of Corporations and Securities Panel (s 196 of the ASIC Law) [Repealed].....................................................................................178 15.3 Application for inquiry (ASIC Act s 70, s 201, s 219)..................................................................... 178 Division 15A 15A.1 15A.2 15A.3 15A.4 15A.5 15A.6 15A.7 15A.8 15A.9

– Proceedings under the Cross-Border Insolvency Act Application of this Division and other rules of the Court................................................................ 179 Expressions used in the Cross-Border Insolvency Act................................................................... 179 Application for recognition............................................................................................................... 179 Application for provisional relief under article 19 of the Model Law...............................................180 Official liquidator’s consent to act................................................................................................... 180 Notice of filing of application for recognition................................................................................... 180 Notice of order for recognition, withdrawal etc............................................................................... 180 Relief after recognition.................................................................................................................... 181 Application to modify or terminate an order for recognition or other relief.....................................181

Division 16 – Appeals from Registrars 16.1 Appeal from registrar: winding up order..........................................................................................182 Division 17 – Proceedings under the Federal Courts (State Jurisdiction) Act 1999 17.1 Form for initiating proceeding..........................................................................................................182

SCHEDULE 1 – FORMS Form Form Form Form Form Form Form Form Form Form Form Form Form Form Form Form Form Form Form Form Form Form Form Form Form ©

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 16A 17 17A 18 19 20 21 22 23

Document title................................................................................................................................. 183 Originating process......................................................................................................................... 184 Interlocutory process....................................................................................................................... 186 Notice of appearance...................................................................................................................... 187 Notice of intervention by ASIC........................................................................................................ 188 Notice of hearing to approve compromise or arrangement............................................................ 189 Affidavit accompanying statutory demand...................................................................................... 190 Consent of liquidator/provisional liquidator..................................................................................... 191 Notice of application for winding up order...................................................................................... 192 Notice of application for winding up order by substituted plaintiff.................................................. 193 Notice of winding up order and of appointment of liquidator..........................................................194 Notice of appointment of provisional liquidator............................................................................... 195 Notice by creditor or contributory of objection to release of liquidator........................................... 196 Affidavit in support of application for order for payment of call...................................................... 197 Notice of application for leave to distribute a surplus.....................................................................198 Notice of intention to apply for remuneration..................................................................................199 Notice of intention to apply for review of remuneration.................................................................. 200 Summons for examination.............................................................................................................. 201 Arrest warrant.................................................................................................................................. 202 Summons for appearance in relation to registration of transfer of interests.................................. 203 Consent to act as designated person............................................................................................. 204 Notice of filing of application for recognition of foreign proceeding................................................205 Notice of making of order under the Cross-Border Insolvency Act 2008....................................... 206 Notice of dismissal or withdrawal of application for recognition of foreign proceeding..................207 Notice of filing of application to modify or terminate an order for recognition or other relief.........208

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Division 14 – Powers of Courts (Corporations Act Part 9.5) 14.1 Appeal from act, omission or decision of administrator, receiver or liquidator, etc (Corporations Act s 554A, s 1321)..................................................................................................178

Supreme Court (Corporations) Rules 1999 (NSW) SCHEDULE 2 – NOTES TO THESE RULES............................................................................................209

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Table of Amending Legislation

Table of Amending Legislation Principal legislation

Number

Supreme Court (Corporations) Rules 1999

703 of 1999

Date of gazettal/ assent/registration 24 Dec 1999

Date of commencement 1 Mar 2000

©

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This legislation (formerly titled Corporations Law Rules) has been amended as follows: Amending legislation Number Date of gazettal/ Date of commencement assent/registration Supreme Court Rules 322 of 2000 30 Jun 2000 22 Dec 2000 (Amendment No 340) 2000 Corporations Law Amendment 749 of 2000 22 Dec 2000 Sch 1: 1 Jan 2001 (No 1) Rules 2000 Corporations Law Amendment 370 of 2001 1 Jun 2001 Sch 1: 30 Jun 2001 (No 2) Rules 2001 Corporations Law Amendment 961 of 2003 19 Dec 2003 Sch 1: 1 Jan 2004 (No 3) Rules 2003 Supreme Court (Corporations) 284 of 2004 28 May 2004 Sch 1: 28 May 2004 Amendment (No 4) Rules 2004 Supreme Court (Corporations) 286 of 2005 24 Jun 2005 Sch 1: 24 Jun 2005 Amendment (No 5) Rules 2005 Statute Law (Miscellaneous 98 of 2005 24 Nov 2005 Sch 2.59: 24 Nov 2005 Provisions) Act (No 2) 2005 Supreme Court (Corporations) 163 of 2007 5 Apr 2007 Sch 1: 5 Apr 2007 Amendment (No 6) Rules 2007 Supreme Court (Corporations) 447 of 2007 7 Sep 2007 Sch 1: 7 Sep 2007 Amendment (No 7) Rules 2007 Supreme Court (Corporations) 136 of 2008 16 May 2008 Sch 1: 16 May 2008 Amendment (No 8) Rules 2008 Supreme Court (Corporations) 455 of 2008 17 Oct 2008 Sch 1: 17 Oct 2008 Amendment (No 9) Rules 2008 Supreme Court (Corporations) 480 of 2009 25 Sep 2009 Amendment (No 10) Rules 2009 Supreme Court (Corporations) 109 of 2010 26 Mar 2010 Amendment (No 11) Rules 2010 Supreme Court (Corporations) 708 of 2014 Sch 1: 7 Nov 2014 Amendment (No 12) Rules 2014

149

Supreme Court (Corporations) Rules 1999 (NSW) Principal legislation

Number

Supreme Court (Corporations) Rules 1999

703 of 1999

Date of gazettal/ assent/registration 24 Dec 1999

Date of commencement 1 Mar 2000

This legislation (formerly titled Corporations Law Rules) has been amended as follows: Amending legislation Number Date of gazettal/ Date of commencement assent/registration Statute Law (Miscellaneous 15 of 2015 29 Jun 2015 Sch 2.54: 8 Jul 2015 Provisions) Act 2015

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Division 1 – Preliminary r 1.4

DIVISION 1 – PRELIMINARY 1.1 Name of Rules These Rules may be cited as the Supreme Court (Corporations) Rules 1999. [R 1.1 am Rule 961 of 2003, r 3 and Sch 1[1], with effect from 1 Jan 2004]

1.2 Commencement These Rules commence on 1 March 2000. (1) Unless the Court otherwise orders: (a) these Rules apply to a proceeding in the Court under the Corporations Act, or the ASIC Act, that is commenced on or after the commencement of these Rules, and (b) Division 15A applies to a proceeding in the Court under the Cross-Border Insolvency Act. [Subr (1) subst Rule 455 of 2008, r 2 and Sch 1[1], with effect from 17 Oct 2008; am Rule 961 of 2003, r 3 and Sch 1[2], with effect from 1 Jan 2004; Rule 749 of 2000, r 3 and Sch 1[32], with effect from 1 Jan 2001]

(2) The other rules of the Court apply, to the extent that they are relevant and not inconsistent with these Rules: (a) to a proceeding in the Court under the Corporations Act, or the ASIC Act, that is commenced on or after the commencement of these Rules, and (b) to a proceeding in the Court under the Cross-Border Insolvency Act that is commenced on or after the commencement of Division 15A. [Subr (2) subst Rule 455 of 2008, r 2 and Sch 1[1], with effect from 17 Oct 2008; am Rule 961 of 2003, r 3 and Sch 1[2], with effect from 1 Jan 2004; Rule 749 of 2000, r 3 and Sch 1[32], with effect from 1 Jan 2001]

(3) Unless the Court otherwise orders, the rules applying to a proceeding in the Court under the Corporations Act, or the ASIC Act, as in force immediately before the commencement of these Rules, continue to apply to a proceeding under the Corporations Act, or the ASIC Act, that was commenced before the commencement of these Rules. [Subr (3) am Rule 961 of 2003, r 2 and Sch 1[2], with effect from 1 Jan 2004; Rule 749 of 2000, r 3 and Sch 1[32], with effect from 1 Jan 2001] Note: By virtue of the definition of this Act in section 9 of the Corporations Act, a reference to the Corporations Act includes a reference to the Corporations Regulations. [R 1.3 am Rule 455 of 2008; Rule 961 of 2003, r 2 and Sch 1[3], with effect from 1 Jan 2004; Rule 749 of 2000]

1.4 Expressions used in the Corporations Act Unless the contrary intention appears, an expression used in these Rules and in the Corporations Act has the same meaning in these Rules as it has in the Corporations Act. Note: Expressions used in these Rules (including the notes to these Rules) that are defined in the Corporations Act include: ABN (short for ‘Australian Business Number’)—see section 9 [Def insrt Rule 447 of 2007, r 2 and Sch 1[1], with effect from 7 Sep 2007] ACN (short for ‘Australian Company Number’)—see section 9 ARBN (short for ‘Australian Registered Body Number’)—see section 9 ASIC—see section 9 [Def insrt Rule 136 of 2008, r 2 and Sch 1[1], with effect from 16 May 2008] body—see section 9 body corporate—see section 9 books—see section 9 Commission [Repealed] [Def rep Rule 136 of 2008, r 2 and Sch 1[2], with effect from 16 May 2008] company—see section 9 corporation—see section 57A daily newspaper—see section 9 ©

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1.3 Application of these Rules and other rules of the Court

r 1.4

Supreme Court (Corporations) Rules 1999 (NSW)

foreign company—see section 9 [Def insrt Rule 708 of 2014, Sch 1[1], with effect from 7 Nov 2014] foreign country [Repealed] [Def rep Rule 708 of 2014, Sch 1[1], with effect from 7 Nov 2014] futures broker [Repealed] [Def rep Rule 708 of 2014, Sch 1[1], with effect from 7 Nov 2014] Gazette [Repealed] [Def rep Rule 708 of 2014, Sch 1[1], with effect from 7 Nov 2014] officer [Repealed] [Def rep Rule 708 of 2014, Sch 1[1], with effect from 7 Nov 2014] official liquidator—see section 9 Part 5.1 body—see section 9 Part 5.7 body—see section 9 register—see section 9 registered liquidator—see section 9 registered office—see section 9 statutory demand—see section 9. [R 1.4 am Rule 708 of 2014; Rule 136 of 2008; Rule 447 of 2007; Rule 961 of 2003, r 3 and Sch 1[4] and [5], with effect from 1 Jan 2004]

1.5 Definitions for these Rules 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. [Def insrt Rule 961 of 2003, r 3 and Sch 1[6], with effect from 1 Jan 2004]

Corporations Act means the Corporations Act 2001 of the Commonwealth. [Def insrt Rule 961 of 2003, r 3 and Sch 1[6], with effect from 1 Jan 2004]

Corporations Regulations means the Corporations Regulations 2001 of the Commonwealth. [Def insrt Rule 961 of 2003, r 3 and Sch 1[6], with effect from 1 Jan 2004]

Cross-Border Insolvency Act means the Cross-Border Insolvency Act 2008 of the Commonwealth including, unless the contrary intention appears, the Model Law. [Def insrt Rule 455 of 2008, r 2 and Sch 1[2], with effect from 17 Oct 2008]

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. [Def am Rule 455 of 2008, r 2 and Sch 1[3], with effect from 17 Oct 2008; Rule 961 of 2003, r 3 and Sch 1[7], with effect from 1 Jan 2004; Rule 749 of 2000, r 3 and Sch 1[32], with effect from 1 Jan 2001]

interlocutory process means an interlocutory process in accordance with Form 3. Model Law means the Model Law on Cross-Border 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. [Def insrt Rule 455 of 2008, r 2 and Sch 1[4], with effect from 17 Oct 2008]

originating process means an originating process in accordance with Form 2. plaintiff means a person claiming relief (except interlocutory relief) under the Corporations Act, the ASIC Act or the Cross-Border Insolvency Act, whether in the originating process or not. [Def am Rule 455 of 2008, r 2 and Sch 1[5], with effect from 17 Oct 2008; Rule 961 of 2003, r 3 and Sch 1[7], with effect from 1 Jan 2004; Rule 749 of 2000, r 3 and Sch 1[32], with effect from 1 Jan 2001]

respondent means a person against whom interlocutory relief is claimed in a proceeding. 152

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Division 2 – Proceedings generally r 2.2 the law [Repealed] [Def rep Rule 961 of 2003, r 3 and Sch 1[8], with effect from 1 Jan 2004] [R 1.5 am Rule 455 of 2008; Rule 961 of 2003; Rule 749 of 2000]

1.6 References to rules and forms In these Rules, unless the contrary intention appears: (a) a reference to a rule is a reference to a rule in these Rules, and (b) a reference to a form followed by a number is a reference to the form so numbered in Schedule 1 to these Rules. (1) It is sufficient compliance with these Rules in relation to a document that is required to be in accordance with a form in Schedule 1 if the document is substantially in accordance with the form required or has only such variations as the nature of the case requires. (2) Without limiting subrule (1), the Court or the Court officer must not reject a document for filing only because a term used to describe a party in the document differs from the term used in these Rules. 1.8 Court’s power to give directions The Court may give directions in relation to the practice and procedure to be followed in a proceeding if it is satisfied, in the circumstances of the proceeding, that: (a) the provisions of the Corporations Act, the ASIC Act, or the rules of this Court do not adequately provide for the practice and procedure to be followed in the proceeding, or (b) a difficulty arises, or doubt exists, in relation to the practice and procedure to be followed in the proceeding. [R 1.8 am Rule 961 of 2003, r 3 and Sch 1[9], with effect from 1 Jan 2004; Rule 749 of 2000, r 3 and Sch 1[32], with effect from 1 Jan 2001]

1.9 Calculation of time (1) If, for any purpose, these Rules: (a) prohibit, permit or require an act or thing to be done within, by, or before the end of, or (b) otherwise prescribe, allow or provide for, a period of time before or after a particular day, act or event, the period is to be calculated without counting that day, or the day of the act or event, as the case may be. (2) Without limiting subrule (1), in calculating how many days a particular day, act or event is before or after another day, act or event, only the first day, or the day of the first act or event, is to be counted. (3) If the last day of any period prescribed or allowed by these Rules for an act or thing to be done falls on a day that is not a business day in the place where the act or thing is to be or may be done, the act or thing may be done on the first business day in the place after that day. (4) In calculating a period of time for the purposes of these Rules, the period beginning on 25 December in a year and ending at the end of 1 January in the next year is not to be counted. 1.10 Extension and abridgment of time Unless the Corporations Act, the ASIC Act, or these Rules otherwise provide, the rules of this Court that provide for the extension or abridgment of a period of time fixed for the doing of any act or thing in relation to a proceeding apply to a proceeding to which these Rules apply. [R 1.10 am Rule 961 of 2003, r 3 and Sch 1[10], with effect from 1 Jan 2004; Rule 749 of 2000, r 3 and Sch 1[32], with effect from 1 Jan 2001]

DIVISION 2 – PROCEEDINGS GENERALLY 2.1 Title of documents in a proceeding—Form 1 The title of a document filed in a proceeding must be in accordance with Form 1. 2.2 Originating process and interlocutory process—Forms 2 and 3 (1) Unless these Rules otherwise provide, a person must make an application required or permitted by the Corporations Act to be made to the Court: ©

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1.7 Substantial compliance with forms

r 2.2

Supreme Court (Corporations) Rules 1999 (NSW) (a) if the application is not made in a proceeding already commenced in the Court—by filing an originating process, and (b) in any other case, and whether interlocutory relief or final relief is claimed—by filing an interlocutory process.

[Subr (1) am Rule 286 of 2005, r 2 and Sch 1[1], with effect from 24 Jun 2005; Rule 961 of 2003, r 3 and Sch 1[11], with effect from 1 Jan 2004]

(2) Unless the Court otherwise directs, a person may make an application to the Court in relation to a proceeding in respect of which final relief has been granted by filing an interlocutory process in that proceeding. (3) An originating process must: (a) be in accordance with Form 2, and (b) state: (i) each section of the Corporations Act or the ASIC Act, or each regulation of the Corporations Regulations, under which the proceeding is brought, and (ii) the relief sought. [Subr (3) am Rule 961 of 2003, r 3 and Sch 1[11]–[13], with effect from 1 Jan 2004; Rule 749 of 2000, r 3 and Sch 1[32], with effect from 1 Jan 2001]

(4) An interlocutory process must: (a) be in accordance with Form 3, and (b) state: (i) if appropriate, each section of the Corporations Act or the ASIC Act, or each regulation of the Corporations Regulations, or each rule of Court under which the application is made, and (ii) the relief sought. [Subr (4) am Rule 163 of 2007, r 3 and Sch 1[1], with effect from 5 Apr 2007; Rule 961 of 2003, r 3 and Sch 1[11]–[13], with effect from 1 Jan 2004; Rule 749 of 2000, r 3 and Sch 1[32], with effect from 1 Jan 2001] Note: In an application for winding up in insolvency on the ground that the company has failed to comply with a statutory demand, the applicant should consider completing Part C of Form 2 as shown in Schedule 2 (Notes to these Rules). [R 2.2 am Rule 163 of 2007; Rule 286 of 2005; Rule 961 of 2003, r 3 and Sch 1[14], with effect from 1 Jan 2004; Rule 749 of 2000]

2.3 Fixing of hearing On receiving an originating process or interlocutory process, the Registrar: (a) must fix a time, date and place for hearing and endorse those details on the originating process or interlocutory process, and (b) may seal a sufficient number of copies for service and proof of service. 2.4 Supporting affidavits (1) Unless the Court otherwise directs, an originating process, or interlocutory process, must be supported by an affidavit stating the facts in support of the process. (2) Subject to rule 2.4A, an affidavit in support of an originating process must annex or exhibit a record of a search of the records maintained by ASIC, in relation to the company that is the subject of the application to which the originating process relates, carried out no earlier than 7 days before the originating process is filed. [Subr (2) am Rule 136 of 2008, r 2 and Sch 1[3], with effect from 16 May 2008; Rule 370 of 2001, r 3 and Sch 1[1], with effect from 30 Jun 2001] Note: An example of the affidavit in support of an application for winding up in insolvency for failure to comply with a statutory demand is shown in Schedule 2 (Notes to these Rules). [R 2.4 am Rule 136 of 2008; Rule 961 of 2003, r 3 and Sch 1[15], with effect from 1 Jan 2004; Rule 370 of 2001]

2.4A Application for order setting aside statutory demand (Corporations Act s 459G) (1) This rule applies, and subrule 2.4(2) does not apply, to an application by a company under section 459G of the Corporations Act for an order setting aside a statutory demand served on the company. [Subr (1) am Rule 961 of 2003, r 3 and Sch 1[17], with effect from 1 Jan 2004] 154

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Division 2 – Proceedings generally r 2.8 (2) The plaintiff may file with the originating process seeking the order a copy of the statutory demand and a copy of any affidavit that accompanied the statutory demand.

[Subr (3) am Rule 136 of 2008, r 2 and Sch 1[3], with effect from 16 May 2008] [R 2.4A am Rule 136 of 2008; Rule 961 of 2003, r 3 and Sch 1[16], with effect from 1 Jan 2004; insrt Rule 370 of 2001, r 3 and Sch 1[2], with effect from 30 Jun 2001]

2.5 Affidavits made by creditors Subject to rule 5.4, an affidavit that is to be made by a creditor may be made: (a) if the creditor is a corporation—by a director, secretary, or other principal officer of the corporation, or by a person employed by the corporation who is authorised to make the affidavit on its behalf, or (b) if the creditor is a company to which a liquidator, provisional liquidator, receiver, administrator or controller has been appointed—by that person, or (c) in any other case—by the creditor or a person authorised by the creditor to make the affidavit on behalf of the creditor. 2.6 Form of affidavits An affidavit must be in a form that complies with: (a) the rules of the Court, or (b) the rules of the Supreme Court of the State (if any) or Territory (if any) where the affidavit was sworn or affirmed, or (c) the rules of the Federal Court of Australia. 2.7 Service of originating process or interlocutory process and supporting affidavit (1) As soon as practicable after filing an originating process and, in any case, at least 5 days before the date fixed for hearing, the plaintiff must serve a copy of the originating process and any supporting affidavit on: (a) each defendant (if any) to the proceeding, and (b) if the corporation to which the proceeding relates is not a party to the proceeding—the corporation. (2) As soon as practicable after filing an interlocutory process and, in any case, at least 3 days before the date fixed for hearing, the applicant must serve a copy of the interlocutory process and any supporting affidavit on: (a) each respondent (if any) to the application in the interlocutory process, and (b) if the corporation to which the application in the interlocutory process relates is not a party to the application in the interlocutory process—the corporation. [Subr (2) am Rule 163 of 2007, r 3 and Sch 1[2], with effect from 5 Apr 2007] [R 2.7 am Rule 163 of 2007]

2.8 Notice of certain applications to be given to ASIC (1) This rule has effect in addition to the requirements of the Corporations Act that, in relation to a proceeding, particular documents are to be served on ASIC or notice of particular matters is to be given to ASIC. [Subr (1) am Rule 136 of 2008, r 2 and Sch 1[3], with effect from 16 May 2008; Rule 961 of 2003, r 3 and Sch 1[18], with effect from 1 Jan 2004]

(2) This rule does not apply to a person making an application if the person is ASIC or a person authorised by ASIC. [Subr (2) am Rule 136 of 2008, r 2 and Sch 1[3], with effect from 16 May 2008] ©

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(3) The plaintiff must: (a) no earlier than 7 days before the originating process is filed, and not later than the day before the hearing of the application, carry out a search of the records maintained by ASIC in relation to the plaintiff, and (b) either: (i) annex the record of the search to the affidavit in support of the originating process, or (ii) file the record of the search before, or tender it on, the hearing of the application.

r 2.8

Supreme Court (Corporations) Rules 1999 (NSW)

(3) Unless the Court otherwise orders, if a person makes an application under a provision of the Corporations Act mentioned in column 2 of an item of the following table, the person must serve on ASIC, a reasonable time before the hearing of the application, a copy of the originating process, or interlocutory process, and supporting affidavit in respect of the application. Item 1

Provision Section 480

2 3 4 5 6

Subsection Subsection Subsection Subsection Subsection

7

Subsection 601CL(9)

8 9

Chapter 6, 6A, 6B, 6C, 6D or 7 Subsections 1317S(2), (4) and (5)

482(1) 509(6) 536(1) 601AH(2) 601CC(8)

Description of application For the release of a liquidator of a company and the deregistration of the company For the stay or termination of a winding up For the deregistration of a company For an inquiry into the conduct of a liquidator To reinstate the registration of a company To restore the name of an Australian body to the register To restore the name of a foreign company to the register Any application under these Chapters For relief from liability for contravention of a civil penalty provision

[Subr (3) am Rule 136 of 2008, r 2 and Sch 1[3] and [4], with effect from 16 May 2008; Rule 961 of 2003, r 3 and Sch 1[18], with effect from 1 Jan 2004; subst Rule 749 of 2000, r 3 and Sch 1[1], with effect from 1 Jan 2001] [R 2.8 am Rule 136 of 2008; Rule 961 of 2003; Rule 749 of 2000]

2.9 Notice of appearance (Corporations Act s 465C)—Form 4 (1) A person who intends to appear before the Court at the hearing of an application must, before appearing: (a) file: (i) a notice of appearance in accordance with Form 4, and (ii) if appropriate—an affidavit stating any facts on which the person intends to rely, and (b) serve on the plaintiff a copy of the notice of appearance and any affidavit not later than: (i) if the person is named in an originating process—3 days before the date fixed for hearing, or (ii) if the person is named in an interlocutory process—1 day before the date fixed for hearing. (2) If the person intends to appear before the Court to oppose an application for winding up, the person may include in the notice of appearance the notice of the grounds on which the person opposes the application required by section 465C of the Corporations Act. [Subr (2) am Rule 961 of 2003, r 3 and Sch 1[20], with effect from 1 Jan 2004]

(3) The period prescribed for filing and serving the notice and affidavit required by section 465C of the Corporations Act is the period mentioned in subparagraph (1)(b)(i). Note: Under section 465C of the Corporations Act, a person may not, without the leave of the Court, oppose an application for winding up unless, within the period prescribed by the rules (see subrule (3) of this rule), the person has filed, and served on the plaintiff, notice of the grounds on which the person opposes the application and an affidavit verifying the matters stated in the notice. [Subr (3) am Rule 961 of 2003, r 3 and Sch 1[20], with effect from 1 Jan 2004] [R 2.9 am Rule 961 of 2003, r 3 and Sch 1[19], with effect from 1 Jan 2004]

2.10 Intervention in proceeding by ASIC (Corporations Act s 1330)—Form 5 (1) If ASIC intends to intervene in a proceeding, ASIC must file a notice of intervention in accordance with Form 5. [Subr (1) am Rule 136 of 2008, r 2 and Sch 1[3], with effect from 16 May 2008]

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Division 2 – Proceedings generally r 2.15 proceeding, ASIC must serve a copy of the notice, and any affidavit on which it intends to rely, on the plaintiff and on any other party to the proceeding. [Subr (2) am Rule 136 of 2008, r 2 and Sch 1[3], with effect from 16 May 2008] [R 2.10 am Rule 136 of 2008, r 3 and Sch 1[5], with effect from 16 May 2008; Rule 961 of 2003, r 3 and Sch 1[21], with effect from 1 Jan 2004]

2.11 Publication of notices [Repealed] [R 2.11 rep Rule 708 of 2014, Sch 1[2], with effect from 7 Nov 2014; am Rule 961 of 2003, r 3 and Sch 1[22], with effect from 1 Jan 2004]

NSW

2.12 Proof of publication (1) This rule applies in relation to any matter published in connection with a proceeding. (2) Unless these Rules otherwise provide, or the Court otherwise orders, the person responsible for the publication of the matter, or the person’s legal practitioner, must file: (a) an affidavit made by the person, or the person’s legal practitioner, that states the date of publication and to which is annexed or exhibited a copy of the published matter, or (b) a memorandum signed by the person, or the person’s legal practitioner, that states the date of publication and refers to and annexes a copy of the published matter. (3) The affidavit or memorandum is prima facie evidence that the publication took place on the date and otherwise as stated in the affidavit or memorandum. 2.13 Leave to creditor, contributory or officer to be heard (1) The Court may grant leave to any person who is, or who claims to be: (a) a creditor, contributory or officer of a corporation, or (b) an officer of a creditor, or contributory, of a corporation, or (c) any other interested person, to be heard in a proceeding without becoming a party to the proceeding. [Subr (1) am Rule 749 of 2000, r 3 and Sch 1[2] and [3], with effect from 1 Jan 2001]

(2) If the Court considers that the attendance of a person to whom leave has been granted under subrule (1) has resulted in additional costs for any party, or the corporation, which should be borne by the person to whom leave was granted, the Court may: (a) direct that the person pay the costs, and (b) order that the person not be heard further in the proceeding until the costs are paid or secured to the Court’s satisfaction. (3) The Court may order that a person who is, or who claims to be, a creditor, contributory or officer of a corporation be added as a defendant to the proceeding. (4) The Court may grant leave to a person under subrule (1), or order that a person be added as a defendant to a proceeding under subrule (3): (a) on application by the person or a party to the proceeding, or (b) on the Court’s own initiative. (5) The Court may: (a) appoint a creditor or contributory to represent all or any class of the creditors or contributories on any question, or in relation to any proceeding, before the Court, at the expense of the corporation, and (b) remove any person so appointed. [R 2.13 am Rule 749 of 2000]

2.14 Inquiry in relation to corporation’s debts etc The Court may direct an inquiry in relation to the debts, claims or liabilities, or a class of debts, claims or liabilities, of or affecting a corporation to which a proceeding relates. 2.15 Meetings ordered by the Court ©

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r 2.15

Supreme Court (Corporations) Rules 1999 (NSW)

Subject to the Corporations Act, these Rules and any direction of the Court to the contrary, regulations 5.6.11 to 5.6.36A of the Corporations Regulations apply to meetings ordered by the Court. [R 2.15 am Rule 136 of 2008, r 2 and Sch 1[6], with effect from 16 May 2008; Rule 961 of 2003, r 3 and Sch 1[23] and [24], with effect from 1 Jan 2004]

DIVISION 3 – COMPROMISES AND ARRANGEMENTS IN RELATION TO PART 5.1 BODIES 3.1 Application of Division 3 This Division applies if an application is made to the Court for approval of a compromise or arrangement between a Part 5.1 body and its creditors or members, or any class of its creditors or members. 3.2 Nomination of chairperson for meeting Before the hearing of an application under subsection 411(1), (1A) or (1B) of the Corporations Act, the plaintiff must file an affidavit stating: (a) the names of the persons who have been nominated to be the chairperson and alternate chairperson of the meeting, and (b) that each person nominated: (i) is willing to act as chairperson, and (ii) has had no previous relationship or dealing with the body, or any other person interested in the proposed compromise or arrangement, except as disclosed in the affidavit, and (iii) has no interest or obligation that may give rise to a conflict of interest or duty if the person were to act as chairperson of the meeting, except as disclosed in the affidavit, and (c) the name of the person (if any) proposed to be appointed to administer the proposed compromise or arrangement, and (d) that the person does not fall within paragraphs 411(7)(a) to (f) of the Corporations Act, except as disclosed in the affidavit. [R 3.2 am Rule 961 of 2003, r 3 and Sch 1[25], with effect from 1 Jan 2004]

3.3 Order for meetings to identify proposed scheme (1) An order under subsection 411(1) or (1A) of the Corporations Act ordering a meeting or meetings in relation to a proposed compromise or arrangement must set out in a schedule, or otherwise identify, a copy of the proposed compromise or arrangement. [Subr (1) am Rule 961 of 2003, r 3 and Sch 1[26], with effect from 1 Jan 2004]

(2) Unless the Court otherwise orders, a meeting of members ordered under section 411 of the Corporations Act must be convened, held and conducted in accordance with: (a) the provisions of Part 2G.2 of the Corporations Act that apply to the members of a company, and (b) the provisions of the plaintiff’s constitution that apply in relation to meetings of members and are not inconsistent with Part 2G.2 of the Corporations Act. [Subr (2) am Rule 961 of 2003, r 3 and Sch 1[26], with effect from 1 Jan 2004; insrt Rule 370 of 2001, r 3 and Sch 1[3], with effect from 30 Jun 2001]

(3) Unless the Court otherwise orders, a meeting of a class of holders of convertible securities ordered under section 411 of the Corporations Act must be convened, held and conducted as if: (a) the holders were a separate class of members, and (b) the meeting were a meeting of members convened, held and conducted under subrule (2), but in accordance with, and subject to, the applicable provisions of the instrument under which the securities were issued. [Subr (3) am Rule 961 of 2003, r 3 and Sch 1[26], with effect from 1 Jan 2004; insrt Rule 370 of 2001, r 3 and Sch 1[3], with effect from 30 Jun 2001] [R 3.3 am Rule 961 of 2003; Rule 370 of 2001]

3.4 Notice of hearing (Corporations Act s 411(4), s 413(1))—Form 6 (1) This rule applies to: 158

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Div 5 – Winding up proceedings r 5.3 (a) an application, under subsection 411(4) of the Corporations Act, for an order approving a proposed compromise or arrangement in relation to a Part 5.1 body, and (b) an application, under subsection 413(1) of the Corporations Act, for an order in relation to the reconstruction of a Part 5.1 body, or Part 5.1 bodies, or the amalgamation of 2 or more Part 5.1 bodies. (2) Unless the Court otherwise orders, the plaintiff must publish a notice of the hearing of the application. (3) The notice must be: (a) in accordance with Form 6, and (b) published at least 5 days before the date fixed for the hearing of the application. [Subr (3) am Rule 708 of 2014, Sch 1[3], with effect from 7 Nov 2014] [R 3.4 am Rule 708 of 2014; Rule 961 of 2003, r 3 and Sch 1[27], with effect from 1 Jan 2004]

3.5 Copy of order approving compromise or arrangement to be lodged with ASIC If the Court makes an order under subsection 411(1), (1A) or (4), or 413(1) of the Corporations Act, the plaintiff must, as soon as practicable after the order is made: (a) have the order sealed, and (b) lodge an office copy of the order with ASIC, and [Para (b) am Rule 136 of 2008, r 2 and Sch 1[3], with effect from 16 May 2008]

(c) serve an office copy of the order on any person appointed to administer the compromise or arrangement. [R 3.5 am Rule 136 of 2008, r 2 and Sch 1[5], with effect from 16 May 2008; Rule 961 of 2003, r 3 and Sch 1[29], with effect from 1 Jan 2004]

DIVISION 4 – RECEIVERS AND OTHER CONTROLLERS OF CORPORATION PROPERTY (CORPORATIONS ACT PART 5.2) [Div 4 heading am Rule 961 of 2003, r 3 and Sch 1[30], with effect from 1 Jan 2004]

4.1 Inquiry into conduct of controller (Corporations Act s 423) A complaint to the Court under paragraph 423(1)(b) of the Corporations Act about an act or omission of a receiver, or a controller appointed by the Court, must be made by an originating process seeking an inquiry in relation to the complaint. [R 4.1 am Rule 961 of 2003, r 3 and Sch 1[31] and [32], with effect from 1 Jan 2004]

DIVISION 5 – WINDING UP PROCEEDINGS (INCLUDING OPPRESSION PROCEEDINGS WHERE WINDING UP IS SOUGHT) 5.1 Application of Division 5 This Division applies to the following applications for the winding up of a company: (a) an application for an order under Part 2F.1 of the Corporations Act, (b) an application under Part 5.4 or Part 5.4A of the Corporations Act. [R 5.1 am Rule 961 of 2003, r 3 and Sch 1[33], with effect from 1 Jan 2004; Rule 749 of 2000, r 3 and Sch 1[4], with effect from 1 Jan 2001]

5.2 Affidavit accompanying statutory demand (Corporations Act s 459E(3))—Form 7 For the purposes of subsection 459E(3) of the Corporations Act, the affidavit accompanying a statutory demand relating to a debt, or debts, owed by a company must: (a) be in accordance with Form 7 and state the matters mentioned in that Form, and (b) be made by the creditor or by a person with the authority of the creditor or creditors, and (c) not state a proceeding number, or refer to a Court proceeding, in any heading or title to the affidavit. [R 5.2 am Rule 961 of 2003, r 3 and Sch 1[34] and [35], with effect from 1 Jan 2004]

5.3 Application for leave to apply for winding up in insolvency (Corporations Act s 459P(2)) An application for leave to apply to the Court for an order that a company be wound up in insolvency may be made at the same time as the application for an order that the company be wound up in insolvency is made. [R 5.3 am Rule 961 of 2003, r 3 and Sch 1[36], with effect from 1 Jan 2004] ©

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Supreme Court (Corporations) Rules 1999 (NSW)

5.4 Affidavit in support of application for winding up (Corporations Act s 459P, s 462, s 464) (1) The affidavit in support of an originating process seeking an order that a company be wound up must be made by the plaintiff or by a person with the authority of the plaintiff or plaintiffs. [Subr (1) am Rule 163 of 2007, r 3 and Sch 1[3], with effect from 5 Apr 2007]

(2) If the application is made in reliance on a failure by the company to comply with a statutory demand, the affidavit must: (a) verify service of the demand on the company, and (b) verify the failure of the company to comply with the demand, and (c) state whether and, if so, to what extent the debt, or each of the debts, to which the demand relates is still due and payable by the company at the date when the affidavit is made. Note: An example of the affidavit in support of an application for winding up in insolvency for failure to comply with a statutory demand is shown in Schedule 2 (Notes to these Rules). [Subr (2) am Rule 961 of 2003, r 3 and Sch 1[38], with effect from 1 Jan 2004]

(3) If the application is made in reliance on the ground mentioned in paragraph 461(1)(a) of the Corporations Act, the affidavit must: (a) state whether the company is able to pay all its debts as and when they become due and payable, and (b) refer to the company’s most recent balance sheet and profit and loss statement as an annexure or exhibit to the affidavit, or explain their absence. [Subr (3) am Rule 961 of 2003, r 3 and Sch 1[39], with effect from 1 Jan 2004]

(4) The affidavit must be made within 7 days before the originating process is filed. [R 5.4 am Rule 163 of 2007; Rule 961 of 2003, r 3 and Sch 1[37], with effect from 1 Jan 2004]

5.5 Consent of liquidator (Corporations Act s 532(9))—Form 8 (1A) [Repealed] [Subr (1A) rep Rule 322 of 2000, with effect from 22 Dec 2000]

(1) In this rule: liquidator does not include a provisional liquidator. (2) For the purposes of subsection 532(9) of the Corporations Act, the consent of an official liquidator to act as liquidator of a company must be in accordance with Form 8. [Subr (2) am Rule 961 of 2003, r 3 and Sch 1[41], with effect from 1 Jan 2004]

(3) In an application for an order that a company be wound up, the plaintiff must: (a) before the hearing of the application, file the consent mentioned in subrule (2) of an official liquidator who would be entitled to be appointed as liquidator of the company, and (b) serve a copy of the consent on the company at least 1 day before the hearing. Editorial note: Date of commencement for subrules (1), (2) and (3): 3.3.2000—see Gazette No 32 of 3.3.2000, p 1585. [R 5.5 am Rule 961 of 2003, r 3 and Sch 1[40], with effect from 1 Jan 2004; Rule 322 of 2000]

5.6 Notice of application for winding up—Form 9 (1) Unless the Court otherwise orders, the plaintiff must publish a notice of the application for an order that a company be wound up. (2) The notice must be: (a) in accordance with Form 9, and (b) published: (i) at least 3 days after the originating process is served on the company, and (ii) at least 7 days before the date fixed for hearing of the application. [Subr (2) am Rule 708 of 2014, Sch 1[4], with effect from 7 Nov 2014; Rule 284 of 2004, r 2 and Sch 1[1], with effect from 28 May 2004; Rule 961 of 2003, r 3 and Sch 1[42], with effect from 1 Jan 2004] [R 5.6 am Rule 708 of 2014; Rule 284 of 2004; Rule 961 of 2003]

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Division 6 – Provisional liquidators (Corporations Act Part 5.4B) r 6.1 5.7 Applicant to make copies of documents available A copy of any document filed in a proceeding to which this Division applies must be available at the plaintiff’s address for service for inspection by a creditor, contributory or officer of the company, or an officer of a creditor or contributory of the company. 5.8 Discontinuance of application for winding up An application for an order that a company be wound up may not be discontinued except with the leave of the Court. After filing an originating process seeking an order that a company be wound up, the plaintiff must, if required: (a) appear before the Registrar on a date to be appointed by the Registrar, and (b) satisfy the Registrar that the plaintiff has complied with the Corporations Act and these Rules in relation to applications for a winding up order. [R 5.9 am Rule 961 of 2003, r 3 and Sch 1[43], with effect from 1 Jan 2004]

5.10 Order substituting s 465B)—Form 10

plaintiff

in

application

for

winding

up

(Corporations Act

(1) If the Court makes an order under section 465B of the Corporations Act, the Court may also order that the substituted plaintiff or plaintiffs publish a notice stating that the substituted plaintiff or plaintiffs intend to apply for an order that the company be wound up. [Subr (1) am Rule 961 of 2003, r 3 and Sch 1[45], with effect from 1 Jan 2004]

(2) The notice must be: (a) in accordance with Form 10, and (b) published: (i) at least 7 days before the date fixed for the hearing of the application, or (ii) as otherwise directed by the Court. [Subr (2) am Rule 708 of 2014, Sch 1[5], with effect from 7 Nov 2014; Rule 284 of 2004, r 2 and Sch 1[2], with effect from 28 May 2004] [R 5.10 am Rule 708 of 2014; Rule 284 of 2004; Rule 961 of 2003, r 3 and Sch 1[44], with effect from 1 Jan 2004]

5.11 Notice of winding up order and appointment of liquidator—Form 11 (1) This rule applies if the Court orders that a company be wound up and an official liquidator be appointed as liquidator of the company. (2) Not later than the day after the order is made, the plaintiff must inform the liquidator of the appointment. (3) As soon as practicable after being informed of the appointment, the liquidator must publish a notice of the winding up order and the liquidator’s appointment. (4) The notice must be in accordance with Form 11. [Subr (4) subst Rule 708 of 2014, Sch 1[6], with effect from 7 Nov 2014]

(5) In this rule: liquidator does not include a provisional liquidator. [R 5.11 am Rule 708 of 2014]

DIVISION 6 – PROVISIONAL LIQUIDATORS (CORPORATIONS ACT PART 5.4B) [Div 6 heading am Rule 961 of 2003, r 3 and Sch 1[46], with effect from 1 Jan 2004]

6.1 Appointment of provisional liquidator (Corporations Act s 472)—Form 8 (1) An application for an official liquidator to be appointed, under subsection 472(2) of the Corporations Act, as a provisional liquidator of a company must be accompanied by the written consent of the official liquidator. [Subr (1) subst Rule 286 of 2005, r 2 and Sch 1[2], with effect from 24 Jun 2005; am Rule 961 of 2003, r 3 and Sch 1[48], with effect from 1 Jan 2004] ©

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(2) The consent must be in accordance with Form 8. (3) If: (a) an order is made appointing a provisional liquidator, and (b) the order provides that the provisional liquidator may take into the provisional liquidator’s custody part only of the property of the company, the order must include a short description of the part of the property of the company that the provisional liquidator may take into custody. [Subr (3) subst Rule 749 of 2000, r 3 and Sch 1[5], with effect from 1 Jan 2001]

(4) The Court may require the plaintiff to give an undertaking as to damages. [R 6.1 am Rule 286 of 2005; Rule 961 of 2003, r 3 and Sch 1[47], with effect from 1 Jan 2004; Rule 749 of 2000]

6.2 Notice of appointment of provisional liquidator—Form 12 (1) This rule applies if the Court orders that an official liquidator be appointed as a provisional liquidator of a company. (2) Not later than the day after the order is made, the plaintiff must: (a) except if the plaintiff is ASIC—lodge an office copy of the order with ASIC, and (b) serve an office copy of the order on the company (except if the plaintiff is the company) and on any other person as directed by the Court, and (c) give to the provisional liquidator an office copy of the order and a written statement that the order has been served as required by paragraph (b). [Subr (2) am Rule 136 of 2008, r 2 and Sch 1[3], with effect from 16 May 2008]

(3) As soon as practicable after the order is made, the provisional liquidator must publish a notice of the provisional liquidator’s appointment. (4) The notice must be in accordance with Form 12. [Subr (4) subst Rule 708 of 2014, Sch 1[7], with effect from 7 Nov 2014] [R 6.2 am Rule 708 of 2014; Rule 136 of 2008]

DIVISION 7 – LIQUIDATORS 7.1 Resignation of liquidator (Corporations Act s 473(1)) (1) A liquidator appointed by the Court who wishes to resign office must file with the Registrar, and lodge with ASIC, a memorandum of resignation. [Subr (1) am Rule 136 of 2008, r 2 and Sch 1[3], with effect from 16 May 2008]

(2) The resignation takes effect on the filing and lodging of the memorandum. [R 7.1 am Rule 136 of 2008; Rule 961 of 2003, r 3 and Sch 1[49], with effect from 1 Jan 2004]

7.2 Filling vacancy in office of liquidator (Corporations Act s 473(7), s 502) (1) If, for any reason, there is no liquidator acting in a winding up, the Court may: (a) in the case of a winding up by the Court—appoint another official liquidator whose written consent in accordance with Form 8 has been filed, and (b) in the case of a voluntary winding up—appoint another registered liquidator whose written consent in accordance with Form 8 has been filed. (2) The Court may make the appointment: (a) in any case—on application by ASIC, a creditor or a contributory, or (b) in the case of a winding up by the Court—on its own initiative. [Subr (2) am Rule 136 of 2008, r 2 and Sch 1[3], with effect from 16 May 2008] [R 7.2 am Rule 136 of 2008; Rule 961 of 2003, r 3 and Sch 1[50], with effect from 1 Jan 2004]

7.3 Report to liquidator as to company’s affairs (Corporations Act s 475) (1) If a person is required under section 475 of the Corporations Act to submit and verify a report as to the affairs of a company, the liquidator must give to the person the appropriate forms and instructions for the preparation of the report. [Subr (1) am Rule 961 of 2003, r 3 and Sch 1[52], with effect from 1 Jan 2004] 162

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Division 7 – Liquidators r 7.5 (2) Except by order of the Court, no person is to be allowed out of the property of a company any costs or expenses incurred in relation to the preparation of the report that have not been: (a) sanctioned by the liquidator before being incurred, or (b) taxed or assessed. (3) The liquidator must report to the Court any default in complying with the requirements of section 475 of the Corporations Act. [Subr (3) am Rule 961 of 2003, r 3 and Sch 1[52], with effect from 1 Jan 2004]

(4) In this rule:

7.4 Liquidator to file certificate and copy of settled list of contributories (Corporations Act s 478) If, in a winding up by the Court, a liquidator has settled and certified a list, or supplementary list, of contributories, the liquidator must, within 14 days after doing so, file the certificate and a copy of the list. [R 7.4 am Rule 961 of 2003, r 3 and Sch 1[53], with effect from 1 Jan 2004]

7.5 Release of liquidator and deregistration of company (Corporations Act s 480(c) and (d)) (1) This rule applies to an application by the liquidator of a company: (a) for an order that the liquidator be released, or (b) for an order that the liquidator be released and that ASIC deregister the company. [Subr (1) am Rule 136 of 2008, r 2 and Sch 1[3], with effect from 16 May 2008]

(2) The interlocutory process seeking the order must include: (a) a notice stating that any objection to the release of the liquidator must be made by filing and serving a notice of objection, in the prescribed form, within 21 days after the date of service of the interlocutory process, and (b) a statement setting out the terms of subsection 481(3) of the Corporations Act. Note: Subsection 481(3) of the Corporations Act provides that an order of the Court releasing a liquidator discharges the liquidator from all liability in respect of any act done or default made by the liquidator in the administration of the affairs of the company, or otherwise in relation to the liquidator’s conduct as liquidator, but any such order may be revoked on proof that it was obtained by fraud or by suppression or by concealment of any material fact. [Subr (2) am Rule 961 of 2003, r 3 and Sch 1[55], with effect from 1 Jan 2004]

(3) The supporting affidavit must include details of the following matters: (a) whether the whole of the company’s property has been realised or whether so much of the company’s property has been realised as, in the liquidator’s opinion, can be realised without needlessly protracting the winding up, (b) any calls made on contributories in the course of the winding up, (c) any dividends paid in the course of the winding up, (d) whether the committee of inspection (if any) has passed a resolution approving the liquidator’s release, (e) whether ASIC has appointed an auditor to report on an account or statement of the position in the winding up under subsection 539(2) of the Corporations Act, (f) whether the Court has ordered a report on the accounts of the liquidator to be prepared, (g) whether any objection to the release of the liquidator has been received by the liquidator from: (i) an auditor appointed by ASIC or by the Court, or (ii) any creditor, contributory or other interested person, (h) whether any report has been submitted by the liquidator to ASIC under section 533 of the Corporations Act, (i) whether the liquidator considers it necessary to report on the affairs of the company or any of its officers, (j) any property disclaimed in the course of the winding up, ©

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r 7.5

Supreme Court (Corporations) Rules 1999 (NSW)

(k) any remuneration paid or payable to the liquidator and how such remuneration was determined, (l) any costs, charges or expenses payable by the liquidator if the Court grants the liquidator’s release, (m) if the application is made under paragraph 480(c) of the Corporations Act—the facts and circumstances by reason of which it is submitted that the company should not be deregistered. [Subr (3) am Rule 136 of 2008, r 2 and Sch 1[3], with effect from 16 May 2008; Rule 961 of 2003, r 3 and Sch 1[55], with effect from 1 Jan 2004]

(4) The liquidator must include in the supporting affidavit the statements set out in paragraphs (a) and (b) of this subrule, including, if appropriate, the words in brackets: (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 [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 [except as disclosed in this affidavit]’. (5) The liquidator must file with, or annex to, the supporting affidavit: (a) a statement of the financial position of the company at the date when the interlocutory process seeking release was filed, and (b) a summary of the liquidator’s receipts and payments in winding up the company. (6) Unless the Court otherwise orders, the liquidator must serve by prepaid post, on each creditor who has proved a debt in the course of the winding up, and on each contributory, a copy of the interlocutory process accompanied by: (a) a copy of the summary of the liquidator’s receipts and payments in winding up the company, and (b) a copy of the statement of the financial position of the company at the date when the interlocutory process seeking release was filed. [R 7.5 am Rule 136 of 2008; Rule 961 of 2003, r 3 and Sch 1[54], with effect from 1 Jan 2004]

7.6 Objection to release of liquidator—Form 13 (1) A creditor or contributory of a company who wishes to object to the release of the liquidator of the company must, within 21 days after the date of service of the interlocutory process seeking release: (a) file: (i) a notice of objection in accordance with Form 13, and (ii) if appropriate, an affidavit stating any facts relied on, and (b) serve a copy of the notice and the affidavit (if any) on the liquidator. (2) If the liquidator is served with a notice of objection by a creditor or contributory, the liquidator must, within 3 days after being served, serve on the creditor or contributory a copy of the affidavit supporting the interlocutory process. 7.7 Report on accounts of liquidator (Corporations Act s 481) (1) If the Court orders that a report on the accounts of a liquidator be prepared under subsection 481(1) of the Corporations Act, the liquidator must give to the auditor appointed to prepare the report all information, books and vouchers required to prepare the report. [Subr (1) am Rule 961 of 2003, r 3 and Sch 1[57], with effect from 1 Jan 2004]

(2) On completing the report, the auditor must: (a) file a copy of the report in a sealed envelope that is marked with the title and number of the proceeding and the words ‘Auditor’s report under subsection 481(1) of the Corporations Act 2001’, and (b) serve a copy of the report on the liquidator, and (c) lodge a copy of the report with ASIC. [Subr (2) am Rule 136 of 2008, r 2 and Sch 1[3], with effect from 16 May 2008; Rule 961 of 2003, r 3 and Sch 1[58], with effect from 1 Jan 2004] 164

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Division 7 – Liquidators r 7.11 (3) Except with the leave of the Court, a report is not available for inspection by any person except the liquidator or ASIC. [Subr (3) am Rule 136 of 2008, r 2 and Sch 1[3], with effect from 16 May 2008] [R 7.7 am Rule 136 of 2008; Rule 961 of 2003, r 3 and Sch 1[56], with effect from 1 Jan 2004]

7.8 Application for payment of call (Corporations Act s 483(3)(b))—Form 14 The affidavit in support of an application by the liquidator of a company, under paragraph 483(3)(b) of the Corporations Act, for an order for the payment of a call must be in accordance with Form 14. 7.9 Distribution of surplus by liquidator with special leave of the Court (Corporations Act s 488(2))—Form 15 (1) The affidavit in support of an application for special leave to distribute a surplus must state how the liquidator intends to distribute the surplus including the name and address of each person to whom the liquidator intends to distribute any part of the surplus. (2) At least 14 days before the date fixed for hearing of the application, the liquidator must publish a notice of the application. (3) The notice must be in accordance with Form 15. [Subr (3) subst Rule 708 of 2014, Sch 1[8], with effect from 7 Nov 2014] [R 7.9 am Rule 708 of 2014; Rule 961 of 2003, r 3 and Sch 1[61], with effect from 1 Jan 2004]

7.10 Powers delegated to liquidator by the Court (Corporations Act s 488) Subject to the Corporations Act, the Corporations Regulations, these Rules, and any order of the Court, the powers and duties conferred or imposed on the Court by Part 5.4B of the Corporations Act in respect of the matters mentioned in subsection 488(1) of the Corporations Act may be exercised or performed by a liquidator appointed by the Court as an officer of the Court and subject to the control of the Court. [R 7.10 am Rule 961 of 2003, r 3 and Sch 1[62]–[65], with effect from 1 Jan 2004]

7.11 Inquiry into conduct of liquidator (Corporations Act s 536(1) and (2)) (1) A complaint to the Court under paragraph 536(1)(b) of the Corporations Act must be made: (a) in the case of a winding up by the Court—by an interlocutory process seeking an inquiry, and (b) in the case of a voluntary winding up—by an originating process seeking an inquiry. [Subr (1) am Rule 961 of 2003, r 3 and Sch 1[67], with effect from 1 Jan 2004]

(2) A report to the Court by ASIC under subsection 536(2) of the Corporations Act must be made: (a) in the case of a winding up by the Court—by filing: (i) an interlocutory process seeking orders under the subsection, and (ii) a written report in a sealed envelope that is marked with the title and number of the proceeding, and (b) in the case of a voluntary winding up—by filing: (i) an originating process seeking orders under the subsection, and (ii) a written report in a sealed envelope that is marked with the title of the proceeding and provision for its number. [Subr (2) am Rule 136 of 2008, r 2 and Sch 1[3], with effect from 16 May 2008; Rule 961 of 2003, r 3 and Sch 1[67], with effect from 1 Jan 2004]

(3) The contents of a report filed under subrule (2) need not, at the time of filing, be verified by an affidavit. (4) Except with the leave of the Court, a report made under subsection 536(2) of the Corporations Act is not available for inspection by any person except the liquidator or ASIC. [Subr (4) am Rule 136 of 2008, r 2 and Sch 1[3], with effect from 16 May 2008; Rule 961 of 2003, r 3 and Sch 1[67], with effect from 1 Jan 2004]

(5) In this rule: ©

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Supreme Court (Corporations) Rules 1999 (NSW)

liquidator includes a provisional liquidator. [R 7.11 am Rule 136 of 2008; Rule 961 of 2003, r 3 and Sch 1[66], with effect from 1 Jan 2004; Rule 749 of 2000, r 3 and Sch 1[6], with effect from 1 Jan 2001]

DIVISION 8 – SPECIAL MANAGERS (CORPORATIONS ACT PART 5.4B) [Div 8 heading am Rule 961 of 2003, r 3 and Sch 1[68], with effect from 1 Jan 2004]

8.1 Application for appointment of special manager (Corporations Act s 484) (1) An application by a liquidator for the appointment of a special manager in relation to a company must state the powers which, in the liquidator’s opinion, should be entrusted by the Court to the special manager. (2) The supporting affidavit must state: (a) the circumstances making it proper that a special manager be appointed, and (b) details of the remuneration proposed to be paid to the special manager, and (c) whether any committee of inspection in the winding up, or a meeting of creditors, has approved the appointment of a special manager. [R 8.1 am Rule 961 of 2003, r 3 and Sch 1[69], with effect from 1 Jan 2004]

8.2 Security given by special manager (Corporations Act s 484) (1) The Court may, from time to time, direct that the amount of security given by a special manager be varied. (2) Unless the Court otherwise directs, the costs of furnishing the security given by a special manager in respect of a particular winding up: (a) are the personal expenses of the special manager, and (b) must not be charged against the property of the company as an expense incurred in the winding up. [R 8.2 am Rule 961 of 2003, r 3 and Sch 1[70], with effect from 1 Jan 2004]

8.3 Special manager’s receipts and payments (Corporations Act s 484) (1) A special manager must give to the liquidator: (a) an account of the special manager’s receipts and payments, and (b) a statutory declaration verifying the account. (2) If the liquidator approves the account, the liquidator must include the total amounts of the special manager’s receipts and payments in the liquidator’s accounts. [R 8.3 am Rule 961 of 2003, r 3 and Sch 1[71], with effect from 1 Jan 2004]

DIVISION 9 – REMUNERATION OF OFFICE-HOLDERS 9.1 Remuneration of receiver (Corporations Act s 425(1))—Form 16 (1) This rule applies to an application by a receiver of property of a corporation for an order under subsection 425(1) of the Corporations Act fixing the receiver’s remuneration. Note 1: Under paragraph 425(2)(b) of the Corporations Act, the Court may exercise its power to make an order fixing the remuneration of a receiver appointed under an instrument even if the receiver has died, or has ceased to act, before the making of the order or the application for the order. Note 2: The amendment to section 425 of the Corporations Act made by the Corporations Amendment (Insolvency) Act 2007 of the Commonwealth applies in relation to a receiver appointed on or after 31 December 2007—see Corporations Act s 1480(5). [Subr (1) am Rule 136 of 2008, r 2 and Sch 1[7], with effect from 16 May 2008; Rule 961 of 2003, r 3 and Sch 1[73], with effect from 1 Jan 2004; Rule 749 of 2000, r 3 and Sch 1[7], with effect from 1 Jan 2001]

(2) At least 21 days before filing an originating process, or interlocutory process, seeking the order, the receiver must serve a notice in accordance with Form 16 of the receiver’s intention to apply for the order, and a copy of any affidavit on which the receiver intends to rely, on the following persons: (a) the person who appointed the receiver, (b) any creditor holding security over all or any of the same property of the corporation (except if the creditor is the person who appointed the receiver), (c) any administrator, liquidator or provisional liquidator of the corporation, 166

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Division 9 – Remuneration of office-holders r 9.2 (d) any administrator of a deed of company arrangement executed by the corporation, (e) if there is no person of the kind mentioned in paragraph (c) or (d): (i) each of the 5 largest (measured by amount of debt) unsecured creditors of the corporation, and (ii) each member of the corporation whose shareholding represents at least 10 per cent of the issued capital of the corporation.

(4) If the receiver does not receive a notice of objection within the period mentioned in subrule (3): (a) the receiver may file an affidavit, made after the end of that period, in support of the originating process, or interlocutory process, seeking the order stating: (i) the date, or dates, when the notice and affidavit required to be served under subrule (2) were served, and (ii) that the receiver has not received any notice of objection to the remuneration claimed within the period mentioned in subrule (3), and (b) the receiver may endorse the originating process, or interlocutory process, with a request that the application be dealt with in the absence of the public and without any attendance by, or on behalf of, the receiver, and (c) the application may be so dealt with. (5) If the receiver receives a notice of objection within the period mentioned in subrule (3), the receiver must serve a copy of the originating process, or interlocutory process, seeking the order on each creditor or contributory, or other person, who has given a notice of objection. (6) An (a) (b) (c) (d) (e) (f)

affidavit in support of the originating process, or interlocutory process, seeking the order must: include evidence of the matters mentioned in subsection 425(8) of the Corporations Act, and state the nature of the work performed or likely to be performed by the receiver, and state the amount of remuneration claimed, and include a summary of the receipts taken and payments made by the receiver, and state particulars of any objection of which the receiver has received notice, and if the receivership is continuing—give details of any matters delaying the completion of the receivership.

[Subr (6) subst Rule 136 of 2008, r 2 and Sch 1[8], with effect from 16 May 2008; am Rule 749 of 2000, r 3 and Sch 1[8], with effect from 1 Jan 2001] [R 9.1 am Rule 136 of 2008; Rule 961 of 2003, r 3 and Sch 1[72], with effect from 1 Jan 2004; Rule 749 of 2000]

9.2 Determination by Court of remuneration of administrator (Corporations Act s 449E(1)(c) and (1A)(c))—Form 16 (1) This rule applies to an application by the administrator of a company under administration, or of a deed of company arrangement, for an order under paragraph 449E(1)(c) or (1A)(c) of the Corporations Act determining the administrator’s remuneration. (2) At least 21 days before filing an originating process, or interlocutory process, seeking the order, the administrator must serve a notice in accordance with Form 16 of the administrator’s intention to apply for the order, and a copy of any affidavit on which the administrator intends to rely, on the following persons: (a) each creditor who was present, in person or by proxy at any meeting of creditors, (b) each member of any committee of creditors or committee of inspection, (c) if there is no committee of creditors or committee of inspection, and no meeting of creditors has been convened and held, each of the 5 largest (measured by amount of debt) creditors of the company, (d) each member of the company whose shareholding represents at least 10% of the issued capital of the company. (3) Within 21 days after the last service of the documents mentioned in subrule (2), any creditor or ©

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(3) Within 21 days after the last service of the documents mentioned in subrule (2), any creditor or contributory, or any person mentioned in paragraph (2)(c), (d) or (e), may give to the receiver a notice of objection to the remuneration claimed, stating the grounds of objection.

r 9.2

Supreme Court (Corporations) Rules 1999 (NSW)

contributory may give to the administrator a notice of objection to the remuneration claimed, stating the grounds of objection. (4) If the administrator does not receive a notice of objection within the period mentioned in subrule (3): (a) the administrator may file an affidavit, made after the end of that period, in support of the originating process, or interlocutory process, seeking the order stating: (i) the date, or dates, when the notice and affidavit required to be served under subrule (2) were served, and (ii) that the administrator has not received any notice of objection to the remuneration claimed within the period mentioned in subrule (3), and (b) the administrator may endorse the originating process, or interlocutory process, with a request that the application be dealt with in the absence of the public and without any attendance by, or on behalf of, the administrator, and (c) the application may be so dealt with. (5) If the administrator receives a notice of objection within the period mentioned in subrule (3), the administrator must serve a copy of the originating process, or interlocutory process, seeking the order on each creditor or contributory who has given a notice of objection. (6) An (a) (b) (c) (d) (e) (f)

affidavit in support of the originating process, or interlocutory process, seeking the order must: include evidence of the matters mentioned in subsection 449E(4) of the Corporations Act, and state the nature of the work performed or likely to be performed by the administrator, and state the amount of remuneration claimed, and include a summary of the receipts taken and payments made by the administrator, and state particulars of any objection of which the administrator has received notice, and if the administration is continuing—give details of any matters delaying the completion of the administration.

[R 9.2 subst Rule 136 of 2008, r 3 and Sch 1[9], with effect from 16 May 2008; am Rule 961 of 2003; Rule 749 of 2000]

9.2A Review of remuneration of administrator (Corporations Act s 449E(2)) (1) This rule applies to an application for review of the amount of the remuneration of an administrator under subsection 449E(2) of the Corporations Act. Note: The amendment to section 449E of the Corporations Act made by the Corporations Amendment (Insolvency) Act 2007 of the Commonwealth applies in relation to an administrator appointed on or after 31 December 2007—see Corporations Act s 1480(6).

(2) The application may be made only after the remuneration has been determined under paragraph 449E(1)(a) or (b) or paragraphs 449E(1A)(a) or (b) of the Corporations Act. (3) At least 21 days before filing the originating process or the interlocutory process applying for a review, the plaintiff or applicant must serve a notice, in accordance with Form 16A, of intention to apply for the review and a copy of any affidavit on which the plaintiff or applicant intends to rely (other than an affidavit required by subrule (9)), on the following persons: (a) if there is a committee of creditors or a committee of inspection—each member of the committee, (b) if the remuneration of the administrator was determined by the creditors—each creditor who was present, in person or by proxy, at the meeting of creditors at which the remuneration was determined, (c) each member of the company whose shareholding represents at least 10% of the issued capital of the company. (4) Within 21 days after the last service of the documents mentioned in subrule (3), any person on whom the notice has been served may serve on the plaintiff or applicant a notice: (a) stating the person’s intention to appear at the hearing of the applicant for review, and (b) setting out the issues that the person seeks to raise before the Court. (5) A person mentioned in subrule (3) is entitled to be heard on the application for review, but only (unless the Court otherwise orders) if the person has served on the plaintiff or applicant a notice in accordance with subrule (4). 168

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Division 9 – Remuneration of office-holders r 9.3

(7) The administrator must file an affidavit stating the following matters: (a) the matters mentioned in subsection 449E(4) of the Corporations Act, (b) the nature of the work performed or likely to be performed by the administrator, (c) the amount of remuneration claimed by the administrator if that amount is different from the amount of remuneration that has been determined, (d) a summary of the receipts taken and payments made by the administrator, (e) particulars of any objection to the remuneration as determined, of which the administrator has received notice, (f) if the administration is continuing—details of any matters delaying the completion of the administration. (8) The affidavit mentioned in subrule (7) must annex a copy of the report that the administrator was required to prepare before remuneration was determined. (9) The plaintiff or applicant must: (a) file an affidavit stating whether any notice or notices under subrule (4) has or have been served, and (b) annex or exhibit to the affidavit a copy of any such notice. [R 9.2A insrt Rule 136 of 2008, r 2 and Sch 1[9], with effect from 16 May 2008]

9.3 Remuneration of provisional liquidator (Corporations Act s 473(2))—Form 16 (1) This rule applies to an application by a provisional liquidator of a company for an order under subsection 473(2) of the Corporations Act determining the provisional liquidator’s remuneration. [Subr (1) am Rule 961 of 2003, r 3 and Sch 1[77], with effect from 1 Jan 2004]

(2) The application must be made by interlocutory process in the winding up proceeding. (3) At least 21 days before filing the interlocutory process seeking the order, the provisional liquidator must serve a notice in accordance with Form 16 of the provisional liquidator’s intention to apply for the order, and a copy of any affidavit on which the provisional liquidator intends to rely, on the following persons: (a) any liquidator (except the provisional liquidator) of the company, (b) each member of any committee of inspection or, if there is no committee of inspection, each of the 5 largest (measured by amount of debt) creditors of the company, (c) each member of the company whose shareholding represents at least 10 per cent of the issued capital of the company. [Subr (3) am Rule 136 of 2008, r 2 and Sch 1[10], with effect from 16 May 2008; Rule 749 of 2000, r 3 and Sch 1[12] and [13], with effect from 1 Jan 2001]

(4) Within 21 days after the last service of the documents mentioned in subrule (3), the liquidator, or any creditor or contributory, may give to the provisional liquidator a notice of objection to the remuneration claimed, stating the grounds of objection. (5) If the provisional liquidator does not receive a notice of objection within the period mentioned in subrule (4): (a) the provisional 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 provisional liquidator has not received any notice of objection to the remuneration claimed within the period mentioned in subrule (4), and (b) the provisional liquidator may endorse the interlocutory process with a request that the application be dealt with in the absence of the public and without any attendance by, or on behalf of, the provisional liquidator, and (c) the application may be so dealt with. ©

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(6) If the plaintiff or applicant is served with a notice in accordance with subrule (4), the plaintiff or applicant must serve a copy of the originating process or interlocutory process applying for the review on each person who has served such a notice.

r 9.3

Supreme Court (Corporations) Rules 1999 (NSW)

(6) If the provisional liquidator receives a notice of objection within the period mentioned in subrule (4), the provisional liquidator must serve a copy of the interlocutory process seeking the order: (a) on each creditor or contributory who has given a notice of objection, and (b) on the liquidator (if any). (7) An (a) (b) (c) (d) (e)

affidavit in support of the interlocutory process seeking the order must: state the nature of the work performed or likely to be performed by the provisional liquidator, and state the amount of remuneration claimed, and include a summary of the receipts taken and payments made by the provisional liquidator, and state particulars of any objection of which the provisional liquidator has received notice, and if the winding up proceeding has not been determined—give details of: (i) any reasons known to the provisional liquidator why the winding up proceeding has not been determined, and (ii) any reasons why the provisional liquidator’s remuneration should be determined before the determination of the winding up proceeding.

[Subr (7) am Rule 136 of 2008, r 2 and Sch 1[11] and [12], with effect from 16 May 2008; Rule 749 of 2000, r 3 and Sch 1[14], with effect from 1 Jan 2001]

(8) The affidavit must also provide evidence of the matters mentioned in subsection 473(10) of the Corporations Act: (a) to the extent that they may be relevant to a provisional liquidator, and (b) as if references in that subsection to “liquidator” were references to “provisional liquidator”. [Subr (8) insrt Rule 136 of 2008, r 2 and Sch 1[13], with effect from 16 May 2008] [R 9.3 am Rule 136 of 2008; Rule 961 of 2003, r 3 and Sch 1[76], with effect from 1 Jan 2004; Rule 749 of 2000]

9.4 Determination by Court of liquidator’s remuneration (Corporations Act s 473(3)(b)(ii)) (1) This rule applies to an application by a liquidator of a company for an order under subparagraph 473(3)(b)(ii) of the Corporations Act determining the liquidator’s remuneration. Note: The amendment to section 473 of the Corporations Act made by the Corporations Amendment (Insolvency) Act 2007 of the Commonwealth applies in relation to a liquidator appointed on or after 31 December 2007—see Corporations Act s 1480(7). [Subr (1) am Rule 136 of 2008, r 2 and Sch 1[14] and [15], with effect from 16 May 2008; Rule 961 of 2003, r 3 and Sch 1[79], with effect from 1 Jan 2004]

(2) The application: (a) must be made by interlocutory process in the winding up proceeding, and (b) must not be made until after the date of the meeting of creditors mentioned in subsection 473(4) of the Corporations Act. [Subr (2) am Rule 961 of 2003, r 3 and Sch 1[79], with effect from 1 Jan 2004; Rule 749 of 2000, r 3 and Sch 1[15], with effect from 1 Jan 2001]

(3) At least 21 days before filing the interlocutory process seeking the order, the liquidator must serve a notice in accordance with Form 16 of the liquidator’s intention to apply for the order, and a copy of any affidavit on which the liquidator intends to rely, on the following persons: (a) each creditor who was present, in person or by proxy, at any meeting of creditors at which the remuneration of the liquidator was considered, (b) each member of any committee of inspection, (c) if there is no committee of inspection, and no meeting of creditors has been convened and held—each of the 5 largest (measured by amount of debt) creditors of the company, (d) each member of the company whose shareholding represents at least 10 per cent of the issued capital of the company. [Subr (3) am Rule 136 of 2008, r 2 and Sch 1[16]–[18], with effect from 16 May 2008; Rule 749 of 2000, r 3 and Sch 1[16], with effect from 1 Jan 2001]

(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. 170

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Division 9 – Remuneration of office-holders (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 (b) the liquidator may endorse the interlocutory process with a request that the application be dealt with in the absence of the public and without any attendance by, or on behalf of, the liquidator, and (c) the application may be so dealt with. (6) If the liquidator receives a notice of objection within the period mentioned in subrule (4), the liquidator must serve a copy of the interlocutory process seeking the order on each creditor or contributory who has given a notice of objection. (7) An (a) (b) (c) (d) (e) (f)

affidavit in support of the interlocutory process seeking the order must: include evidence of the matters mentioned in subsection 473(10) of the Corporations Act, and state the nature of the work performed or likely to be performed by the liquidator, and state the amount of remuneration claimed, and include a summary of the receipts taken and payments made by the liquidator, and state particulars of any objection of which the liquidator has received notice, and if the winding up is continuing—give details of any matters delaying the completion of the winding up.

[Subr (7) subst Rule 136 of 2008, r 2 and Sch 1[19], with effect from 16 May 2008; am Rule 961 of 2003, r 3 and Sch 1[79], with effect from 1 Jan 2004; Rule 749 of 2000, r 3 and Sch 1[17], with effect from 1 Jan 2001] [R 9.4 am Rule 136 of 2008; Rule 961 of 2003, r 3 and Sch 1[78], with effect from 1 Jan 2004; Rule 749 of 2000]

9.4A Review of remuneration of liquidator (Corporations Act s 473(5) and (6) and s 504(1)) (1) This rule applies to an application for review of the amount of the remuneration of a liquidator under subsection 473(5) or (6) or 504(1) of the Corporations Act. Note: The amendment to section 504 of the Corporations Act made by the Corporations Amendment (Insolvency) Act 2007 of the Commonwealth applies in relation to a liquidator appointed on or after 31 December 2007—see Corporations Act s 1480(7).

(2) The application may only be made after remuneration has been determined under paragraph 473(3)(a) or subparagraph 473(3)(b)(i), or fixed under subsection 495(1) or subsection 499(3), of the Corporations Act. (3) At least 21 days before filing the originating process or interlocutory process applying for a review, the plaintiff or applicant must serve a notice, in accordance with Form 16A, of intention to apply for the review and a copy of any affidavit on which the plaintiff or applicant intends to rely (other than an affidavit required by subrule (9)), on the following persons: (a) if there is a committee of inspection—each member of the committee, (b) if the remuneration of the liquidator was determined or fixed by the creditors—each creditor who was present, in person or by proxy, at the meeting of creditors at which the remuneration was determined or fixed, (c) each member of the company whose shareholding represents at least 10% of the issued capital of the company. (4) Within 21 days after the last service of the documents mentioned in subrule (3), any person on whom the notice has been served may serve on the plaintiff or applicant a notice: (a) stating the person’s intention to appear at the hearing of the application for review, and (b) setting out the issues that the person seeks to raise before the Court. (5) A person mentioned in subrule (3) is entitled to be heard on the application for review, but only (unless the Court otherwise orders) if the person has served on the plaintiff or applicant a notice in accordance with subrule (4). (6) If the plaintiff or applicant is served with a notice in accordance with subrule (4), the plaintiff or ©

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r 9.4A

r 9.4A

Supreme Court (Corporations) Rules 1999 (NSW)

applicant must serve a copy of the originating process or interlocutory process applying for the review on each person who has served such a notice. (7) The liquidator must file an affidavit stating the following matters: (a) for an application under subsection 473(5) or (6) of the Corporations Act—the matters mentioned in subsection 473(10) of the Corporations Act, (b) for an application under subsection 504(1) of the Corporations Act—the matters mentioned in subsection 504(2) of the Corporations Act, (c) the nature of the work performed or likely to be performed by the liquidator, (d) the amount of remuneration claimed by the liquidator if the amount is different from the amount of remuneration that has been determined or fixed, (e) a summary of the receipts taken and payments made by the liquidator, (f) particulars of any objection to the remuneration as determined or fixed of which the liquidator has received notice, (g) if the winding up is continuing—details of any matters delaying the completion of the winding up. (8) The affidavit under subrule (7) must annex a copy of the report that the liquidator was required to prepare before remuneration was determined or fixed. Note: For the requirement to prepare a report, see subsections 473(11), 473(12), 495(5), 499(6) and 499(7) of the Corporations Act.

(9) The plaintiff or applicant must: (a) file an affidavit stating whether any notice or notices under subrule (4) has or have been served, and (b) annex or exhibit to the affidavit a copy of any such notice. [R 9.4A insrt Rule 136 of 2008, r 2 and Sch 1[20], with effect from 16 May 2008]

9.5 Remuneration of special manager (Corporations Act s 484(2))—Form 16 (1) This rule applies to an application by a special manager of the property or business of a company for an order under subsection 484(2) of the Corporations Act fixing the special manager’s remuneration. [Subr (1) am Rule 961 of 2003, r 3 and Sch 1[81], with effect from 1 Jan 2004]

(2) The application must be made by interlocutory process in the winding up proceeding. (3) At least 21 days before filing the interlocutory process seeking the order, the special manager must serve a notice in accordance with Form 16 of the special manager’s intention to apply for the order, and a copy of any affidavit on which the special manager intends to rely, on the following persons: (a) the liquidator of the company, (b) each member of any committee of creditors or committee of inspection or, if there is no committee of creditors or committee of inspection, each of the 5 largest (measured by amount of debt) creditors of the company, (c) each member of the company whose shareholding represents at least 10 per cent of the issued capital of the company. [Subr (3) am Rule 136 of 2008, r 2 and Sch 1[21], with effect from 16 May 2008; Rule 749 of 2000, r 3 and Sch 1[18] and [19], with effect from 1 Jan 2001]

(4) Within 21 days after the last service of the documents mentioned in subrule (3), the liquidator, or any creditor or contributory, may give to the special manager a notice of objection to the remuneration claimed, stating the grounds of objection. (5) If the special manager does not receive a notice of objection within the period mentioned in subrule (4): (a) the special manager 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 special manager has not received any notice of objection to the remuneration claimed within the period mentioned in subrule (4), and 172

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Division 11 – Examinations and orders (Corporations Act Part 5.9, Divisions 1 and 2) r 11.1 (b)

the special manager may endorse the interlocutory process with a request that the application be dealt with in the absence of the public and without any attendance by, or on behalf of, the special manager, and (c) the application may be so dealt with.

(7) The affidavit in support of the interlocutory process seeking the order must: (a) state the nature of the work performed or likely to be performed by the special manager, and (b) state the amount of remuneration claimed, and (c) include a summary of the receipts taken and payments made by the special manager, and (d) state particulars of any objection of which the special manager has received notice, and (e) if the special management is continuing—give details of any matters delaying the completion of the special management. [Subr (7) am Rule 136 of 2008, r 2 and Sch 1[22] and [23], with effect from 16 May 2008; Rule 749 of 2000, r 3 and Sch 1[20], with effect from 1 Jan 2001] [R 9.5 am Rule 136 of 2008; Rule 961 of 2003, r 3 and Sch 1[80], with effect from 1 Jan 2004; Rule 749 of 2000]

DIVISION 10 – WINDING UP GENERALLY 10.1 Determination of value of debts or claims (Corporations Act s 554A(2)) A reference to the Court by a liquidator of a company under paragraph 554A(2)(b) of the Corporations Act must be made: (a) in the case of a winding up by the Court—by filing an interlocutory process seeking an order estimating, or determining a method for working out, the value of the debt or claim, and (b) in the case of a voluntary winding up—by filing an originating process seeking an order estimating, or determining a method for working out, the value of the debt or claim. [R 10.1 am Rule 961 of 2003, r 3 and Sch 1[82] and [83], with effect from 1 Jan 2004]

10.2 Disclaimer of contract (Corporations Act s 568(1A)) (1) The affidavit in support of an application by a liquidator, under section 568(1A) of the Corporations Act, for leave to disclaim a contract in relation to a company must: (a) specify the persons interested, and their interests, under the contract, and (b) state the facts on which it is submitted that the contract should be disclaimed. [Subr (1) am Rule 961 of 2003, r 3 and Sch 1[85], with effect from 1 Jan 2004]

(2) The liquidator must serve the affidavit on each party to the contract (except the company) and on any person interested in the contract. [R 10.2 am Rule 961 of 2003, r 3 and Sch 1[84], with effect from 1 Jan 2004]

10.3 Winding up Part 5.7 bodies (Corporations Act s 583, s 585) and registered schemes (Corporations Act s 601ND) These Rules apply, with any necessary adaptations, and in the same way as they apply to a company, in relation to the winding up of a Part 5.7 body or a registered scheme. [R 10.3 am Rule 961 of 2003, r 3 and Sch 1[86], with effect from 1 Jan 2004]

DIVISION 11 – EXAMINATIONS AND ORDERS (CORPORATIONS ACT PART 5.9, DIVISIONS 1 AND 2) [Div 11 heading am Rule 961 of 2003, r 3 and Sch 1[87], with effect from 1 Jan 2004]

11.1 Definition for Division 11 In this Division: examination summons means a summons under section 596A or 596B of the Corporations Act for the examination of a person about a corporation’s examinable affairs. [R 11.1 am Rule 961 of 2003, r 3 and Sch 1[88], with effect from 1 Jan 2004] ©

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(6) If the special manager receives a notice of objection within the period mentioned in subrule (4), the special manager must serve a copy of the interlocutory process seeking the order: (a) on each creditor or contributory who has given a notice of objection, and (b) on the liquidator.

r 11.1

Supreme Court (Corporations) Rules 1999 (NSW)

11.2 Application for examination or investigation under s 411(9)(b), s 423 or s 536(3) of the Corporations Act (1) An application for an order for the examination or investigation of a person under paragraph 411(9)(b), section 423 or subsection 536(3) of the Corporations Act may be made by: (a) ASIC, or (b) a person authorised by ASIC, or (c) a creditor or contributory, or (d) any other person aggrieved by the conduct of: (i) a person appointed to administer a compromise or arrangement, or (ii) a controller, or (iii) a liquidator or provisional liquidator. [Subr (1) am Rule 136 of 2008, r 2 and Sch 1[3], with effect from 16 May 2008; Rule 961 of 2003, r 3 and Sch 1[90], with effect from 1 Jan 2004; Rule 749 of 2000, r 3 and Sch 1[22], with effect from 1 Jan 2001]

(2) The application may be made without notice to any person. [Subr (2) subst Rule 370 of 2001, r 3 and Sch 1[4], with effect from 30 Jun 2001]

(3) The provisions of this Division that apply to an examination under Division 1 of Part 5.9 of the Corporations Act apply, with any necessary adaptations, to an examination or an investigation under paragraph 411(9)(b), section 423 or subsection 536(3) of the Corporations Act. [Subr (3) am Rule 961 of 2003, r 3 and Sch 1[90], with effect from 1 Jan 2004; Rule 749 of 2000, r 3 and Sch 1[22], with effect from 1 Jan 2001] [R 11.2 am Rule 136 of 2008; Rule 961 of 2003, r 3 and Sch 1[89], with effect from 1 Jan 2004; Rule 370 of 2001; Rule 749 of 2000, r 3 and Sch 1[21], with effect from 1 Jan 2001]

11.3 Application for examination summons (Corporations Act s 596A, s 596B)—Form 17 (1) An application for the issue of an examination summons must be made by filing an interlocutory process or an originating process, as the case requires. (2) The application may be made without notice to any person. [Subr (2) subst Rule 370 of 2001, r 3 and Sch 1[5], with effect from 30 Jun 2001; Rule 749 of 2000, r 3 and Sch 1[23], with effect from 1 Jan 2001]

(3) The originating process, or interlocutory process, seeking the issue of the examination summons must be: (a) supported by an affidavit stating the facts in support of the process, and (b) accompanied by a draft examination summons. (4) The originating process, or interlocutory process, and supporting affidavit must be filed in a sealed envelope marked, as appropriate: (a) ‘Application and supporting affidavit for issue of summons for examination under section 596A of the Corporations Act 2001’, or (b) ‘Application and supporting affidavit for issue of summons for examination under section 596B of the Corporations Act 2001’. [Subr (4) am Rule 961 of 2003, r 3 and Sch 1[92], with effect from 1 Jan 2004]

(5) If the application is not made by the liquidator, the liquidator must be given notice of the application and, if required by the liquidator, served with a copy of the originating process, or interlocutory process, and the supporting affidavit. (6) If the application is not made by ASIC, ASIC must be given notice of the application and, if required by ASIC, served with a copy of the originating process, or interlocutory process, and the supporting affidavit. [Subr (6) am Rule 136 of 2008, r 2 and Sch 1[3], with effect from 16 May 2008]

(7) Unless the Court otherwise orders, an affidavit in support of an application for an examination summons is not available for inspection by any person. (8) An examination summons must be in accordance with Form 17. [Subr (8) am Rule 749 of 2000, r 3 and Sch 1[24], with effect from 1 Jan 2001] [R 11.3 am Rule 136 of 2008; Rule 961 of 2003, r 3 and Sch 1[91], with effect from 1 Jan 2004; Rule 370 of 2001; Rule 749 of 2000] 174

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Division 11 – Examinations and orders (Corporations Act Part 5.9, Divisions 1 and 2) r 11.9 11.4 Service of examination summons An examination summons issued by the Court must be personally served, or served in any other manner as the Court may direct, on the person who is to be examined at least 8 days before the date fixed for the examination. 11.5 Discharge of examination summons

(2) Within 3 days after the person is served with the examination summons, the person may apply to the Court for an order discharging the summons by filing: (a) an interlocutory process seeking an order discharging the summons, and (b) an affidavit stating the facts in support of the interlocutory process. (3) As soon as practicable after filing the interlocutory process seeking the order and the supporting affidavit, the person must serve a copy of the interlocutory process and the supporting affidavit on: (a) the person who applied for the examination, and (b) unless that person is ASIC or a person authorised by ASIC—ASIC. [Subr (3) am Rule 136 of 2008, r 2 and Sch 1[3], with effect from 16 May 2008] [R 11.5 am Rule 136 of 2008]

11.6 Filing of record of examination (Corporations Act s 597(13)) If the Court makes an order in relation to an examination under subsection 597(13) of the Corporations Act, the Court may give directions for the filing of the written record of the examination. [R 11.6 am Rule 961 of 2003, r 3 and Sch 1[93] and [94], with effect from 1 Jan 2004]

11.7 Authentication of transcript of examination (Corporations Act s 597(14)) For the purposes of subsection 597(14) of the Corporations Act, a transcript of an examination may be authenticated: (a) by the person, or persons, who prepared the record of examination, or under whose supervision the record was prepared, certifying in writing signed by the person or persons, that the record is a true transcript of the record of examination, or (b) by any person present at the examination, or any part of the examination, signing the person’s name at the bottom of each page of the written record that records a part of the examination at which the person was present. [R 11.7 am Rule 961 of 2003, r 3 and Sch 1[95] and [96], with effect from 1 Jan 2004]

11.8 Inspection of record or transcript of examination or investigation under s 411, s 423 or s 536 of the Corporations Act (1) A written record or transcript of an examination or investigation under section 411, 423 or 536 is not available for inspection by any person except: (a) with the consent of the liquidator (if any) or ASIC, or (b) by leave of the Court. [Subr (1) am Rule 136 of 2008, r 2 and Sch 1[3], with effect from 16 May 2008]

(2) This rule does not apply to the liquidator, ASIC or any person authorised by ASIC. [Subr (2) am Rule 136 of 2008, r 2 and Sch 1[3], with effect from 16 May 2008] [R 11.8 am Rule 136 of 2008; Rule 961 of 2003, r 3 and Sch 1[97], with effect from 1 Jan 2004]

11.9 Entitlement to record or transcript of examination held in public (1) This rule applies if: (a) an examination under section 597 of the Corporations Act is held wholly or partly in public, and (b) a written record or transcript of the examination is filed in the Court. [Subr (1) am Rule 961 of 2003, r 3 and Sch 1[98], with effect from 1 Jan 2004]

(2) The person examined may apply to the Registrar, within 3 years after the date of completion of the examination, for a copy of the record or transcript of the part of the examination of the person held in public. ©

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(1) This rule applies if a person is served with an examination summons.

r 11.9

Supreme Court (Corporations) Rules 1999 (NSW)

(3) On receiving an application from a person under subrule (2), and any applicable fee, the Registrar must give a copy of the record or transcript to the person. [R 11.9 am Rule 961 of 2003]

11.10 Default in relation to examination (1) This rule applies if a person is summoned or ordered by the Court to attend for examination, and: (a) without reasonable cause, the person: (i) fails to attend at the time and place appointed, or (ii) fails to attend from day to day until the conclusion of the examination, or (iii) refuses or fails to take an oath or make an affirmation, or (iv) refuses or fails to answer a question that the Court directs the person to answer, or (v) refuses or fails to produce books that the summons requires the person to produce, or (vi) fails to comply with a requirement by the Court to sign a written record of the examination, or (b) before the day fixed for the examination, the person who applied for the summons or order satisfies the Court that there is reason to believe that the person summoned or ordered to attend for examination has absconded or is about to abscond. (2) The Court may: (a) issue a warrant for the arrest of the person summoned or ordered to attend for examination, and (b) make any other orders that the Court thinks just or necessary. 11.11 Service of application for order in relation to breaches etc by person concerned with corporation (Corporations Act s 598) (1) This rule applies to a person applying for an order under section 598 of the Corporations Act. [Subr (1) am Rule 961 of 2003, r 3 and Sch 1[100], with effect from 1 Jan 2004]

(2) In addition to complying with rules 2.7 and 2.8, the person must serve a copy of the originating process, or interlocutory process, as the case requires, and the supporting affidavit on any liquidator or provisional liquidator (except if the person is the liquidator or provisional liquidator) of the corporation or body. Note: Under rule 2.7, a plaintiff must serve a copy of the originating process, and any supporting affidavit, on a defendant to the proceeding and, if necessary, on the corporation to which the proceeding relates; and an applicant must serve a copy of an interlocutory process, and any supporting affidavit, on a respondent to the proceeding and, if necessary, on the corporation to which the proceeding relates. In certain cases, these documents may also be required to be served on ASIC—see rule 2.8. [Subr (2) am Rule 136 of 2008, r 2 and Sch 1[3], with effect from 16 May 2008] [R 11.11 am Rule 136 of 2008; Rule 961 of 2003, r 3 and Sch 1[99], with effect from 1 Jan 2004]

DIVISION 11A – WARRANTS (CORPORATIONS ACT S 486B AND PART 5.4B, DIVISION 3, SUBDIVISION B) [Div 11A, r 11A.1, insrt Rule 136 of 2008, r 2 and Sch 1[24], with effect from 16 May 2008]

11A.1 Arrest of person (Corporations Act s 486B)—Form 17A (1) An application for the issue of a warrant under subsection 486B(1) of the Corporations Act for the arrest of a person must state the grounds for the issue of the warrant. (2) The application must be accompanied by an affidavit stating the facts in support of the application. (3) The warrant must be in accordance with Form 17A. (4) If a person is arrested under the warrant, the person who carried out the arrest must immediately give notice of the arrest to the Registrar. Note: Sections 489A to 489E of the Corporations Act, inserted by the Corporations Amendment (Insolvency) Act 2007 of the Commonwealth, apply in relation to a warrant issued on or after 31 December 2007—see Corporations Act s 1481(3). [R 11A.1 insrt Rule 136 of 2008, r 2 and Sch 1[24], with effect from 16 May 2008]

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Div 12 – Takeovers, acquisitions of shares etc & securities r 12.3

DIVISION 12 – TAKEOVERS, ACQUISITIONS OF SHARES ETC (CORPORATIONS ACT CHAPTERS 6 TO 6D) AND SECURITIES (CORPORATIONS ACT CHAPTER 7) [Div 12 heading subst Rule 961 of 2003, r 3 and Sch 1[101], with effect from 1 Jan 2004; Rule 749 of 2000, r 3 and Sch 1[25], with effect from 1 Jan 2001]

12.1 Service on ASIC in relation to proceedings under Chapter 6, 6A, 6B, 6C, 6D or 7 of the Corporations Act

[R 12.1 am Rule 136 of 2008, r 2 and Sch 1[3] and [5], with effect from 16 May 2008; Rule 961 of 2003, r 3 and Sch 1[102] and [103], with effect from 1 Jan 2004; subst Rule 749 of 2000, r 3 and Sch 1[26], with effect from 1 Jan 2001]

12.1A Reference to Court of question of law arising in proceeding before Takeovers Panel (Corporations Act s 659A) Part 6 Division 8 of the Uniform Civil Procedure Rules 2005 applies, with any necessary adaptations, to a reference of a question of law arising in a proceeding before the Takeovers Panel to the Court under section 659A of the Corporations Act. [R 12.1A insrt Rule 163 of 2007, r 3 and Sch 1[4], with effect from 5 Apr 2007]

12.1B Notification to Court where proceeding is commenced before end of takeover bid period (Corporations Act s 659B) (1) This rule applies to a party to a proceeding who suspects or becomes aware that: (a) the proceeding was commenced in relation to a takeover bid, or proposed takeover bid, before the end of the bid period, and (b) the proceeding falls within the definition of court proceedings in relation to a takeover bid or proposed takeover bid in subsection 659B(4) of the Corporations Act. (2) The party identified in subrule (1) must, immediately on suspecting or becoming aware of the matters mentioned in subrule (1), notify any other party to the proceeding and the Court of that suspicion or knowledge. (3) The party must comply with subrule (2) unless any other party to the proceeding has given a notice under this rule to the party. [R 12.1B insrt Rule 163 of 2007, r 3 and Sch 1[4], with effect from 5 Apr 2007]

12.2 Application for summons for appearance of person (Corporations Act s 1071D(4))—Form 18 (1) An application for the issue of a summons under subsection 1071D(4) of the Corporations Act must be made by filing an originating process or an interlocutory process. [Subr (1) am Rule 961 of 2003, r 3 and Sch 1[105], with effect from 1 Jan 2004]

(2) The application may be made ex parte. (3) The originating process, or interlocutory process, seeking the issue of the summons must be: (a) supported by an affidavit stating the facts in support of the process, and (b) accompanied by a draft summons. (4) Unless the Court otherwise orders, a summons issued under this rule is to be in accordance with Form 18. [R 12.2 am Rule 961 of 2003, r 3 and Sch 1[104], with effect from 1 Jan 2004]

12.3 Application for orders relating to refusal to register transfer or transmission of securities (Corporations Act s 1071F) As soon as practicable after filing an originating process under section 1071F of the Corporations Act, the plaintiff must serve a copy of the originating process and the supporting affidavit on: (a) the company, and (b) any person against whom an order is sought. [R 12.3 subst Rule 961 of 2003, r 3 and Sch 1[106], with effect from 1 Jan 2004] ©

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If ASIC is not a party to an application made under Chapter 6, 6A, 6B, 6C, 6D or 7 of the Corporations Act, the plaintiff must serve a copy of the originating process and the supporting affidavit on ASIC as soon as practicable after filing the originating process.

r 12.3

Supreme Court (Corporations) Rules 1999 (NSW)

DIVISION 13 – THE FUTURES INDUSTRY (CHAPTER 8 OF THE LAW) [REPEALED] [Div 13, rr 13.1 and 13.2, rep Rule 961 of 2003, r 3 and Sch 1[107], with effect from 1 Jan 2004]

DIVISION 14 – POWERS OF COURTS (CORPORATIONS ACT PART 9.5) [Div 14 heading am Rule 961 of 2003, r 3 and Sch 1[108], with effect from 1 Jan 2004]

14.1 Appeal from act, omission or decision of administrator, receiver or liquidator, etc (Corporations Act s 554A, s 1321) (1) All appeals to the Court authorised by the Corporations Act must be commenced by an originating process, or interlocutory process, stating: (a) the act, omission or decision complained of, and (b) in the case of an appeal against a decision—whether the whole or part only and, if part only, which part of the decision is complained of, and (c) the grounds on which the complaint is based. [Subr (1) am Rule 961 of 2003, r 3 and Sch 1[110], with effect from 1 Jan 2004]

(2) Unless the Corporations Act or the Corporations Regulations otherwise provide, the originating process, or interlocutory process, must be filed within: (a) 21 days after the date of the act, omission or decision appealed against, or (b) any further time allowed by the Court. [Subr (2) am Rule 961 of 2003, r 3 and Sch 1[111], with effect from 1 Jan 2004]

(3) The Court may extend the time for filing the originating process, or interlocutory process, either before or after the time for filing expires and whether or not the application for extension is made before the time expires. (4) As soon as practicable after filing the originating process, or interlocutory process, and, in any case, at least 5 days before the date fixed for hearing, the person instituting the appeal must serve a copy of the originating process, or interlocutory process, and any supporting affidavit, on each person directly affected by the appeal. (5) As soon as practicable after being served with a copy of the originating process, or interlocutory process, and any supporting affidavit, a person whose act, omission or decision is being appealed against must file an affidavit: (a) stating the basis on which the act, omission or decision was done or made, and (b) annexing or exhibiting a copy of all relevant documents that have not been put in evidence by the person instituting the appeal. [R 14.1 am Rule 961 of 2003, r 3 and Sch 1[109], with effect from 1 Jan 2004]

DIVISION 15 – PROCEEDINGS UNDER THE ASIC ACT [Div 15 heading am Rule 961 of 2003, r 3 and Sch 1[112], with effect from 1 Jan 2004; Rule 749 of 2000, r 3 and Sch 1[32], with effect from 1 Jan 2001]

15.1 Reference to Court of question of law arising at hearing of ASIC (ASIC Act s 61) Part 6 Division 8 of the Uniform Civil Procedure Rules 2005 applies, with any necessary adaptations, to a reference of a question of law arising at a hearing by ASIC to the Court under section 61 of the ASIC Act. [R 15.1 am Rule 136 of 2008, r 2 and Sch 1[3] and [5], with effect from 16 May 2008; Rule 163 of 2007, r 3 and Sch 1[5], with effect from 5 Apr 2007; Rule 961 of 2003, r 3 and Sch 1[113] and [114], with effect from 1 Jan 2004; Rule 749 of 2000, r 3 and Sch 1[32], with effect from 1 Jan 2001]

15.2 Reference to Court of question of law arising at hearing of Corporations and Securities Panel (s 196 of the ASIC Law) [Repealed] [R 15.2 rep Rule 961 of 2003, r 3 and Sch 1[115], with effect from 1 Jan 2004; am Rule 749 of 2000]

15.3 Application for inquiry (ASIC Act s 70, s 201, s 219) An application for an inquiry under subsection 70(3), 201(3) or 219(7) of the ASIC Act must be made by filing an originating process seeking an inquiry and orders under the relevant subsection. [R 15.3 am Rule 961 of 2003, r 3 and Sch 1[116] and [117], with effect from 1 Jan 2004; Rule 749 of 2000, r 3 and Sch 1[32], with effect from 1 Jan 2001] 178

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Division 15A – Proceedings under the Cross-Border Insolvency Act r 15A.3

DIVISION 15A – PROCEEDINGS UNDER THE CROSS-BORDER INSOLVENCY ACT [Div 15A, rr 15A.1-15A.9, insrt Rule 455 of 2008, r 2 and Sch 1[6], with effect from 17 Oct 2008]

Unless the Court otherwise orders: (a) this Division applies to a proceeding in the Court, under the Cross-Border Insolvency Act, involving a debtor other than an individual, and (b) the rules in the other Divisions of these Rules, and the other rules of the Court, apply to a proceeding in the Court under the Cross-Border Insolvency Act if they are relevant and not inconsistent with this Division. Note: See rule 1.5 for definitions of Cross-Border Insolvency Act and Model Law. [R 15A.1 insrt Rule 455 of 2008, r 2 and Sch 1[6], with effect from 17 Oct 2008]

15A.2 Expressions used in the Cross-Border Insolvency Act (1) Unless the contrary intention appears, an expression that is used in this Division and in the Cross-Border Insolvency Act, whether or not a particular meaning is given to the expression by the Cross-Border Insolvency Act, has the same meaning in this Division as it has in the Cross-Border Insolvency Act. Note: The following expressions used in this Division (including in the notes to this Division) are defined in the Model Law as having the following meanings: establishment means any place of operations where the debtor carries out a non-transitory economic activity with human means and goods or services. foreign court means a judicial or other authority competent to control or supervise a foreign proceeding. foreign main proceeding means a foreign proceeding taking place in the State where the debtor has the centre of its main interests. foreign non-main proceeding means a foreign proceeding, other than a foreign main proceeding, taking place in a State where the debtor has an establishment within the meaning of subparagraph (f) of the present article. foreign proceeding means a collective judicial or administrative proceeding in a foreign State, including an interim proceeding, pursuant to a law relating to insolvency in which proceeding the assets and affairs of the debtor are subject to control or supervision by a foreign court, for the purpose of reorganization or liquidation. foreign representative means a person or body, including one appointed on an interim basis, authorized in a foreign proceeding to administer the reorganization or the liquidation of the debtor’s assets or affairs or to act as a representative of the foreign proceeding.

(2) This Division is to be interpreted in a manner that gives effect to the Cross-Border Insolvency Act. [R 15A.2 insrt Rule 455 of 2008, r 2 and Sch 1[6], with effect from 17 Oct 2008]

15A.3 Application for recognition (1) An application by a foreign representative for recognition of a foreign proceeding under article 15 of the Model Law must be made by filing an originating process in accordance with Form 2. (2) The originating process must: (a) be accompanied by the statements referred to in article 15 of the Model Law and in section 13 of the Cross-Border Insolvency Act, and (b) name the foreign representative as the plaintiff and the debtor as the defendant, and (c) be accompanied by an affidavit verifying the matters mentioned in paragraphs 2 and 3 of article 15 of the Model Law and in section 13 of the Cross-Border Insolvency Act. (3) When filing the originating process, the foreign representative must file, but need not serve, an interlocutory process seeking directions as to service, and the Court may give any directions about service, and make any incidental order, that it thinks just. (4) The plaintiff must serve a copy of the originating process and the other documents mentioned in subrule (2): (a) unless the Court otherwise orders, in accordance with subrule 2.7(1), and (b) on any other persons the Court may direct at the hearing of the interlocutory process. ©

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15A.1 Application of this Division and other rules of the Court

r 15A.3

Supreme Court (Corporations) Rules 1999 (NSW)

(5) A person who intends to appear before the Court at the hearing of an application for recognition must file and serve the documents mentioned in rule 2.9. [R 15A.3 insrt Rule 455 of 2008, r 2 and Sch 1[6], with effect from 17 Oct 2008]

15A.4 Application for provisional relief under article 19 of the Model Law (1) Any application by the plaintiff for provisional relief under article 19 of the Model Law must be made by filing an interlocutory process in accordance with Form 3. (2) Unless the Court otherwise orders, the interlocutory process and any supporting affidavit must be served in accordance with subrule 2.7(2). [R 15A.4 insrt Rule 455 of 2008, r 2 and Sch 1[6], with effect from 17 Oct 2008]

15A.5 Official liquidator’s consent to act If an application is made for an order: (a) under article 19 or 21 of the Model Law to entrust the administration or realisation of all or part of the debtor’s assets to a person designated by the Court (other than the foreign representative), or (b) under article 21 to entrust the distribution of all or part of the debtor’s assets to a person designated by the Court (other than the foreign representative), then, unless the Court otherwise orders, the person must: (c) be an official liquidator, and (d) have filed a Consent to Act, in accordance with Form 19, that specifies an address for service for the person within Australia. [R 15A.5 subst Rule 480 of 2009, r 3, with effect from 25 Sep 2009; insrt Rule 455 of 2008, r 2 and Sch 1[6], with effect from 17 Oct 2008]

15A.6 Notice of filing of application for recognition (1) Unless the Court otherwise orders, the plaintiff in a proceeding mentioned in rule 15A.3 must: (a) send a notice of the filing of the application in accordance with Form 20 to each person whose claim to be a creditor of the defendant is known to the plaintiff, and (b) publish a notice of the filing of the application for recognition of a foreign proceeding in accordance with Form 20 in a daily newspaper circulating generally in the State or Territory where the defendant has its principal, or last known, place of business. [Subr (1) am Rule 708 of 2014, Sch 1[9], with effect from 7 Nov 2014]

(2) The Court may direct the plaintiff to publish a notice in accordance with Form 20 in a daily newspaper circulating generally in any State or Territory not described in subrule (1)(b). [Subr (2) am Act 15 of 2015, Sch 2.54, with effect from 8 Jul 2015; Rule 708 of 2014, Sch 1[10], with effect from 7 Nov 2014] [R 15A.6 am Act 15 of 2015; Rule 708 of 2014; insrt Rule 455 of 2008, r 2 and Sch 1[6], with effect from 17 Oct 2008]

15A.7 Notice of order for recognition, withdrawal etc (1) If the Court makes an order for recognition of a foreign proceeding under article 17 of the Model Law, or makes any order under article 19 or 21 of the Model Law, the plaintiff must, as soon as practicable after the order is made, do all of the following: (a) have the order entered, (b) serve a copy of the entered order on the defendant, (c) send a notice of the making of the order in accordance with Form 21 to each person whose claim to be a creditor of the defendant is known to the plaintiff, (d) publish a notice of the making of the order in accordance with Form 21 in a daily newspaper circulating generally in the State or Territory where the defendant has its principal, or last known, place of business. [Subr (1) am Rule 708 of 2014, Sch 1[11], with effect from 7 Nov 2014]

(2) The Court may direct the plaintiff to publish the notice in accordance with Form 21 in a daily newspaper circulating generally in any State or Territory not described in subrule (1)(d). [Subr (2) am Act 15 of 2015, Sch 2.54, with effect from 8 Jul 2015; Rule 708 of 2014, Sch 1[12], with effect from 7 Nov 2014] 180

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Division 15A – Proceedings under the Cross-Border Insolvency Act r 15A.9

[Subr (3) am Rule 708 of 2014, Sch 1[13], with effect from 7 Nov 2014]

(4) The Court may direct the plaintiff to publish the notice in accordance with Form 22 in a daily newspaper circulating generally in any State or Territory not described in subrule (3)(d). [Subr (4) am Act 15 of 2015, Sch 2.54, with effect from 8 Jul 2015; Rule 708 of 2014, Sch 1[14], with effect from 7 Nov 2014] [R 15A.7 am Act 15 of 2015; Rule 708 of 2014; insrt Rule 455 of 2008, r 2 and Sch 1[6], with effect from 17 Oct 2008]

15A.8 Relief after recognition (1) If the Court has made an order for recognition of a foreign proceeding, any application by the plaintiff for relief under paragraph 1 of article 21 of the Model Law must be made by filing an interlocutory process, and any supporting affidavit, in accordance with Form 3. (2) Unless the Court otherwise orders, an interlocutory process under subrule (1) and any supporting affidavit must be served, in accordance with subrule 2.7(2), but on the following persons: (a) the defendant, (b) any person that the Court directed be served with the originating process by which the application for recognition was made, (c) any other person that the Court directs. (3) A person who intends to appear before the Court at the hearing of an application under subrule (1) must file and serve the documents mentioned in rule 2.9. [R 15A.8 insrt Rule 455 of 2008, r 2 and Sch 1[6], with effect from 17 Oct 2008]

15A.9 Application to modify or terminate an order for recognition or other relief (1) This rule applies to: (a) an application under paragraph 4 of article 17 of the Model Law for an order modifying or terminating an order for recognition of a foreign proceeding, and (b) an application under paragraph 3 of article 22 of the Model Law for an order modifying or terminating relief granted under article 19 or 21 of the Model Law. (2) An application mentioned in subrule (1) must be made by filing an interlocutory process in accordance with Form 3. (3) An interlocutory process for an application under subrule (1) and any supporting affidavit must be served on: (a) for an applicant under subrule (1)(a)—the defendant and other persons who were served with, or filed a notice of appearance in relation to, the application for recognition, and (b) for an application under subrule (1)(b)—the defendant and other persons who were served with, or filed a notice of appearance in relation to, the application for relief under article 19 or 21 of the Model Law. [Subr (3) am Act 15 of 2015, Sch 2.54, with effect from 8 Jul 2015]

(4) Unless the Court otherwise orders, a plaintiff who applies for an order under subrule (1) must: (a) send a notice of the filing of the application in accordance with Form 23 to each person whose claim to be a creditor of the defendant is known to the plaintiff, and (b) publish a notice of the filing of the application in accordance with Form 23 in a daily newspaper circulating generally in the State or Territory where the defendant has its principal, or last known, place of business. [Subr (4) am Rule 708 of 2014, Sch 1[15], with effect from 7 Nov 2014] ©

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(3) If the application for recognition is withdrawn or dismissed, the plaintiff must, as soon as practicable, do all of the following: (a) for a dismissal, have the order of dismissal entered, (b) serve a copy of the entered order of dismissal or notice of the withdrawal, on the defendant, (c) send a notice of the dismissal or withdrawal in accordance with Form 22 to each person whose claim to be a creditor of the defendant is known to the plaintiff, (d) publish a notice of the dismissal or withdrawal in accordance with Form 22 in a daily newspaper circulating generally in the State or Territory where the defendant has its principal, or last known, place of business.

r 15A.9

Supreme Court (Corporations) Rules 1999 (NSW)

(5) The Court may direct the applicant to publish the notice in accordance with Form 23 in a daily newspaper circulating generally in any State or Territory not described in subrule (4)(b). [Subr (5) am Act 15 of 2015, Sch 2.54, with effect from 8 Jul 2015; Rule 708 of 2014, Sch 1[16], with effect from 7 Nov 2014]

(6) A person who intends to appear before the Court at the hearing of an application under subrule (1) must file and serve the documents mentioned in rule 2.9. [R 15A.9 am Act 15 of 2015; Rule 708 of 2014; insrt Rule 455 of 2008, r 2 and Sch 1[6], with effect from 17 Oct 2008]

DIVISION 16 – APPEALS FROM REGISTRARS 16.1 Appeal from registrar: winding up order (1) An appeal shall lie to the Court from a winding up order made under the Corporations Act by a Registrar. [Subr (1) am Rule 961 of 2003, r 3 and Sch 1[118], with effect from 1 Jan 2004]

(2) Part 49 Division 3 of the Uniform Civil Procedure Rules 2005 shall apply, making such changes as it is necessary to make, to an appeal under subrule (1). [Subr (2) subst Rule 163 of 2007, r 3 and Sch 1[6], with effect from 5 Apr 2007]

(3) For the purpose of the application of subrule (2), Part 49 Division 3 of the Uniform Civil Procedure Rules 2005 shall be read as if: (a) “registrar” were substituted for “Associate Judge” wherever occurring, and (b) except in rule 49.11(3), “rule 16.1 of the Supreme Court (Corporations) Rules 1999” were substituted for “this Division” wherever occurring, and (c) in rule 49.8(1), “rule 16.1 of the Supreme Court (Corporations) Rules 1999” were substituted for “rule 49.4”, and (d) there were no reference to the District Court in rule 49.10(2). [Subr (3) subst Rule 163 of 2007, r 3 and Sch 1[6], with effect from 5 Apr 2007; am Rule 961 of 2003, r 3 and Sch 1[119], with effect from 1 Jan 2004] [R 16.1 am Rule 163 of 2007; Rule 961 of 2003]

DIVISION 17 – PROCEEDINGS UNDER THE FEDERAL COURTS (STATE JURISDICTION) ACT 1999 [Div 17, r 17.1, insrt Rule 749 of 2000, r 3 and Sch 1[27], with effect from 1 Jan 2001]

17.1 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 (b) the order is an ineffective judgment within the meaning of the Federal Courts (State Jurisdiction) Act 1999, an application under the Federal Courts (State Jurisdiction) Act 1999 in relation to the winding up of the company may be made by filing an interlocutory process. (3) An interlocutory process filed under subrule (2) must state the proceeding number of the Federal Court proceeding. [R 17.1 insrt Rule 749 of 2000, r 3 and Sch 1[27], with effect from 1 Jan 2001]

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Schedule 1 – Forms Document title

Form 1

SCHEDULE 1 – FORMS (rule 1.6)

Form 1 – Document title IN THE SUPREME COURT OF NEW SOUTH WALES No. .......... of [year] DIVISION: [insert] REGISTRY: [insert] IN THE MATTER OF [full name of corporation to which the proceeding relates and, if applicable, the words ‘(in liquidation)’, ‘(receiver appointed)’, ‘(receiver and manager appointed)’, ‘(controller acting)’, or ‘(administrator appointed)’] ABN or ACN or ARBN: [insert ABN or ACN or ARBN] AB (and Others) Plaintiff(s) [list, in a schedule, any further plaintiffs] CD (and Others) Defendant(s) [list, in a schedule, any further defendants] [Form 1 am Rule 447 of 2007, r 2 and Sch 1[2], with effect from 7 Sep 2007; Rule 961 of 2003, r 3 and Sch 1[120], with effect from 1 Jan 2004]

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(rule 2.1)

Form 2

Supreme Court (Corporations) Rules 1999 (NSW)

Form 2 – Originating process (rules 2.2 and 15A.3)

[Title] A. DETAILS OF APPLICATION This application is made under *section/*regulation [number] of the *Corporations Act/*ASIC Act/*CrossBorder Insolvency Act/*Corporations Regulations. [State briefly the nature of the proceeding, eg application for winding-up on ground of insolvency, or complaint about a receiver.] On the facts stated in the supporting affidavit(s), the plaintiff claims: 1 2 etc AND Date: .................................................. Signature of plaintiff or plaintiff’s legal practitioner This application will be heard by .................................................. at [address of Court] at .......... *am/*pm on .......... B. NOTICE TO DEFENDANT(S) (IF ANY) TO: [name and address of each defendant (if any)]. If you or your legal practitioner do not appear before the Court at the time shown above, the application may be dealt with, and an order made, in your absence. As soon after that time as the business of the Court will allow, any of the following may happen: (a) the application may be heard and final relief given, (b) directions may be given for the future conduct of the proceeding, (c) any interlocutory application may be heard. Before appearing before the Court, you must file a notice of appearance, in the prescribed form, in the Registry and serve a copy of it on the plaintiff. Note: Unless the Court otherwise orders, a defendant that is a corporation must be represented at a hearing by a legal practitioner. It may be represented at a hearing by a director of the corporation only if the Court grants leave. C. APPLICATION FOR WINDING UP ON GROUND OF INSOLVENCY [Complete this section if this originating process is seeking an order that a company be wound up in insolvency on the ground that the company has failed to comply with a statutory demand (see section 459Q of the Corporations Act)] [Set out particulars of service of the statutory demand on the company and of the failure to comply with the demand] [Attach to this originating process a copy of the statutory demand and, if the demand has been varied by an order made under subsection 459H(4) of the Corporations Act because of a dispute or offsetting claim, a copy of the order made under that subsection.] [The affidavit in support of this originating process must: (a) verify service of the demand on the company; and (b) verify the failure of the company to comply with the demand; and (c) state whether and, if so, to what extent the debt, or each of the debts, to which the demand relates is still due and payable at the date when the affidavit is made.]

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Form 2

Note 1: In an application for winding up in insolvency on the ground that the company has failed to comply with a statutory demand, the applicant should consider completing Part C of Form 2 as shown in Schedule 2 (Notes to these Rules). Note 2: An example of the affidavit in support of an application for winding up in insolvency for failure to comply with a statutory demand is shown in Schedule 2 (Notes to these Rules). D. FILING Date of filing: [date of filing to be entered by Court offıcer] This originating process is filed by [name] for the plaintiff. E. SERVICE The plaintiff’s address for service is [address of plaintiff’s legal practitioner or of plaintiff]. * It is not intended to serve a copy of this originating process on any person. OR * It is intended to serve a copy of this originating process on each defendant and on any person listed below: [name of defendant and any other person on whom a copy of the originating process is to be served] [Complete the following section if the time for service has been abridged] The time by which a copy of this originating process is to be served has been abridged by order made by [name of Judge or other Court offıcer] on [date] to [time and date]. * Omit if not applicable [Form 2 am Rule 455 of 2008, r 2 and Sch 1[7] and [8], with effect from 17 Oct 2008; Rule 961 of 2003, r 3 and Sch 1[121]–[123], with effect from 1 Jan 2004; Rule 749 of 2000, r 3 and Sch 1[28], with effect from 1 Jan 2001]

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NSW

Schedule 1 – Forms Originating process

Form 3

Supreme Court (Corporations) Rules 1999 (NSW)

Form 3 – Interlocutory process (rules 2.2, 15A.4, 15A.8 and 15A.9)

[Title] A. DETAILS OF APPLICATION This application is made under *section/*regulation [number] of the *Corporations Act/*ASIC Act/*CrossBorder Insolvency Act/*Corporations Regulations. On the facts stated in the supporting affidavit(s), the applicant, [name], applies for the following relief: 1 2 etc AND Date: .................................................. Signature of applicant making this application or applicant’s legal practitioner This application will be heard by .................................................. at [address of Court] at .......... *am/*pm on .......... B. NOTICE TO RESPONDENT(S) (IF ANY) TO: [name and address of each respondent to this interlocutory process (if any). If applicable, also state the respondent’s address for service.] If you or your legal practitioner do not appear before the Court at the time shown above, the application may be dealt with, and an order made, in your absence. Before appearing before the Court, you must, except if you have already done so or you are the plaintiff in this proceeding, file a notice of appearance, in the prescribed form, in the Registry and serve a copy of it on the plaintiff in the originating process. Note: Unless the Court otherwise orders, a respondent that is a corporation must be represented at a hearing by a legal practitioner. It may be represented at a hearing by a director of the corporation only if the Court grants leave. C. FILING This interlocutory process is filed by [name] for the applicant. D. SERVICE The applicant’s address for service is [address of applicant’s legal practitioner or of applicant]. * It is not intended to serve a copy of this interlocutory process on any person. OR * It is intended to serve a copy of this interlocutory process on each respondent and on any person listed below: [name of respondent and any other person on whom a copy of the interlocutory process is to be served] [Complete the following section if the time for service has been abridged] The time by which a copy of this interlocutory process is to be served has been abridged by order made by [name of Judge or other Court offıcer] on [date] to [time and date]. * Omit if not applicable [Form 3 am Rule 455 of 2008, r 2 and Sch 1[9] and [10], with effect from 17 Oct 2008; Rule 163 of 2007, r 3 and Sch 1[7] and [8], with effect from 5 Apr 2007; Rule 961 of 2003, r 3 and Sch 1[124], with effect from 1 Jan 2004; Rule 749 of 2000, r 3 and Sch 1[29], with effect from 1 Jan 2001]

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Schedule 1 – Forms Notice of appearance

Form 4

Form 4 – Notice of appearance [Title] A. DETAILS OF PERSON INTENDING TO APPEAR Notice is given that [state full name and address], [briefly state your interest in the proceeding, eg a creditor for $ (amount), or a contributory, of the corporation] intends to appear before the Court at the hearing of the application to be heard at the Supreme Court of New South Wales [address] on [date] and, if applicable, to * oppose/*support the application. Note: Unless the Court otherwise orders, a company may not appear in or defend proceedings otherwise than by a solicitor or by a director authorised in accordance with rules 7.1 and 7.2 of the Uniform Civil Procedure Rules 2005. B. GROUNDS OF OPPOSITION TO WINDING UP [Complete this section only if you are opposing an application to wind up a company] The grounds on which I oppose the application for winding up are: 1 2 etc C. SERVICE [This section must be completed] The address for service of the person giving this notice is [address of person’s legal practitioner or of person]. .................................................. Signature of person giving notice or of person’s legal practitioner *

Omit if not applicable

[Form 4 am Rule 163 of 2007, r 3 and Sch 1[9], with effect from 5 Apr 2007]

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NSW

(rule 2.9)

Form 5

Supreme Court (Corporations) Rules 1999 (NSW)

Form 5 – Notice of intervention by ASIC (rule 2.10)

[Title] The Australian Securities and Investments Commission, whose address for service is [address], intervenes in this proceeding. Date: .................................................. Signed on behalf of ASIC Name of signatory: [name]. Capacity of signatory: [capacity]. [Form 5 am Rule 136 of 2008, r 2 and Sch 1[3], with effect from 16 May 2008]

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Corporations – Court Rules and Related Legislation 2017

Schedule 1 – Forms Notice of hearing to approve compromise or arrangement

Form 6

Form 6 – Notice of hearing to approve compromise or arrangement TO all the creditors and members of [name of company]. TAKE NOTICE that at .......... *am/*pm on .......... , the Supreme Court of New South Wales at [address of Court] will hear an application by [name of plaintiff] seeking the approval of a compromise or arrangement between the above-named company and its *members/*creditors as proposed by a resolution passed by the meeting of the *members/*creditors of the company held on [date]. [Complete this section if applicable] The proposed compromise or arrangement as passed by the meeting was amended from the form of compromise or arrangement previously sent to you in the following respects: [Set out the details of any amendment made at the meeting] If you wish to oppose the approval of the compromise or arrangement, you must file and serve on the plaintiff a notice of appearance, in the prescribed form, together with any affidavit on which you wish to rely at the hearing. The notice of appearance and affidavit must be served on the plaintiff at its address for service at least 1 day before the date fixed for the hearing of the application. [This section must be completed] The address for service of the plaintiff is [address of plaintiff’s legal practitioner or of plaintiff]. Name of person giving notice or of person’s legal practitioner [name] * Omit if not applicable

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NSW

(rule 3.4)

Form 7

Supreme Court (Corporations) Rules 1999 (NSW)

Form 7 – Affidavit accompanying statutory demand (rule 5.2)

[Name of creditor(s)] Creditor(s) [Name of debtor company] Debtor company I, [name] of [address and occupation], *say on oath/*affirm: 1 I am [state deponent’s relationship to the creditor(s), eg, ‘the creditor’, ‘(name), one of the creditors’, ‘a director of the creditor’, ‘a director of (name), one of the creditors’] in respect of *a debt of $ [amount]/*debts totalling $ [amount] owed by [name of debtor company] to *me/*us/*it/*them relating to [state nature of debt or debts, ensuring that what is stated corresponds with the description of the debt or debts, to be given in the proposed statutory demand, with which this affıdavit is to be served on the debtor company]. 2 [If the deponent is not the creditor, state the facts entitling the deponent to make the affıdavit, eg ‘I am authorised by the creditor(s) to make this affıdavit on its/their behalf’]. 3 [State the source of the deponent’s knowledge of the matters stated in the affıdavit in relation to the debt or each of the debts, eg ‘I am the person who, on behalf of the creditor(s), had the dealings with the debtor company that gave rise to the debt’, ‘I have inspected the business records of the creditor in relation to the debtor company’s account with the creditor’]. 4 *The debt/*The total of the amounts of the debts mentioned in paragraph 1 of this affidavit is due and payable by the debtor company. 5 I believe that there is no genuine dispute about the existence or amount of the *debt/*any of the debts. *

Sworn/*affirmed at: [place of swearing or affırmation] on [date] .................................................. Signature of deponent

Before me: .................................................. Signature and designation of person before whom deponent swears or affırms affıdavit

*

Omit if not applicable

[Form 7 am Rule 370 of 2001, r 3 and Sch 1[6] and [7], with effect from 30 Jun 2001]

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Corporations – Court Rules and Related Legislation 2017

Schedule 1 – Forms Consent of liquidator/provisional liquidator

Form 8

Form 8 – Consent of liquidator/provisional liquidator [Title] I, [name], of [address], an official liquidator, consent to be appointed by the Court and to act as the * liquidator/*provisional liquidator of [name of company]. I am not aware of any conflict of interest or duty that would make it improper for me to act as * liquidator/*provisional liquidator of the company. EITHER I am not aware of any relevant relationship mentioned in subsection 60(2) of the Corporations Act 2001 of the Commonwealth. OR I have, or have had within the preceding 24 months, the following relevant relationships mentioned in subsection 60(2) of the Corporations Act 2001 of the Commonwealth. [Set out all relevant relationships.] The hourly rates currently charged in respect of work done as *liquidator/*provisional liquidator by me, and by my partners and employees who may perform work in this administration, are set out below or in the Schedule which is attached to this Consent. I acknowledge that my appointment by the Court does not constitute an express or implied approval by the Court of these hourly rates. Note: The requirement to disclose hourly rates should not be taken to imply that remuneration on an hourly basis is the most desirable or appropriate arrangement in every case. The Corporations Act acknowledges that another method of calculating remuneration may be appropriate (see, for example, s 473(2) and (3)). Date: .................................................. Signature of offıcial liquidator *

Omit if not applicable Schedule [Description of hourly rates(s)]

[Form 8 am Rule 136 of 2008, r 2 and Sch 1[25] and [26], with effect from 16 May 2008; Act 98 of 2005, s 3 and Sch 2.59, with effect from 24 Nov 2005; Rule 961 of 2003, r 3 and Sch 1[125] and [126], with effect from 1 Jan 2004]

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NSW

(rules 5.5, 6.1)

Form 9

Supreme Court (Corporations) Rules 1999 (NSW)

Form 9 – Notice of application for winding up order (rule 5.6)

IN THE SUPREME COURT OF NEW SOUTH WALES No. .......... of [year] [Name of company] ABN or ACN: [ABN or ACN of company to which proceeding relates] 1 A proceeding for the winding up of [name of company and, if applicable, the words ‘trading as’ and any trading name or names of the company] was commenced by the plaintiff, [name of plaintiff], on [date of filing of originating process] and will be heard by the Supreme Court of New South Wales at [address of Court] at .......... *am/*pm on .......... Copies of documents filed may be obtained from the plaintiff’s address for service. 2 The plaintiff’s address for service is [address of plaintiff’s legal practitioner or of plaintiff]. 3 Any person intending to appear at the hearing must file a notice of appearance, in accordance with the prescribed form, together with any affidavit on which the person intends to rely, and serve a copy of the notice and any affidavit on the plaintiff at the plaintiff’s address for service at least 3 days before the date fixed for the hearing. Date: Name of plaintiff or plaintiff’s legal practitioner: [name] * Omit if not applicable [Form 9 am Rule 708 of 2014, Sch 1[17], with effect from 7 Nov 2014; Rule 447 of 2007, r 2 and Sch 1[2], with effect from 7 Sep 2007]

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Schedule 1 – Forms Notice of application for winding up order by substituted plaintiff

Form 10

Form 10 – Notice of application for winding up order by substituted plaintiff IN THE SUPREME COURT OF NEW SOUTH WALES No. .......... of [year] [Name of company] ABN or ACN: [ABN or ACN of company to which proceeding relates] 1 [Name of substituted plaintiff], who was, by order of the Supreme Court of New South Wales, substituted as a plaintiff, will apply to the Court at .......... *am/*pm on .................................................. at [address of Court] for an order that the above company be wound up. 2 The address for service of the substituted plaintiff is [address of substituted plaintiff’s legal practitioner or of substituted plaintiff]. 3 Any person intending to appear at the hearing must file a notice of appearance, in accordance with the prescribed form, together with any affidavit on which the person intends to rely, and serve a copy of the notice and any affidavit on the substituted plaintiff at its address for service at least 3 days before the date fixed for the hearing. Date: Name of substituted plaintiff or substituted plaintiff’s legal practitioner: [name] * Omit if not applicable [Form 10 am Rule 447 of 2007, r 2 and Sch 1[2], with effect from 7 Sep 2007; Rule 961 of 2003, r 3 and Sch 1[127], with effect from 1 Jan 2004]

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NSW

(rule 5.10)

Form 11

Supreme Court (Corporations) Rules 1999 (NSW)

Form 11 – Notice of winding up order and of appointment of liquidator (rule 5.11)

IN THE SUPREME COURT OF NEW SOUTH WALES 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 Supreme Court of New South Wales, 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] [Form 11 am Rule 447 of 2007, r 2 and Sch 1[2], with effect from 7 Sep 2007]

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Corporations – Court Rules and Related Legislation 2017

Schedule 1 – Forms Notice of appointment of provisional liquidator

Form 12

Form 12 – Notice of appointment of provisional liquidator IN THE SUPREME COURT OF NEW SOUTH WALES 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 Supreme Court of New South Wales I was appointed as the provisional liquidator of the above company. Date: Name and address of provisional liquidator: [name and address] [Form 12 am Rule 447 of 2007, r 2 and Sch 1[2], with effect from 7 Sep 2007]

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NSW

(rule 6.2)

Form 13

Supreme Court (Corporations) Rules 1999 (NSW)

Form 13 – Notice by creditor or contributory of objection to release of liquidator (rule 7.6)

[Title] [Name of creditor/contributory] of [address of creditor/contributory], a creditor of [name of company] for $[amount], or a contributory of [name of company] holding [number] shares in the company, objects to the grant of a release to [name of liquidator] of [address of liquidator], who is the liquidator of [name of company], on the following grounds: [set out the grounds upon which the objection is made] Date: .................................................. Signature of objector or objector’s legal practitioner Name of objector or objector’s legal practitioner: [name]. The objector’s address for service is [address of objector or objector’s legal practitioner].

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Corporations – Court Rules and Related Legislation 2017

Schedule 1 – Forms Affidavit in support of application for order for payment of call

Form 14

Form 14 – Affidavit in support of application for order for payment of call [Title] I, [name] of [address], liquidator, *say on oath/*affirm: 1 I am the liquidator of [name of company] (the company). 2 On [date] I made a call of $[amount] per share on all the contributories of the company [or specify the class of contributories on whom the call was made]. *Annexed/*Exhibited and marked A is a copy of the notice of the call. Each contributory whose name is shown in the Schedule marked B was duly served with notice of the call in the form annexed or exhibited and marked A. 3 Each contributory of the company whose name is set out in column 2 of the Schedule marked B has not paid, or caused to be paid, to me the sum specified opposite the contributory’s name in column 5 of the Schedule, which is due from that contributory under the call. 4 The amount set out opposite the name of each contributory in column 6 of the Schedule is an estimate of the amount due by that contributory in respect of the costs of applying for and giving effect to the order for payment of the call. The estimate of the amounts so due by the several contributories has been reached by apportioning the costs among the contributories who have not paid the call according to the liability of the respective contributories to contribute. 5 The amount set out opposite the name of each contributory in column 7 of the Schedule is the total of the amount due by that contributory in respect of the call as set out in column 5 and the amount due in respect of costs as set out in column 6. *

Sworn/*affirmed at: [place of swearing or affırmation] on [date] .................................................. Signature of deponent

Before me: .................................................. Signature and designation of person before whom deponent swears or affırms affıdavit * Omit if not applicable Schedule B Number on list of Name contributories

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Address

Unpaid Character in which included in amount of call the list

Proportion of costs of application

Total amount payable

197

NSW

(rule 7.8)

Form 15

Supreme Court (Corporations) Rules 1999 (NSW)

Form 15 – Notice of application for leave to distribute a surplus (rule 7.9)

IN THE SUPREME COURT OF NEW SOUTH WALES APPLICATION NO: IN THE MATTER OF [company name] ABN or ACN: [ABN or ACN of company to which proceeding relates] On ......................... at ......................... , the Supreme Court of New South Wales will hear an application by the liquidator of [name of company] in Proceeding No. of [year] for leave to distribute a surplus in respect of the liquidation of the company. Any person intending to appear at the hearing must file a notice of appearance, in accordance with the prescribed form, together with any affidavit on which the person intends to rely, and serve a copy of the notice and affidavit on the liquidator at the address shown below at least 3 days before the date fixed for the hearing. Name of liquidator: [name]. The liquidator’s address for service is [address]. .................................................. Signature of liquidator [Form 15 am Rule 447 of 2007, r 2 and Sch 1[2], with effect from 7 Sep 2007]

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Schedule 1 – Forms Notice of intention to apply for remuneration

Form 16

Form 16 – Notice of intention to apply for remuneration IN THE MATTER OF [company name] ABN or ACN: [ABN or ACN of company to which proceeding relates] TO: [name and address of person to whom notice is given] TAKE NOTICE that, not less than 21 days after this notice is served on you, I, [name and address], the * receiver/*administrator/*liquidator/*provisional liquidator/*special manager of the above company, intend to apply to the Court to determine my remuneration. If you object to my application, you must, within 21 days after being served with this notice, serve on me a notice of objection stating the grounds of objection to the remuneration claimed. Date: .................................................. *

Signature of receiver/*administrator/*liquidator/ * provisional liquidator/*special manager *

Omit if not applicable

[Form 16 am Rule 447 of 2007, r 2 and Sch 1[2], with effect from 7 Sep 2007]

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NSW

(rules 9.1, 9.2, 9.3, 9.4, 9.5)

Form 16A

Supreme Court (Corporations) Rules 1999 (NSW)

Form 16A – Notice of intention to apply for review of remuneration (rules 9.2A, 9.4A)

IN THE MATTER OF [company name] ACN or ABN: [ACN or ABN of company to which proceeding relates] TO: [name and address of person to whom notice is given] TAKE NOTICE that, not less than 21 days after this notice is served on you, I, [name and address of proposed plaintiff or applicant], *[the*administrator/*liquidator of the above company,] intend to apply to the Court to review *the remuneration of/*my remuneration as the *administrator/*liquidator of the company. The amount of the remuneration that has been determined or fixed is [state the amount]. The remuneration was determined or fixed by [state who determined or fixed the remuneration] on [state the date when the remuneration was determined or fixed]. I intend to apply for an order to *confirm/*increase/*reduce the remuneration. [Set out the grounds upon which an order or orders will be sought. If an order to increase or reduce the remuneration is sought, set out the amount by which the remuneration is sought to be increased or reduced.] If you wish to appear at the hearing of the application, in order to raise any issues before the Court, you must, within 21 days after being served with this notice, serve on me a notice under subrule *9.2A(4)/*9.4A(4) of the Supreme Court (Corporations) Rules 1999, stating your intention to appear at the hearing and setting out the issues that you seek to raise before the Court. Date: .................................................. Signature of proposed plaintiff or applicant *

Omit if not applicable

[Form 16A insrt Rule 136 of 2008, r 2 and Sch 1[27], with effect from 16 May 2008]

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Schedule 1 – Forms Summons for examination

Form 17

Form 17 – Summons for examination [Title] A. DETAILS OF SUMMONS TO: [name and address of person to be examined] You are summoned under *section 596A/*section 596B of the Corporations Act to: (a) attend before the Supreme Court of New South Wales at [address of Court] at .......... *am/*pm on .......... , and from day to day until excused by the Court, to be examined on oath or affirmation about the examinable affairs of [name of corporation]; and * to produce at the examination the following books [specify books – include in a schedule if necessary]. (b) Date: .................................................. Registrar [or other Court offıcer] B. NOTICE TO PERSON TO BE EXAMINED The Court may order that the questions put to you and the answers given by you at the examination are to be recorded in writing and signed by you. If you do not attend the examination in accordance with this summons, without reasonable cause, you may be arrested and imprisoned without further notice. This summons is issued at the request of [name] whose address for service is [address of person’s legal practitioner or of person]. * Omit if not applicable [Form 17 am Rule 961 of 2003, r 3 and Sch 1[128], with effect from 1 Jan 2004; Rule 749 of 2000, r 3 and Sch 1[30] and [31], with effect from 1 Jan 2001]

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NSW

(rule 11.3)

Form 17A

Supreme Court (Corporations) Rules 1999 (NSW)

Form 17A – Arrest warrant (Corporations Act 2001 (Cth) s 486B and Supreme Court (Corporations) Rules 1999 rule 11A.1)

[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 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 IS SATISFIED THAT [name of person]: (a) is about to leave Australia in order to avoid: (i) paying money 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 (Cth) 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 to 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. THIS WARRANT ALSO requires and authorises you to seize any property or books of the company in the possession of [name of person] and to deliver them into the custody of the Registrar of the Court to be kept by that Registrar until the Court makes an order for their disposal. Note: Section 489A of the Corporations Act 2001 of the Commonwealth provides that if the Court issues a warrant under section 486B for a person to be arrested and brought before the Court, and the person is not in prison, then the person named in the warrant may be arrested by an officer of the police force of the State or Territory in which the person is found, or the Sheriff of that State or Territory or any of the Sheriff’s officers, or a member or special member of the Australian Federal Police. Date: .................................................. [signed] Judge/Registrar * Omit if inapplicable [Form 17A insrt Rule 136 of 2008, r 2 and Sch 1[28], with effect from 16 May 2008]

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Schedule 1 – Forms Summons for appearance in relation to registration of transfer of interests

Form 18

Form 18 – Summons for appearance in relation to registration of transfer of interests [Title] TO: [name and address] You are required to appear before the Supreme Court of New South Wales at [address of Court] at .......... * am/*pm on .......... and show cause why the document(s) specified in the Schedule should not be *delivered up/*produced at the office of [name of company] at [address of company] within [period as ordered], as required by the attached notice. The address for service of the person applying for this summons is [address of person’s legal practitioner or of person]. Date: .................................................. Registrar [or other Court offıcer] *

Omit if not applicable Schedule [description of document(s)]

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NSW

(rule 12.2)

Form 19

Supreme Court (Corporations) Rules 1999 (NSW)

Form 19 – Consent to act as designated person (rule 15A.5)

[Title] I, [name], of [address], an official liquidator, consent to be appointed by the Court and to act as the person designated by the Court under *article 19/*article 21 of the Model Law to *administer/*realise/*distribute the assets of [name of company]. I am not aware of any conflict of interest or duty that would make it improper for me to act as the person designated by the Court. The hourly rates currently charged in respect of work done as the person designated by the Court by me, and by my partners and employees who may perform work in this administration, are set out below or in the Schedule which is attached to this Consent. I acknowledge that my appointment by the Court does not constitute an express or implied approval by the Court of these hourly rates. Date: .................................................. Signature of offıcial liquidator *

Omit if not applicable Schedule [description of hourly rate(s)] [Form 19 am Rule 109 of 2010, r 3, with effect from 26 Mar 2010; insrt Rule 455 of 2008, r 2 and Sch 1[11], with effect from 17 Oct 2008]

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Schedule 1 – Forms Notice of filing of application for recognition of foreign proceeding

Form 20

Form 20 – Notice of filing of application for recognition of foreign proceeding IN THE [name of Court] No. .......... of [year] [Name of company] ABN or ACN: [ABN or ACN of company to which proceeding relates] TO all the creditors of [name of company]. TAKE NOTICE that: 1 An application under the Cross-Border Insolvency Act 2008 for recognition of a foreign proceeding in relation to [name of company] was commenced by the plaintiff, [name of plaintiff], on [date of filing of originating process] and will be heard by ......................... at [address of Court] at .......... * am/*pm on .......... Copies of documents filed may be obtained from the plaintiff’s address for service. 2 The plaintiff’s address for service is [name and address of plaintiff’s legal practitioner or, if there is no legal practitioner, address of the plaintiff]. 3 Any person intending to appear at the hearing must file a notice of appearance, in accordance with the prescribed form, together with any affidavit on which the person intends to rely, and serve a copy of the notice and any affidavit on the plaintiff at the plaintiff’s address for service at least 3 days before the date fixed for the hearing. 4 If you are a foreign creditor you must file in the registry of the Court at the address mentioned in paragraph 1 an affidavit setting out the details of any claim, secured or unsecured, that you may have against the company above at least 3 days before the date fixed for the hearing. Date: Name of plaintiff or plaintiff’s legal practitioner: [name] * Omit if not applicable [Form 20 insrt Rule 455 of 2008, r 2 and Sch 1[11], with effect from 17 Oct 2008]

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NSW

(rule 15A.6)

Form 21

Supreme Court (Corporations) Rules 1999 (NSW)

Form 21 – Notice of making of order under the Cross-Border Insolvency Act 2008 (rule 15A.7)

IN THE [name of Court] No. .......... of [year] [Name of company] ABN or ACN: [ABN or ACN of company to which proceeding relates] TO all the creditors of [name of company]. TAKE NOTICE that: 1 On [date], the [name of Court] in Proceeding No. .......... of [year], commenced by the plaintiff [name of plaintiff], made the following orders under the Cross-Border Insolvency Act 2008 in relation to [name of company]: [insert details of order]. 2 The plaintiff’s address for service is [name and address of plaintiff’s legal practitioner or, if there is no legal practitioner, address of the plaintiff]. 3 The name and address of the foreign representative is [insert name and address]. 4 The name and address of the person entrusted with distribution of the company’s assets is [insert name and address].* Date: Name of plaintiff or plaintiff’s legal practitioner: [name] * Omit if not applicable [Form 21 insrt Rule 455 of 2008, r 2 and Sch 1[11], with effect from 17 Oct 2008]

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Schedule 1 – Forms Notice of dismissal/withdrawal of application for recognition of foreign proceeding Form 22

Form 22 – Notice of dismissal or withdrawal of application for recognition of foreign proceeding (rule 15A.7)

NSW

IN THE [name of Court] No. .......... of [year] [Name of company] ABN or ACN: [ABN or ACN of company to which proceeding relates] TO all the creditors of [name of company]. TAKE NOTICE that the application under the Cross-Border Insolvency Act 2008 for recognition of a foreign proceeding in relation to [name of company] commenced by the plaintiff, [name of plaintiff], on [date of filing of originating process] was dismissed*/withdrawn* on [date of dismissal/withdrawal]. Date: Name of person giving notice or of person’s legal practitioner [name] * Omit if not applicable [Form 22 insrt Rule 455 of 2008, r 2 and Sch 1[11], with effect from 17 Oct 2008]

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Form 23

Supreme Court (Corporations) Rules 1999 (NSW)

Form 23 – Notice of filing of application to modify or terminate an order for recognition or other relief (rule 15A.9)

IN THE [name of Court] No. .......... of [year] [Name of company] ABN or ACN: [ABN or ACN of company to which proceeding relates] TO all the creditors of [name of company]. TAKE NOTICE that: * 1 An application under the Cross-Border Insolvency Act 2008 for an order *modifying/*terminating an order for recognition of a foreign proceeding in relation to [name of company] was filed by the applicant, [name of applicant], on [date of filing of interlocutory process] and will be heard by ......................... at [address of Court] at .......... *am/*pm on .......... Copies of documents filed may be obtained from the applicant’s address for service. * 1 An application under the Cross-Border Insolvency Act 2008 for an order *modifying/*terminating relief granted under *article 19/*article 21 of the Model Law in relation to [name of company] was filed by the applicant, [name of applicant], on [date of filing of interlocutory process] and will be heard by ......................... at [address of Court] at .......... *am/*pm on .......... Copies of documents filed may be obtained from the applicant’s address for service. 2 The applicant’s address for service is [name and address of applicant’s legal practitioner or of applicant]. 3 Any person intending to appear at the hearing must file a notice of appearance (if the person has not already done so), in accordance with the prescribed form, together with any affidavit on which the person intends to rely, and serve a copy of the notice (if applicable) and any affidavit on the applicant at the applicant’s address for service at least 3 days before the date fixed for the hearing. Date: Name of applicant or applicant’s legal practitioner: [name] * Omit if not applicable [Form 23 insrt Rule 455 of 2008, r 2 and Sch 1[11], with effect from 17 Oct 2008] [Sch 1 am Rule 708 of 2014; Rule 109 of 2010; Rule 455 of 2008; Rule 136 of 2008; Rule 447 of 2007; Rule 163 of 2007; Act 98 of 2005; Rule 961 of 2003; Rule 370 of 2001; Rule 749 of 2000]

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Schedule 2 – Notes to these Rules Schedule 2

SCHEDULE 2 – NOTES TO THESE RULES Note 1 — see rule 2.2 (Form 2 Part C) C. APPLICATION FOR WINDING UP ON GROUND OF INSOLVENCY 1 The plaintiff relies on failure by the defendant to comply with a statutory demand. A copy of the demand, marked A, is attached to this originating process. 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/*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/*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. *

Omit if not applicable

Note 2 — see rule 2.4 and rule 5.4(2) (Affidavit in support) * AFFIDAVIT IN SUPPORT/*AFFIDAVIT IN SUPPORT OF APPLICATION FOR WINDING UP IN INSOLVENCY 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/*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. 2 Annexed to this affidavit is a current and historical extract of the records maintained by the Australian Securities and Investments Commission with respect to the defendant. 3 [Where the defendant is registered or taken to be registered in another State or a Territory, state any facts—apart from the defendant’s principal place of business—which bear upon jurisdiction being exercised in New South Wales rather than in another State or Territory.] 4 The following facts are within my own personal knowledge save as otherwise stated. 5 The defendant was on [state date of statutory demand or other relevant date] indebted to the plaintiff in the sum of $[amount] for [state concisely the consideration, for example, goods sold and delivered etc] which sum was then due and payable. 6 The demand, a copy of which is attached to the originating process, was signed by or on behalf of the plaintiff. I served the demand [or the demand and the accompanying affidavit] as referred to in the originating process [or X.Y. has been instructed to make an affidavit of service of the demand [or the demand and the accompanying affidavit]]. 7 The matters stated in the originating process concerning the demand and failure of the defendant to comply with it are true and correct. 8 The sum demanded remains due and payable by the defendant to me [or the plaintiff]. Sworn, etc * Omit if not applicable [Sch 2 insrt Rule 961 of 2003, r 3 and Sch 1[129], with effect from 1 Jan 2004]

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(rules 2.2, 2.4 and 5.4)

Commercial list and technology and construction list: Practice Note SC Eq 3 ................[NSWPN.10] Corporation list: Practice Note SC Eq 4 ............................................................................[NSWPN.20] Expert evidence in the equity division: Practice Note SC Eq 5 ........................................[NSWPN.30] Cross-border insolvency: Cooperation with foreign courts or foreign representatives: Practice Note SC Eq 6 .................................................................................................[NSWPN.40] Single expert witnesses: Practice Note SC Gen 10 .........................................................[NSWPN.50] Joint conferences of expert witnesses: Practice Note SC Gen 11 ...................................[NSWPN.60] Search orders (also known as “Anton Piller Orders”): Practice Note SC Gen 13 ............[NSWPN.70] Freezing orders (also known as “Mareva orders” or “asset preservation orders”): Practice Note SC Gen 14 ...........................................................................................................[NSWPN.80] Citation of authority: Practice Note SC Gen 20 ................................................................[NSWPN.90]

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NSW PRACTICE NOTES

NSW Practice Notes [NSWPN.10]

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Practice Note SC Eq 3

Supreme Court Equity Division – Commercial list and technology and construction list Date: 10/12/2008 Commencement 1. This Practice Note was issued on 10 December 2008 and commenced on 1 January 2009. Application 2. This Practice Note applies to new and existing proceedings in, or to be entered in, the Commercial List or the Technology and Construction List in the Equity Division. Definitions 3. In this Practice Note: Court Book means the documents that a party intends to rely upon at the trial or hearing of an application CPA means the Civil Procedure Act 2005 UCPR means the Uniform Civil Procedure Rules 2005 SCR means the Supreme Court Rules 1970 Lists mean the Commercial List or the Technology and Construction List List Judge means a judge of the Equity Division assigned to administer the Lists and Document has the same meaning as in the Evidence Act 1995 (NSW). Introduction 4. The purpose of this Practice Note is to set out the case management procedures employed in the Lists for the just, quick and cheap disposal of proceedings. 5. Practice Note SC Eq 1 shall not apply to proceedings in the Lists. 6. It is expected that this Practice Note will be observed for the conduct of proceedings entered in either of the Lists. 7. A party who considers that compliance with this Practice Note will not be possible, or will not be conducive to the just, quick and cheap disposal of the proceedings, may apply to be relieved from compliance on the basis that an alternative proposed regime will be more conducive to such disposal. Pleadings and Entry in the Lists 8. A matter in the Lists shall be commenced in the general form of Summons prescribed under the UCPR. There is to be filed with the Summons a List Statement, for the Commercial List a “Commercial List Statement” and for the Technology and Construction List a “Technology and Construction List Statement”, setting out, in summary form, in the form of Annexure 1: 8.1 the nature of the dispute 8.2 the issues which the plaintiff believes are likely to arise 8.3 the plaintiff’s contentions 8.4 the questions (if any) the plaintiff considers are appropriate to be referred to a referee for inquiry and report and 8.5 a statement as to whether the parties have attempted to mediate and whether the plaintiff is willing to proceed to mediation at an appropriate time. 9. The plaintiff’s contentions should: 9.1 avoid formality 9.2 state the allegations the plaintiff makes with adequate particulars and 9.3 identify the legal grounds for the relief claimed. 10. A defendant shall file and serve a List Response, in the Commercial List a “Commercial List Response” or in the Technology and Construction List a “Technology and Construction List Response”, setting out, in summary form in the form of Annexure 1: 10.1 the nature of the dispute 10.2 the issues which the defendant believes are likely to arise 10.3 the defendant’s response to the plaintiff’s contentions including the legal grounds for opposition to the relief claimed in the Summons 212

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10.4 the questions (if any) the defendant considers are appropriate to be referred to a referee for inquiry and report and 10.5 a statement as to whether the parties have attempted to mediate and whether the defendant is willing to proceed to mediation at an appropriate time. 11. The defendant’s contentions should: 11.1 avoid formality 11.2 admit or deny the allegations the plaintiff makes 11.3 in so far as they do not already appear state the allegations the defendant makes including adequate particulars of those allegations and 11.4 identify the legal grounds for opposition to the relief claimed in the Summons. 12. Any Cross-Claim shall be made in the general form of Cross-Summons prescribed under the UCPR. There is to be filed and served with any Cross-Summons a List Cross-Claim Statement, in the Commercial List a “Commercial List Cross-Claim Statement” or, in the Technology and Construction List a “Technology and Construction List Cross-Claim Statement” setting out the matters listed in paragraphs 8 and 9 above in the form of Annexure 1. 13. A Cross-Defendant shall file and serve a List Cross-Claim Response, in the Commercial List a “Commercial List Cross-Claim Response” or, in the Technology and Construction List, a “Technology and Construction List Cross-Claim Response” setting out the matters listed in paragraphs 10 and 11 above in the form of Annexure 1. 14. At the time of service of any Cross-Summons the Cross-Claimant is to serve on the Cross-Defendant copies of the Summons and any other Cross-Summons together with any relevant List Statement and List Response and any List Cross-Claim Statement and List Cross-Claim Response that have been served on or by the Cross-Claimant. 15. Any party moving for an order for entry of any proceedings in either of the Lists shall move by Notice of Motion at the earliest possible time and shall file and serve with the Notice of Motion a relevant List Statement or List Response. 16. Any motion for an order for entry of proceedings in either of the Lists shall be made returnable before the List Judge on a Friday. 17. For ease of reference all List Statements and Responses (including in relation to Cross-Claims) must include a Front Sheet identifying the names of the parties and their designation as plaintiff or defendant or Cross-Claimant or Cross-Defendant. This paragraph does not apply to a Summons or Cross-Summons. Removal from the Lists 18. Upon an order being made removing proceedings from either of the Lists and subject to paragraph 19, this Practice Note shall not apply to the proceedings from the making of that order. 19. The Court may direct that this Practice Note shall continue to apply to the proceedings to the extent stated in the direction. 20. The making of an order removing proceedings from either of the Lists shall not affect any orders made or directions given prior to such removal. Motions and Directions 21. All proceedings in the Lists are case managed by the List Judge with the aim of ensuring a speedy resolution of the real issues between the parties. The Lists are administered in Court on Friday of each week. Motions are listed at 9.15 am and are called through for the purpose of ascertaining the length of the hearing and allocating a time for hearing on that or some other day. Directions in the Commercial List commence at 9.45 am and directions in the Technology and Construction List commence at 12 noon. The times for the commencement of the Motions and Directions hearings may change and Practitioners should always check the daily court lists as published prior to attendance at Court on a Friday. 22. The Court’s expectation of Practitioners appearing in the Lists includes that: 22.1 careful review of the case will be made as early as practicable for the purpose of informing the Court of its suitability for mediation, for reference out of all or some of the issues, and/or for the use of a single expert, or a Court Appointed Expert or the use of an appropriate concurrent evidence process ©

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22.2 at the time the matter is set down for hearing trial counsel will provide to the Court: (1) a considered opinion of the realistic estimate of the time required for trial; and (2) the allocation of time for their client’s evidence and submissions in the stopwatch system for trial 22.3 agreement will be reached on a timetable for the preparation of matters for trial and/or reference and/or mediation and Consent Orders will be handed up during the directions hearing 22.4 if there is slippage in an agreed timetable, further agreement will be reached without the need for the intervention of the Court and 22.5 requests for Court intervention in relation to timetabling will only be sought rarely when, for good reason, agreement has proved to be impossible. 23. To facilitate the just, quick and cheap resolution of matters Consent Orders will be made by the List Judge in Chambers on days other than Friday by application in writing to the List Judge’s Associate. When Consent Orders are to be made either in Chambers or in Court varying a timetable, it is imperative that those Orders include the vacation of any date for directions hearings or the hearing of Motions that the parties no longer wish to maintain. If the proceedings settle, it is necessary to have the List Judge make Orders finalising the litigation, rather than filing Terms or Orders with the Registry. Those Orders may also be made by consent in Chambers. 24. The Lists close at 12 noon on Thursday. Any application to add a matter to the List or remove a matter from the List must be made prior to 12 noon on Thursday. Such applications are to be made in writing to the List Judge’s Associate. 25. At the first and/or subsequent directions hearings orders will be made and directions given with a view to the just, quick and cheap disposal of the proceedings. The orders or directions may relate to: 25.1 the filing of a Summons, List Statements, List Responses or other documents 25.2 the filing of a Cross-Summons, List Cross-Claim Statements or Responses 25.3 the filing of a statement of agreed issues and the result in the proceedings according to the determination of those issues 25.4 the provision of any essential further particulars that are not contained in the List Statements or Responses 25.5 the making of admissions, pursuant to a notice to admit facts or otherwise 25.6 the appointment of a single expert or a Court Appointed Expert 25.7 the holding of conferences of experts including with a view to providing joint reports and/or agendas for use in the concurrent evidence method at trial 25.8 the filing of lists of documents either generally or with respect to specific matters 25.9 the preparation of a Scott Schedule 25.10 the provision of copies of documents 25.11 the administration and answering of interrogatories either generally or with respect to specific matters 25.12 the service and/or filing of affidavits or statements of evidence by a specified date or dates 25.13 the reference to a referee for inquiry and report of the whole of the proceedings or any question arising therein and 25.14 the obtaining of the assistance of any person specially qualified to advise on any matter arising in the proceedings. 26. Orders or directions relating to the provision of particulars, the filing of lists of documents and the administration of interrogatories will be made only upon proof of necessity. Discovery 27. The Court endorses a flexible rather than prescriptive approach to discovery to facilitate the making of orders to best suit each case. 28. Subject to an order of the Court or unless otherwise agreed between the parties, discovery of electronically stored documents and information is to be made electronically. Discoverable documents and information that are not stored electronically should only be discovered electronically if it is more cost effective to do so. 214

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29. Practitioners must advise their opponents at an early stage of the proceedings of potentially discoverable electronically stored information and meet to agree upon matters including: 29.1 the format of the electronic database for the electronic discovery 29.2 the protocol to be used for the electronic discovery including electronically stored information 29.3 the type and extent of the electronically stored information that is to be discovered and 29.4 whether electronically stored information is to be discovered on an agreed without prejudice basis 29.4.1 without the need to go through the information in detail to categorise it into privileged and non-privileged information and 29.4.2 without prejudice to an entitlement to subsequently claim privilege over any information that has been discovered and is claimed to be privileged under s 118 and/or s 119 of the Evidence Act 1995 and/or at common law. 30. At any hearing relating to discovery (including its form and extent), the Court expects practitioners to have: 30.1 ascertained the probable extent of discoverable documents 30.2 conferred with their opponents about any issues concerning the preservation and production of discoverable documents including electronically stored information 30.3 given notice to their opponents of any problems reasonably expected to arise in connection with the discovery of electronically stored information, including difficulty in the recovery of deleted or lost data 30.4 given consideration to and conferred in relation to the particular issues involved in the collection, retention and protection of electronically stored information, including: 30.4.1 whether the burden and cost involved in discovering a particular document or class of documents is justified having regard to the cost of accessing the document or class of documents and the importance or likely importance of the document or class of documents to the proceedings 30.4.2 whether particular software or other supporting resources may be required to access electronically stored information 30.4.3 the manner in which documents are to be electronically formatted so that the integrity of the documents is protected 30.4.4 whether particular documents need to be discovered in hard copy form (such as original documents or documents larger than A3 in size) 30.4.5 how privileged documents should be appropriately protected 30.5 given consideration to preparing and, if agreed, prepared a Joint Memorandum signed by the senior practitioners who attended the discovery meeting (and who are to attend the discovery hearing) identifying: 30.5.1 areas of agreement on proposed discovery 30.5.2 areas of disagreement with a brief statement of the reasons therefore and 30.5.3 respective best estimates of the cost of discovery. 31. The Court will make orders for discovery having regard to the overriding purpose of the just, quick and cheap resolution of the disputes between the parties. 32. For the purposes of ensuring that the most cost efficient method of discovery is adopted by the parties, on the application of any party or of its own motion, the Court may limit the amount of costs of discovery that are able to be recovered by any party. Evidence 33. With the exception of evidence in support of interlocutory applications, the former practice of filing evidence as case preparation occurs is to cease. Timetables for case preparation should include provision for the serving of evidence on the other parties but not filing it with the Court. Evidence to be relied upon at trial will only be filed with the Court at the time provided for in the Usual Order for Hearing. 34. Evidence to be relied upon in support of interlocutory applications is to be served on the other parties and filed with the Court. Timetables for preparation of such applications should include provision for that process. ©

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35. The former practice of annexing or exhibiting documents to affidavits or statements will only be permitted in interlocutory applications and otherwise with the leave of the Court or pursuant to agreement between the parties. 36. In the preparation of evidence to be relied upon at trial any documents referred to in any statement or affidavit are to be placed into the proposed Court Book in chronological order. 37. Subject to an order of the Court or unless otherwise agreed between the parties, the Proposed Court Book is to be established in electronic form. 38. Prior to the preparation of a timetable for the serving of evidence the parties are to agree on the manner in which the electronic form of Court Book (the Electronic Court Book) is to be established including, where it is to be established; which party/parties (or third party) will manage it and its format. Such agreement should be recorded in the Short Minutes of Order for the preparation of the evidence in the proceedings. 39. The Electronic Court Book is to be produced at trial. A hard copy of only those parts of the Electronic Court Book that will be essential for the Court to consider in determining the dispute between the parties is also to be produced at trial. Orders for reference 40. Consideration should be given throughout the course of proceedings as to whether any questions are appropriate for referral to a referee for inquiry and report. 41. Where questions are appropriate to be referred to a referee for inquiry and report, the parties should: 41.1 formulate the questions with precision and 41.2 inform the Court of: 41.2.1 the identity of an agreed referee or, if no agreement can be reached, the referee each suggests 41.2.2 the date on which the referee can commence the reference 41.2.3 the expected duration of the reference and 41.2.4 the anticipated date for delivery of the report. 42. An order made for reference to a referee for inquiry and report will normally be in the form of the Usual Order for Reference set out in Annexure 2. 43. Consent Orders for amendment to the matters referred to the Referee in the Schedule to the Usual Order for Reference may be filed with the List Judge’s Associate in writing for the making of such order in Chambers. Any contested amendments are to be heard in the Motions List on Fridays. Representation 44. Each party not appearing in person shall be represented at any directions hearing by a barrister or a solicitor familiar with the subject matter of the proceedings and with instructions sufficient to enable all appropriate orders and directions to be made. 45 Practitioners should have communicated prior to the directions hearing with a view to agreement on directions to propose to the Court and preparation of short minutes recording the directions. Urgent applications and liberty to apply 46. A party seeking ex parte or urgent orders or directions prior to the commencement of proceedings or in the course of the proceedings should telephone the Commercial List Judge’s Associate, who will advise the party of the Judge to whom application should be made. 47. Parties have general liberty to apply and may cause proceedings to be listed at a directions hearing prior to a specified future directions hearing. A party seeking to do so should make prior arrangement with, or give appropriate notice to, any other party, and should send a fax to the List Judge’s Associate who will advise the date for listing. Listing for hearing 48. Where the whole, or any part, of the proceedings is/are to be heard by the Court, a date for hearing may be fixed prior to completion of interlocutory steps. 49. Proceedings will be fixed for hearing during a directions hearing in the Lists on Friday at which time the Court should be provided with a realistic estimate of the hearing time required and where there is to be an 216

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Stopwatch Hearings 50. An option for matters that are heard by the Court and/or referred to Referees is the stopwatch method of trial or reference hearing. In advance of the trial or reference, the Court will make orders in respect of the estimated length of the trial or reference and the amount of time each party is permitted to utilise. The orders will allocate blocks of time to the aspects of the respective cases for examination in chief, cross-examination, re-examination and submissions. If it is in the interests of justice, the allocation of time will be adjusted by the Court or the Referee to accommodate developments in the trial or reference. 51. This method of hearing is aimed at achieving a more cost effective resolution of the real issues between the parties. It will require more intensive planning by counsel and solicitors prior to trial including conferring with opposing solicitors and counsel to ascertain estimates of time for cross-examination of witnesses and submissions to be built in to the estimate for hearing. 52. Any party wishing to have a stopwatch hearing must notify the other party/parties in writing prior to the matter being set down for hearing or reference out. At the time the matter is set down for hearing or referred out to a Referee it is expected that solicitors or counsel briefed on hearing will be able to advise the Court: 52.1 whether there is consent to a stopwatch hearing and 52.2 if there is no consent , the reasons why there should not be a stopwatch hearing. 53. If there is consent to a stopwatch hearing counsel and/or solicitors must be in a position to advise the Court of: 53.1 the joint estimate of the time for the hearing of the matter and 53.2 the way in which the time is to be allocated to each party and for what aspect of the case. Experts 54. The use of a single expert or a Court Appointed Expert and/or the concurrent evidence of experts is encouraged in suitable cases. The parties are to confer as early as practicable with a view to reaching agreement as to whether the use of such an expert or the concurrent evidence of experts is appropriate and, if agreed, the inclusion of such appointment and/or adoption of concurrent evidence should be accommodated in the timetable for the preparation for hearing. 55. Where experts’ reports have been or are to be served (whether or not pursuant to an order or direction of the Court) the Court will, unless otherwise persuaded, direct, upon such terms as it thinks fit, that the parties cause the experts or some of them to confer with a view to identification of and a proper understanding of any points of difference between them and the reasons therefore and a narrowing of such points of difference. The Court may, at the same time or subsequently, direct that the parties and/or the experts prepare an agreed statement of the points of agreement, and of difference remaining, between experts following such conference and the reasons therefore (see Schedule 7 of the UCPR). Proportionate Liability 56. Any party in proceedings involving an apportionable claim, who has reasonable grounds to believe that a particular person may be a concurrent wrongdoer in relation to the claim(s) must, as soon as practicable, give written notice to all other parties to the proceedings of: 56.1 the identity of that person and 56.2 the alleged circumstances that may make that person a concurrent wrongdoer. Costs 57. Unless otherwise ordered, a party in whose favour an order for costs is made may proceed to assessment of such costs forthwith. 58. The cost of unnecessary photocopying and assembly of documents is unacceptable. It is incumbent on the lawyers for the parties to carefully consider the documents necessary to be included in the tender bundle. Excessive documents may attract adverse costs orders. Mediation 59. The parties should be aware of the provisions of Part 4 of the CPA and relevant parts of the UCPR relating to mediation. ©

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application for a stopwatch hearing, paragraphs 50 to 53 are applicable. Upon fixing a date for hearing the Court will normally direct that the Usual Order for Hearing set out in Annexure 3 shall apply, with or without modification.

NSW Practice Notes

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60. It is expected that prior to the commencement of proceedings in the Lists, the parties will have considered referral of their disputes to mediation. It is also expected that the lawyers, or the litigant if not legally represented, will be in a position to advise the Court on the first return date of the Summons whether: 60.1 the parties have attempted mediation and 60.2 their respective clients are willing to proceed to mediation at an appropriate time. 61. If a matter is referred to mediation by consent and/or by an order pursuant to the section 26 of the CPA, the parties are to ensure that the person(s) who is (are) able to make a decision as to whether the matter settles is present personally or by authorised nominee(s) at the mediation. Summary judgment 62. As a general rule applications to strike out or for summary judgment will not be entertained. Sometimes applications are appropriate, but Practitioners should expect strictness in declining to entertain such applications. Use of technology 63. The use is encouraged, where appropriate, of technology permitting the taking of evidence in, or other conduct of, proceedings by video link or conference telephone and the management of documents and transcript. Practitioners should propose the use of such technology when appropriate, and the Court may give directions involving its use: for example, in major cases with a view to statements, documents and transcript being available to all concerned on a common data base. J J Spigelman AC Chief Justice of New South Wales 10 December 2008 Related Information See also: Supreme Court Practice Note SC Gen 1 – Application of Practice Notes Supreme Court Practice Note SC Gen 6 – Mediation Supreme Court Practice Note SC Gen 7 – Use of technology Supreme Court Practice Note SC Gen 10 – Single expert witness Supreme Court Practice Note SC Gen 11 – Joint conferences of expert witnesses Civil Procedure Act 2005 Uniform Civil Procedure Rules 2005 Supreme Court Rules 1970 Amendment History This Practice Note replaces Practice Note SC Eq 3 issued on 20 July 2007. Practice Note SC Eq 3 issued on 20 July 2007 replaced the Note issued 1 September 2006. Practice Note SC Eq 3 issued on 1 September 2006 replaced the Note issued on 17 August 2005. Practice Note SC Eq 3 issued on 17 August 2005 replaced Former Practice Note No. 100. ANNEXURE 1 [LIST] STATEMENT [OR] LIST CROSS CLAIM STATEMENT [LIST] RESPONSE [OR] LIST CROSS CLAIM RESPONSE A. NATURE OF DISPUTE B. ISSUES LIKELY TO ARISE C. PLAINTIFF’S [or CROSS CLAIMANT’S] CONTENTIONS [or C DEFENDANT’S [or CROSS DEFENDANT’S] RESPONSES TO CONTENTIONS which should include reference to any relief claimed in the Summons or Cross Summons that are admitted, not admitted or denied. D. QUESTIONS APPROPRIATE FOR REFERRAL TO A REFEREE E. A STATEMENT AS TO WHETHER THE PARTIES HAVE ATTEMPTED MEDIATION; WHETHER THE PARTY IS WILLING TO PROCEED TO MEDIATION AT AN APPROPRIATE TIME. 218

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ANNEXURE 2 USUAL ORDER FOR REFERENCE 1 Pursuant to Part 20 rule 14 of the Uniform Civil Procedure Rules 2005 (the “UCPR”), refer to [state name of referee] for enquiry and report the matter in the Schedule hereto. 2 Direct that (without affecting the powers of the Court as to costs) the parties, namely [state relevant parties], be jointly and severally liable to the referee for the fees payable to him.

4 Direct that: 4.1 subject to paras 4.2 and 4.3 hereof, the provisions of Pt 20 r 20 shall apply to the conduct of proceedings under the reference 4.2 the reference will commence on [date] unless otherwise ordered by the referee 4.3 the referee consider and implement such manner of conducting proceedings under the reference as will, without undue formality or delay, enable a just determination to be made including, if the referee thinks fit: 4.3.1 the making of inquiries by telephone 4.3.2 site inspection 4.3.3 inspection of plant and equipment and 4.3.4 communication with experts retained on behalf of the party 4.4 any evidence in chief before the referee shall, unless the referee otherwise permits, be by way of written statements signed by the maker of the statement 4.5. the referee submit the report to the Court in accordance with Pt 20 r 23 addressed to the Equity Division Registrar on or before [date]. 5 Amendments to the Schedule, whether by agreement or on a contested basis, are to be the subject of an order made by the Court. 6 If for any reason the Referee is unable to comply with the Order for delivery of the report to the Court by the date in this Usual Order for Reference, the Referee is to provide to the List Judge an Interim Report setting out the reasons for such inability and an application to extend the time within which to deliver the report to the Court to a date when the Referee will be able to provide the Report. 7 Grant liberty to the referee or any party to seek directions with respect to any matter arising in proceedings under the reference upon application made on 24 hours’ notice or such less notice ordered by the Court. 8 Reserve costs of the proceedings. 9 Stand the proceedings over for further directions on [date]. SCHEDULE The whole of the proceedings; or The following questions arising in the proceedings, namely [state the questions]. ANNEXURE 3 USUAL ORDER FOR HEARING Experts’ Reports 1. In any case in which there is expert evidence to be relied upon by the parties, the experts are to meet no later than 3 weeks before trial for the purpose of reaching agreement on as many issues as possible and producing: 1.1 a joint report and 1.2 any separate report(s) dealing with those matters that are unable to be agreed. 2. The joint report and any separate report(s) are to be filed and served no later than 5 working days before trial. 3. In cases in which expert evidence is to be given concurrently, the experts are to meet no later than 3 weeks prior to trial for the purpose of producing: 3.1 a joint report ©

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3 Direct that the parties deliver to the referee forthwith a copy of this order together with a copy of Division 3 of Part 20 of the UCPR.

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3.2 any separate report(s) dealing with those matters that are unable to be agreed and 3.3 a draft agenda for discussion of the contested issues in the concurrent evidence session at trial. 4. The joint report and any separate report(s) and the draft agenda are to be filed and served no later than 5 working days before trial. Affidavits and Statements 5. Where no directions have been given for the service of affidavits or statements of evidence, each party shall, not less than 28 days before the date fixed for hearing, serve on each other party a statement of the evidence proposed to be led from each witness to be called by that party, signed by the proposed witness, unless the Court otherwise orders. 6. Where directions have been given for the service of affidavits or statements of evidence, or where paragraph 2 of this order applies: 6.1 a party who fails to comply with an order made for the service of affidavits or statements of evidence, or with paragraph 2 of this order, may not adduce evidence to which the order, or paragraph 2 of this order, applies without the leave of the Court 6.2 at least 14 days before the date fixed for hearing each party shall, by notice in writing to each other party, state whether he or she proposes to object to the whole or any part of any affidavit or statement of evidence and the grounds for the objections 6.3 the Court may, on such terms as it thinks fit, direct that the statement of evidence served, or part of it, stand as the evidence in chief of the witness, or as part of such evidence 6.4 if the affidavit is not read or the maker of the statement of evidence is not called as a witness, no other party may put the affidavit or statement in evidence without the leave of the Court 6.5 if the affidavit is read or the maker of the statement of evidence called as a witness, then save in relation to new matters which have arisen in the course of the trial, the party serving the affidavit or statement may not lead evidence from the deponent or the maker of the statement of evidence (as the case may be), the substance of which is not included in the affidavit or statement of evidence served without the leave of the Court 6.6 whether or not the affidavit or statement of evidence or any part of it is used in evidence by the party calling the witness, if the deponent or the maker of the statement of evidence is called as a witness any other party may use the affidavit or statement of evidence or any part of it in cross-examination of the witness unless the Court otherwise orders and 6.7 nothing in this order shall otherwise deprive any party of any proper objection to the admissibility of evidence. Documents – Court Book 7. In preparing evidence for trial the plaintiff/cross-claimant is to place into the Electronic Court Book in chronological order all documents referred to in any affidavit or statement proposed to be relied upon at trial. The method of numbering of documents in the Electronic Court Book must ensure that the numbers allocated to documents do not change. 8. In responding to the plaintiff’s/cross-claimant’s evidence, the defendant/cross-defendant is to place into the Electronic Court Book all documents not already included that are referred to in any affidavits or statements proposed to be relied upon at trial. 9. By no later than 6 weeks before the date fixed for hearing each party must notify each other party in writing of any additional documents that party proposes should be included in the Electronic Court Book. 10. Within 10 working days thereafter each party shall advise each other party in writing: 10.1 which of the specified additional documents may be included in the Electronic Court Book by consent 10.2 whether the authenticity of any document, and if so which, is disputed and 10.3 insofar as any document (already included and/or proposed to be included) may not be included in the Electronic Court Book by consent the grounds for the objection to its inclusion. 11. Not later than 3 weeks prior to the date fixed for hearing all documents, whether by consent or otherwise, sought to be relied upon by all parties are to be included in the proposed Electronic Court Book in chronological order. 220

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12. If any party requires the tender of an original document, notice in writing should be given to all other parties no later than 4 weeks before the date fixed for hearing.

Filing with the Court 14. No later than 10 working days before the hearing all parties’ barristers or solicitors shall cause to be filed with the Court a folder of all affidavits, statements and reports to be relied upon at trial with an index setting out in alphabetical order: 14.1 the name of the deponent or maker of the statement or report 14.2 the date of the affidavit, statement or report and 14.3 a short statement identifying the role of the deponent or the maker of the statement or report. 15. No later than 5 working day before the hearing the plaintiff shall file, paginated and indexed, two copies of the Court Book intended to be tendered at the hearing by any party. The index of documents should indicate documents the tender of which is agreed and, in relation to the documents as to which there is no agreement, which documents they are and whether lodged on behalf of the plaintiff or on behalf of any other party to the proceedings and, if so, which party. 16. No later than 2 workings day before the hearing each barrister or solicitor shall cause to be filed and served a short outline of submissions; a statement of the real issues for determination; a list of authorities; and a chronology of relevant events. 17. Compliance with orders 15 and 16 is to be by delivery to the trial Judge’s Associate or, if the identity of the trial Judge is unknown at the time for compliance, by delivery to the List Judge’s Associate.

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13. Subject to an order of the Court or unless otherwise agreed between the parties, compliance with paragraph 15 requires the provision of the Court Book in electronic form and a hard copy of those parts of the Court Book that it will be essential for the Court to refer to in determining the dispute between the parties.

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Practice Note SC Eq 4

Supreme Court Equity Division – Corporations list Date: 01/06/2011 Introduction 1 This Practice Note relates to the structure and operation of the Corporations List in the Equity Division. 2 All proceedings and applications in the Corporations List (except those in the Corporations Registrar’s List) will be case managed by the Corporations List Judge with the aim of achieving a speedy resolution of the real issues in the proceedings. There will also be a Corporations Duty Judge available at all times to hear any urgent applications in Corporations Matters. Commencement 3 This Practice Note was issued on 10 May 2011 and commences on 1 June 2011. It replaces former Practice Note SC Eq 4 issued on 5 November 2010. Application 4 This Practice Note applies to new and existing Corporations Matters in the Equity Division. Definitions 5 In this Practice Note: Corporations Judges means the List Judge and each other Judge of the Equity Division for the time being listed to hear Corporations Matters Corporations List means the List administered by the List Judge Corporations Matters include any proceedings or applications pursuant to or in respect of any matter relating to the Corporations Act 2001 (Cth), the Australian Securities and Investments Commission Act 2001 (Cth), the Cross-Border Insolvency Act 2008 (Cth) or the Supreme Court (Corporations) Rules 1999 and any proceedings or applications relating to other incorporated bodies such as co-operatives and incorporated associations List Judge means the Corporations List Judge Corporations Registrar includes the Registrar in Equity and a Deputy or Assistant Registrar Corporations Registrar’s List means the List into which matters referred to in paragraph 11 of this Practice Note are entered Rules means the Supreme Court (Corporations) Rules 1999 Statutory Demand cases means applications under s 459G of the Corporations Act 2001 (Cth). Corporations Judges 6 The List Judge and at least one other Judge of the Equity Division will be listed on a continuing basis to hear Corporations matters exclusively (the Corporations Judges). 7 The identity of the Corporations Judges and the dates upon which they are listed to hear Corporations matters will be notified on the Court’s Corporations Matters webpage at www.lawlink.nsw.gov.au/sc (click on Practice and Procedure on the left-hand side menu and then click the Corporations Matters link). Corporations Duty Judge 8 A Corporations Judge will be available as the Corporations Duty Judge to deal with urgent applications in Corporations Matters. 9 Contact should be made in the first instance with the Associate to the List Judge (or the Acting List Judge in the List Judge’s absence) by telephone or email (email is preferable during court hours, as the Associate can deal with emails while in court). The Associate will indicate which Corporations Judge should be approached. Entry into the Lists 10 All Corporations Matters, except those mentioned in paragraph 11, will be made returnable before the List Judge in the Corporations List on Mondays. 11 Statutory Demand cases and matters wholly within the delegated powers of the Registrar under s 13 of the Civil Procedure Act (see Schedule 1 to this Practice Note) will be returnable in the Corporations Registrar’s List on any day of the week. 12 Any matter to be entered in the Corporations Registrar’s List must include the words “Corporations Registrar’s List” prominently on the front sheet of any Originating Process or Interlocutory Process. 222

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Schemes of Arrangement 13 In any proposed applications under Part 5.1 of the Corporations Act 2001 and any other matters in which it is considered commercially important to obtain definite hearing dates before filing, contact may be made with the Associate to the List Judge for those dates.

Case Management 15 The List Judge will case manage matters in the Corporations List on Monday of each week with the aim of ensuring the speedy resolution of the real issues between the parties. Interlocutory applications will be listed at 9:30 am for the purpose of calling through the matters in that list and, if appropriate, allocating a hearing time on that day before one of the Corporations Judges. Directions will be listed from 10 am. 16 When matters in the Corporations List, other than those matters to be heard on Mondays, are ready for the allocation of a hearing date the List Judge will fix the matter for hearing and make the Usual Order for Hearing in Annexure A to Practice Note SC Eq 1 unless the matter would be more efficiently and cost effectively prepared for hearing by making some modifications to the Usual Order for Hearing. 17 Where a matter is placed in the Corporations List on Monday solely for the allocation of a hearing date, the parties, acting together, may, instead of appearing, forward to the List Judge’s Associate by 12 noon on Friday: any agreed directions for the hearing (which should include or adopt in substance the Usual Order for Hearing); an agreed estimate of the time required; the mutually available dates during the following three months of all legal representatives who are to appear, and the email addresses of all legal representatives. The List Judge will then allocate hearing dates in Chambers instead of requiring attendance in Court. Dates so allocated will be notified to the legal representatives by email, usually within three working dates. This procedure will be appropriate only where the parties are agreed that the matter is ready for hearing and on the directions to be made. 18 All matters in the Corporations Registrar’s List will be listed on each day of the week at 9.00am. 19 The Court’s expectation of Practitioners appearing in Corporations Matters includes that: 19.1 Agreement will be reached on a timetable for the preparation of matters for trial and/or mediation and/or reference out and Consent Orders will be handed up during the directions hearing; 19.2 If there is slippage in an agreed timetable, further agreement will be reached without the need for the intervention of the Court and Consent Orders will be filed with the List Judge; 19.3 Requests for Court intervention in relation to timetabling will only be sought rarely when, for good reason, agreement has proved to be impossible; 19.4 Trial Counsel will be briefed at the earliest possible time; 19.5 Careful review of the case will be made as early as practicable for the purpose of informing the Court of its suitability for mediation, for reference out of all or some of the issues, and/or for the use of a single expert, or a Court appointed expert or the use of an appropriate concurrent expert evidence process; 19.6 Agreement will be reached on the real issues in dispute between the parties so that a speedy resolution of those issues may be achieved; 19.7 Trial Counsel will appear at the directions hearing when the matter is set down for hearing and provide to the Court a considered opinion of the realistic estimate of the time required for trial; and if a stopwatch system for trial is to apply, a considered opinion as to the appropriate allocation of time for evidence and submissions. 20 To facilitate the just, quick and cheap resolution of Corporations Matters, by written application to the List Judge’s Associate, the List Judge will make Consent Orders in Chambers on days other than Monday. When Consent Orders varying a timetable are to be made either in Chambers or in Court, it is imperative that those ©

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Process and Affidavits 14 The form of Originating Process, Interlocutory Process and affidavits in Corporations Matters are as provided for in the Rules.

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orders include the vacation of any date for directions hearings, or the hearing of interlocutory applications, that the parties no longer wish to maintain. If the proceedings settle, rather than filing Terms of Orders with the Registry, the List Judge must make Orders finalising the litigation. These orders may also be made by consent in Chambers. 21 When Consent Orders varying a timetable are to be made either in Chambers or in Court, it is imperative that those orders include the vacation of any date for directions hearings, or the hearing of interlocutory applications that the parties no longer with to maintain. If the proceedings settle, it is necessary to have the List Judge make Order finalising the litigation, rather than filing Terms or Orders with the Registry. Those orders may also be made by consent in Chambers. 22 The Corporations List closes at 12 noon on Friday. Any application to add a matter to the List or remove a matter from the List must be made prior to 12 noon on Friday. Such applications are to be made in writing to the List Judge’s Associate. 23 Unless otherwise ordered paragraphs 27 to 32 of Practice Note SC Eq3 apply to discovery in Corporations Matters. 24 Unless otherwise ordered paragraphs 33 to 36 of Practice Note SC Eq 3 apply to evidence in Corporations Matters. 25 Unless otherwise ordered paragraphs 50 to 53 of Practice Note SC Eq 3 apply to Stopwatch Hearings of Corporations Matters. 26 Unless otherwise ordered paragraph 56 of Practice Note SC Eq 3 applies to Proportionate Liability in Corporations Matters. 27 Unless otherwise ordered paragraph 62 of Practice Note SC Eq 3 applies to applications for Summary Judgment in Corporations Matters. Statutory Demand cases 28 All Statutory Demand cases will be entered into the Corporations Registrar’s List for case management, Consent Orders and/or if necessary, referral to the List Judge. 29 The parties to a Statutory Demand case must agree on a timetable that makes it ready for hearing promptly after its first return date before the Corporations Registrar. 30 A plaintiff in a Statutory Demand case must include in its outline of submissions: (a) in a genuine dispute case under s 459H(1)(a), a succinct statement of: (i) its understanding of the basis on which the debt is alleged by the defendant to be owing, due and payable in the amount stated in the demand; and (ii) why that basis is disputed; and (b) in an offsetting claim case under s 459H(1)(b), a succinct statement of: (i) the precise facts and circumstances giving rise to the claim; and (ii) the amount of the claim and the way in which it is calculated. Court Appointment of Liquidators 31 The arrangements outlined in Schedule 2 to this Practice Note apply to the appointment of liquidators by the Court. Schemes of Arrangement 30. When making an order under subsection 411(1) of the Corporations Act 2001 (Cth) the Court will require that the explanatory statement or a document accompanying the explanatory statement prominently display a notice in the following form or to the following effect: “IMPORTANT NOTICE ASSOCIATED WITH COURT ORDER UNDER SUBSECTION 411(1) OF CORPORATIONS ACT 2001 (Cth) The fact that under subsection 411(1) of the Corporations Act 2001 (Cth) the Court has ordered that a meeting be convened and has approved the explanatory statement required to accompany the notices of the meeting does not mean that the Court: (a) has formed any view as to the merits of the proposed scheme or as to how members/creditors should vote (on this matter members/creditors must reach their own decision); or (b) has prepared, or is responsible for the content of, the explanatory statement.” 224

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J J Spigelman AC Chief Justice of NSW 10 May 2011 Related information Practice Note SC Gen 1 Supreme Court - Application of Practice Notes Practice Note SC Eq 1 Supreme Court Equity Division – Case Management Practice Note SC Eq 3 Supreme Court Equity Division – Commercial List and Technology and Construction List NSW

Practice Note SC Eq 6 Supreme Court Equity Division - Cross Border Insolvency: Cooperation with Foreign Courts or Foreign Representatives Corporations Act 2001 (Cth) Australian Securities and Investments Commission Act 2001 (Cth) Cross-Border Insolvency Act 2008 (Cth) Civil Procedure Act 2005 Uniform Civil Procedure Rules 2005 Supreme Court (Corporations) Rules 1999 Amendment History 10 May 2011: the Practice Note issued on 5 November 2010 is replaced; paragraphs 17, 20 and 21 are altered to dispense with the need for court attendance when seeking orders and hearing dates by consent. 5 November 2010: the Practice Note issued on 12 April 2010 is replaced; paragraph 30 is added to Practice Note SC Eq 4. 12 April 2010: an amended version of Practice Note SC Eq 4 is issued announcing substantial changes in case management practices with effect from 31 May 2010. 11 March 2009: paragraph 32 of Practice Note SC Eq 4 deleted following the commencement of Practice Note SC Eq 6 - Cross Border Insolvency: Cooperation with Foreign Courts or Foreign Representatives. 17 October 2008: provisions about remuneration of insolvency practitioners were removed from Practice Note SC Eq 4 following the enactment of the Corporations Amendment (Insolvency) Act 2007 (Cth), facilitating co-operation between courts in light of the Cross-Border Insolvency Act 2008 (Cth), and reflecting new arrangements in the Registrar’s Corporations List. 27 April 2006: Practice Note SC Eq 4 was amended to reflect new arrangements consequent on the assignment of a Judge of the Equity Division to Corporations matters as Corporations Judge on a full-time basis with effect from 1 May 2006 16 November 2005: paragraphs 26-30 added to Practice Note SC Eq 4 19 October 2005: formal errors corrected 17 August 2005: Practice Note SC Eq 4 replaced former Practice Note Nos. 111, 117 and 126. SCHEDULE 1 REGISTRARS’ POWERS Applications Remuneration of receiver, etc Extending the period for a report Leave to proceed against a company under administration (provided the claim against the company is, or includes, a claim for damages for personal injury) Remuneration of an administrator Winding up of a company in Insolvency Extending the period for determination of a winding up application ©

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section 449E(1) section 459A section 459R 225

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Applications Corporations Act 2001 Substitution of applicants for winding up section 465B Leave to proceed against a company in liquidation (provided the section 471B claim against the company is, or includes, a claim for damages for personal injury) Removal of liquidator appointed by the Court (where the application section 473(1) is not opposed) Remuneration of provisional liquidator section 473(2) Remuneration of a liquidator section 473(3) Liquidator’s vacancy (where the application is not opposed) section 473(3) Release and deregistration sections 480 and 481(1) Remuneration of a special manager section 484(2)(b) Inspection of books of the company in the winding up by the Court section 486 Granting of leave to proceed against a company after the passing of a section 500(2) resolution for voluntary winding up Voluntary winding up (on an application to exercise the power of the section 511 Court under section 486) Destruction of books section 542(3) Examination of persons about corporations section 596A, 596B and 596F Examination of persons concerned with corporations (except section 597 subsection (15)) Reinstatement (where the originating process by which the application section 601AH(2) is made has been served on ASIC and not opposed by ASIC) Ordering security for costs that may be payable by a plaintiff section 1335 corporation SCHEDULE 2 COURT APPOINTMENT OF LIQUIDATORS The Registrar maintains a list of registered official liquidators who have consented in writing to accept all appointments as liquidator made by the Court. This list is sorted alphabetically by firm for liquidators located in metropolitan Sydney, and by individuals located in regional centres; The plaintiff in winding-up proceedings may nominate for appointment a registered official liquidator whose name appears in the Court’s list. A nomination is effected by filing with the originating process a consent in Form 8 of the Rules, signed by the nominee, certifying that he or she is not aware of any conflict of interest or duty and making proper disclosure of fee rates, and serving it in accordance with Rule 5.5(3)(b); The Court appoints the plaintiff’s nominee in the normal case, but is not obliged to do so. An obvious ground for the Court declining to appoint the plaintiff’s nominee is that the Court considers there is an actual or potential conflict between the duties of a liquidator and the nominee’s personal interest or some other duty (for example, a person who has acted as receiver and manager of the company for a secured creditor will almost never be appointed liquidator); Unless the consent in proper form of a registered official liquidator whose name appears in the Court’s list is filed with the originating process for winding up, the Registry will select a liquidator by rotation from the Court’s list. The plaintiff must obtain the consent in proper form of the liquidator selected by the Court, and file and serve that consent in accordance with Rule 5.5(3); If the liquidator declines to consent to the appointment (which the liquidator may do, after having given his or her consent to accept all court appointments, only on grounds such as conflict of interest), the plaintiff must: Nominate a registered official liquidator, whose name appears on the Court’s list, by filing and serving the liquidator’s consent in accordance with Rule 5.5(3); or approach the Registry for selection of another liquidator by rotation, and then file and serve that liquidator’s consent in accordance with Rule 5.5(3).

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NSW Practice Notes Practice Note SC Eq 5

Application 2. This Practice Note: • does not affect existing informal practices concerning valuation evidence and/or medical evidence in family provision applications and similar proceedings; • applies to all new and existing proceedings in the Equity Division. Definitions 3. In this Practice Note: Act means the Civil Procedure Act 2005 UCPR means the Uniform Civil Procedure Rules 2005 Expert Evidence Rules means Part 31, Division 2 of the UCPR Introduction 4. The object of this Practice Note is to supplement the Expert Evidence Rules and ensure the Court’s processes are consistent with the Act’s overriding purpose as set out in s 56. 5. This Practice Note aims to: • encourage prospective parties to discuss the extent to which they intend to rely on expert evidence before commencing proceedings, • ensure parties promptly obtain expert evidence directions in accordance with UCPR 31.19, • minimise the costs of obtaining expert evidence, and • reduce the hearing time of a case. Parties to confer regarding experts before commencing proceedings 6. Where the prospective parties have retained legal representatives the legal representatives of those parties must confer in an endeavour to jointly retain: • one expert, or • one expert for each specified issue or matters in issue. 7. Where it is not appropriate or possible to agree on one expert or one expert in each specified issue or matter, the legal representatives should confer as early as possible to minimise the number of expert witnesses. 8. Parties must consider whether the expert witnesses should give evidence together as detailed in UCPR 31.35(c) to (h) inclusive. Generally, the procedure will be that the judge will examine them in chief as witnesses of the Court; cross examination will take place of all witnesses jointly, the order of cross examination being either agreed by counsel or determined by the Judge. Restrictions on the number of experts 9. Generally, and in accordance with UCPR 31.20(2), only one expert per specified issue will be allowed to: • the plaintiff, and • any one of multiple defendants. Defendants who have the same interest in the expert evidence will be treated as one, and should confer at an early stage to agree on a single expert. 10. More than one expert per specified issue may be allowed if good reason is shown in a particular case. 11. Generally, the experts engaged in relation to a specified issue should confer before the trial and produce a joint report in accordance with UCPR 31.24 to include (where relevant): • a statement as to their agreed conclusions, and • a statement of their differences and of the apparent reasons thereof. Directions regarding experts 12. Under UCPR 31.19, a party considering or intending to adduce expert evidence at trial must promptly seek directions from the court in that regard. A party must seek those directions in accordance with paragraphs 13, 14 and 15 of this Practice Note. ©

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Supreme Court Equity Division – Expert evidence in the equity division Date: 10/08/2012 Commencement 1. This Practice Note was issued on 10 August 2012 and commences on 10 August 2012.

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13. The court may make directions concerning expert evidence in the absence of the parties provided: • a request for directions concerning expert evidence is filed in accordance with the form “Request for Expert Evidence Directions” in Annexure A to this Practice Note, and • all lawyers have signed the form of Request for Expert Evidence Directions. 14. If the parties do not agree on the proposed Expert Evidence Directions, the issue should be raised at the next directions hearing. The party who drafted the proposed directions should provide the Court with a copy at least three days before the directions hearing. If there is no upcoming directions hearing, the party may seek to have the proceedings listed before the Court on three days’ notice to the Court and the other party/parties. 15. Directions for expert evidence can be sought: • In the Commercial List and Technology and Construction List, from the List Judge of those Lists on a Friday. • In the Corporations List, from the Judge operating the Corporations List on a Monday. • In the Probate or Protective List, from the Registrar in Probate or from the List Judge on a Monday. • In the Expedition List or Duty List, from the Judge operating that List. • In the Admiralty List, from the Judge operating that List. • In the Revenue List, from the Judge operating that List. • In cases which have been fixed for trial before or are being case managed by a particular Judge, from that Judge. • In cases to be heard by an Associate Judge, from an Associate Judge. • In cases where special circumstances exist for not making an earlier application, from the Judge conducting the pre trial. • Otherwise from the Registrar in Equity, who in case of serious conflict or difficulty may refer the matter to the Duty Judge. T F Bathurst Chief Justice of New South Wales 10 August 2012 Related information Practice Note SC Gen 5 was issued on 23 December 2008 and commenced on 2 February 2009. Practice Note SC Gen 1 Supreme Court – Application of Practice Notes. Practice Note SC Eq 1 Supreme Court Equity Division – Case management. Civil Procedure Act 2005. Uniform Civil Procedure Rules 2005. Amendment history 10 August 2012: the Practice Note issued on 23 December 2008 was replaced to accommodate the addition of the Revenue List to paragraph 15. ANNEXURE A UCPR 31.19 Practice Note SC Eq 5 REQUEST FOR EXPERT EVIDENCE DIRECTIONS COURT DETAILS CourtSupreme Court of NSW #DivisionEquity #List Registry Case number TITLE OF PROCEEDINGS [First] plaintiff [name] #Second plaintiff #Number of plaintiffs (if more than two) 228

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[First] defendant [name] #Second defendant #Number of defendants (if more than two) PREPARATION DETAILS Prepared for [name] [role of party eg plaintiff] #Legal representative [solicitor on record] [firm] #Legal representative reference [reference number] REQUEST FOR DIRECTIONS In the absence of the parties, the Court is requested to make the following directions concerning expert evidence to be called in these proceedings. TERMS OF REQUEST The parties request that the court give the following directions: 1. Grant leave for the plaintiff to engage the following experts [set out details stating names and qualifications or, if names are not available, one person of stated qualification for each specified issue or matter for which expert evidence is to be called] 2. Grant leave for the defendant to engage the following experts: [set out details stating names and qualifications or, if names are not available, one person of stated qualification for each specified issue or matter for which expert evidence is to be called] 3. Direct that the expert witnesses confer with each other and endeavour to reach agreement in relation to specified matters or on any matters in issue in accordance with UCPR 31.24 and deliver their joint report to the trial Judge’s Associate at least 4 days before the hearing [#or as agreed]. CERTIFICATION Before making this request, I certify that the parties have properly considered: 1. What expert evidence is required in order that these proceedings can be dealt with justly, cheaply and expeditiously. 2. The desirability of calling one expert in respect of each specified issue. 3. Whether evidence can be given in accordance with UCPR 31.35(c) to (h) inclusive [ie. two or more expert witnesses give evidence at the one time] SIGNATURES [Role of party] #Signature of legal representative #Signature of or on behalf of party if not legally represented Capacity[eg solicitor, authorised officer, role of party] Date of signature [repeat as required for each party signing] ORDER FOR DIRECTIONS The Court gives the directions requested as set out under “Terms of Request” above. SEAL AND SIGNATURE Court seal Signature Capacity Date made or given Date entered

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Contact name and telephone [name] [telephone]

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Practice Note SC Eq 6

Supreme Court Equity Division – Cross-border insolvency: Cooperation with foreign courts or foreign representatives Date: 11/03/2009 The Cross-Border Insolvency Act 2008 (Cth) (the Act) provides in s 6 that, subject to the Act, the Model Law on Cross-Border Insolvency of the United Nations Commission on International Trade Law (UNCITRAL) (the Model Law), with the modifications set out in Pt 2 of the Act, has the force of law in Australia. The English text of the Model Law is set out in Schedule 1 to the Act. Chapter IV of the Model Law, comprising Articles 25–27, provides for cooperation with foreign courts and foreign representatives in the cross-border insolvency matters that are referred to in Article 1 of the Model Law. Articles 25 and 27 of the Model Law, as modified by s 11 of the Act, and as presently relevant, provide: Article 25 Cooperation and direct communication between [this Court] and foreign courts or foreign representatives 1. In matters referred to in article 1, the court shall cooperate to the maximum extent possible with foreign courts or foreign representatives, either directly or through a registered liquidator (within the meaning of section 9 of the Corporations Act 2001). 2. The court is entitled to communicate directly with, or to request information or assistance directly from, foreign courts or foreign representatives. Article 27 Forms of cooperation Cooperation referred to in [article 25] may be implemented by any appropriate means, including: (a) Appointment of a person or body to act at the direction of the court; (b) Communication of information by any means considered appropriate by the court; (c) Coordination of the administration and supervision of the debtor’s assets and affairs; (d) Approval or implementation by courts of agreements concerning the coordination of proceedings; (e) Coordination of concurrent proceedings regarding the same debtor; (f) [The enacting State may wish to list additional forms or examples of cooperation]. [Section 18 of the Act provides that no additional forms or examples of cooperation are added.] The form or forms of cooperation appropriate to each particular case will depend on the circumstances of that case. As experience and jurisprudence in this area develop, it may be possible for later versions of this Practice Note to lay down certain parameters or guidelines. Cooperation between the Court and a foreign court or foreign representative under Article 25 will generally occur within a framework or protocol that has previously been approved by the Court, and is known to the parties, in the particular proceeding. Ordinarily it will be the parties who will draft the framework or protocol. In doing so, the parties should have regard to: • the Guidelines Applicable to Court-to-Court Communication in Cross-Border Cases published by The American Law Institute and The International Insolvency Association (available at http:// www.ali.org/doc/Guidelines.pdf); and • the Draft UNCITRAL Notes on cooperation, communication and coordination in cross-border insolvency proceedings (available at http://www.uncitral.org/uncitral/ en/commission/working_ groups/5Insolvency.html, by clicking the link under the heading “35th Session, 17-21 November 2008, Vienna” (last item). J J Spigelman AC Chief Justice of New South Wales 11 March 2009 Related information Practice Note SC Gen 1 Supreme Court – Application of Practice Notes Practice Note SC Eq 1 Supreme Court Equity Division – Case management 230

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Practice Note SC Eq 4 Supreme Court Equity Division – Corporations List Amendment history This Practice Note was issued and commenced on 11 March 2009.

2. The court is entitled to communicate directly with, or to request information or assistance directly from, foreign courts or foreign representatives. Annexure 2 – Article 27 Forms of cooperation Cooperation referred to in [article 25] may be implemented by any appropriate means, including: (a) Appointment of a person or body to act at the direction of the court; (b) Communication of information by any means considered appropriate by the court; (c) Coordination of the administration and supervision of the debtor’s assets and affairs; (d) Approval or implementation by courts of agreements concerning the coordination of proceedings; (e) Coordination of concurrent proceedings regarding the same debtor; (f) [The enacting State may wish to list additional forms or examples of cooperation]. [Section 18 of the Act provides that no additional forms or examples of cooperation are added.]

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Annexure 1 – Article 25 Cooperation and direct communication between [this Court] and foreign courts or foreign representatives 1. In matters referred to in article 1, the court shall cooperate to the maximum extent possible with foreign courts or foreign representatives, either directly or through a registered liquidator (within the meaning of section 9 of the Corporations Act 2001).

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Practice Note SC Gen 10

Supreme Court – Single expert witnesses Date: 17/08/2005 Commencement 1. This Practice Note commences on 17 August 2005. Application 2. This Practice Note applies to all proceedings commenced after its commencement in which a claim is made for damages for personal injury or disability. 3. This Practice Note does not apply to the Criminal List of the Common Law Division. Definitions 4. Single expert witness means an expert witness jointly retained by the parties or appointed by the court pursuant to this practice note. Single expert direction is the direction referred to in paragraph 7 of this practice note. Purpose 4. The purpose of this Practice Note is to prescribe the procedures surrounding the use of single expert witnesses in the Court. Single Expert Witnesses 6. Unless cause is otherwise shown, a single expert direction will be made in every proceeding and at the earliest practicable time in the course of case management. 7. A “single expert direction”, when made in those terms, means that the following directions are to be taken as having been made, with such variations as may be specified at that time or subsequently: a. Any expert evidence is confined to that of a single expert witness in relation to any one head of damages, including but not limited to the nature, extent and cost of required nursing care or domestic care (including claims under Griffıths v Kerkmeyer and under Sullivan v Gordon), physiotherapy, speech therapy, home modification, motor vehicle or aids and equipment, being evidence of the kind customarily given (by way of example) by rehabilitation consultants, occupational therapists, nursing and domestic care providers, architects, builders, motor vehicle consultants, and by aids and equipment suppliers. (a) Evidence may be provided by the same single expert in relation to more than one head of damages provided the expert is appropriately qualified. It is contemplated, however, that there may be a number of single expert witnesses retained or appointed in the one proceedings. (b) In relation to any head of damages as to which any party wishes expert evidence to be adduced, the parties are to agree on a single expert to be retained and are to obtain the concurrence of the expert within 14 days from a date specified in the order as the commencement date of the direction, otherwise within 14 days from the making of the direction. (c) Failing agreement and concurrence within that time, the parties are to notify the court forthwith, and the court will, pursuant to Pt 39, appoint a court expert to be the single expert. (d) Within 14 days from the selection or appointment of a single expert witness, the parties are to brief the expert, in such manner as the parties may agree, with materials sufficient to enable the expert to prepare a report. If the parties do not so agree, they are to notify the court forthwith and the court will give directions as to how the single expert witness is to be briefed. (e) If the parties agree or the single expert witness so requests, the plaintiff in the proceedings is to submit to clinical examination by the single expert witness. (f) Within 21 days from the date on which a single expert witness is so briefed, the expert is to send his or her report to each of the parties to the proceedings, through their legal representatives. 232

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(g) A single expert witness may be requested to provide a supplementary report taking into account any new or omitted factual material. The provisions of this practice note apply to such a supplementary report mutatis mutandis. (h) Any party may, within 14 days from receipt of the report, put a maximum of 10 written questions to the expert, but for the purpose only of clarifying matters in the report unless the court otherwise grants leave. The expert is to answer the questions within 14 days. (i) The report of a single expert witness and any question put to the expert and the expert’s answer thereto may be tendered by any party at the trial subject to all just exceptions. (j) A single expert witness may be cross-examined at the trial by any party. (k) A single expert witness’s fee for preparation of the report and any supplementary report and for attending court, if required to do so, is to be paid by the parties equally, subject to other agreement or direction and subject to any later order concerning the costs of the proceedings. A single expert witness’s fee for answering questions put by a party is to be paid by the party, subject to the same qualification. (l) A single expert witness may apply to the court for directions. 8. Nothing in this practice note is intended to require the retaining or appointment of a single expert witness in relation to liability, the nature or extent of injury or disability, or the causation of injury or disability. J J Spigelman AC Chief Justice of New South Wales 17 August 2005 Related information Practice Note SC Gen 10 was issued and commenced on 17 August 2005. This Practice Note replaced Former Practice Note No. 120 on 17 August 2005.

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Practice Note SC Gen 11

Supreme Court – Joint conferences of expert witnesses Date: 17/08/2005 Commencement 1. This Practice Note commences on 17 August 2005. Application 2. This Practice Note applies to all civil appeals and proceedings before the Court. This Practice Note does not apply to proceedings in the Court of Criminal Appeal or criminal proceedings in the Common Law Division. Definitions 3. In this Practice Note: Code means Schedule 7 to the Uniform Civil Procedure Rules 2005 SCR means the Supreme Court Rules 1970 UCPR means the Uniform Civil Procedure Rules 2005 Introduction 4. The objective of this Practice Note is to facilitate compliance with any directions of the Court given pursuant to Division 2 of Part 31 of the UCPR. Objectives of joint conferences 5. The objectives of such directions for a joint conference of experts include the following: • the just, quick and cost effective disposal of the proceedings; • the identification and narrowing of issues in the proceedings during preparation for such a conference and by discussion between the experts at the conference. The joint report may be tendered by consent as evidence of matters agreed and/or to identify and limit the issues on which contested expert evidence will be called; • the consequential shortening of the trial and enhanced prospects of settlement; • apprising the Court of the issues for determination; • binding experts to their position on issues, thereby enhancing certainty as to how the expert evidence will come out at the trial. (The joint report may, if necessary, be used in cross-examination of a participating expert called at the trial who seeks to depart from what was agreed); and • avoiding or reducing the need for experts to attend court to give evidence. Preparing for a conference 6. The parties should agree on the following matters: • the experts to attend; • the questions to be answered; and • the materials to be placed before the experts. 7. The experts to attend should be those specified in the Court’s order. If none are so specified, the parties should arrange for experts to attend who have expertise pertinent to the questions to be asked. Separate conferences may be required between experts in different specialities in relation to different issues arising in the case. 8. The questions to be answered should be those specified by the Court or those agreed by the parties as relevant and any other question which any party wishes to submit for consideration. 9. The questions to be answered should be framed to resolve an issue or issues in the proceedings. If possible, questions should be capable of being answered Yes or No, or (if not) by a very brief response. 10. The materials to be provided to each of the participating experts should include: • the Code; • this Practice Note; • an agreed chronology, if appropriate; • relevant witness statements or, preferably, a joint statement of the assumptions to be made by the experts, including any competing assumptions to be made by them in the alternative (which should be specified clearly as such); 234

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• copies of all expert opinions already exchanged between the parties and all other expert opinions and reports upon which a party intends to rely; and • such records and other documents as may be agreed between the parties or ordered by the Court. 11. The participating experts should each be provided, in advance, with the questions and materials referred to in paragraphs 8, 9 and 10.

13. The conference should take the form of a personal meeting. Alternatively the participants may choose to hold the conference by teleconference, videolink or similar means if a personal meeting is not practicable. 14. The experts should be given a reasonable opportunity to prepare for the conference by ensuring that before the conference the experts have: • an opportunity to seek clarification from the instructing lawyers or the Court concerning any question put to them, and • access to any additional materials which the parties are able to provide and which the experts consider to be relevant. 15. In order to enable the experts to have a reasonable opportunity to prepare for the occasion, the conference should not take place until the expiration of at least 14 days following the provision of the materials referred to in paragraph 11. The role of experts at a conference 16. The experts should provide their respective opinions in response to the questions asked based on the witness statements or assumptions provided. Where alternative assumptions are provided the experts should provide their respective opinions on the alternative assumptions. 17. The experts may specify in their report other questions which they believe it would be useful for them to consider. 18. Pursuant to paragraph 4(2) of the Code, an expert witness must exercise his or her independent, professional judgment in relation to such a conference and joint report, and must not act on any instruction or request to withhold or avoid agreement. An expert should not assume the role of advocate for any party during the course of discussions at the joint conference. If, for whatever reason, an expert is unable to reach agreement with the other experts on any matter, that expert should be free to express his or her disagreement with the other experts on that matter. 19. The experts should accept as fact the matters stated in witness statements or assumptions submitted to them. It is not their role to decide any disputed question of fact or the credibility of any witness. Where there are competing assumptions to be made in the alternative, alternative answers may have to be provided to a question or questions, specifying which of the assumptions are adopted for each answer. Conduct of the conference 20. The conference should be conducted in a manner which is flexible, free from undue complexity (so far as is practicable) and fair to all parties. 21. The participating experts may appoint one of their number as a chairperson. If one of them so requests and the parties agree or the court orders, some other person may be appointed to act as chairperson. 22. Secretarial or administrative assistance should be provided by the parties if so requested by the experts. 23. If the participating experts agree, one of them or a secretarial assistant may be appointed to make a note at the conference of matters agreed, matters not agreed and reasons for disagreement. 24. The conference may be adjourned and reconvened as may be thought necessary by those participating. Joint report 25. Pursuant to UCPR Rule 31.25 and Paragraph 4 of the Code, the report should specify matters agreed and matters not agreed and the reasons for non agreement. 26. The joint report should, if possible, be signed by all participating experts immediately at the conclusion of the conference and, otherwise, as soon as practicable thereafter. ©

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Convening a conference 12. Subject to any directions given by the Court concerning the range of dates for the convening of the conference, the parties should communicate amongst themselves to fix a mutually convenient date, time and place for the conference.

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27. Prior to signing of a joint report, the participating experts should not seek advice or guidance from the parties or their legal representatives except as provided for in this Practice Note. Thereafter, the experts may provide a copy of the report to a party or his or her legal representative and may communicate what transpired at the meeting in detail if they wish. 28. The report of the joint conference should be composed by the experts and not the representatives of the parties. The report should be set out in numbered paragraphs and should be divided into the following sections: • statement of agreed opinion in respect of each matter calling for report; • statement of matters not agreed between experts with short reasons why agreement has not been reached; • statement in respect of which no opinions could be given e.g. issues involving credibility of testimony; • any suggestion by the participating experts as to any other matter which they believe could usefully be submitted to them for their opinion; and • disclosure of any circumstances by reason of which an expert may be unable to give impartial consideration to the matter. 29. The joint report, when signed by all participating experts, should be forwarded to the Court. Role of legal representatives 30. Legal representatives who attend a conference pursuant to an order of the Court or who are approached for advice or guidance by a participating expert should respond jointly and not individually, unless authorised to do so by the legal representatives for all other parties with an interest in the conference. 31. Such advice or guidance may be provided by: • responding to any questions in relation to the legal process applicable to the case; • identifying relevant documents; • providing further materials on request; and • correcting any misapprehensions of fact or any misunderstanding concerning the conference process. 32. The legal representatives of the parties should perform any other role the Court may direct. Provision of information 33. The legal representatives of the parties should inform the associate of the judge who directed the conference of the date of a conference when arranged, the names of the participating experts and the questions submitted. 34. It is not intended that the joint report provided to the Court or that information provided to the Court concerning a conference will be evidence in the proceedings unless admitted into evidence in the ordinary way (that is, by consent or by tender subject to the SCR and the rules of evidence). Further directions 35. Pursuant to UCPR Rule 31.25(2), an expert directed to confer may apply to the Court for further directions. That may be done, at the expert’s election, by arrangement with the associate of the judge who directed the conference. A party may also apply for further directions in relation to a directed conference. J J Spigelman AC Chief Justice of New South Wales 17 August 2005

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Related information Practice Note SC Gen 11 was issued and commenced on 17 August 2005. This Practice Note replaced Former Practice Note No. 121 on 17 August 2005. See also: Practice Note SC Gen 1 Supreme Court – Application of Practice Notes Practice Note SC Gen 3 Supreme Court – Use of technology Supreme Court Rules 1970 NSW

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Practice Note SC Gen 13

Supreme Court – Search orders (also known as “Anton Piller Orders”) Date: 16/06/2010 Application This Practice Note applies to the Court of Appeal and to the Common Law and the Equity Divisions of the Supreme Court. Commencement This Practice Note was issued on 16 June 2010 and commences from 1 July 2010. Search Orders 1. This Practice Note supplements Division 3 of Part 25 of the Uniform Civil Procedure Rules 2005 (UCPR) relating to search orders (also known as Anton Piller orders, after Anton Piller KG v Manufacturing Processes Ltd [1976] Ch 55). 2. This Practice Note addresses (among other things) the Court’s usual practice relating to the making of a search order and the usual terms of such an order. While a standard practice has benefits, this Practice Note and the example form of order annexed to it do not, and cannot, limit the judicial discretion to make such order as is appropriate in the circumstances of the particular case. 3. Words and expressions in this Practice Note that are defined in UCPR rule 25.18 have the meanings given to them in that rule. 4. Ordinarily, a search order is made ex parte and compels the respondent to permit persons specified in the order (“search party”) to enter premises and to search for, inspect, copy and remove the things described in the order. The order is designed to preserve important evidence pending the hearing and determination of the applicant’s claim in a proceeding brought or to be brought by the applicant against the respondent or against another person. The order is an extraordinary remedy in that it is intrusive, potentially disruptive, and made ex parte and prior to judgment. 5. An example form of ex parte search order is annexed to this Practice Note (the footnotes and references to footnotes in the example form should not form part of the order as made). The example form may be adapted to meet the circumstances of the particular case. It contains provisions which are aimed at achieving the permissible objectives of a search order, while minimising the potential for disruption or damage to the respondent and for abuse of the Court’s process. 6. The search party must include an independent solicitor who will supervise the search and a solicitor or solicitors representing the applicant. It may be necessary that it include other persons, such as an independent computer expert, and a person able to identify things being searched for if difficulties of identification may arise. Ordinarily, the search party should not include the applicant or the applicant’s directors, officers, employees or partners or any other person associated with the applicant (other than the applicant’s solicitor). 7. The order should be clear about the maximum number of persons permitted to be in the search party. The number of people in the search party should be as small as is reasonably practicable. The example form contemplates that they will be named in the order. This is desirable but if it is not possible the order should at least give a description of the class of person who will be there (e.g. “one solicitor employed by A, B and Co”). 8. The affidavits in support of an application for a search order should include the following information: (a) a description of the things or the categories of things, in relation to which the order is sought; (b) the address or location of any premises in relation to which the order is sought and whether they are private or business premises; (c) why the order is sought, including why there is a real possibility that the things to be searched for will be destroyed or otherwise made unavailable for use in evidence before the Court unless the order is made; (d) the prejudice, loss or damage likely to be suffered by the applicant if the order is not made; (e) the name, address, firm, and commercial litigation experience of an independent solicitor, who consents to being appointed to serve the order, supervise its execution, and do such other things as the Court considers appropriate; and 238

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(f) if the premises to be searched are or include residential premises, whether or not the applicant believes that the only occupant of the premises is likely to be: (i) a female; or (ii) a child under the age of 18; or (iii) any other person (“vulnerable person”) that a reasonable person would consider to be in a position of vulnerability because of that person’s age, mental capacity, infirmity or English language ability; or 9. If it is envisaged that specialised computer expertise may be required to search the respondent’s computers for documents, or if the respondent’s computers are to be imaged (i.e. hard drives are to be copied wholesale, thereby reproducing documents referred to in the order and other documents indiscriminately), special provision will need to be made, and an independent computer specialist will need to be appointed who should be required to give undertakings to the Court. 10. The applicant’s solicitor must undertake to the Court to pay the reasonable costs and disbursements of the independent solicitor and of any independent computer expert. 11. The independent solicitor is an important safeguard against abuse of the order. The independent solicitor must not be a member or employee of the applicant’s firm of solicitors. The independent solicitor should be a solicitor experienced in commercial litigation, preferably in the execution of search orders. The NSW Law Society has been requested to maintain a list of solicitors who have indicated willingness to be appointed as an independent solicitor for the purpose of executing search orders, but it is not only persons on such a list who may be appointed. The responsibilities of the independent solicitor are important and ordinarily include the following: (a) serve the order, the notice of motion applying for the order (if applicable), the affidavits relied on in support of the application, and the originating process; (b) offer to explain, and, if the offer is accepted, explain the terms of the search order to the respondent; (c) explain to the respondent that he or she has the right to obtain legal advice; (d) supervise the carrying out of the order; (e) before removing things from the premises, make a list of them, allow the respondent a reasonable opportunity to check the correctness of the list, sign the list, and provide the parties with a copy of the list; (f) take custody of all things removed from the premises until further order of the Court; (g) if the independent solicitor considers it necessary to remove a computer from the premises for safekeeping or for the purpose of copying its contents electronically or printing out information in documentary form, remove the computer from the premises for that purpose, and return the computer to the premises within any time prescribed by the order together with a list of any documents that have been copied or printed out; (h) submit a written report to the Court within the time prescribed by the order as to the execution of the order; and (i) attend the hearing on the return day of the application, and have available to be brought to the Court all things that were removed from the premises. On the return day the independent solicitor may be required to release material in his or her custody which has been removed from the respondent’s premises or to provide information to the Court, and may raise any issue before the Court as to execution of the order. 12. Ordinarily, the applicant is not permitted, without the leave of the Court, to inspect things removed from the premises or copies of them, or to be given any information about them by members of the search party. 13. Ordinarily, a search order should be served between 9:00am and 2:00pm on a business day in order to permit the respondent more readily to obtain legal advice. However, there may be circumstances in which such a restriction is not appropriate. 14. A search order must not be executed at the same time as the execution of a search warrant by the police or by a regulatory authority. ©

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(iv) any combination of (i), (ii) and (iii), and any one or more of such persons.

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15. If the premises are or include residential premises and the applicant is aware that when service of the order is effected the only occupant of the residential premises is likely to be any one or more of a female, a child under the age of 18, or a vulnerable person, the Court will give consideration to whether: (a) if the occupants are likely to include a female or child, the independent solicitor should be a woman or the search party should otherwise include a woman; and (b) if the occupants are likely to include a vulnerable person, the search party should include a person capable of addressing the relevant vulnerability. 16. Any period during which the respondent is to be restrained from informing any other person (other than for the purposes of obtaining legal advice) of the existence of the search order should be as short as possible and not extend beyond 4:30pm on the return day. 17. At the inter partes hearing of the application on the return day, the Court will consider the following issues: (a) what is to happen to any things removed from the premises or to any copies which have been made; (b) how any commercial confidentiality of the respondent is to be maintained; (c) any claim of privilege by the respondent; (d) any application by a party; and (e) any issue raised by the independent solicitor. 18. Appropriate undertakings to the Court will be required of the applicant, the applicant’s solicitor and the independent solicitor, as conditions of the making of the search order. The undertakings required of the applicant will normally include the Court’s usual undertaking as to damages. The applicant’s solicitor’s undertaking includes an undertaking not to disclose to the applicant any information that the solicitor has acquired during or as a result of execution of the search order, without the leave of the Court. Release from this undertaking in whole or in part may be sought on the return day. 19. If it is demonstrated that the applicant has or may have insufficient assets within the jurisdiction of the Court to provide substance for the usual undertaking as to damages, the applicant may be required to provide security for the due performance of that undertaking. The security may, for example, take the form of a bank’s irrevocable undertaking to pay or a payment into Court. The example form of search order contains provision for an irrevocable undertaking. 20. An applicant ex parte for a search order is under a duty to the Court to make full and frank disclosure of all material facts to the Court. This includes disclosure of possible defences known to the applicant and of any financial information which may cast doubt on the applicant’s ability to meet the usual undertaking as to damages from assets within Australia. 21. The order to be served should be endorsed with a notice which meets the requirements of UCPR rule 40.7. 22. The example form of search order refers to privilege in paragraphs 21 and 24. Section 128A of the Evidence Act 1995 (Cth) and Evidence Act 1995 (NSW) govern objection to compliance on the self-incrimination ground in relation to a search order. In particular, subsections (3)ff of s 128A govern the procedure to be followed after objection is taken in accordance with paragraphs 21 and 24 of the example form of search order annexed to this Practice Note. J J Spigelman AC Chief Justice of New South Wales 16 June 2010 Amendment history 16 June 2010: This Practice Note replaces the previous version of SC Gen 13 that was issued and commenced on 14 June 2006. Example Form of Search Order [Title of Proceeding] PENAL NOTICE TO: [name of person against whom the order is made] IF YOU (BEING THE PERSON BOUND BY THIS ORDER): (A) REFUSE OR NEGLECT TO DO ANY ACT WITHIN THE TIME SPECIFIEDIN THE ORDER FOR THE DOING OF THE ACT; OR 240

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(B) DISOBEY THE ORDER BY DOING AN ACT WHICH THE ORDER REQUIRESYOU TO ABSTAIN FROM DOING, YOU WILL BE LIABLE TO IMPRISONMENT, SEQUESTRATION OF PROPERTY OR OTHER PUNISHMENT ANY OTHER PERSON WHO KNOWS OF THIS ORDER AND DOES ANYTHING WHICH HELPS OR PERMITS YOU TO BREACH THE TERMS OF THIS ORDER MAY BE SIMILARLY PUNISHED. TO: [name of person against whom the order is made] This is a “search order” made against you on [insert date] by Justice [insert name of Judge] at a hearing without notice to you after the Court was given the undertakings set out in Schedule B to this order and after the Court read the affidavits listed in Schedule C to this order. THE COURT ORDERS: INTRODUCTION 1. (a) the application for this order is made returnable immediately. (b) the time for service of the application, supporting affidavits and originating process is abridged and service is to be effected by [insert time and date]. 2. Subject to the next paragraph, this order has effect up to and including [insert date] (“the return day”). On the return day at [insert time] am/pm there will be a further hearing in respect of this order before the Court. 3. You may apply to the Court at any time to vary or discharge this order; including, if necessary, by telephone to the Duty Judge (phone No. 9230 8025). 4. This order may be served only between [insert time] am/pm and [insert time] am/pm [on a business day].[1] 5. In this order: (a) “applicant” means the person who applied for this order, and if there is more than one applicant, includes all the applicants. (b) “independent computer expert” means the person (if any) identified as the independent computer expert in the search party referred to in Schedule A to this order. (c) “independent solicitor” means the person identified as the independent solicitor in the search party referred to in Schedule A to this order. (d) “listed thing” means any thing referred to in Schedule A to this order. (e) “premises” means the premises and any of the premises identified in Schedule A to this order, including any vehicles and vessels that are under the respondent’s control on or about the premises or that are otherwise identified in Schedule A. (f) “search party” means the persons identified or described as constituting the search party in Schedule A to this order. (g) “thing” includes a document. (h) “you”, where there is more than one of you, includes all of you and includes you if you are a corporation. (i) any requirement that something be done in your presence means: (A) in the presence of you or of one of the persons described in (6) below; or (B) if there is more than one of you, in the presence of each of you, or, in relation to each of you, in the presence of one of the persons described in (6) below. 6. This order must be complied with by you by: (a) yourself; or (b) any director, officer, partner, employee or agent of yourself; or (c) any other person having responsible control of the premises. 7. This order must be served by, and be executed under the supervision of, the independent solicitor. ENTRY, SEARCH AND REMOVAL 8. Subject to paragraphs 10 to 20 below, upon service of this order you must permit members of the search party to enter the premises so that they can carry out the search and other activities referred to in this order. ©

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9. Having permitted members of the search party to enter the premises, you must: (a) permit them to leave and re-enter the premises on the same and the following day until the search and other activities referred to in this order are complete; (b) permit them to search for and inspect the listed things and to make or obtain a copy, photograph, film, sample, test or other record of the listed things; (c) disclose to them the whereabouts of all the listed things in the respondent’s possession, custody or power, whether at the premises or otherwise; (d) disclose to them the whereabouts of all computers, computer disks and electronic information storage devices or systems at the premises in which any documents among the listed things are or may be stored, located or recorded and cause and permit those documents to be printed out; (e) do all things necessary to enable them to access the listed things, including opening or providing keys to locks and enabling them to access and operate computers and providing them with all necessary passwords; (f) permit the independent solicitor to remove from the premises into the independent solicitor’s custody: (i) the listed things or things which reasonably appear to the independent solicitor to be the listed things and any things the subject of dispute as to whether they are listed things; and (ii) the copies, photographs, films, samples, tests, other records and printed out documents referred to above; and (g) permit the independent computer expert (if there is one) to search any computer and make a copy or digital copy of any computer hard drive and permit the independent computer expert (if any) or the independent solicitor to remove any computer hard drive and computer from the premises as set out in paragraphs 20 and 21 below. RESTRICTIONS ON ENTRY, SEARCH AND REMOVAL 10. This order may not be executed at the same time as a search warrant (or similar process) is executed by the police or by a regulatory authority. 11. You are not required to permit anyone to enter the premises until: (a) the independent solicitor serves you with copies of this order and any affidavits referred to in Schedule C (confidential exhibits, if any, need not be served until further order of the Court); and (b) you are given an opportunity to read this order and, if you so request, the independent solicitor explains the terms of this order to you. 12. Before permitting entry to the premises by anyone other than the independent solicitor, you, for a time (not exceeding two hours from the time of service or such longer period as the independent solicitor may permit): (a) may seek legal advice; (b) may ask the Court to vary or discharge this order; (c) (provided you are not a corporation) may gather together any things which you believe may tend to incriminate you or make you liable to a civil penalty and hand them to the independent solicitor in (if you wish) a sealed envelope or container; and (d) may gather together any documents that passed between you and your lawyers for the purpose of obtaining legal advice or that are otherwise subject to legal professional privilege or client legal privilege, and hand them to the independent solicitor in (if you wish) a sealed envelope or container. 13. Subject to paragraph 22 below, the independent solicitor must not inspect or permit to be inspected by anyone, including the applicant and the applicant’s solicitors, any thing handed to the independent solicitor in accordance with subparagraphs 12(c) and (d) above and the independent solicitor must deliver it to the Court at or prior to the hearing on the return day. 14. During any period referred to in para 12 above, you must: (a) inform and keep the independent solicitor informed of the steps being taken; (b) permit the independent solicitor to enter the premises but not to start the search; (c) not disturb or remove any listed things; and (d) comply with the terms of paragraphs 25 and 26 below. 242

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15. Any thing the subject of a dispute as to whether it is a listed thing must promptly be handed by you to the independent solicitor for safekeeping pending resolution of the dispute or further order of the Court. 16. Before removing any listed things from the premises (other than things referred to in the immediately preceding paragraph), the independent solicitor must supply a list of them to you, give you a reasonable time to check the correctness of the list, and give you and the applicant’s solicitors a copy of the list signed by the independent solicitor.

18. If the independent solicitor is satisfied that full compliance with the immediately preceding paragraph is not reasonably practicable, the independent solicitor may permit the search to proceed and the listed things to be removed without full compliance. 19. The applicant’s solicitors and the independent solicitor must not allow the applicant in person to inspect or have copies of any thing removed from the premises nor communicate to the applicant information about its contents or about anything observed at the premises until 4:30pm on the return day or other time fixed by further order of the Court. COMPUTERS 20. (a) If it is expected that a computer will be searched, the search party must include a computer expert who is independent of the applicant and of the applicant’s solicitors (“the independent computer expert”). (b) Any search of a computer must be carried out only by the independent computer expert. (c) The independent computer expert may make a copy or digital copy of the computer hard drive and remove that copy or digital copy from the premises. (d) The independent computer expert may search the computer or the copy or digital copy of the computer hard drive at the premises and/or away from the premises for listed things and may copy the listed things electronically or in hard copy or both. (e) The independent computer expert must as soon as practicable and, in any event, prior to the hearing on the return day, deliver the copy or digital copy of the computer hard drive and all electronic and hard copies of listed things to the independent solicitor, together with a report of what the independent computer expert has done including a list of such electronic and hard copies. (f) The independent solicitor must, at or prior to the hearing on the return day, deliver to the Court all things received from the independent computer expert and serve a copy of the latter’s report on the parties. (g) If no independent computer expert has been appointed, but the independent solicitor considers it necessary to remove a computer from the premises for safekeeping or for the purpose of copying its contents electronically and printing out information in documentary form, the independent solicitor may remove the computer from the premises for that purpose and cause that purpose to be achieved. 21. (a) This paragraph (21) applies if you are not a corporation and you wish to object to complying with paragraph 20 on the grounds that some or all of the information required to be disclosed may tend to prove that you: (i) have committed an offence against or arising under an Australian law or a law of a foreign country; or (ii) are liable to a civil penalty. (b) This paragraph (21) applies if you are a corporation and all of the persons who are able to comply with paragraph 20 on your behalf and with whom you have been able to communicate, wish to object to your complying with paragraph 20 on the grounds that some or all of the information required to be disclosed may tend to prove that they respectively: (i) have committed an offence against or arising under an Australian law or a law of a foreign country; or (ii) are liable to a civil penalty. (c) You must: ©

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17. The premises must not be searched, and things must not be removed from the premises, except in the presence of you or of a person who appears to the independent solicitor to be your director, officer, partner, employee, agent or other person acting on your behalf or on your instructions.

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(i) disclose so much of the information required to be disclosed to which no objection is taken; and (ii) prepare an affidavit containing so much of the information required to be disclosed to which objection is taken, and deliver it to the Court in a sealed envelope; and (iii) file and serve on each other party a separate affidavit setting out the basis of the objection. INSPECTION 22. Prior to the return day, you or your solicitor or representative shall be entitled, in the presence of the independent solicitor, to inspect any thing removed from the premises and to: (a) make copies of the same; and (b) provide the independent solicitor with a signed list of things which are claimed to be privileged or confidential and which you claim ought not to be inspected by the applicant. PROVISION OF INFORMATION 23. Subject to paragraph 24 below, you must: (a) at or before the further hearing on the return day (or within such further time as the Court may allow) to the best of your ability inform the applicant in writing as to: (i) the location of the listed things; (ii) the name and address of everyone who has supplied you, or offered to supply you, with any listed thing; (iii) the name and address of every person to whom you have supplied, or offered to supply, any listed thing; and (iv) details of the dates and quantities of every such supply and offer. (b) within [ ] working days after being served with this order, make and serve on the applicant an affidavit setting out the above information. 24. (a) This paragraph (24) applies if you are not a corporation and you wish to object to complying with paragraph 23 on the grounds that some or all of the information required to be disclosed may tend to prove that you: (i) have committed an offence against or arising under an Australian law or a law of a foreign country; or (ii) are liable to a civil penalty. (b) This paragraph (24) also applies if you are a corporation and all of the persons who are able to comply with paragraph 23 on your behalf and with whom you have been able to communicate, wish to object to your complying with paragraph 23 on the grounds that some or all of the information required to be disclosed may tend to prove that they respectively: (i) have committed an offence against or arising under an Australian law or a law of a foreign country; or (ii) are liable to a civil penalty. (c) You must: (i) disclose so much of the information required to be disclosed to which no objection is taken; and (ii) prepare an affidavit containing so much of the information required to be disclosed to which objection is taken, and deliver it to the Court in a sealed envelope; and (iii) file and serve on each other party a separate affidavit setting out the basis of the objection. PROHIBITED ACTS 25. Except for the sole purpose of obtaining legal advice, you must not, until 4:30pm on the return day, directly or indirectly inform any person of this proceeding or of the contents of this order, or tell any person that a proceeding has been or may be brought against you by the applicant. 26. Until 4:30pm on the return day you must not destroy, tamper with, cancel or part with possession, power, custody or control of the listed things otherwise than in accordance with the terms of this order or further order of the Court. COSTS 27. The costs of this application are reserved to the Judge hearing the application on the return day. 244

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SCHEDULE A Premises The premises located at [insert address or addresses] including any vehicle or vehicles under the respondent’s control on or about those premises. Listed Things 1. 2. 3. NSW

Search Party 1. The independent solicitor: [insert name and address] 2. The applicant’s solicitor or solicitors: (a) [insert name and address] [or description e.g. a partner or employed solicitor of A, B and Co]. (b) [insert name and address] [or description e.g. a partner or employed solicitor of A, B and Co]. (c) [insert name and address] [or description e.g. a partner or employed solicitor of A, B and Co]. 3. Other members of the search party: (a) [insert name and address] in the capacity of [e.g. an independent computer expert] (b) [insert name and address] in the capacity of [insert capacity] SCHEDULE B UNDERTAKINGS GIVEN TO THE COURT Undertakings given to the Court by the applicant (1) The applicant undertakes to submit to such order (if any) as the Court may consider to be just for the payment of compensation (to be assessed by the Court or as it may direct) to any person (whether or not a party) affected by the operation of the order. (2) The applicant will not, without leave of the Court, use any information, document or thing obtained as a result of the execution of this order for the purpose of any civil or criminal proceeding, either within or outside Australia, other than this proceeding. (3) The applicant will not inform any other person of the existence of this proceeding except for the purposes of this proceeding until after 4:30pm on the return day. (4) If the applicant has not already done so, as soon as practicable the applicant will file a notice of motion for hearing on the return day and an originating process [in the form of the draft produced to the Court]. [(5) The applicant will insure the things removed from the premises against loss or damage for an amount that reasonably appears to the applicant to be their full value. [2]] [(6) The applicant will [3]: (a) on or before [insert date] cause a written irrevocable undertaking to pay in the sum of $[insert amount] to be issued from a bank with a place of business within Australia, in respect of any order the Court may make referred to in the undertaking as to damages contained in paragraph (1) above; and (b) immediately upon issue of the irrevocable undertaking to pay, cause a copy of it to be served on the respondent.] Undertakings given to the Court by the applicant’s solicitor (1) The applicant’s solicitor will pay the reasonable costs and disbursements of the independent solicitor and of any independent computer expert. (2) The applicant’s solicitor will provide to the independent solicitor for service on the respondent copies of the following documents: (a) this order; (b) the application for this order for hearing on the return day; (c) the following material in so far as it was relied on by the applicant at the hearing when the order was made: (i) affidavits (or draft affidavits) ©

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(ii) exhibits capable of being copied (other than confidential exhibits); (iii) any written submission; and (iv) any other document that was provided to the Court. (d) a transcript, or, if none is available, a note, of any exclusively oral allegation of fact that was made and of any exclusively oral submission that was put, to the Court; and (e) the originating process, or, if none was filed, any draft originating process produced to the Court. (3) The applicant’s solicitor will answer to the best of his or her ability any question as to whether a particular thing is a listed thing. (4) The applicant’s solicitor will use his or her best endeavours to act in conformity with the order and to ensure that the order is executed in a courteous and orderly manner and in a manner that minimises disruption to the respondent. (5) The applicant’s solicitor will not, without leave of the Court, use any information, document or thing obtained as a result of the execution of this order for the purpose of any civil or criminal proceeding, either within or outside Australia, other than this proceeding. (6) The applicant’s solicitor will not inform any other person of the existence of this proceeding except for the purposes of this proceeding until after 4:30pm on the return day. (7) The applicant’s solicitor will not disclose to the applicant any information that the solicitor acquires during or as a result of execution of the search order, without the leave of the Court. (8) The applicant’s solicitor will use best endeavours to follow all directions of the independent solicitor. Undertakings given to the Court by the independent solicitor (1) The independent solicitor will use his or her best endeavours to serve the respondent with this order and the other documents referred to in undertaking (2) of the above undertakings by the applicant’s solicitor or solicitors. (2) Before entering the premises, the independent solicitor will: (a) offer to explain the terms and effect of the search order to the person served with the order and, if the offer is accepted, do so; and (b) inform the respondent of his or her right to take legal advice. (3) Subject to undertaking (4) below, the independent solicitor will retain custody of all things removed from the premises by the independent solicitor pursuant to this order until delivery to the Court or further order of the Court. (4) At or before the hearing on the return day, the independent solicitor will provide a written report on the carrying out of the order to the Court and provide a copy to the applicant’s solicitors and to the respondent or the respondent’s solicitors. The report will attach a copy of any list made pursuant to the order and a copy of any report received from an independent computer expert. (5) The independent solicitor will use best endeavours to ensure that members of the search party act in conformity with the order and that the order is executed in a courteous and orderly manner and in a manner that minimises disruption to the respondent, and will give such reasonable directions to other members of the search party as are necessary or convenient for the execution of the order. (6) The independent solicitor will not, without leave of the Court, use any information, document or thing obtained as a result of the execution of this order for the purpose of any civil or criminal proceeding, either within or outside Australia, other than this proceeding. (7) The independent solicitor will not inform any other person of the existence of this proceeding except for the purposes of this proceeding until after 4:30pm on the return day. Undertakings given to the Court by the independent computer expert (1) The independent computer expert will use his or her best endeavours to act in conformity with the order and to ensure that the order, so far as it concerns the independent computer expert, is executed in a courteous and orderly manner and in a manner that minimises disruption to the respondent. (2) The independent computer expert will not, without leave of the Court, use any information, document or thing obtained as a result of the execution of this order for the purpose of any civil or criminal proceeding, either within or outside Australia, other than this proceeding. 246

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(3) The independent computer expert will not inform any other person of the existence of this proceeding except for the purposes of this proceeding until after 4:30pm on the return day. (4) The independent computer expert will use best endeavours to follow all directions of the independent solicitor. SCHEDULE C AFFIDAVITS RELIED ON Name of DeponentDate affidavit made (1) (3) NAME AND ADDRESS OF APPLICANT’S SOLICITORS The Applicant’s solicitors are: [Insert name, address, reference, fax and telephone numbers both in and out offıce hours]. END NOTES [1] Normally the order should be served between 9:00am and 2:00pm on a business day to enable the respondent more readily to obtain legal advice. [2] Depending on the nature of the things likely to be removed and their likely value, and the likely particular risks of their being lost or damaged, this undertaking or a more elaborate one may be required. [3] See Practice Note paragraph 19.

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[NSWPN.80] Practice Note SC Gen 14 Supreme Court – Freezing orders (also known as “Mareva orders” or “asset preservation orders”) Date: 16/06/2010 Application This Practice Note applies to the Court of Appeal and to the Common Law and the Equity Divisions of the Supreme Court. Commencement This Practice Note was issued on 16 June 2010 and commences on 1 July 2010. Freezing Orders 1. This Practice Note supplements Division 2 of Part 25 of the Uniform Civil Procedure Rules 2005 (UCPR) relating to freezing orders (also known as “Mareva orders” after Mareva Compania Naviera SA v International Bulkcarriers SA (The Mareva) [1975] 2 Lloyd’s Rep 509, or “asset preservation orders”). 2. This Practice Note addresses (among other things) the Court’s usual practice relating to the making of a freezing order and the usual terms of such an order. While a standard practice has benefits, this Practice Note and the example form of order annexed to it do not, and cannot, limit the judicial discretion to make such order as is appropriate in the circumstances of the particular case. 3. Words and expressions in this Practice Note that are defined in UCPR rule 25.10 have the meanings given to them in that rule. 4. An example form of ex parte freezing order is annexed to this Practice Note. The example form may be adapted to meet the circumstances of the particular case. It may be adapted for an inter partes freezing order as indicated in the footnotes to the example form (the footnotes and references to footnotes should not form part of the order as made). The example form contains provisions aimed at achieving the permissible objectives of the order consistently with the proper protection of the respondent and third parties. 5. The purpose of a freezing order is to prevent frustration or abuse of the process of the Court, not to provide security in respect of a judgment or order. 6. A freezing order should be viewed as an extraordinary interim remedy because it can restrict the right to deal with assets even before judgment, and is commonly granted ex parte. 7. The respondent is often the person said to be liable on a substantive cause of action of the applicant. However, the respondent may also be a third party, in the sense of a person who has possession, custody or control, or even ownership, of assets which he or she may be obliged ultimately to disgorge to help satisfy a judgment against another person. Subrule 5(5) addresses the minimum requirements that must ordinarily be satisfied on an application for a freezing order against such a third party before the discretion is enlivened. The third party will not necessarily be a party to the substantive proceeding, (see Cardile v LED Builders Pty Ltd (1999) 198 CLR 380) but will be a respondent to the application for the freezing or ancillary order. Where a freezing order against a third party seeks only to freeze the assets of another person in the third party’s possession, custody or control (but not ownership), the example form will require adaptation. In particular, the references to “your assets” and “in your name” should be changed to refer to the other person’s assets or name (e.g. “John Smith’s assets”, “in John Smith’s name”). 8. A freezing or ancillary order may be limited to assets in Australia or in a defined part of Australia, or may extend to assets anywhere in the world, and may cover all assets without limitation, assets of a particular class, or specific assets (such as the amounts standing to the credit of identified bank accounts). 9. The duration of an ex parte freezing order should be limited to a period terminating on the return day of the motion, which should be as early as practicable (usually not more than a day or two) after the order is made, when the respondent will have the opportunity to be heard. The applicant will then bear the onus of satisfying the Court that the order should be continued or renewed. 10. A freezing order should reserve liberty for the respondent to apply on short notice. An application by the respondent to discharge or vary a freezing order will normally be treated by the Court as urgent. 11. The value of the assets covered by a freezing order should not exceed the likely maximum amount of the applicant’s claim, including interest and costs. Sometimes it may not be possible to satisfy this principle (for example, an employer may discover that an employee has been making fraudulent misappropriations, but does not know how much has been misappropriated at the time of the discovery and at the time of the approach to the Court). 248

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13. Where a freezing order extends to assets outside Australia, the order should provide for the protection of persons outside Australia and third parties. Such provisions are included in the example form of freezing order. 14. The Court may make ancillary orders. The most common example of an ancillary order is an order for disclosure of assets. The annexed example form provides for such an order in paragraph 8 and for the privilege against self-incrimination in paragraph 9. Section 128A of the Evidence Act 1995 (Cth) and Evidence Act 1995 (NSW) govern objection to compliance on the self-incrimination ground in relation to a freezing order. In particular subsections, (3)ff of s 128A govern the procedure to be followed after objection is taken in accordance with paragraph 9 of the example form of freezing order annexed to this Practice Note. 15. The rules of court confirm that certain restrictions expressed in The Siskina [1979] AC 210 do not apply in this jurisdiction. First, the Court may make a freezing order before a cause of action has accrued (a ‘prospective’ cause of action). Secondly, the Court may make a free-standing freezing order in aid of foreign proceedings in prescribed circumstances. Thirdly, where there are assets in Australia, service out of Australia is permitted under a new ‘long arm’ service rule. 16. As a condition of the making of a freezing order, the Court will normally require appropriate undertakings by the applicant to the Court, including the usual undertaking as to damages. 17. If it is demonstrated that the applicant has or may have insufficient assets within the jurisdiction of the Court to provide substance for the usual undertaking as to damages, the applicant may be required to support the undertaking by providing security. There is provision for such security in the example form of freezing order. 18. The order to be served should be endorsed with a notice which meets the requirements of UCPR rule 40.7. 19. An applicant for an ex parte freezing order is under a duty to make full and frank disclosure of all material facts to the Court. This includes disclosure of possible defences known to the applicant and of any information which may cast doubt on the applicant’s ability to meet the usual undertaking as to damages from assets within Australia. 20. The affidavits relied on in support of an application for a freezing or ancillary order should, if possible, address the following: (a) information about the judgment that has been obtained, or, if no judgment has been obtained, the following information about the cause of action: (i) the basis of the claim for substantive relief; (ii) the amount of the claim; and (iii) if the application is made without notice to the respondent, the applicant’s knowledge of any possible defence; (b) the nature and value of the respondent’s assets, so far as they are known to the applicant, within and outside Australia; (c) the matters referred to in UCPR rule 25.14; and (d) the identity of any person, other than the respondent, who, the applicant believes, may be affected by the order, and how that person may be affected by it. J J Spigelman AC Chief Justice of New South Wales 16 June 2010 Amendment history 16 June 2010: This Practice Note replaces the previous version of SC Gen 14 that was issued and commenced on 14 June 2006. ©

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12. The order should, where appropriate, exclude dealings by the respondent with its assets for legitimate purposes, in particular: (a) payment of ordinary living expenses; (b) payment of reasonable legal expenses; (c) dealings and dispositions in the ordinary and proper course of the respondent’s business, including paying business expenses bona fide and properly incurred; and (d) dealings and dispositions in the discharge of obligations bona fide and properly incurred under a contract entered into before the order was made.

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Example form of ex parte Freezing Order [Title of Proceeding] PENAL NOTICE TO: [name of person against whom the order is made] IF YOU: (A) REFUSE OR NEGLECT TO DO ANY ACT WITHIN THE TIME SPECIFIEDIN THE ORDER FOR THE DOING OF THE ACT; OR (B) DISOBEY THE ORDER BY DOING AN ACT WHICH THE ORDER REQUIRESYOU TO ABSTAIN FROM DOING, YOU WILL BE LIABLE TO IMPRISONMENT, SEQUESTRATION OF PROPERTY OR OTHER PUNISHMENT. ANY OTHER PERSON WHO KNOWS OF THIS ORDER AND DOES ANYTHING WHICH HELPS OR PERMITS YOU TO BREACH THE TERMS OF THIS ORDER MAY BE SIMILARLY PUNISHED. TO: [name of person against whom the order is made] This is a “freezing order” made against you on [insert date] by Justice [insert name of Judge] at a hearing without notice to you after the Court was given the undertakings set out in Schedule A to this order and after the Court read the affidavits listed in Schedule B to this order[1]. THE COURT ORDERS: INTRODUCTION 1. (a) The application for this order is made returnable immediately. (b) The time for service of the application, supporting affidavits and originating process is abridged and service is to be effected by [insert time and date].[2] 2. Subject to the next paragraph, this order has effect up to and including [insert date] (“the return day”). On the return day at [insert time] am/pm there will be a further hearing in respect of this order before the Court.[3] 3. Anyone served with or notified of this order, including you, may apply to the Court at any time to vary or discharge this order or so much of it as affects the person served or notified. 4. In this order: “applicant”, if there is more than one applicant, includes all the applicants; “you”, where there is more than one of you, includes all of you and includes you if you are a corporation; “third party” means a person other than you and the applicant; “unencumbered value” means value free of mortgages, charges, liens or other encumbrances. 5. (a) If you are ordered to do something, you must do it by yourself or throughdirectors, officers, partners, employees, agents or others acting on your behalf or on your instructions. (b) If you are ordered not to do something, you must not do it yourself or through directors, officers, partners, employees, agents or others acting on your behalf or on your instructions or with your encouragement or in any other way. FREEZING OF ASSETS [For order limited to assets in Australia] 6. (a) You must not remove from Australia or in any way dispose of, deal with or diminish the value of any of your assets in Australia (“Australian assets”) up to the unencumbered value of AUD$ (“the Relevant Amount”). (b) If the unencumbered value of your Australian assets exceeds the Relevant Amount, you may remove any of those assets from Australia or dispose of or deal with them or diminish their value, so long as the total unencumbered value of your Australian assets still exceeds the Relevant Amount. [If the Court makes a worldwide order, the following additional paragraph (c) also applies.] (c) If the unencumbered value of your Australian assets is less than the Relevant Amount, and you have assets outside Australia (“ex-Australian assets”): (i) You must not dispose of, deal with or diminish the value of any of your Australian assets and ex-Australian assets up to the unencumbered value of your Australian and ex-Australian assets of the Relevant Amount; and 250

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7. For the purposes of this order, (1) your assets include: (a) all your assets, whether or not they are in your name and whether they are solely or co-owned; (b) any asset which you have the power, directly or indirectly, to dispose of or deal with as if it were your own (you are to be regarded as having such power if a third party holds or controls the asset in accordance with your direct or indirect instructions); and (c) the following assets in particular: (i) the property known as [title/address] or, if it has been sold, the net proceeds of the sale; (ii) the assets of your business [known as [name]] [carried on at [address]] or, if any or all of the assets have been sold, the net proceeds of the sale; and (iii) any money in account [numbered account number] [in the name of] at [name of bank and name and address of branch]. (2) the value of your assets is the value of the interest you have individually in your assets. PROVISION OF INFORMATION [4] 8. Subject to paragraph 9, you must: (a) at or before the further hearing on the return day (or within such further time as the Court may allow) to the best of your ability inform the applicant in writing of all your assets in [Australia] [world wide], giving their value, location and details (including any mortgages, charges or other encumbrances to which they are subject) and the extent of your interest in the assets; (b) within [ ] working days after being served with this order, swear and serve on the applicant an affidavit setting out the above information. 9. (a) This paragraph (9) applies if you are not a corporation and you wish to object to complying with paragraph 8 on the grounds that some or all of the information required to be disclosed may tend to prove that you: (i) have committed an offence against or arising under an Australian law or a law of a foreign country; or (ii) are liable to a civil penalty. (b) This paragraph (9) also applies if you are a corporation and all of the persons who are able to comply with paragraph 8 on your behalf and with whom you have been able to communicate, wish to object to your complying with paragraph 8 on the grounds that some or all of the information required to be disclosed may tend to prove that they respectively: (i) have committed an offence against or arising under an Australian law or a law of a foreign country; or (ii) are liable to a civil penalty. (c) You must: (i) disclose so much of the information required to be disclosed to which no objection is taken; and (ii) prepare an affidavit containing so much of the information required to be disclosed to which objection is taken, and deliver it to the Court in a sealed envelope; and (iii) file and serve on each other party a separate affidavit setting out the basis of the objection. EXCEPTIONS TO THIS ORDER 10. This order does not prohibit you from: (a) paying [up to $........ a week/day on] [your ordinary] living expenses; (b) paying [$........ on] [your reasonable] legal expenses; ©

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(ii) You may dispose of, deal with or diminish the value of any of your ex-Australian assets, so long as the unencumbered value of your Australian assets and ex-Australian assets still exceeds the Relevant Amount. [For either form of order]

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(c) dealing with or disposing of any of your assets in the ordinary and proper course of your business, including paying business expenses bona fide and properly incurred; and (d) in relation to matters not falling within (a), (b) or (c), dealing with or disposing of any of your assets in discharging obligations bona fide and properly incurred under a contract entered into before this order was made, provided that before doing so you give the applicant, if possible, at least two working days written notice of the particulars of the obligation. 11. You and the applicant may agree in writing that the exceptions in the preceding paragraph are to be varied. In that case the applicant or you must as soon as practicable file with the Court and serve on the other a minute of a proposed consent order recording the variation signed by or on behalf of the applicant and you, and the Court may order that the exceptions are varied accordingly. 12. (a) This order will cease to have effect if you: (i) pay the sum of $........ into Court; or (ii) pay that sum into a joint bank account in the name of your solicitor and the solicitor for the applicant as agreed in writing between them; or (iii) provide security in that sum by a method agreed in writing with the applicant to be held subject to the order of the Court. (b) Any such payment and any such security will not provide the applicant with any priority over your other creditors in the event of your insolvency. (c) If this order ceases to have effect pursuant (a), you must as soon as practicable file with the Court and serve on the applicant notice of that fact. COSTS 13. The costs of this application are reserved to the judge hearing the application on the return day. PERSONS OTHER THAN THE APPLICANT AND RESPONDENT 14. Set off by banks This order does not prevent any bank from exercising any right of set off it has in respect of any facility which it gave you before it was notified of this order. 15. Bank withdrawals by the respondent No bank need inquire as to the application or proposed application of any money withdrawn by you if the withdrawal appears to be permitted by this order. [For world wide order] 16. Persons outside Australia (a) Except as provided in subparagraph (b) below, the terms of this order do not affect or concern anyone outside Australia. (b) The terms of this order will affect the following persons outside Australia: (i) you and your directors, officers, employees and agents (except banks and financial institutions); (ii) any person (including a bank or financial institution) who: (A) is subject to the jurisdiction of this Court; and (B) has been given written notice of this order, or has actual knowledge of the substance of the order and of its requirements; and (C) is able to prevent or impede acts or omissions outside Australia which constitute or assist in a disobedience breach of the terms of this order; and (iii) any other person (including a bank of financial institution), only to the extent that this order is declared enforceable by or is enforced by a court in a country or state that has jurisdiction over that person or over any of that person’s assets. [For world wide order] 17. Assets located outside Australia Nothing in this order shall, in respect of assets located outside Australia, prevent any third party from complying or acting in conformity with what it reasonably believes to be its bona fide and properly incurred legal obligations, whether contractual or pursuant to a court order or otherwise, under the law of the country or state in which those assets are situated or under the proper law of any contract between a third party and you, 252

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provided that in the case of any future order of a court of that country or state made on your or the third party’s application, reasonable written notice of the making of the application is given to the applicant. SCHEDULE A UNDERTAKINGS GIVEN TO THE COURT BY THE APPLICANT

(2) As soon as practicable, the applicant will file and serve upon the respondent copies of: (a) this order; (b) the summons or notice of motion to be relied on at the hearing on the return day; (c) the following material in so far as it was relied on by the applicant at the hearing when the order was made: (i) affidavits (or draft affidavits); (ii) exhibits capable of being copied; (iii) any written submission; and (iv) any other document that was provided to the Court. (d) a transcript, or, if none is available, a note, of any exclusively oral allegation of fact that was made and of any exclusively oral submission that was put, to the Court; (e) the originating process, or, if none was filed, any draft originating process produced to the Court. (3) As soon as practicable, the applicant will cause anyone notified of this order to be given a copy of it. (4) The applicant will pay the reasonable costs of anyone other than the respondent which have been incurred as a result of this order, including the costs of finding out whether that person holds any of the respondent’s assets. (5) If this order ceases to have effect [5] the applicant will promptly take all reasonable steps to inform in writing anyone who has been notified of this order, or who he has reasonable grounds for supposing may act upon this order, that it has ceased to have effect. (6) The applicant will not, without leave of the Court, use any information obtained as a result of this order for the purpose of any civil or criminal proceedings, either in or outside Australia, other than this proceeding. (7) The applicant will not, without leave of the Court, seek to enforce this order in any country outside Australia or seek in any country outside Australia an order of a similar nature or an order conferring a charge or other security against the respondent or the respondent’s assets. [(8) The applicant will: (a) on or before [date] cause an irrevocable undertaking to pay in the sum of $ to be issued by a bank with a place of business within Australia, in respect of any order the court may make pursuant to undertaking (1) above; and (b) immediately upon issue of the irrevocable undertaking, cause a copy of it to be served on the respondent.] [6] SCHEDULE B AFFIDAVITS RELIED ON Name of DeponentDate affidavit made (1) (2) (3) NAME AND ADDRESS OF APPLICANT’S LEGAL REPRESENTATIVES The Applicant’s solicitors are: [Name, address, reference, fax and telephone numbers both in and out of offıce hours and email] END NOTES [1] The words “without notice to you” and “and after the Court has read the affıdavits listed in Schedule B to this order” are appropriate only in the case of an ex parte order. ©

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(1) The applicant undertakes to submit to such order (if any) as the Court may consider to be just for the payment of compensation (to be assessed by the Court or as it may direct) to any person (whether or not a party) affected by the operation of the order.

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[NSWPN.80]

[2] Paragraph 1 is appropriate only in the case of an ex parte order. [3] Paragraph 2 is appropriate only in the case of an ex parte order. [4] See Practice Note paragraph 14. [5] For example, if the respondent pays money into Court or provides security, as provided for in paragraph 12 of this Order. [6] See Practice Note paragraph 17. [7] Schedule B is appropriate only in the case of an ex parte order.

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NSW Practice Notes Practice Note SC Gen 20

Supreme Court – Citation of Authority Commencement 1. This Practice Note was issued on 15May 2015 and commences

Citation of Authority 3.Where a judgment is reported in one of the following (authorised) reports, that citation should be used: • •Commonwealth Law Reports (High Court of Australia) • •Australian Capital Territory Law Reports (Supreme Court of the Australian Capital Territory) • •Federal Court Reports (Federal Court of Australia) • •New South Wales Law Reports (Supreme Court of New South Wales) • •New South Wales Law Reports (Supreme Court of New South Wales) • •Queensland Reports (Supreme Court of Queensland) • •South Australian State Reports (Supreme Court of South Australia) • •Tasmanian Report s (Supreme Court of Tasmania) • •Victorian Reports (Supreme Court of Victoria) • •Western Australian Reports (Supreme Court of Western Australia) 4.Other series of reports should be used when a judgment is not reported in these authorised reports. 5.An unreported judgment should not usually be cited unless it contains a statement of legal principle or a material application of principle which is not found in reported authority. In such cases, the Medium Neutral Citation of a judgment (if any) should be provided. T F Bathurst AC Chief justice of New South Wales 15 May 2015

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Application 2. This Practice Note applies to the citation of authorities in all proceedings in the Supreme Court of New South Wales, the Court of Appeal and the Court of Criminal Appeal, subject to Practice Note SC CA 1 Court of Appeal and SC CCA 1 Court of Criminal Appeal - General.

Victoria Supreme Court (Corporations) Rules 2013 (Vic) ........................................................................... 259 Vic Practice Notes ........................................................................................................................... 339

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SUPREME COURT (CORPORATIONS) RULES 2013 (VIC) ORDER 1 – PRELIMINARY 1.1 1.2 1.3 1.4 1.5 1.6 1.7 1.8 1.9 1.10

Title and objects.............................................................................................................................. 265 Authorising provisions, commencement and revocation.................................................................265 Application of these Rules and other rules of the Court.................................................................265 Expressions used in the Corporations Act...................................................................................... 265 Definitions for these Rules.............................................................................................................. 266 Reference to rules and forms..........................................................................................................266 Substantial compliance with forms..................................................................................................266 Court’s power to give directions......................................................................................................267 Calculation of time...........................................................................................................................267 Extension and abridgment of time.................................................................................................. 267

2.1 2.1.1 2.2 2.3 2.4 2.4A 2.5 2.6 2.7 2.8 2.9 2.10 2.11 2.12 2.13 2.14 2.15

Title of documents in a proceeding—Form 1..................................................................................267 RedCrest Corporations List............................................................................................................. 267 Originating process and interlocutory process—Forms 2, 2A and 3.............................................. 267 Fixing of hearing..............................................................................................................................268 Supporting affidavits........................................................................................................................ 268 Application for order setting aside statutory demand (s. 459G of the Corporations Act)...............268 Affidavits made by creditors............................................................................................................ 269 Form of affidavits.............................................................................................................................269 Service of originating process or interlocutory process and supporting affidavit........................... 269 Notice of certain applications to be given to ASIC......................................................................... 269 Notice of appearance (s. 465C of the Corporations Act)—Forms 4 and 4A..................................270 Intervention in proceeding by ASIC (s. 1330 of the Corporations Act)—Form 5........................... 270 Publication of notices...................................................................................................................... 270 Proof of publication......................................................................................................................... 271 Leave to creditor, contributory or officer to be heard......................................................................271 Inquiry in relation to corporation’s debts etc................................................................................... 271 Meetings ordered by the Court....................................................................................................... 271

ORDER 3 – COMPROMISES AND ARRANGEMENTS IN RELATION TO PART 5.1 BODIES 3.1 3.2 3.3 3.4 3.5

Application of Order 3..................................................................................................................... 271 Nomination of chairperson for meeting........................................................................................... 271 Order for meetings to identify proposed scheme............................................................................272 Notice of hearing (ss 411(4), 413(1) of the Corporations Act)—Form 6........................................ 272 Copy of order approving compromise or arrangement to be lodged with ASIC............................ 273

ORDER 4 – RECEIVERS AND OTHER CONTROLLERS OF CORPORATION PROPERTY (PART 5.2 OF THE CORPORATIONS ACT) 4.1

Inquiry into conduct of controller (s. 423 of the Corporations Act)................................................. 273

ORDER 5 – WINDING UP PROCEEDINGS (INCLUDING OPPRESSION PROCEEDINGS WHERE WINDING UP IS SOUGHT) 5.1 5.2 5.3 5.4 5.5 5.6 5.7 ©

Application of Order 5..................................................................................................................... 273 Affidavit accompanying statutory demand (s. 459E(3) of the Corporations Act)—Form 7.............273 Application for leave to apply for winding up in insolvency (s. 459P(2) of the Corporations Act).................................................................................................................................................. 273 .........................................................................................................................................................273 Affidavit in support of application for winding up (ss 459P, 462, 464 of the Corporations Act) Consent of liquidator (s. 532(9) of the Corporations Act)—Form 8................................................274 Notice of application for winding up—Form 9.................................................................................274 Applicant to make copies of documents available..........................................................................274 2017 THOMSON REUTERS

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ORDER 2 – PROCEEDINGS GENERALLY

Supreme Court (Corporations) Rules 2013 (Vic) 5.8 5.9 5.10 5.11

Discontinuance of application for winding up..................................................................................274 Appearance before Associate Judge or judicial registrar............................................................... 274 Order substituting plaintiff in application for winding up (s. 465B of the Corporations Act)—Form 10................................................................................................................................. 275 Notice of winding up order and appointment of liquidator—Form 11............................................. 275

ORDER 6 – PROVISIONAL LIQUIDATORS (PART 5.4B OF THE CORPORATIONS ACT) 6.1 6.2

Appointment of provisional liquidator (s. 472 of the Corporations Act)—Form 8........................... 275 Notice of appointment of provisional liquidator—Form 12..............................................................275

7.1 7.2 7.3 7.4

Resignation of liquidator (s. 473(1) of the Corporations Act)......................................................... 276 Filling vacancy in office of liquidator (ss 473(7), 502 of the Corporations Act).............................. 276 Report to liquidator as to company’s affairs (s. 475 of the Corporations Act)............................... 276 Liquidator to file certificate and copy of settled list of contributories (s. 478 of the Corporations Act).............................................................................................................................276 Release of liquidator and deregistration of company (ss 480(c) and (d) of the Corporations Act).................................................................................................................................................. 276 Objection to release of liquidator—Form 13................................................................................... 278 Report on accounts of liquidator (s. 481 of the Corporations Act)................................................. 278 Application for payment of call (s. 483(3)(b) of the Corporations Act)—Form 14.......................... 278 Distribution of surplus by liquidator with special leave of the Court (s. 488(2) of the Corporations Act)—Form 15........................................................................................................... 278 Powers delegated to liquidator by the Court (s. 488 of the Corporations Act)...............................278 Inquiry into conduct of liquidator (s. 536(1) and (2) of the Corporations Act)................................ 278

ORDER 7 – LIQUIDATORS

7.5 7.6 7.7 7.8 7.9 7.10 7.11

ORDER 8 – SPECIAL MANAGERS (PART 5.4B OF THE CORPORATIONS ACT) 8.1 8.2 8.3

Application for appointment of special manager (s. 484 of the Corporations Act).........................279 Security given by special manager (s. 484 of the Corporations Act)............................................. 279 Special manager’s receipts and payments (s. 484 of the Corporations Act)................................. 279

9.1 9.2

Remuneration of receiver (s. 425(1) of the Corporations Act)—Form 16...................................... 279 Determination by Court of remuneration of administrator (Corporations Act s. 449E(1)(c) and (1A)(c))—Form 16.................................................................................................................... 280 Review of remuneration of administrator (Corporations Act s. 449E(2))........................................281 Remuneration of provisional liquidator (s. 473(2) of the Corporations Act)—Form 16.................. 282 Determination by Court of liquidator’s remuneration (Corporations Act s. 473(3)(b)(ii))................ 283 Review of remuneration of liquidator (Corporations Act s. 473(5) and (6) and s. 504(1)).............284 Remuneration of special manager (s. 484(2) of the Corporations Act)—Form 16.........................285

ORDER 9 – REMUNERATION OF OFFICE-HOLDERS

9.2A 9.3 9.4 9.4A 9.5

ORDER 10 – WINDING UP GENERALLY 10.1 10.2 10.3

Determination of value of debts or claims (s. 554A(2) of the Corporations Act)............................286 Disclaimer of contract (s. 568(1A) of the Corporations Act)........................................................... 286 Winding up Part 5.7 bodies (ss 583, 585 of the Corporations Act) and registered schemes (s. 601ND of the Corporations Act).................................................................................................286

ORDER 11 – EXAMINATIONS AND ORDERS (PART 5.9, DIVISIONS 1 AND 2 OF THE CORPORATIONS ACT) 11.1 11.2 11.3 11.4 11.5 11.6 11.7

Definition for Order 11..................................................................................................................... 286 Application for examination or investigation under ss 411(9)(b), 423 or 536(3) of the Corporations Act.............................................................................................................................. 286 Application for examination summons (ss 596A, 596B of the Corporations Act)—Form 17......... 286 Service of examination summons................................................................................................... 287 Discharge of examination summons............................................................................................... 287 Filing of record of examination (s. 597(13) of the Corporations Act)............................................. 287 Authentication of transcript of examination (s. 597(14) of the Corporations Act)...........................287

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Table of provisions 11.8

Inspection of record or transcript of examination or investigation under ss 411, 423 or 536 of the Corporations Act........................................................................................................................287 Entitlement to record or transcript of examination held in public................................................... 288 Default in relation to examination....................................................................................................288 Service of application for order in relation to breaches etc. by person concerned with corporation (s. 598 of the Corporations Act)...................................................................................288

11.9 11.10 11.11

ORDER 11A – WARRANTS (CORPORATIONS ACT SECTION 486B AND PART 5.4B, DIVISION 3, SUBDIVISION B) 11A.01

Arrest of person (Corporations Act s. 486B)—Form 17A............................................................... 288

12.1 12.1A 12.1B 12.2 12.3

Service on ASIC in relation to proceedings under Chapter 6, 6A, 6B, 6C, 6D or 7 of the Corporations Act.............................................................................................................................. 289 Reference to Court of question of law arising in a proceeding before Takeovers Panel (s. 659A of the Corporations Act)....................................................................................................289 Notification to Court where proceeding is commenced before end of takeover bid period (s. 659B of the Corporations Act)....................................................................................................289 Application for summons for appearance of person (s. 1071D(4) of the Corporations Act)—Form 18................................................................................................................................. 289 Application for orders relating to refusal to register transfer or transmission of securities etc. (s. 1071F of the Corporations Act)..................................................................................................289

ORDER 13 – ORDER 14 – POWERS OF COURTS (PART 9.5 OF THE CORPORATIONS ACT) 14.1

Appeal from act, omission or decision of administrator, receiver or liquidator etc. (ss 554A and 1321 of the Corporations Act).................................................................................................. 290

15.1 15.2 15.3

Reference to Court of question of law arising at hearing of ASIC (s. 61 of the ASIC Act)............290 [Repealed]....................................................................................................................................... 290 Application for inquiry (ss 70, 201, 219 of the ASIC Act)............................................................... 290

ORDER 15 – PROCEEDINGS UNDER THE ASIC ACT

ORDER 15A – PROCEEDINGS UNDER THE CROSS-BORDER INSOLVENCY ACT 15A.1 15A.2 15A.3 15A.4 15A.5 15A.6 15A.7 15A.8 15A.9

Application of this Order and other rules of the Court....................................................................290 Expressions used in the Cross-Border Insolvency Act................................................................... 291 Application for recognition............................................................................................................... 291 Application for provisional relief under article 19 of the Model Law...............................................291 Official liquidator’s consent to act................................................................................................... 292 Notice of filing of application for recognition................................................................................... 292 Notice of order for recognition, discontinuance etc........................................................................ 292 Relief after recognition.................................................................................................................... 292 Application to modify or terminate an order for recognition or other relief.....................................293

ORDER 16 – POWERS OF ASSOCIATE JUDGES Part 1 – General 16.1 Powers of Associate Judges........................................................................................................... 293 16.2 Reference by Associate Judge....................................................................................................... 293 16.3 Matters within Associate Judge’s jurisdiction not to be brought before Judge of the Court except in certain cases................................................................................................................... 293 16.4 Associate Judge not to hear complaint for offence........................................................................ 294 16.5 Appeals............................................................................................................................................294

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ORDER 12 – TAKEOVERS, ACQUISITION OF SHARES ETC. (CHAPTERS 6 TO 6D OF THE CORPORATIONS ACT) AND SECURITIES (CHAPTER 7 OF THE CORPORATIONS ACT)

Supreme Court (Corporations) Rules 2013 (Vic) Part 2 – Meetings 16.6 Inquiry and order by Associate Judge as to meetings....................................................................294 Part 3 – Winding up 16.7 Application of Part........................................................................................................................... 294 16.8 Application to Associate Judge or judicial registrar........................................................................ 294 16.9 Consideration by Associate Judge or judicial registrar................................................................... 295 16.10 Filing of documents......................................................................................................................... 295

ORDER 16A – PROCEEDINGS UNDER THE FEDERAL COURTS (STATE JURISDICTION) ACT 1999 16A.1

Form for initiating proceeding..........................................................................................................295

16B.1 16B.2 16B.3 16B.4 16B.5 16B.6

Powers of Associate Judges not limited by powers of judicial registrars....................................... 296 Powers of judicial registrars............................................................................................................ 296 Matters within judicial registrars’ jurisdiction not to be brought before Judge of the Court except in certain cases................................................................................................................... 296 Judicial registrar may constitute Court............................................................................................296 Judicial registrar not to hear complaint for offence.........................................................................296 Appeal of decision of judicial registrar............................................................................................ 297

17.1 17.2 17.3 17.4 17.5 17.6 17.7

Submission of bill of costs to liquidator...........................................................................................297 Request for bill for taxation—Form 18A..........................................................................................297 Lodgement of bill for taxation and appointment to tax................................................................... 297 Liquidator’s certificate as to special terms of remuneration........................................................... 297 No allowance for performance by others of liquidator’s or special manager’s duties....................297 Application for costs after proceeding concluded........................................................................... 297 Costs of winding up application—short form bills........................................................................... 297

ORDER 16B – POWERS OF JUDICIAL REGISTRARS

ORDER 17 – COSTS

SCHEDULE 1 – FORMS Form Form Form Form Form Form Form Form Form Form Form Form Form Form Form Form Form Form Form Form Form Form Form Form Form Form Form 262

1 2 2A 3 4 4A 5 6 7 8 9 10 11 12 13 14 15 16 16A 17 17A 18 18A 19 20 21 22

Document Title................................................................................................................................ 299 Originating Process......................................................................................................................... 300 Originating Process—RedCrest (Corporations).............................................................................. 302 Interlocutory Process.......................................................................................................................305 Notice of Appearance...................................................................................................................... 306 Notice of Appearance—RedCrest (Corporations)........................................................................... 307 Notice of Intervention by ASIC........................................................................................................ 308 Notice of Hearing to Approve Compromise or Arrangement.......................................................... 309 Affidavit Accompanying Statutory Demand..................................................................................... 310 Consent of Liquidator/Provisional Liquidator and Declaration of Relevant Relationships.............. 311 Notice of Application for Winding up Order.....................................................................................312 Notice of Application for Winding up Order by Substituted Plaintiff............................................... 313 Notice of Winding up Order and of Appointment of Liquidator.......................................................314 Notice of Appointment of Provisional Liquidator............................................................................. 315 Notice by Creditor or Contributory of Objection to Release of Liquidator...................................... 316 Affidavit in Support of Application for Order for Payment of Call................................................... 317 Notice of Application for Leave to Distribute a Surplus.................................................................. 318 Notice of Intention to Apply for Remuneration................................................................................ 319 Notice of Intention to Apply for Review of Remuneration...............................................................320 Summons for Examination.............................................................................................................. 321 Arrest Warrant Corporations Act 2001 Section 486B..................................................................... 322 Summons for Appearance in Relation to Registration of Transfer of Interests.............................. 323 Request to Deliver Bill for Taxation.................................................................................................324 Consent to Act as Designated Person............................................................................................ 325 Notice of Filing of Application for Recognition of Foreign Proceeding........................................... 326 Notice of making of order under the Cross-Border Insolvency Act 2008....................................... 327 Notice .........................................................................................................................................................328 of Dismissal or Discontinuance of Application for Recognition of Foreign Proceeding Corporations – Court Rules and Related Legislation 2017

Table of provisions Form 23

Notice of filing of application to modify or terminate an order for recognition or other relief.........329

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SCHEDULE 2 – POWERS OF THE COURT THAT MAY BE EXERCISED BY AN ASSOCIATE JUDGE.................................................................................................................................................................330 SCHEDULE 2A – POWERS OF THE COURT THAT MAY BE EXERCISED BY A JUDICIAL REGISTRAR.......................................................................................................................................................336 SCHEDULE 3 – NOTES TO THESE RULES............................................................................................337

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Supreme Court (Corporations) Rules 2013 (Vic) Table of Amending Legislation Principal legislation

Number

Supreme Court (Corporations) Rules 2013

112 of 2013

Date of gazettal/ assent/registration

Date of commencement 24 Sep 2013

Date of gazettal/ assent/registration

Date of commencement Pt 3: 1 Jul 2014

This legislation has been amended as follows: Amending legislation Supreme Court (RedCrest Electronic Case Management System Amendment) Rules 2014 Supreme Court (Judicial Registrars Amendment) Rules 2015 Supreme Court (Judicial Registrars Further Amendment) Rules 2015 Supreme Court (Associate Judges Amendment) Rules 2015

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Number 48 of 2014

10 of 2015

Pt 3: 1 Mar 2015

30 of 2015

R 7: 4 May 2015

40 of 2015

R 13: 1 Jul 2015

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Order 1 – Preliminary r 1.4

ORDER 1 – PRELIMINARY 1.1 Title and objects (1) These Rules constitute Chapter V of the Rules of the Supreme Court and are entitled the Supreme Court (Corporations) Rules 2013. (2) The object of these Rules is to provide for rules in relation to Corporations matters in harmony with like rules in all other States and Territories. 1.2 Authorising provisions, commencement and revocation (1) These Rules are made under section 25 of the Supreme Court Act 1986, section 23 of the Corporations (Ancillary Provisions) Act 2001 and all other enabling powers. (2) These Rules come into operation on 24 September 2013.

1) 2) 3) 4) 5) 6) 7)

Rules Rules Rules Rules Rules Rules Rules

2005; 2006; 2007; 2007; 2008; 2009; 2010.

Vic

(3) The following Rules are revoked— (a) the Supreme Court (Corporations) Rules 2003; (b) the Supreme Court (Chapter V Amendment No. (c) the Supreme Court (Chapter V Amendment No. (d) the Supreme Court (Chapter V Amendment No. (e) the Supreme Court (Chapter V Amendment No. (f) the Supreme Court (Chapter V Amendment No. (g) the Supreme Court (Chapter V Amendment No. (h) the Supreme Court (Chapter V Amendment No.

1.3 Application of these Rules and other rules of the Court (1) Unless the Court otherwise orders— (a) these Rules apply to a proceeding in the Court under the Corporations Act or the ASIC Act; and (b) Order 15A applies to a proceeding in the Court under the Cross-Border Insolvency Act. (2) The other Rules of the Court apply, so far as they are relevant and not inconsistent with these Rules— (a) to a proceeding in the Court under the Corporations Act or the ASIC Act; and (b) to a proceeding in the Court under the Cross-Border Insolvency Act that is commenced on or after the commencement of the Supreme Court (Chapter V Amendment No. 6) Rules 2009. (3) Unless the Court otherwise orders, the Supreme Court (Corporations Law) Rules 1999 continue to apply to a proceeding under the Corporations Law or the ASIC Law. Note: By virtue of the definition of this Act in section 9 of the Corporations Act, a reference to the Corporations Act includes a reference to the Corporations Regulations.

1.4 Expressions used in the Corporations Act Unless the contrary intention appears, an expression used in these Rules and in the Corporations Act has the same meaning in these Rules as it has in the Corporations Act. Note: Expressions used in these Rules (including the notes to these Rules) that are defined in the Corporations Act include— ABN—see section 9; ACN—see section 9; ARBN—see section 9; ASIC—see section 9; body—see section 9; body corporate—see section 9; books—see section 9; company—see section 9; corporation—see section 57A; daily newspaper—see section 9; foreign company—see section 9; ©

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Gazette notice—see section 9; officer—see section 9; official liquidator—see section 9; Part 5.1 body—see section 9; Part 5.7 body—see section 9; register—see section 9; registered liquidator—see section 9; registered office—see section 9; statutory demand—see section 9.

1.5 Definitions for these Rules 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 List Judge means a Judge of the Court nominated by the Chief Justice as a Corporations List Judge; [Def insrt SR 48 of 2014, r 23(1), with effect from 1 Jul 2014]

Corporations Regulations means the Corporations Regulations 2001 of the Commonwealth; Cross-Border Insolvency Act means the Cross-Border Insolvency Act 2008 of the Commonwealth, including, unless the contrary intention appears, the Model Law; 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; Model Law means the Model Law on Cross-Border 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 or Form 2A; [Def am SR 48 of 2014, r 23(2), with effect from 1 Jul 2014]

plaintiff means a person claiming relief (except interlocutory relief) under the Corporations Act, the ASIC Act or the Cross-Border Insolvency Act, whether in the originating process or not; RedCrest means the electronic case management system known as “RedCrest” as in operation in the Court from time to time; [Def insrt SR 48 of 2014, r 23(1), with effect from 1 Jul 2014]

RedCrest Corporations List means the list of proceedings under these Rules, compiled by the Prothonotary, which are to be managed by a Corporations List Judge; [Def insrt SR 48 of 2014, r 23(1), with effect from 1 Jul 2014]

respondent means a person against whom interlocutory relief is claimed in a proceeding. [R 1.5 am SR 48 of 2014]

1.6 Reference to rules and forms In these Rules, unless the contrary intention appears— (a) a reference to a Rule is a reference to a Rule in these Rules; and (b) a reference to a form followed by a number is a reference to the form so numbered in Schedule 1 to these Rules. 1.7 Substantial compliance with forms (1) It is sufficient compliance with these Rules in relation to a document that is required to be in accordance with a form in Schedule 1 if the document is substantially in accordance with the form required or 266

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Order 2 – Proceedings Generally r 2.2 has only such variations as the nature of the case requires. (2) Without limiting paragraph (1), the Prothonotary must not reject a document for filing only because a term used to describe a party in the document differs from the term used in these Rules. 1.8 Court’s power to give directions The Court may give directions in relation to the practice and procedure to be followed in a proceeding if it is satisfied, in the circumstances of the proceeding, that— (a) the provisions of the Corporations Act, the ASIC Act, or the rules of this Court do not adequately provide for the practice and procedure to be followed in the proceeding; or (b) a difficulty arises, or doubt exists, in relation to the practice and procedure to be followed in the proceeding. 1.9 Calculation of time

(2) Without limiting paragraph (1), in calculating how many days a particular day, act or event is before or after another day, act or event, only the first day, or the day of the first act or event, is to be counted. (3) If the last day of any period prescribed or allowed by these Rules for an act or thing to be done falls on a day that is not a business day in the place where the act or thing is to be or may be done, the act or thing may be done on the first business day in the place after that day. (4) In calculating a period of time for the purposes of these Rules, the period beginning on 25 December in a year and ending at the end of 1 January in the next year is not to be counted. 1.10 Extension and abridgment of time Unless the Corporations Act, the ASIC Act, or these Rules otherwise provide, the rules of this Court that provide for the extension or abridgment of a period of time fixed for the doing of any act or thing in relation to a proceeding apply to a proceeding to which these Rules apply.

ORDER 2 – PROCEEDINGS GENERALLY 2.1 Title of documents in a proceeding—Form 1 The title of a document filed in a proceeding must be in accordance with Form 1. 2.1.1 RedCrest Corporations List (1) Except where the proceeding is a proceeding, matter or application which in the first instance may or must be dealt with by an Associate Judge pursuant to Rule 16.1(1) or Part 3 of Order 16, or by a judicial registrar pursuant to Part 3 of Order 16 or Rule 16B.2(1), the plaintiff may, at the plaintiff’s option, mark the originating process in the top left-hand corner with the words “RedCrest Corporations List” and, upon the filing of such originating process so marked, the proceeding is taken to be entered in the RedCrest Corporations List. [Subr (1) am SR 10 of 2015, r 14, with effect from 1 Mar 2015]

(2) Any party to any proceeding under these Rules in which the originating process has not been so marked may apply to a Corporations List Judge for an order entering the proceeding in the RedCrest Corporations List. [R 2.1.1 am SR 10 of 2015; insrt SR 48 of 2014, r 24, with effect from 1 Jul 2014]

2.2 Originating process and interlocutory process—Forms 2, 2A and 3 (1) Unless these Rules otherwise provide, a person must make an application required or permitted by the Corporations Act to be made to the Court— (a) if the application is not made in a proceeding already commenced in the Court—by filing an originating process; and ©

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(1) If, for any purpose, these Rules— (a) prohibit, permit or require an act or thing to be done within, by, or before the end of; or (b) otherwise prescribe, allow or provide for— a period of time before or after a particular day, act or event, the period is to be calculated without counting that day, or the day of the act or event, as the case may be.

r 2.2

Supreme Court (Corporations) Rules 2013 (Vic) (b)

in any other case, and whether interlocutory relief or final relief is claimed—by filing an interlocutory process.

(2) Unless the Court otherwise directs, a person may make an application to the Court in relation to a proceeding in respect of which final relief has been granted by filing an interlocutory process in that proceeding. (3) An originating process must— (a) be in accordance with Form 2 or, if an originating electronically in RedCrest, in Form 2A; and (b) state— (i) each section of the Corporations Act or Corporations Regulations, under which the (ii) the relief sought. Note: In an application for winding up in insolvency on the ground

process is sought or required to be filed

the ASIC Act, or each regulation of the proceeding is brought; and

that the company has failed to comply with a statutory demand, the applicant should consider completing Part C of Form 2 as shown in Schedule 3—Notes to these Rules. [Subr (3) am SR 48 of 2014, r 25(2), with effect from 1 Jul 2014]

(4) An interlocutory process must— (a) be in accordance with Form 3; and (b) state— (i) if appropriate, each section of the Corporations Act or the ASIC Act, or each regulation of the Corporations Regulations, or each rule of Court under which the application is made; and (ii) the relief sought. [R 2.2 am SR 48 of 2014, r 25(1), with effect from 1 Jul 2014]

2.3 Fixing of hearing On receiving an originating process or interlocutory process, the Prothonotary— (a) must fix a time, date and place for hearing and endorse those details on the originating process or interlocutory process; and (b) may seal a sufficient number of copies for service and proof of service. 2.4 Supporting affidavits (1) Unless the Court otherwise directs, an originating process, or interlocutory process, must be supported by an affidavit stating the facts in support of the process. (2) Subject to Rule 2.4A, an affidavit in support of an originating process must annex a record of a search of the records maintained by the ASIC, in relation to the company that is the subject of the application to which the originating process relates, carried out no earlier than 7 days before the originating process is filed. Note: An example of the affidavit in support of an application for winding up in insolvency for failure to comply with a statutory demand is shown in Schedule 3—Notes to these Rules.

2.4A Application for order setting aside statutory demand (s. 459G of the Corporations Act) (1) This Rule applies, and Rule 2.4(2) does not apply, to an application by a company under section 459G of the Corporations Act for an order setting aside a statutory demand served on the company. (2) The plaintiff may file with the originating process seeking the order a copy of the statutory demand and a copy of any affidavit that accompanied the statutory demand. (3) The plaintiff must— (a) no earlier than 7 days before the originating process is filed, and no later than the day before the hearing of the application, carry out a search of the records maintained by the ASIC in relation to the plaintiff; and (b) either— (i) annex the record of the search to the affidavit in support of the originating process; or (ii) file the record of the search before or tender it on the hearing of the application. 268

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Order 2 – Proceedings Generally r 2.8 2.5 Affidavits made by creditors Subject to Rule 5.4, an affidavit that is to be made by a creditor may be made— (a) if the creditor is a corporation—by a director, secretary, or other principal officer of the corporation, or by a person employed by the corporation who is authorised to make the affidavit on its behalf; or (b) if the creditor is a company to which a liquidator, provisional liquidator, receiver, administrator or controller has been appointed—by that person; or (c) in any other case—by the creditor or a person authorised by the creditor to make the affidavit on behalf of the creditor. 2.6 Form of affidavits An affidavit must be in a form that complies with— (a) the rules of the Court; or (b) the rules of the Supreme Court of the State (if any) or Territory (if any) where the affidavit was sworn or affirmed; or (c) the rules of the Federal Court of Australia.

(1) As soon as practicable after filing an originating process and, in any case, at least 5 days before the date fixed for hearing, the plaintiff must serve a copy of the originating process and any supporting affidavit on— (a) each defendant (if any) to the proceeding; and (b) if the corporation to which the proceeding relates is not a party to the proceeding—the corporation. (2) As soon as practicable after filing an interlocutory process and, in any case, at least 3 days before the date fixed for hearing, the applicant must serve a copy of the interlocutory process and any supporting affidavit on— (a) each respondent (if any) to the application in the interlocutory process; and (b) if the corporation to which the application in the interlocutory process relates is not a party to the application in the interlocutory process—the corporation. 2.8 Notice of certain applications to be given to ASIC (1) This Rule has effect in addition to the requirements of the Corporations Act that, in relation to a proceeding— (a) particular documents are to be served on the ASIC; or (b) notice of particular matters is to be given to the ASIC. (2) This Rule does not apply to a person making an application if the person is— (a) the ASIC; or (b) a person authorised by the ASIC. (3) Unless the Court otherwise orders, if a person makes an application under a provision of the Corporations Act mentioned in column 2 of the item of the following Table, the person must serve on the ASIC, a reasonable time before the hearing of the application, a copy of— (a) the originating process or interlocutory process; and (b) the supporting affidavit in respect of the application. Table Column 1 Item 1.

Column 2

Column 3

Provision Section 480

2. 3.

Section 482(1) Section 509(6)

Description of application For the release of a liquidator of a company and the deregistration of the company For the stay or termination of a winding up For the deregistration of a company

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r 2.8

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Column 1 Item 4. 5. 6.

Column 2

Column 3

Provision Section 536(1) Section 601AH(2) Section 601CC(8)

7.

Section 601CL(9)

8. 9.

Chapter 6, 6A, 6B, 6C, 6D or 7 Sections 1317S(2), (4) and (5)

Description of application For an inquiry into the conduct of a liquidator To reinstate the registration of a company To restore the name of an Australian body to the register To restore the name of a foreign company to the register Any application under these Chapters For relief from liability for contravention of a civil penalty provision.

2.9 Notice of appearance (s. 465C of the Corporations Act)—Forms 4 and 4A (1) A person who intends to appear before the Court at the hearing of an application must, before appearing— (a) file— (i) a notice of appearance in accordance with Form 4 or, if the originating process has been filed electronically in RedCrest, in Form 4A; and (ii) if appropriate—an affidavit stating any facts on which the person intends to rely; and (b) serve on the plaintiff a copy of the notice of appearance and any affidavit not later than— (i) if the person is named in an originating process—3 days before the date fixed for hearing; or (ii) if the person is named in an interlocutory process—1 day before the date fixed for hearing. [Subr (1) am SR 48 of 2014, r 26(2), with effect from 1 Jul 2014]

(2) If the person intends to appear before the Court to oppose an application for winding up, the person may include in the notice of appearance the notice of the grounds on which the person opposes the application required by section 465C of the Corporations Act. (3) The period prescribed for filing and serving the notice and affidavit required by section 465C of the Corporations Act is the period mentioned in paragraph (1)(b)(i). Note: Under section 465C of the Corporations Act, a person may not, without the leave of the Court, oppose an application for winding up unless, within the period prescribed by the rules (see paragraph (3) of this Rule), the person has filed, and served on the plaintiff, notice of the grounds on which the person opposes the application and an affidavit verifying the matters stated in the notice. [R 2.9 am SR 48 of 2014, r 26(1), with effect from 1 Jul 2014]

2.10 Intervention in proceeding by ASIC (s. 1330 of the Corporations Act)—Form 5 (1) If the ASIC intends to intervene in a proceeding, the ASIC must file a notice of intervention in accordance with Form 5. (2) Not later than 3 days before the date fixed for the hearing at which the ASIC intends to appear in the proceeding, the ASIC must serve on the plaintiff and on any other party to the proceeding— (a) a copy of the notice; and (b) any affidavit on which it intends to rely. 2.11 Publication of notices If a rule requires a notice in relation to a body to be published in accordance with this Rule, the notice must be published once in a daily newspaper circulating generally in the State or Territory where the body has its principal, or last known, place of business. Note: Under the Corporations Act, certain notices may also be required to be published in the Gazette. Nothing in this Rule is intended to affect the operation of any provision of the Corporations Act that requires publication of a notice in the Gazette. 270

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Order 3 – Compromises and Arrangements in Relation to Part 5.1 Bodies r 3.2 2.12 Proof of publication (1) This Rule applies in relation to any matter published in connection with a proceeding. (2) Unless these Rules otherwise provide or the Court otherwise orders, the person responsible for the publication of the matter or the person’s legal practitioner must file— (a) an affidavit made by the person or the person’s legal practitioner that states the date of publication and to which is annexed a copy of the published matter; or (b) a memorandum signed by the person or the person’s legal practitioner that states the date of publication and refers to and annexes a copy of the published matter. (3) The affidavit or memorandum is prima facie evidence that the publication took place on the date and otherwise as stated in the affidavit or memorandum. 2.13 Leave to creditor, contributory or officer to be heard

(2) If the Court considers that the attendance of a person to whom leave has been granted under paragraph (1) has resulted in additional costs for any party, or the corporation, which should be borne by the person to whom leave was granted, the Court may— (a) direct that the person pay the costs; and (b) order that the person not be heard further in the proceeding until the costs are paid or secured to the Court’s satisfaction. (3) The Court may order that a person who is, or who claims to be, a creditor, contributory or officer of a corporation be added as a defendant to the proceeding. (4) The Court may grant leave to a person under paragraph (1), or order that a person be added as a defendant to a proceeding under paragraph (3)— (a) on application by the person or a party to the proceeding; or (b) on the Court’s own initiative. (5) The Court may— (a) appoint a creditor or contributory to represent all or any class of the creditors or contributories on any question, or in relation to any proceeding, before the Court, at the expense of the corporation; and (b) remove any person so appointed. 2.14 Inquiry in relation to corporation’s debts etc. The Court may direct an inquiry in relation to the debts, claims or liabilities, or a class of debts, claims or liabilities, of or affecting a corporation to which a proceeding relates. 2.15 Meetings ordered by the Court Subject to the Corporations Act, these Rules and any direction of the Court to the contrary, regulations 5.6.11 to 5.6.36A of the Corporations Regulations apply to meetings ordered by the Court.

ORDER 3 – COMPROMISES AND ARRANGEMENTS IN RELATION TO PART 5.1 BODIES 3.1 Application of Order 3 This Order applies if an application is made to the Court for approval of a compromise or arrangement between a Part 5.1 body and its creditors or members, or any class of its creditors or members. 3.2 Nomination of chairperson for meeting Before the hearing of an application under section 411(1), (1A) or (1B) of the Corporations Act, the plaintiff must file an affidavit stating— ©

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(1) The Court may grant leave to be heard in a proceeding without becoming a party to the proceeding to any person who is, or who claims to be— (a) a creditor, contributory or officer of a corporation; or (b) an officer of a creditor, or contributory, of a corporation; or (c) any other interested person.

r 3.2

Supreme Court (Corporations) Rules 2013 (Vic) (a) the names of the persons who have been nominated to be the chairperson and alternate chairperson of the meeting; (b) that each person nominated— (i) is willing to act as chairperson; (ii) has had no previous relationship or dealing with the body, or any other person interested in the proposed compromise or arrangement, except as disclosed in the affidavit; and (iii) has no interest or obligation that may give rise to a conflict of interest or duty if the person were to act as chairperson of the meeting, except as disclosed in the affidavit; (c) the name of the person (if any) proposed to be appointed to administer the proposed compromise or arrangement; and (d) that the person does not fall within paragraphs (a) to (f) of section 411(7) of the Corporations Act, except as disclosed in the affidavit.

3.3 Order for meetings to identify proposed scheme (1) An order under section 411(1) or (1A) of the Corporations Act ordering a meeting or meetings in relation to a proposed compromise or arrangement must set out in a schedule, or otherwise identify, a copy of the proposed compromise or arrangement. (2) Unless the Court otherwise orders, a meeting of members ordered under section 411 of the Corporations Act must be convened, held and conducted in accordance with— (a) the provisions of Part 2G.2 of the Corporations Act that apply to the members of a company; and (b) the provisions of the plaintiff’s constitution that apply in relation to meetings of members and are not inconsistent with Part 2G.2 of the Corporations Act. (3) Unless the Court otherwise orders, a meeting of a class of holders of convertible securities ordered under section 411 of the Corporations Act must be convened, held and conducted as if— (a) the holders were a separate class of members; and (b) the meeting were a meeting of members convened, held and conducted under paragraph (2)— but in accordance with, and subject to, the applicable provisions of the instrument under which the securities were issued. (4) An order under section 411(1) of the Corporations Act shall require that the explanatory statement or a document accompanying the explanatory statement prominently display a notice in the following form or to the following effect— “ IMPORTANT NOTICE ASSOCIATED WITH COURT ORDER UNDER SECTION 411(1) OF THE CORPORATIONS ACT 2001 The fact that under section 411(1) of the Corporations Act 2001 the Court has ordered that a meeting be convened and has approved the explanatory statement required to accompany the notices of the meeting does not mean that the Court: (a) has formed any view as to the merits of the proposed scheme or as to how members/creditors should vote (on this matter members/creditors must reach their own decision); or (b) has prepared, or is responsible for, the content of the explanatory statement.” . 3.4 Notice of hearing (ss 411(4), 413(1) of the Corporations Act)—Form 6 (1) This Rule applies to— (a) an application under section 411(4) of the Corporations Act for an order approving a proposed compromise or arrangement in relation to a Part 5.1 body; and (b) an application under section 413(1) of the Corporations Act for an order in relation to the reconstruction of a Part 5.1 body, or Part 5.1 bodies, or the amalgamation of 2 or more Part 5.1 bodies. (2) Unless the Court otherwise orders, the plaintiff must publish a notice of the hearing of the application. (3) The notice must be— 272

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Ord 5 – Winding Up Proceedings r 5.4 (a) in accordance with Form 6; and (b) published in accordance with Rule 2.11 at least 5 days before the date fixed for the hearing of the application. 3.5 Copy of order approving compromise or arrangement to be lodged with ASIC If the Court makes an order under section 411(1), (1A) or (4) or 413(1) of the Corporations Act, the plaintiff must, as soon as practicable after the order is made— (a) have the order authenticated; (b) lodge an office copy of the order with the ASIC; and (c) serve an office copy of the order on any person appointed to administer the compromise or arrangement.

ORDER 4 – RECEIVERS AND OTHER CONTROLLERS OF CORPORATION PROPERTY (PART 5.2 OF THE CORPORATIONS ACT) A complaint to the Court under section 423(1)(b) of the Corporations Act about an act or omission of a receiver, or a controller appointed by the Court, must be made by an originating process seeking an inquiry in relation to the complaint.

ORDER 5 – WINDING UP PROCEEDINGS (INCLUDING OPPRESSION PROCEEDINGS WHERE WINDING UP IS SOUGHT) 5.1 Application of Order 5 This Order applies to the following applications for the winding up of a company— (a) an application for an order under Part 2F.1 of the Corporations Act; (b) an application under Part 5.4 or Part 5.4A of the Corporations Act. 5.2 Affidavit accompanying statutory demand (s. 459E(3) of the Corporations Act)—Form 7 For the purposes of section 459E(3) of the Corporations Act, the affidavit accompanying a statutory demand relating to a debt, or debts, owed by a company must— (a) be in accordance with Form 7 and state the matters mentioned in that Form; (b) be made by the creditor or by a person with the authority of the creditor or creditors; and (c) not state a proceeding number, or refer to a Court proceeding, in any heading or title to the affidavit. 5.3 Application for leave to apply for winding up in insolvency (s. 459P(2) of the Corporations Act) An application for leave to apply to the Court for an order that a company be wound up in insolvency may be made at the same time as the application for an order that the company be wound up in insolvency is made. 5.4 Affidavit in support of application for winding up (ss 459P, 462, 464 of the Corporations Act) (1) The affidavit in support of an originating process seeking an order that a company be wound up must be made by the plaintiff or by a person with the authority of the plaintiff or plaintiffs. (2) If the application is made in reliance on a failure by the company to comply with a statutory demand, the affidavit must— (a) verify service of the demand on the company; (b) verify the failure of the company to comply with the demand; and (c) state whether and, if so, to what extent the debt, or each of the debts, to which the demand relates is still due and payable by the company at the date when the affidavit is made. ©

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4.1 Inquiry into conduct of controller (s. 423 of the Corporations Act)

r 5.4

Supreme Court (Corporations) Rules 2013 (Vic)

Note:

An example of the affidavit in support of an application for winding up in insolvency for failure to comply with a statutory demand is shown in Schedule 3—Notes to these Rules.

(3) If the application is made in reliance on the ground mentioned in section 461(1)(a) of the Corporations Act, the affidavit must— (a) state whether the company is able to pay all its debts as and when they become due and payable; and (b) refer to the company’s most recent balance sheet and profit and loss statement as an exhibit to the affidavit, or explain their absence. (4) The affidavit must be made within 7 days before the originating process is filed. 5.5 Consent of liquidator (s. 532(9) of the Corporations Act)—Form 8 (1) In this Rule— liquidator does not include a provisional liquidator. (2) For the purposes of section 532(9) of the Corporations Act, the consent of an official liquidator to act as liquidator of a company must be in accordance with Form 8. (3) In an application for an order that a company be wound up, the plaintiff, upon the filing of the originating process, may file the consent mentioned in paragraph (2) of an official liquidator who would be entitled to be appointed as liquidator of the company. (4) If the plaintiff does not file a consent in accordance with paragraph (3), the Prothonotary shall nominate in writing the official liquidator who is entitled to be appointed as liquidator if an order for the winding up of the company is made. (5) If the application is for the winding up in insolvency of 2 or more companies as joint debtors, the Prothonotary shall nominate with respect to each such company successively the official liquidator who is entitled to be appointed as liquidator if an order for the winding up of that company is made. (6) The Prothonotary, from time to time as circumstances require, may make further nominations. (7) Before the hearing of the application the plaintiff must obtain and file the consent in writing of the official liquidator so nominated. 5.6 Notice of application for winding up—Form 9 (1) Unless the Court otherwise orders, the plaintiff must publish a notice of the application for an order that a company be wound up. (2) The notice must be— (a) in accordance with Form 9; and (b) published— (i) at least 3 days after the originating process is served on the company; and (ii) at least 7 days before the date fixed for hearing of the application; and (iii) in the case of a notice in respect of a winding up application under Part 2F.1 of the Corporations Act, in accordance with Rule 2.11. Note: The required manner of publication of a notice in respect of a winding up application under Part 5.4 or Part 5.4A of the Corporations Act is on the ASIC website pursuant to regulation 5.6.75(1) of the Corporations Regulations. [Subr (2) am SR 140 of 2016, r 4, with effect from 1 Jan 2017] [R 5.6 am SR 140 of 2016]

5.7 Applicant to make copies of documents available A copy of any document filed in a proceeding to which this Order applies must be available at the plaintiff’s address for service for inspection by a creditor, contributory or officer of the company, or an officer of a creditor or contributory of the company. 5.8 Discontinuance of application for winding up An application for an order that a company be wound up may not be discontinued except with the leave of the Court. 274

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Order 6 – Provisional Liquidators (Part 5.4B of the Corporations Act) r 6.1 5.9 Appearance before Associate Judge or judicial registrar After filing an originating process seeking an order that a company be wound up, the plaintiff must, if required— (a) appear before an Associate Judge or a judicial registrar on a date to be appointed by the Associate Judge or the judicial registrar, as the case requires; and [Para (a) am SR 10 of 2015, r 16(a) and (b), with effect from 1 Mar 2015]

(b)

satisfy the Associate Judge or the judicial registrar, as the case requires that the plaintiff has complied with the Corporations Act and these Rules in relation to applications for a winding up order.

[Para (b) am SR 10 of 2015, r 16(b), with effect from 1 Mar 2015] Note: See also Order 16 Part 3. [R 5.9 am SR 10 of 2015, r 15, with effect from 1 Mar 2015]

(1) If the Court makes an order under section 465B of the Corporations Act, the Court may also order that the substituted plaintiff or plaintiffs publish a notice stating that the substituted plaintiff or plaintiffs intend to apply for an order that the company be wound up. (2) The notice must be— (a) in accordance with Form 10; and (b) published— (i) in accordance with Rule 2.11 at least 7 days before the date fixed for the hearing of the application; or (ii) as otherwise directed by the Court. 5.11 Notice of winding up order and appointment of liquidator—Form 11 (1) This Rule applies if the Court orders that a company be wound up and an official liquidator be appointed as liquidator of the company. (2) Not later than the day after the order is made, the plaintiff must inform the liquidator of the appointment. (3) As soon as practicable after being informed of the appointment, the liquidator must publish a notice of the winding up order and the liquidator’s appointment. (4) The notice must be— (a) in accordance with Form 11; and (b) published in accordance with Rule 2.11. (5) In this Rule— liquidator does not include a provisional liquidator.

ORDER 6 – PROVISIONAL LIQUIDATORS (PART 5.4B OF THE CORPORATIONS ACT) 6.1 Appointment of provisional liquidator (s. 472 of the Corporations Act)—Form 8 (1) An application for an official liquidator to be appointed, under section 472(2) of the Corporations Act, as a provisional liquidator of a company must be accompanied by the written consent of the official liquidator. (2) The consent must be in accordance with Form 8. (3) If— (a) an order is made appointing a provisional liquidator; and (b) the order provides that the provisional liquidator may take into the provisional liquidator’s custody part only of the property of the company— the order must include a short description of the part of the property of the company that the provisional liquidator may take into custody. ©

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5.10 Order substituting plaintiff in application for winding up (s. 465B of the Corporations Act)—Form 10

r 6.1

Supreme Court (Corporations) Rules 2013 (Vic)

(4) The Court may require the plaintiff to give an undertaking as to damages. 6.2 Notice of appointment of provisional liquidator—Form 12 (1) This Rule applies if the Court orders that an official liquidator be appointed as a provisional liquidator of a company. (2) Not later than the day after the order is made, the plaintiff must— (a) except if the plaintiff is the ASIC—lodge an office copy of the order with the ASIC; (b) serve an office copy of the order on the company (except if the plaintiff is the company) and on any other person as directed by the Court; and (c) give to the provisional liquidator an office copy of the order and a written statement that the order has been served as required by paragraph (b). (3) As soon as practicable after the order is made, the provisional liquidator must publish a notice of the provisional liquidator’s appointment. (4) The notice must be— (a) in accordance with Form 12; and (b) published in accordance with Rule 2.11.

ORDER 7 – LIQUIDATORS 7.1 Resignation of liquidator (s. 473(1) of the Corporations Act) (1) A liquidator appointed by the Court who wishes to resign office must file with the Prothonotary, and lodge with the ASIC, a memorandum of resignation. (2) The resignation takes effect on the filing and lodging of the memorandum. 7.2 Filling vacancy in office of liquidator (ss 473(7), 502 of the Corporations Act) (1) If, for any reason, there is no liquidator acting in a winding up, the Court may— (a) in the case of a winding up by the Court—appoint another official liquidator whose written consent in accordance with Form 8 has been filed; and (b) in the case of a voluntary winding up—appoint another registered liquidator whose written consent in accordance with Form 8 has been filed. (2) The Court may make the appointment— (a) in any case—on application by the ASIC, a creditor or a contributory; or (b) in the case of a winding up by the Court—on its own initiative. 7.3 Report to liquidator as to company’s affairs (s. 475 of the Corporations Act) (1) If a person is required under section 475 of the Corporations Act to submit and verify a report as to the affairs of a company, the liquidator must give to the person the appropriate forms and instructions for the preparation of the report. (2) Except by order of the Court, no person is to be allowed out of the property of a company any costs or expenses incurred in relation to the preparation of the report that have not been— (a) sanctioned by the liquidator before being incurred; or (b) taxed or assessed. (3) The liquidator must report to the Court any default in complying with the requirements of section 475 of the Corporations Act. (4) In this Rule— liquidator includes a provisional liquidator. 7.4 Liquidator to file certificate and copy of settled list of contributories (s. 478 of the Corporations Act) If, in a winding up by the Court, a liquidator has settled and certified a list, or supplementary list, of contributories, the liquidator, within 14 days after doing so, must file the certificate and a copy of the list. 276

Corporations – Court Rules and Related Legislation 2017

Order 7 – Liquidators r 7.5 7.5 Release of liquidator and deregistration of company (ss 480(c) and (d) of the Corporations Act) (1) This Rule applies to an application by the liquidator of a company— (a) for an order that the liquidator be released; or (b) for an order that the liquidator be released and that the ASIC deregister the company. (2) The interlocutory process seeking the order must include— (a) a notice stating that any objection to the release of the liquidator must be made by filing and serving a notice of objection, in the prescribed form, within 21 days after the date of service of the interlocutory process; and (b) a statement setting out the terms of section 481(3) of the Corporations Act.

(3) The supporting affidavit must include details of the following matters— (a) whether the whole of the company’s property has been realised or whether so much of the company’s property has been realised as, in the liquidator’s opinion, can be realised without needlessly protracting the winding up; (b) any calls made on contributories in the course of the winding up; (c) any dividends paid in the course of the winding up; (d) whether the committee of inspection (if any) has passed a resolution approving the liquidator’s release; (e) whether the ASIC has appointed an auditor to report on an account or statement of the position in the winding up under section 539(2) of the Corporations Act; (f) whether the Court has ordered a report on the accounts of the liquidator to be prepared; (g) whether any objection to the release of the liquidator has been received by the liquidator from— (i) an auditor appointed by the ASIC or by the Court; or (ii) any creditor, contributory or other interested person; (h) whether any report has been submitted by the liquidator to the ASIC under section 533 of the Corporations Act; (i) whether the liquidator considers it necessary to report on the affairs of the company or any of its officers; (j) any property disclaimed in the course of the winding up; (k) any remuneration paid or payable to the liquidator and how such remuneration was determined; (l) any costs, charges or expenses payable by the liquidator if the Court grants the liquidator’s release; (m) if the application is made under section 480(d) of the Corporations Act—the facts and circumstances by reason of which it is submitted that the company should not be deregistered. (4) The liquidator must include in the supporting affidavit the statements set out in paragraphs (a) and (b), including, if appropriate, the words in brackets— (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 (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 (except as disclosed in this affidavit)”. (5) The liquidator must file with the supporting affidavit— (a) a statement of the financial position of the company at the date when the interlocutory process seeking release was filed; and (b) a summary of the liquidator’s receipts and payments in winding up the company. (6) Unless the Court otherwise orders, the liquidator must serve by prepaid post, on each creditor who has ©

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Note: Section 481(3) of the Corporations Act provides that an order of the Court releasing a liquidator discharges the liquidator from all liability in respect of any act done or default made by the liquidator in the administration of the affairs of the company, or otherwise in relation to the liquidator’s conduct as liquidator, but any such order may be revoked on proof that it was obtained by fraud or by suppression or by concealment of any material fact.

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Supreme Court (Corporations) Rules 2013 (Vic)

proved a debt in the course of the winding up, and on each contributory, a copy of the interlocutory process accompanied by— (a) a copy of the summary of the liquidator’s receipts and payments in winding up the company; and (b) a copy of the statement of the financial position of the company at the date when the interlocutory process seeking release was filed. 7.6 Objection to release of liquidator—Form 13 (1) A creditor or contributory of a company who wishes to object to the release of the liquidator of the company must, within 21 days after the date of service of the interlocutory process seeking release— (a) file— (i) a notice of objection in accordance with Form 13; and (ii) if appropriate, an affidavit stating any facts relied on; and (b) serve a copy of the notice and the affidavit (if any) on the liquidator. (2) If the liquidator is served with a notice of objection by a creditor or contributory, the liquidator must, within 3 days after being served, serve on the creditor or contributory a copy of the affidavit supporting the interlocutory process. 7.7 Report on accounts of liquidator (s. 481 of the Corporations Act) (1) If the Court orders that a report on the accounts of a liquidator be prepared under section 481(1) of the Corporations Act, the liquidator must give to the auditor appointed to prepare the report all information, books and vouchers required to prepare the report. (2) On completing the report, the auditor must— (a) file a copy of the report in a sealed envelope that is marked with the title and number of the proceeding and the words “Auditor’s report under subsection 481(1) of the Corporations Act 2001”; (b) serve a copy of the report on the liquidator; and (c) lodge a copy of the report with the ASIC. (3) Except with the leave of the Court, a report is not available for inspection by any person except the liquidator or the ASIC. 7.8 Application for payment of call (s. 483(3)(b) of the Corporations Act)—Form 14 The affidavit in support of an application by the liquidator of a company under section 483(3)(b) of the Corporations Act for an order for the payment of a call must be in accordance with Form 14. 7.9 Distribution of surplus by liquidator with special leave of the Court (s. 488(2) of the Corporations Act)—Form 15 (1) The affidavit in support of an application for special leave to distribute a surplus must state how the liquidator intends to distribute the surplus including the name and address of each person to whom the liquidator intends to distribute any part of the surplus. (2) At least 14 days before the date fixed for hearing of the application, the liquidator must publish a notice of the application. (3) The notice must be— (a) in accordance with Form 15; and (b) published in accordance with Rule 2.11. 7.10 Powers delegated to liquidator by the Court (s. 488 of the Corporations Act) Subject to the Corporations Act, the Corporations Regulations, these Rules, and any order of the Court, the powers and duties conferred or imposed on the Court by Part 5.4B of the Corporations Act in respect of the matters mentioned in section 488(1) of the Corporations Act may be exercised or performed by a liquidator appointed by the Court as an officer of the Court and subject to the control of the Court. 7.11 Inquiry into conduct of liquidator (s. 536(1) and (2) of the Corporations Act) (1) A complaint to the Court under section 536(1)(b) of the Corporations Act must be made— (a) in the case of a winding up by the Court—by filing an interlocutory process seeking an inquiry; and 278

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Order 9 – Remuneration of Office-holders r 9.1 (b)

in the case of a voluntary winding up—by filing an originating process seeking an inquiry.

(2) A report to the Court by the ASIC under section 536(2) of the Corporations Act must be made— (a) in the case of a winding up by the Court—by filing— (i) an interlocutory process seeking orders under the subsection; and (ii) a written report in a sealed envelope that is marked with the title and number of the proceeding; and (b) in the case of a voluntary winding up—by filing— (i) an originating process seeking orders under the subsection; and (ii) a written report in a sealed envelope that is marked with the title of the proceeding and provision for its number. (3) The contents of a report filed under paragraph (2) need not, at the time of filing, be verified by an affidavit. (4) Except with the leave of the Court, a report made under section 536(2) of the Corporations Act is not available for inspection by any person except the liquidator or the ASIC. (5) In this Rule—

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liquidator includes a provisional liquidator.

ORDER 8 – SPECIAL MANAGERS (PART 5.4B OF THE CORPORATIONS ACT) 8.1 Application for appointment of special manager (s. 484 of the Corporations Act) (1) An application by a liquidator for the appointment of a special manager in relation to a company must state the powers which, in the liquidator’s opinion, should be entrusted by the Court to the special manager. (2) The supporting affidavit must state— (a) the circumstances making it proper that a special manager be appointed; (b) details of the remuneration proposed to be paid to the special manager; and (c) whether any committee of inspection in the winding up, or a meeting of creditors, has approved the appointment of a special manager. 8.2 Security given by special manager (s. 484 of the Corporations Act) (1) The Court may, from time to time, direct that the amount of security given by a special manager be varied. (2) Unless the Court otherwise directs, the costs of furnishing the security given by a special manager in respect of a particular winding up— (a) are the personal expenses of the special manager; and (b) must not be charged against the property of the company as an expense incurred in the winding up. 8.3 Special manager’s receipts and payments (s. 484 of the Corporations Act) (1) A special manager must give to the liquidator— (a) an account of the special manager’s receipts and payments; and (b) a statutory declaration verifying the account. (2) If the liquidator approves the account, the liquidator must include the total amounts of the special manager’s receipts and payments in the liquidator’s accounts.

ORDER 9 – REMUNERATION OF OFFICE-HOLDERS 9.1 Remuneration of receiver (s. 425(1) of the Corporations Act)—Form 16 (1) This Rule applies to an application by a receiver of property of a corporation for an order under section 425(1) of the Corporations Act fixing the receiver’s remuneration. ©

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Notes: 1 Under section 425(2)(b) of the Corporations Act, the Court may exercise its power to make an order fixing the remuneration of a receiver appointed under an instrument even if the receiver has died, or has ceased to act, before the making of the order or the application for the order. 2 The amendment to section 425 of the Corporations Act made by the Corporations Amendment (Insolvency) Act 2007 of the Commonwealth applies in relation to a receiver appointed on or after 31 December 2007—see Corporations Act, section 1480(5).

(2) At least 21 days before filing an originating process, or interlocutory process, seeking the order, the receiver must serve a notice in accordance with Form 16 of the receiver’s intention to apply for the order, and a copy of any affidavit on which the receiver intends to rely, on the following persons— (a) the person who appointed the receiver; (b) any creditor holding security over all or any of the same property of the corporation (except if the creditor is the person who appointed the receiver); (c) any administrator, liquidator or provisional liquidator of the corporation; (d) any administrator of a deed of company arrangement executed by the corporation; (e) if there is no person of the kind mentioned in paragraph (c) or (d)— (i) each of the 5 largest (measured by amount of debt) unsecured creditors of the corporation; and (ii) each member of the corporation whose shareholding represents at least 10 per cent of the issued capital of the corporation. (3) Within 21 days after the last service of the documents mentioned in paragraph (2), any creditor or contributory, or any person mentioned in paragraph (2)(c), (d) or (e), may give to the receiver a notice of objection to the remuneration claimed, stating the grounds of objection. (4) If the receiver does not receive a notice of objection within the period mentioned in paragraph (3)— (a) the receiver may file an affidavit, made after the end of that period, in support of the originating process, or interlocutory process, seeking the order stating— (i) the date, or dates, when the notice and affidavit required to be served under paragraph (2) were served; and (ii) that the receiver has not received any notice of objection to the remuneration claimed within the period mentioned in paragraph (3); (b) the receiver may endorse the originating process, or interlocutory process, with a request that the application be dealt with in the absence of the public and without any attendance by, or on behalf of, the receiver; and (c) the application may be so dealt with. (5) If the receiver receives a notice of objection within the period mentioned in paragraph (3), the receiver must serve a copy of the originating process, or interlocutory process, seeking the order on each creditor or contributory, or other person, who has given a notice of objection. (6) An (a) (b) (c) (d) (e) (f)

affidavit in support of the originating process, or interlocutory process, seeking the order must— include evidence of the matters referred to in section 425(8) of the Corporations Act; state the nature of the work performed or likely to be performed by the receiver; state the amount of remuneration claimed; include a summary of the receipts taken and payments made by the receiver; state particulars of any objection of which the receiver has received notice; and if the receivership is continuing, give details of any matters delaying the completion of the receivership.

9.2 Determination by Court of remuneration of administrator (Corporations Act s. 449E(1)(c) and (1A)(c))—Form 16 (1) This Rule applies to an application by the administrator of a company under administration, or of a deed of company arrangement, for an order under section 449E(1)(c) or (1A)(c) of the Corporations Act determining the administrator’s remuneration. (2) At least 21 days before filing an originating process, or interlocutory process, seeking the order, the 280

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Order 9 – Remuneration of Office-holders r 9.2A administrator must serve a notice in accordance with Form 16 of the administrator’s intention to apply for the order, and a copy of any affidavit on which the administrator intends to rely, on the following persons— (a) each creditor who was present, in person or by proxy, at any meeting of creditors; (b) each member of any committee of creditors or committee of inspection; (c) if there is no committee of creditors or 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; (d) each member of the company whose shareholding represents at least 10 per cent of the issued capital of the company.

(4) If the administrator does not receive a notice of objection within the period referred to in paragraph (3)— (a) the administrator may file an affidavit, made after the end of that period, in support of the originating process, or interlocutory process, seeking the order stating— (i) the date, or dates, when the notice and affidavit required to be served under paragraph (2) were served; and (ii) that the administrator has not received any notice of objection to the remuneration claimed within the period referred to in paragraph (3); (b) the administrator may endorse the originating process, or interlocutory process, with a request that the application be dealt with in the absence of the public and without any attendance by, or on behalf of, the administrator; and (c) the application may be so dealt with. (5) If the administrator receives a notice of objection within the period referred to in paragraph (3), the administrator must serve a copy of the originating process, or interlocutory process, seeking the order on each creditor or contributory who has given a notice of objection. (6) An (a) (b) (c) (d) (e) (f)

affidavit in support of the originating process, or interlocutory process, seeking the order must— include evidence of the matters referred to in section 449E(4) of the Corporations Act; state the nature of the work performed or likely to be performed by the administrator; state the amount of remuneration claimed; include a summary of the receipts taken and payments made by the administrator; state particulars of any objection of which the administrator has received notice; and if the administration is continuing, give details of any matters delaying the completion of the administration.

9.2A Review of remuneration of administrator (Corporations Act s. 449E(2)) (1) This Rule applies to an application for review of the amount of remuneration of an administrator under section 449E(2) of the Corporations Act. Note: The amendment to section 449E of the Corporations Act made by the Corporations Amendment (Insolvency) Act 2007 of the Commonwealth applies in relation to an administrator appointed on or after 31 December 2007—see Corporations Act, section 1480(6).

(2) The application may be made only after the remuneration has been determined under section 449E(1)(a) or (b) or (1A)(a) or (b) of the Corporations Act. (3) At least 21 days before filing the originating process, or the interlocutory process, applying for a review, the plaintiff or applicant must serve a notice of intention to apply for the review, in accordance with Form 16A, and a copy of any affidavit on which the plaintiff or applicant intends to rely (other than an affidavit required by paragraph (9)), on the following persons— (a) if there is a committee of creditors or a committee of inspection, each member of the committee; (b) if the remuneration of the administrator was determined by the creditors, each creditor who was present, in person or by proxy, at the meeting of creditors at which the remuneration was determined; ©

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(3) Within 21 days after the last service of the documents referred to in paragraph (2), any creditor or contributory may give to the administrator a notice of objection to the remuneration claimed, stating the grounds of objection.

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Supreme Court (Corporations) Rules 2013 (Vic)

(c) each member of the company whose shareholding represents at least 10 per cent of the issued capital of the company. (4) Within 21 days after the last service of the documents referred to in paragraph (3), any person on whom the notice has been served may serve on the plaintiff or applicant a notice— (a) stating the person’s intention to appear at the hearing of the application for review; and (b) setting out the issues that the person seeks to raise before the Court. (5) A person referred to in paragraph (3) is entitled to be heard on the application for review, but only (unless the Court otherwise orders) if the person has served on the plaintiff or applicant a notice in accordance with paragraph (4). (6) If the plaintiff or applicant is served with a notice in accordance with paragraph (4), the plaintiff or applicant must serve a copy of the originating process, or interlocutory process, applying for review on each person who has served such a notice. (7) The administrator must file an affidavit stating the following matters— (a) the matters referred to in section 449E(4) of the Corporations Act; (b) the nature of the work performed or likely to be performed by the administrator; (c) the amount of remuneration claimed by the administrator if that amount is different from amount of remuneration that has been determined; (d) a summary of the receipts taken and payments made by the administrator; (e) particulars of any objection to the remuneration as determined, of which the administrator received notice; and (f) if the administration is continuing, details of any matters delaying the completion of administration. (8) The affidavit referred to in paragraph (7) must annex or exhibit a copy of the report that administrator was required to prepare before remuneration was determined.

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has the the

(9) The plaintiff or applicant must— (a) file an affidavit stating whether any notice or notices under paragraph (4) has or have been served; and (b) annex or exhibit to the affidavit a copy of any such notice. 9.3 Remuneration of provisional liquidator (s. 473(2) of the Corporations Act)—Form 16 (1) This Rule applies to an application by a provisional liquidator of a company for an order under section 473(2) of the Corporations Act determining the provisional liquidator’s remuneration. (2) The application must be made by interlocutory process in the winding up proceeding. (3) At least 21 days before filing the interlocutory process seeking the order, the provisional liquidator must serve a notice in accordance with Form 16 of the provisional liquidator’s intention to apply for the order, and a copy of any affidavit on which the provisional liquidator intends to rely, on the following persons— (a) any liquidator (except the provisional liquidator) of the company; (b) each member of any committee of inspection or, if there is no committee of inspection, each of the 5 largest (measured by amount of debt) creditors of the company; (c) each member of the company whose shareholding represents at least 10 per cent of the issued capital of the company. (4) Within 21 days after the last service of the documents mentioned in paragraph (3), the liquidator, or any creditor or contributory, may give to the provisional liquidator a notice of objection to the remuneration claimed, stating the grounds of objection. (5) If the provisional liquidator does not receive a notice of objection within the period mentioned in paragraph (4)— (a) the provisional 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 paragraph (3) were served; and (ii) that the provisional liquidator has not received any notice of objection to the remuneration claimed within the period mentioned in paragraph (4); 282

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Order 9 – Remuneration of Office-holders r 9.4 the provisional liquidator may endorse the interlocutory process with a request that the application be dealt with in the absence of the public and without any attendance by, or on behalf of, the provisional liquidator; and (c) the application may be so dealt with.

(6) If paragraph (a) (b)

the provisional liquidator receives a notice of objection within the period mentioned in (4), the provisional liquidator must serve a copy of the interlocutory process seeking the order— on each creditor or contributory who has given a notice of objection; and on the liquidator (if any).

(7) An (a) (b) (c) (d) (e)

affidavit in support of the interlocutory process seeking the order must— state the nature of the work performed or likely to be performed by the provisional liquidator; state the amount of remuneration claimed; include a summary of the receipts taken and payments made by the provisional liquidator; state particulars of any objection of which the provisional liquidator has received notice; and if the winding up proceeding has not been determined, give details of— (i) any reasons known to the provisional liquidator why the winding up proceeding has not been determined; and (ii) any reasons why the provisional liquidator’s remuneration should be determined before the determination of the winding up proceeding.

(8) The affidavit must also provide evidence of the matters referred to in section 473(10) of the Corporations Act— (a) to the extent that they may be relevant to a provisional liquidator; and (b) as if references in that subsection to “liquidator” were references to “provisional liquidator”. 9.4 Determination by Court of liquidator’s remuneration (Corporations Act s. 473(3)(b)(ii)) (1) This Rule applies to an application by a liquidator of a company for an order under section 473(3)(b)(ii) of the Corporations Act determining the liquidator’s remuneration. Note: The amendment to section 473 of the Corporations Act made by the Corporations Amendment (Insolvency) Act 2007 of the Commonwealth applies in relation to a liquidator appointed on or after 31 December 2007—see Corporations Act, section 1480(7).

(2) The application— (a) must be made by interlocutory process in the winding up proceeding; and (b) must not be made until after the date of the meeting of creditors mentioned in section 473(4) of the Corporations Act. (3) At least 21 days before filing the interlocutory process seeking the order, the liquidator must serve a notice in accordance with Form 16 of the liquidator’s intention to apply for the order, and a copy of any affidavit on which the liquidator intends to rely, on the following persons— (a) each creditor who was present, in person or by proxy, at any meeting of creditors at which the remuneration of the liquidator was considered; (b) each member of any committee of inspection; (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; (d) each member of the company whose shareholding represents at least 10 per cent of the issued capital of the company. (4) Within 21 days after the last service of the documents mentioned in paragraph (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 paragraph (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 paragraph (3) were served; and ©

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(b)

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Supreme Court (Corporations) Rules 2013 (Vic) (ii)

that the liquidator has not received any notice of objection to the remuneration claimed within the period mentioned in paragraph (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 without any attendance by, or on behalf of, the liquidator; and (c) the application may be so dealt with. (6) If the liquidator receives a notice of objection within the period mentioned in paragraph (4), the liquidator must serve a copy of the interlocutory process seeking the order on each creditor or contributory who has given a notice of objection. (7) An (a) (b) (c) (d) (e) (f)

affidavit in support of the originating process seeking the order must— include evidence of the matters referred to in section 473(10) of the Corporations Act; state the nature of the work performed or likely to be performed by the liquidator; state the amount of remuneration claimed; include a summary of the receipts taken and payments made by the liquidator; state particulars of any objection of which the liquidator has received notice; and if the winding up is continuing, give details of any matters delaying the completion of the winding up.

9.4A Review of remuneration of liquidator (Corporations Act s. 473(5) and (6) and s. 504(1)) (1) This Rule applies to an application for review of the amount of remuneration of a liquidator under section 473(5) or (6) or section 504(1) of the Corporations Act. Note: The amendment to section 504 of the Corporations Act made by the Corporations Amendment (Insolvency) Act 2007 of the Commonwealth applies in relation to a liquidator appointed on or after 31 December 2007—see Corporations Act, section 1480(7).

(2) The application may be made only after the remuneration has been determined under section 473(3)(a) or 473(3)(b)(i) or fixed under section 495(1) or 499(3) of the Corporations Act. (3) At least 21 days before filing the originating process, or the interlocutory process, applying for a review, the plaintiff or applicant must serve a notice of intention to apply for the review, in accordance with Form 16A, and a copy of any affidavit on which the plaintiff or applicant intends to rely (other than an affidavit required by paragraph (9)), on the following persons— (a) if there is a committee of inspection, each member of the committee; (b) if the remuneration of the liquidator was determined or fixed by the creditors, each creditor who was present, in person or by proxy, at the meeting of creditors at which the remuneration was determined or fixed; (c) each member of the company whose shareholding represents at least 10 per cent of the issued capital of the company. (4) Within 21 days after the last service of the documents referred to in paragraph (3), any person on whom the notice has been served may serve on the plaintiff or applicant a notice— (a) stating the person’s intention to appear at the hearing of the application for review; and (b) setting out the issues that the person seeks to raise before the Court. (5) A person referred to in paragraph (3) is entitled to be heard on the application for review, but only (unless the Court otherwise orders) if the person has served on the plaintiff or applicant a notice in accordance with paragraph (4). (6) If the plaintiff or applicant is served with a notice in accordance with paragraph (4), the plaintiff or applicant must serve a copy of the originating process, or interlocutory process, applying for review on each person who has served such a notice. (7) The liquidator must file an affidavit stating the following matters— (a) for an application under section 473(5) or (6) of the Corporations Act, the matters referred to in section 473(10) of the Corporations Act; (b) for an application under section 504(1) of the Corporations Act, the matters referred to in section 504(2) of the Corporations Act; (c) the nature of the work performed or likely to be performed by the liquidator; 284

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Order 9 – Remuneration of Office-holders r 9.5 (d)

the amount of remuneration claimed by the liquidator if that amount is different from the amount of remuneration that has been determined or fixed; (e) a summary of the receipts taken and payments made by the liquidator; (f) particulars of any objection to the remuneration as determined or fixed, of which the liquidator has received notice; and (g) if the winding up is continuing, details of any matters delaying the completion of the winding up.

(8) The affidavit referred to in paragraph (7) must annex or exhibit a copy of the report that the liquidator was required to prepare before remuneration was determined or fixed. Note: For the requirement to prepare a report, see sections 473(11) and (12), 495(5) and 499(6) and (7) of the Corporations Act.

(9) The plaintiff or applicant must— (a) file an affidavit stating whether any notice or notices under paragraph (4) has or have been served; and (b) annex or exhibit to the affidavit a copy of any such notice.

(1) This Rule applies to an application by a special manager of the property or business of a company for an order under section 484(2) of the Corporations Act fixing the special manager’s remuneration. (2) The application must be made by interlocutory process in the winding up proceeding. (3) At least 21 days before filing the interlocutory process seeking the order, the special manager must serve a notice in accordance with Form 16 of the special manager’s intention to apply for the order, and a copy of any affidavit on which the special manager intends to rely, on the following persons— (a) the liquidator of the company; (b) each member of any committee of creditors or committee of inspection or, if there is no committee of creditors or committee of inspection, each of the 5 largest (measured by amount of debt) creditors of the company; (c) each member of the company whose shareholding represents at least 10 per cent of the issued capital of the company. (4) Within 21 days after the last service of the documents mentioned in paragraph (3), the liquidator, or any creditor or contributory, may give to the special manager a notice of objection to the remuneration claimed, stating the grounds of objection. (5) If the special manager does not receive a notice of objection within the period mentioned in paragraph (4)— (a) the special manager 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 paragraph (3) were served; and (ii) that the special manager has not received any notice of objection to the remuneration claimed within the period mentioned in paragraph (4); (b) the special manager may endorse the interlocutory process with a request that the application be dealt with in the absence of the public and without any attendance by, or on behalf of, the special manager; and (c) the application may be so dealt with. (6) If the special manager receives a notice of objection within the period mentioned in paragraph (4), the special manager must serve a copy of the interlocutory process seeking the order— (a) on each creditor or contributory who has given a notice of objection; and (b) on the liquidator. (7) The affidavit in support of the interlocutory process seeking the order must— (a) state the nature of the work performed or likely to be performed by the special manager; (b) state the amount of remuneration claimed; (c) include a summary of the receipts taken and payments made by the special manager; ©

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9.5 Remuneration of special manager (s. 484(2) of the Corporations Act)—Form 16

r 9.5

Supreme Court (Corporations) Rules 2013 (Vic) (d) state particulars of any objection of which the special manager has received notice; and (e) if the special management is continuing, give details of any matters delaying the completion of the special management.

ORDER 10 – WINDING UP GENERALLY 10.1 Determination of value of debts or claims (s. 554A(2) of the Corporations Act) A reference to the Court by a liquidator of a company under section 554A(2)(b) of the Corporations Act must be made— (a) in the case of a winding up by the Court—by filing an interlocutory process seeking an order estimating, or determining a method for working out, the value of the debt or claim; and (b) in the case of a voluntary winding up—by filing an originating process seeking an order estimating, or determining a method for working out, the value of the debt or claim. 10.2 Disclaimer of contract (s. 568(1A) of the Corporations Act) (1) The affidavit in support of an application by a liquidator, under section 568(1A) of the Corporations Act, for leave to disclaim a contract in relation to a company must— (a) specify the persons interested, and their interest, under the contract; and (b) state the facts on which it is submitted that the contract should be disclaimed. (2) The liquidator must serve the affidavit on each party to the contract (except the company) and on any person interested in the contract. 10.3 Winding up Part 5.7 bodies (ss 583, 585 of the Corporations Act) and registered schemes (s. 601ND of the Corporations Act) These Rules apply, with any necessary adaptations, and in the same way as they apply to a company, in relation to the winding up of a Part 5.7 body or a registered scheme.

ORDER 11 – EXAMINATIONS AND ORDERS (PART 5.9, DIVISIONS 1 AND 2 OF THE CORPORATIONS ACT) 11.1 Definition for Order 11 In this Order— examination summons means a summons under section 596A or 596B of the Corporations Act for the examination of a person about a corporation’s examinable affairs. 11.2 Application for examination or investigation under ss 411(9)(b), 423 or 536(3) of the Corporations Act (1) An application for an order for the examination or investigation of a person under section 411(9)(b), 423 or 536(3) of the Corporations Act may be made by— (a) the ASIC; (b) a person authorised by the ASIC; (c) a creditor or contributory; or (d) any other person aggrieved by the conduct of— (i) a person appointed to administer a compromise or arrangement; (ii) a controller; or (iii) a liquidator or provisional liquidator. (2) The application may be made without notice to any person. (3) The provisions of this Order that apply to an examination under Division 1 of Part 5.9 of the Corporations Act apply, with any necessary adaptations, to an examination or an investigation under section 411(9)(b), 423 or 536(3) of the Corporations Act.

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Order 11 – Examinations and Orders r 11.7 11.3 Application for examination summons (ss 596A, 596B of the Corporations Act)—Form 17 (1) An application for the issue of an examination summons must be made by filing an interlocutory process or an originating process, as the case requires. (3) The originating process, or interlocutory process, seeking the issue of the examination summons must be— (a) supported by an affidavit stating the facts in support of the process; and (b) accompanied by a draft examination summons. (4) The originating process, or interlocutory process, and supporting affidavit must be filed in a sealed envelope marked, as appropriate— (a) “Application and supporting affidavit for issue of summons for examination under section 596A of the Corporations Act 2001”; or (b) “Application and supporting affidavit for issue of summons for examination under section 596B of the Corporations Act 2001”. (5) If the application is not made by the liquidator, the liquidator must be given notice of the application and, if required by the liquidator, served with a copy of the originating process, or interlocutory process, and the supporting affidavit. (6) If the application is not made by the ASIC, the ASIC must be given notice of the application and, if required by the ASIC, served with a copy of the originating process, or interlocutory process, and the supporting affidavit. (7) Unless the Court otherwise orders, an affidavit in support of an application for an examination summons is not available for inspection by any person. (8) An examination summons must be in accordance with Form 17. 11.4 Service of examination summons An examination summons issued by the Court must be personally served, or served in any other manner as the Court may direct, on the person who is to be examined at least 8 days before the date fixed for the examination. 11.5 Discharge of examination summons (1) This Rule applies if a person is served with an examination summons. (2) Within 3 days after the person is served with the examination summons, the person may apply to the Court for an order discharging the summons by filing— (a) an interlocutory process seeking an order discharging the summons; and (b) an affidavit stating the facts in support of the interlocutory process. (3) As soon as practicable after filing the interlocutory process seeking the order and the supporting affidavit, the person must serve a copy of the interlocutory process and the supporting affidavit on— (a) the person who applied for the examination; and (b) unless that person is the ASIC or a person authorised by the ASIC—the ASIC. 11.6 Filing of record of examination (s. 597(13) of the Corporations Act) If the Court makes an order in relation to an examination under section 597(13) of the Corporations Act, the Court may give directions for the filing of the written record of the examination. 11.7 Authentication of transcript of examination (s. 597(14) of the Corporations Act) For the purposes of section 597(14) of the Corporations Act, a transcript of an examination may be authenticated— (a) by the person, or persons, who prepared the record of examination, or under whose supervision the record was prepared, certifying in writing signed by the person or persons, that the record is a true transcript of the record of examination; or (b) by any person present at the examination, or any part of the examination, signing the person’s name at the bottom of each page of the written record that records a part of the examination at which the person was present. ©

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(2) The application may be made without notice to any person.

r 11.7

Supreme Court (Corporations) Rules 2013 (Vic)

11.8 Inspection of record or transcript of examination or investigation under ss 411, 423 or 536 of the Corporations Act (1) A written record or transcript of an examination or investigation under section 411, 423 or 536 is not available for inspection by any person except— (a) with the consent of the liquidator (if any) or the ASIC; or (b) by leave of the Court. (2) This Rule does not apply to the liquidator, the ASIC or any person authorised by the ASIC. 11.9 Entitlement to record or transcript of examination held in public (1) This Rule applies if— (a) an examination under section 597 of the Corporations Act is held wholly or partly in public; and (b) a written record or transcript of the examination is filed in the Court. (2) The person examined may apply to the Prothonotary, within 3 years after the date of completion of the examination, for a copy of the record or transcript of the part of the examination of the person held in public. (3) On receiving an application from a person under paragraph (2), and any applicable fee, the Prothonotary must give a copy of the record or transcript to the person. 11.10 Default in relation to examination (1) This Rule applies if a person is summoned or ordered by the Court to attend for examination, and— (a) without reasonable cause, the person— (i) fails to attend at the time and place appointed; (ii) fails to attend from day to day until the conclusion of the examination; (iii) refuses or fails to take an oath or make an affirmation; (iv) refuses or fails to answer a question that the Court directs the person to answer; (v) refuses or fails to produce books that the summons requires the person to produce; or (vi) fails to comply with a requirement by the Court to sign a written record of the examination; or (b) before the day fixed for the examination, the person who applied for the summons or order satisfies the Court that there is reason to believe that the person summoned or ordered to attend for examination has absconded or is about to abscond. (2) The Court may— (a) issue a warrant for the arrest of the person summoned or ordered to attend for examination; and (b) make any other orders that the Court thinks just or necessary. 11.11 Service of application for order in relation to breaches etc. by person concerned with corporation (s. 598 of the Corporations Act) (1) This Rule applies to a person applying for an order under section 598 of the Corporations Act. (2) In addition to complying with Rules 2.7 and 2.8, the person must serve a copy of the originating process, or interlocutory process, as the case requires, and the supporting affidavit on any liquidator or provisional liquidator (except if the person is the liquidator or provisional liquidator) of the corporation or body. Note: Under Rule 2.7, a plaintiff must serve a copy of the originating process, and any supporting affidavit, on a defendant to the proceeding and, if necessary, on the corporation to which the proceeding relates and an applicant must serve a copy of an interlocutory process, and any supporting affidavit, on a respondent to the proceeding and, if necessary, on the corporation to which the proceeding relates. In certain cases, these documents may also be required to be served on the ASIC—see Rule 2.8.

ORDER 11A – WARRANTS (CORPORATIONS ACT SECTION 486B AND PART 5.4B, DIVISION 3, SUBDIVISION B) 288

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Order 12 – Takeovers, Acquisition of Shares etc. r 12.2 11A.01 Arrest of person (Corporations Act s. 486B)—Form 17A (1) An application for the issue of a warrant under section 486B(1) of the Corporations Act for the arrest of a person must state the grounds for the issue of the warrant. (2) The application must be accompanied by an affidavit stating the facts in support of the application. (3) The warrant must be in accordance with Form 17A. (4) If a person is arrested under the warrant, the person who carried out the arrest must immediately give notice of the arrest to the Prothonotary or registrar in the office or registry from which the warrant was issued. Note: Sections 489A to 489E of the Corporations Act, inserted by the Corporations Amendment (Insolvency) Act 2007 of the Commonwealth, apply in relation to a warrant issued on or after 31 December 2007—see Corporations Act, section 1481(3).

12.1 Service on ASIC in relation to proceedings under Chapter 6, 6A, 6B, 6C, 6D or 7 of the Corporations Act If the ASIC is not a party to an application made under Chapter 6, 6A, 6B, 6C, 6D or 7 of the Corporations Act, the plaintiff must serve a copy of the originating process and the supporting affidavit on the ASIC as soon as practicable after filing the originating process. 12.1A Reference to Court of question of law arising in a proceeding before Takeovers Panel (s. 659A of the Corporations Act) Order 6 of Chapter II of the Rules of the Supreme Court applies, with any necessary adaptations, to a reference of a question of law arising in a proceeding before the Takeovers Panel to the Court under section 659A of the Corporations Act. 12.1B Notification to Court where proceeding is commenced before end of takeover bid period (s. 659B of the Corporations Act) (1) This Rule applies to a party to a proceeding who suspects or becomes aware that— (a) the proceeding was commenced in relation to a takeover bid, or proposed takeover bid, before the end of the bid period; and (b) the proceeding falls within the definition of court proceedings in relation to a takeover bid or proposed takeover bid in section 659B(4) of the Corporations Act. (2) The party identified in paragraph (1) must, immediately on suspecting or becoming aware of the matters mentioned in paragraph (1), notify any other party to the proceeding and the Court of that suspicion or knowledge. (3) A party must comply with paragraph (2) unless any other party to the proceeding has given a notice under this Rule to the party. 12.2 Application for summons for appearance of person (s. 1071D(4) of the Corporations Act)—Form 18 (1) An application for the issue of a summons under section 1071D(4) of the Corporations Act must be made by filing an originating process or an interlocutory process. (2) The application may be made ex parte. (3) The originating process, or interlocutory process, seeking the issue of the summons must be— (a) supported by an affidavit stating the facts in support of the process; and (b) accompanied by a draft summons. (4) Unless the Court otherwise orders, a summons issued under this Rule is to be in accordance with Form 18.

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ORDER 12 – TAKEOVERS, ACQUISITION OF SHARES ETC. (CHAPTERS 6 TO 6D OF THE CORPORATIONS ACT) AND SECURITIES (CHAPTER 7 OF THE CORPORATIONS ACT)

r 12.3

Supreme Court (Corporations) Rules 2013 (Vic)

12.3 Application for orders relating to refusal to register transfer or transmission of securities etc. (s. 1071F of the Corporations Act) As soon as practicable after filing an originating process seeking an order under section 1071F of the Corporations Act, the plaintiff must serve a copy of the originating process and the supporting affidavit on— (a) the company; and (b) any person against whom an order is sought.

ORDER 13 Note:

There is no Order 13.

ORDER 14 – POWERS OF COURTS (PART 9.5 OF THE CORPORATIONS ACT) 14.1 Appeal from act, omission or decision of administrator, receiver or liquidator etc. (ss 554A and 1321 of the Corporations Act) (1) All appeals to the Court authorised by the Corporations Act must be commenced by an originating process or interlocutory process stating— (a) the act, omission or decision complained of; (b) in the case of an appeal against a decision—whether the whole or part only and, if part only, which part of the decision is complained of; and (c) the grounds on which the complaint is based. (2) Unless the Corporations Act or the Corporations Regulations otherwise provide, the originating process or interlocutory process must be filed within— (a) 21 days after the date of the act, omission or decision appealed against; or (b) any further time allowed by the Court. (3) The Court may extend the time for filing the originating process or interlocutory process either before or after the time for filing expires and whether or not the application for extension is made before the time expires. (4) As soon as practicable after filing the originating process or interlocutory process and, in any case, at least 5 days before the date fixed for hearing, the person instituting the appeal must serve a copy of the originating process or interlocutory process and any supporting affidavit, on each person directly affected by the appeal. (5) As soon as practicable after being served with a copy of the originating process or interlocutory process and any supporting affidavit, a person whose act, omission or decision is being appealed against must file an affidavit— (a) stating the basis on which the act, omission or decision was done or made; and (b) exhibiting a copy of all relevant documents that have not been put in evidence by the person instituting the appeal.

ORDER 15 – PROCEEDINGS UNDER THE ASIC ACT 15.1 Reference to Court of question of law arising at hearing of ASIC (s. 61 of the ASIC Act) Order 6 of Chapter II of the Rules of the Supreme Court applies, with any necessary adaptations, to a reference of a question of law arising at a hearing by the ASIC to the Court under section 61 of the ASIC Act. 15.2 [Repealed] 15.3 Application for inquiry (ss 70, 201, 219 of the ASIC Act) An application for an inquiry under section 70(3), 201(3) or 219(7) of the ASIC Act must be made by filing an originating process seeking an inquiry and orders under the relevant subsection. 290

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Order 15A – Proceedings under the Cross-Border Insolvency Act r 15A.3

ORDER 15A – PROCEEDINGS UNDER THE CROSS-BORDER INSOLVENCY ACT 15A.1 Application of this Order and other rules of the Court Unless the Court otherwise orders— (a) this Order applies to a proceeding in the Court under the Cross-Border Insolvency Act involving a debtor other than an individual; and (b) the rules in the other Orders of these Rules, and the other rules of the Court, apply to a proceeding in the Court under the Cross-Border Insolvency Act if they are relevant and not inconsistent with this Order. Note: See Rule 1.5 for definitions of Cross-Border Insolvency Act and Model Law. 15A.2 Expressions used in the Cross-Border Insolvency Act (1) Unless the contrary intention appears, an expression that is used in this Order and in the Cross-Border Insolvency Act, whether or not a particular meaning is given to the expression by the Cross-Border Insolvency Act, has the same meaning in this Order as it has in the Cross-Border Insolvency Act. Note: The following expressions used in this Order (including in the notes to this Order) are defined in the Model Law as having the following meanings—

Vic

establishment means any place of operations where the debtor carries out a non-transitory economic activity with human means and goods or services; foreign court means a judicial or other authority competent to control or supervise a foreign proceeding; foreign main proceeding means a foreign proceeding taking place in the State where the debtor has the centre of its main interests; foreign non-main proceeding means a foreign proceeding, other than a foreign main proceeding, taking place in a State where the debtor has an establishment; foreign proceeding means a collective judicial or administrative proceeding in a foreign State, including an interim proceeding, pursuant to a law relating to insolvency in which proceeding the assets and affairs of the debtor are subject to control or supervision by a foreign court, for the purpose of reorganization or liquidation; foreign representative means a person or body, including one appointed on an interim basis, authorized in a foreign proceeding to administer the reorganization or the liquidation of the debtor’s assets or affairs or to act as a representative of the foreign proceeding.

(2) This Order is to be interpreted in a manner that gives effect to the Cross-Border Insolvency Act. 15A.3 Application for recognition (1) An application by a foreign representative for recognition of a foreign proceeding under article 15 of the Model Law must be made by filing an originating process in accordance with Form 2 or, if an originating process is sought or required to be filed electronically in RedCrest, in Form 2A. [Subr (1) am SR 48 of 2014, r 27, with effect from 1 Jul 2014]

(2) The originating process must— (a) be accompanied by the statements referred to in article 15 of the Model Law and in section 13 of the Cross-Border Insolvency Act; (b) name the foreign representative as the plaintiff and the debtor as the defendant; and (c) be accompanied by an affidavit verifying the matters mentioned in paragraphs 2 and 3 of article 15 of the Model Law and in section 13 of the Cross-Border Insolvency Act. (3) When filing the originating process— (a) the foreign representative must file, but need not serve, an interlocutory process seeking directions as to service; and (b) the Court may give any directions about service, and make any incidental orders, that it thinks just. (4) The plaintiff must serve a copy of the originating process and the other documents referred to in paragraph (2)— (a) unless the Court otherwise orders, in accordance with Rule 2.7(1); and (b) on any other persons the Court may direct at the hearing of the interlocutory process. (5) A person who intends to appear before the Court at the hearing of an application for recognition must file and serve the documents referred to in Rule 2.9. [R 15A.3 am SR 48 of 2014] ©

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r 15A.3

Supreme Court (Corporations) Rules 2013 (Vic)

15A.4 Application for provisional relief under article 19 of the Model Law (1) Any application by the plaintiff for provisional relief under article 19 of the Model Law must be made by filing an interlocutory process in accordance with Form 3. (2) Unless the Court otherwise orders, the interlocutory process and any supporting affidavit must be served in accordance with Rule 2.7(2). 15A.5 Official liquidator’s consent to act If the relief sought in an application under article 15 of the Model Law includes an application for an order under article 19 or 21 to entrust the distribution of the debtor’s assets to a person designated by the Court (other than the foreign representative), unless the Court otherwise orders, that person must— (a) be an official liquidator; and (b) have filed a Consent to Act in accordance with Form 19 that specifies an address for service for the person within Australia. 15A.6 Notice of filing of application for recognition (1) Unless the Court otherwise orders, the plaintiff in a proceeding referred to in Rule 15A.3 must— (a) send a notice of the filing of the application in accordance with Form 20 to each person whose claim to be a creditor of the defendant is known to the plaintiff; and (b) publish a notice of the filing of the application for recognition of a foreign proceeding in accordance with Form 20, in accordance with Rule 2.11. (2) The Court may direct the plaintiff to publish a notice in accordance with Form 20 in a daily newspaper circulating generally in any State or Territory not referred to in Rule 2.11. 15A.7 Notice of order for recognition, discontinuance etc. (1) If the Court makes an order for recognition of a foreign proceeding under article 17 of the Model Law, or makes any order under article 19 or 21 of the Model Law, the plaintiff must, as soon as practicable after the order is made, do all of the following— (a) have the order authenticated; (b) serve a copy of the authenticated order on the defendant; (c) send a notice of the making of the order in accordance with Form 21 to each person whose claim to be a creditor of the defendant is known to the plaintiff; (d) publish a notice of the making of the order in accordance with Form 21, in accordance with Rule 2.11. (2) The Court may direct the plaintiff to publish the notice in accordance with Form 21 in a daily newspaper circulating generally in any State or Territory not referred to in Rule 2.11. (3) If the application for recognition is discontinued or dismissed, the plaintiff must, as soon as practicable, do all of the following— (a) for a dismissal, have the order of dismissal authenticated; (b) serve a copy of the authenticated order of dismissal or notice of the discontinuance, on the defendant; (c) send a notice of the dismissal or discontinuance in accordance with Form 22 to each person whose claim to be a creditor of the defendant is known to the plaintiff; (d) publish a notice of the dismissal or discontinuance in accordance with Form 22, in accordance with Rule 2.11. (4) The Court may direct the plaintiff to publish the notice in accordance with Form 22 in a daily newspaper circulating generally in any State or Territory not referred to in Rule 2.11. 15A.8 Relief after recognition (1) If the Court has made an order for recognition of a foreign proceeding, any application by the plaintiff for relief under paragraph 1 of article 21 of the Model Law must be made by filing an interlocutory process, and any supporting affidavit, in accordance with Form 3. (2) Unless the Court otherwise orders, an interlocutory process under paragraph (1) and any supporting affidavit must be served, in accordance with Rule 2.7(2), but on the following persons— 292

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Order 16 – Powers of Associate Judges Part 1 – General

r 16.2

(a) the defendant; (b) any person that the Court directed be served with the originating process by which the application for recognition was made; (c) any other person that the Court directs. (3) A person who intends to appear before the Court at the hearing of an application under paragraph (1) must file and serve the documents referred to in Rule 2.9. 15A.9 Application to modify or terminate an order for recognition or other relief (1) This Rule applies to— (a) an application under paragraph 4 of article 17 of the Model Law for an order modifying or terminating an order for recognition of a foreign proceeding; and (b) an application under paragraph 3 of article 22 of the Model Law for an order modifying or terminating relief granted under article 19 or 21 of the Model Law.

(3) An interlocutory process for an application to which this Rule applies and any supporting affidavit must be served on— (a) for an application referred to in paragraph (1)(a), the defendant and other persons who were served with, or filed a notice of appearance in relation to, the application for recognition; and (b) for an application referred to in paragraph (1)(b), the defendant and other persons who were served with, or filed a notice of appearance in relation to, the application for relief under article 19 or 21. (4) Unless the Court otherwise orders, a plaintiff who applies for an order to which this Rule applies must— (a) send a notice of the filing of the application in accordance with Form 23 to each person whose claim to be a creditor of the defendant is known to the plaintiff; and (b) publish a notice of the filing of the application in accordance with Form 23, in accordance with Rule 2.11. (5) The Court may direct the applicant to publish the notice in accordance with Form 23 in a daily newspaper circulating generally in any State or Territory not referred to in Rule 2.11. (6) A person who intends to appear before the Court at the hearing of an application to which this Rule applies must file and serve the documents referred to in Rule 2.9.

ORDER 16 – POWERS OF ASSOCIATE JUDGES Part 1 – General 16.1 Powers of Associate Judges (1) An Associate Judge may exercise any power conferred on the Court or a Judge of the Court by any provision listed in column 1 of Schedule 2, subject to any qualification set out in that column. (2) The descriptions in column 2 of Schedule 2 are inserted for convenience of reference only and do not affect the operation of this Rule. (3) An Associate Judge may also hear and determine any application referred to an Associate Judge by a Judge of the Court, subject to any directions contained in the order referring the application. 16.2 Reference by Associate Judge (1) If a matter before an Associate Judge appears to the Associate Judge to be proper for the decision of a Judge of the Court, the Associate Judge may refer the matter to a Judge of the Court. (2) If an Associate Judge refers a matter to a Judge of the Court, the Judge of the Court may— (a) dispose of the matter; or (b) refer it back to the Associate Judge with any direction that the Judge of the Court considers appropriate. ©

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(2) An application to which this Rule applies must be made by filing an interlocutory process in accordance with Form 3.

r 16.2

Supreme Court (Corporations) Rules 2013 (Vic)

16.3 Matters within Associate Judge’s jurisdiction not to be brought before Judge of the Court except in certain cases If these Rules authorise a matter to be dealt with by an Associate Judge, the matter may only be brought before a Judge of the Court— (a) on a reference from an Associate Judge; (b) on appeal from an Associate Judge; (c) by special leave of a Judge of the Court; or (d) upon the trial of a proceeding. 16.4 Associate Judge not to hear complaint for offence Nothing in these Rules confers jurisdiction on an Associate Judge to hear and determine a complaint for an offence. 16.5 Appeals (1) Save in the cases provided for by paragraphs (a) and (b) of paragraph (3) and subject to section 17A of the Supreme Court Act 1986, an appeal lies to the Trial Division constituted by a Judge of the Court from any judgment or order of an Associate Judge made under these Rules. (2) Rules 77.06.1 to 77.06.9 of Chapter I of the Rules apply to an appeal referred to in paragraph (1) with any necessary modification. (3) Subject to section 17A of the Supreme Court Act 1986, for the purposes of sections 10(1)(ab) and 17(3) of that Act an appeal lies to the Court of Appeal (and not to the Trial Division) from any judgment or order of an Associate Judge— (a) in any application under section 459G of the Corporations Act; and (b) in respect of any matter referred to an Associate Judge by a Judge of the Court under Rule 16.1(3). [Subr (3) am SR 40 of 2015, r 13, with effect from 1 Jul 2015]

(4) Order 64 of Chapter I of the Rules applies to an appeal referred to in paragraph (3) with any necessary modification. [R 16.5 am SR 40 of 2015]

Part 2 – Meetings 16.6 Inquiry and order by Associate Judge as to meetings (1) If an order has been made for the convening of a meeting to consider a resolution, the party obtaining the order or the party’s solicitor must, after the meeting has been held, attend before an Associate Judge on a date to be appointed by the Associate Judge. (2) The Associate Judge shall inquire whether the meeting was duly convened and held and whether the resolution was duly passed at the meeting in accordance with the terms of the order. (3) The Associate Judge shall by order declare— (a) whether the meeting was duly convened and held and whether the resolution was duly passed; and (b) if in the Associate Judge’s opinion any irregularity occurred in the convening or holding of the meeting or in the passing of the resolution, the nature and extent of the irregularity. (4) No order based on any resolution mentioned in paragraph (1) shall be made until an order of the Associate Judge in accordance with this Rule has been filed.

Part 3 – Winding Up [Pt 3 heading am SR 10 of 2015, r 17, with effect from 1 Mar 2015]

16.7 Application of Part (1) Subject to paragraph (2), this Part applies to any application for a winding up order. (2) This Part does not apply to— (a) an application for relief under section 232 of the Corporations Act, whether or not a winding up order is sought; 294

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Order 16A – Proceedings under the Federal Courts (State Jurisdiction) Act 1999 r 16.10 (b)

an application under section 601ND of the Corporations Act for an order directing the responsible entity of a registered scheme to wind up the scheme.

16.8 Application to Associate Judge or judicial registrar Every application to which this Part applies must, unless the Court otherwise orders, be made in the first instance to either an Associate Judge or a judicial registrar, as the application may be listed. Note: See also section 113C of the Supreme Court Act 1986 as to the assignment of duties to a judicial registrar and section 113L of that Act as to the performance of duties by a judicial registrar. [R 16.8 subst SR 10 of 2015, r 18, with effect from 1 Mar 2015]

(1) The Associate Judge or the judicial registrar, as the case requires, 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. [Subr (1) am SR 10 of 2015, r 20(1)(a), with effect from 1 Mar 2015]

(2) The Associate Judge or the judicial registrar, as the case requires, shall hear and determine the application if satisfied— (a) that the requirements referred to in paragraph (1) have been substantially complied with; and (b) that the application is unopposed. [Subr (2) am SR 30 of 2015, r 7, with effect from 4 May 2015; SR 10 of 2015, r 20(1)(b), with effect from 1 Mar 2015]

(3) If not satisfied that the requirements referred to in paragraph (1) have been substantially complied with, the Associate Judge or the judicial registrar— (a) may from time to time adjourn the hearing of the application upon appropriate terms; or (b) may dismiss the application. [Subr (3) am SR 10 of 2015, r 20(1)(c), with effect from 1 Mar 2015]

(4) In the case of an application to an Associate Judge, 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. Note: In relation to an application to a judicial registrar, see section 113L of the Supreme Court Act 1986. [Subr (4) am SR 10 of 2015, r 20(1)(d) and (2), with effect from 1 Mar 2015]

(5) An order of an Associate Judge or a judicial registrar declaring that the requirements referred to in paragraph (1) have been complied with, or the extent to which those provisions have been complied with, is evidence of the facts so declared. [Subr (5) am SR 10 of 2015, r 20(3), with effect from 1 Mar 2015] [R 16.9 am SR 30 of 2015; SR 10 of 2015, r 19, with effect from 1 Mar 2015]

16.10 Filing of documents 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.

ORDER 16A – PROCEEDINGS UNDER THE FEDERAL COURTS (STATE JURISDICTION) ACT 1999

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16.9 Consideration by Associate Judge or judicial registrar

r 16A.1

Supreme Court (Corporations) Rules 2013 (Vic)

16A.1 Form for initiating proceeding (1) Subject to paragraph (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 (b) the order is an ineffective judgment within the meaning of the Federal Courts (State Jurisdiction) Act 1999— an application under the Federal Courts (State Jurisdiction) Act 1999 in relation to the winding up of the company may be made by filing an interlocutory process. (3) An interlocutory process filed under paragraph (2) must state the proceeding number of the Federal Court proceeding.

ORDER 16B – POWERS OF JUDICIAL REGISTRARS [O 16B insrt SR 10 of 2015, r 21, with effect from 1 Mar 2015]

16B.1 Powers of Associate Judges not limited by powers of judicial registrars Nothing in this Order limits any power of an Associate Judge under these Rules. [R 16B.1 insrt SR 10 of 2015, r 21, with effect from 1 Mar 2015]

16B.2 Powers of judicial registrars (1) A judicial registrar may hear and determine any matter consisting of the exercise of any power conferred on the Court, a Judge of the Court or an Associate Judge by any provision listed in column 1 of Schedule 2A, subject to any qualification set out in that column. (2) The descriptions in column 2 of Schedule 2A are inserted for convenience of reference only and do not affect the operation of this Rule. (3) A judicial registrar may also hear and determine any application under these Rules referred, by order, to a judicial registrar by a Judge of the Court or an Associate Judge, subject to any directions contained in the order referring the application. [R 16B.2 insrt SR 10 of 2015, r 21, with effect from 1 Mar 2015]

16B.3 Matters within judicial registrars’ jurisdiction not to be brought before Judge of the Court except in certain cases If these Rules authorise a matter to be dealt with by a judicial registrar, the matter may only be brought before a Judge of the Court— (a) pursuant to section 113L of the Supreme Court Act 1986; (b) on appeal from the judicial registrar (where an appeal lies to a Judge of the Court); (c) by special leave of a Judge of the Court; or (d) upon the trial of a proceeding. [R 16B.3 insrt SR 10 of 2015, r 21, with effect from 1 Mar 2015]

16B.4 Judicial registrar may constitute Court (1) In hearing and determining any matter or class of matter which a judicial registrar is empowered or authorised by these Rules to hear and determine— (a) the judicial registrar constitutes the Court for that purpose; and (b) all the powers of the Court in relation to the hearing and determining of such a matter are delegated to the judicial registrar. (2) In hearing and determining a matter referred to a judicial registrar under Rule 16B.2(3)— (a) the judicial registrar constitutes the Court for that purpose; and (b) subject to any directions in the order referring the matter, all the powers of the Court in relation to the hearing and determining of such a matter are delegated to the judicial registrar. [R 16B.4 insrt SR 10 of 2015, r 21, with effect from 1 Mar 2015] 296

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Order 17 – Costs r 17.6 16B.5 Judicial registrar not to hear complaint for offence Nothing in these Rules confers jurisdiction on a judicial registrar to hear and determine a complaint for an offence. [R 16B.5 insrt SR 10 of 2015, r 21, with effect from 1 Mar 2015]

16B.6 Appeal of decision of judicial registrar Rules 84.05 to 84.12 of Chapter I of the Rules of the Supreme Court apply, with any necessary modification, to a judgment, order or direction of a judicial registrar given or made under these Rules. [R 16B.6 insrt SR 10 of 2015, r 21, with effect from 1 Mar 2015]

ORDER 17 – COSTS 17.1 Submission of bill of costs to liquidator A liquidator may request any solicitor, manager, auctioneer, broker or other person employed by the liquidator in a winding up by the Court to deliver to the liquidator a bill of costs, charges or expenses for the purposes of taxation. Vic

17.2 Request for bill for taxation—Form 18A (1) A request under Rule 17.1— (a) may be in Form 18A; and (b) must be made a sufficient time before the declaration of a dividend in the winding up. (2) If the request is not met within the time stated in the request, or within any extended time allowed by an Associate Judge— (a) the liquidator may declare and distribute the dividend without regard to the claim of the person to whom the request was made; and (b) unless the Court otherwise orders, the claim is forfeit. 17.3 Lodgement of bill for taxation and appointment to tax (1) A liquidator may lodge with the Costs Court for taxation a bill delivered in response to a request made under Rule 17.1. (2) The Costs Court shall give notice of an appointment to tax to the liquidator and to any other person by whom, or to whom, the bill is to be paid. (3) Every person to whom notice is so given may attend or be represented on the taxation. 17.4 Liquidator’s certificate as to special terms of remuneration If a bill lodged for taxation under Rule 17.2 is to be paid out of the assets of a company, a certificate in writing signed by the liquidator must be produced to the Costs Court on the taxation setting forth any special terms or remuneration that have been agreed to. 17.5 No allowance for performance by others of liquidator’s or special manager’s duties (1) In a winding up by the Court, a liquidator or special manager who receives remuneration for acting as such is not entitled to claim any payment in respect of the performance by any other person of the ordinary duties which are required by law to be performed by a liquidator or special manager. (2) A liquidator who is a solicitor may contract that the remuneration for his or her services as liquidator is to include all professional services. 17.6 Application for costs after proceeding concluded If any party to, or person affected by, any proceeding desires to apply for an order for costs incident to the proceeding and the application is not made at the time of the proceeding— (a) the party or person must serve notice of the intended application on the company or, if the company is in liquidation, on the liquidator; (b) the company or the liquidator may appear on the application; and (c) no costs of, or incidental to, the application are to be allowed to the applicant unless the Court is satisfied that the application could not have been made at the time of the hearing of the proceeding. ©

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r 17.6

Supreme Court (Corporations) Rules 2013 (Vic)

17.7 Costs of winding up application—short form bills (1) If a winding up order is made, the plaintiff may claim the following as costs of the application— (a) the amount that, on the date the originating process was filed, is set out in item 18 of the Scale of Costs in Appendix A to Chapter I of the Rules of the Supreme Court; and (b) proper disbursements incurred in relation to the application. (2) A plaintiff claiming costs under paragraph (1) must serve on the liquidator— (a) a bill of costs and disbursements, which need not include an itemised account of the work or services performed; and (b) copies of receipts, vouchers or journals that evidence the disbursements claimed. (3) Within 14 days of service of a bill of costs and disbursements, the liquidator must give notice to the plaintiff in writing whether or not any, and, if so, which, of the costs or disbursements claimed are disputed by the liquidator. (4) Within 14 days of receipt of notice, the plaintiff must file with the Court— (a) copies of the documents referred to in paragraph (2); (b) an affidavit of service of those documents; and (c) a copy of the notice. (5) The plaintiff, the liquidator and their respective solicitors are not to attend on taxation of the bill of costs and disbursements, unless directed to do so by the Costs Court. (6) This Rule does not limit a plaintiff’s right to claim the taxed costs of the winding up application otherwise than under this Rule, except that a plaintiff who claims the costs of a winding up application— (a) under this Rule—has no further claim to recover any or all of the taxed costs of the application; and (b) otherwise than under this Rule—has no further claim to recover any or all of the taxed costs of the application under this Rule.

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Corporations – Court Rules and Related Legislation 2017

Schedule 1 – Forms Document Title

Form 1

SCHEDULE 1 – FORMS Form 1 – Document Title IN THE [name of Court] No. .......... of [year] AT DIVISION: [insert if appropriate] REGISTRY: [insert if appropriate] IN THE MATTER OF [full name of corporation to which the proceeding relates and, if applicable, the words “(in liquidation)”, “(receiver appointed)”, “(receiver and manager appointed)”, “(controller acting)”, or “(under administration)”] ABN or ACN or ARBN: [insert ABN or ACN or ARBN]] AB (and Others) Plaintiff(s) [list, in a schedule, any further plaintiffs] and CD (and Others) Defendant(s) [list, in a schedule, any further defendants]

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Vic

Rule 2.1

Form 2

Supreme Court (Corporations) Rules 2013 (Vic)

Form 2 – Originating Process Rules 2.2 and 15A.3

[Title] A. DETAILS OF APPLICATION This application is made under *section/*regulation [number] of the *Corporations Act/*ASIC Act/*CrossBorder Insolvency Act/*Corporations Regulations. [State briefly the nature of the proceeding, e.g. application for winding up on ground of insolvency; or complaint about a receiver.] On the facts stated in the supporting affidavit(s), the plaintiff claims— 1. 2. etc. AND Date: .................................................................... Signature of plaintiff or plaintiff’s legal practitioner This application will be heard by ......................... at [address of Court] at .................................................. * am/*pm on [insert date]. B. NOTICE TO DEFENDANT(S) TO: [name and address of each defendant (if any)]: If you or your legal practitioner do not appear before the Court at the time shown above, the application may be dealt with, and an order made, in your absence. As soon after that time as the business of the Court will allow, any of the following may happen— (a) the application may be heard and final relief given; (b) directions may be given for the future conduct of the proceeding; (c) any interlocutory application may be heard. Before appearing before the Court, you must file a notice of appearance, in the prescribed form, in the office of the Prothonotary and serve a copy of it on the plaintiff. Note: Except with the leave of the Court, a defendant that is a corporation cannot appear at a hearing otherwise than by a legal practitioner. C. APPLICATION FOR WINDING UP ON GROUND OF INSOLVENCY [Complete this section if this originating process is seeking an order that a company be wound up in insolvency on the ground that the company has failed to comply with a statutory demand (see section 459Q of the Corporations Act)] [Set out particulars of service of the statutory demand on the company and of the failure to comply with the demand] [Attach to this originating process a copy of the statutory demand and, if the demand has been varied by an order made under section 459H(4) of the Corporations Act because of a dispute or offsetting claim, a copy of the order made under that subsection.] [The affıdavit in support of this originating process must— (a) verify service of demand on the company; and (b) verify the failure of the company to comply with the demand; and (c) state whether and, if so, to what extent the debt, or each of the debts, to which the demand relates is still due and payable at the date when the affidavit is made.] Note 1: In an application for winding up in insolvency on the ground that the company has failed to comply with a statutory demand, the applicant should consider completing Part C of Form 2 as shown in the Notes in Schedule 3 to these Rules. 300

Corporations – Court Rules and Related Legislation 2017

Schedule 1 – Forms Originating Process

Form 2

Prothonotary This originating process is filed by [name] for the plaintiff. E. SERVICE The plaintiff’s address for service is [address of plaintiff’s legal practitioner or of plaintiff]. * It is not intended to serve a copy of this originating process on any person. OR * It is intended to serve a copy of this originating process on each defendant and on any person listed below: [name of defendant and any other person on whom a copy of the originating process is to be served] [Complete the following section if the time for service has been abridged] The time by which a copy of this originating process is to be served has been abridged by order made by [name of Judge of the Court or Associate Judge] on [date] to [time and date]. *

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Note 2: An example of the affidavit in support of an application for winding up in insolvency for failure to comply with a statutory demand is in the Notes in Schedule 3 to these Rules. D. FILING Date of filing: [date of filing to be entered by Prothonotary] ....................................................................

Form 2A

Supreme Court (Corporations) Rules 2013 (Vic)

Form 2A – Originating Process—RedCrest (Corporations) Rules 2.2 and 15A.3

[Title] A. DETAILS OF APPLICATION This application is made under *section/*regulation [number] of the *Corporations Act/*ASIC Act/*CrossBorder Insolvency Act/*Corporations Regulations. [State briefly the nature of the proceeding, e.g. oppression proceeding or application by liquidator for directions.] On the facts stated in the supporting affidavit(s), the plaintiff claims— 1. 2. etc. Application Hearing Time Estimate: [estimate the length of the hearing time e.g. 1 to 2 days] Date: .................................. Signature of plaintiff or plaintiff’s legal practitioner. The electronic version is to be signed in accordance with the RedCrest protocol for signatures e.g. /s/ Jane Doe or s/ John Doe. This application will be heard by a Corporations List Judge at 210 William Street Melbourne at .......... am on [insert date]. B. NOTICE TO DEFENDANT(S) TO: [name and address of each defendant (if any)]: This originating process has been filed electronically in the Court’s Case Management System known as RedCrest. If you or your legal practitioner do not appear before the Court at the time shown above, the application may be dealt with, and an order made, in your absence. As soon after that time as the business of the Court will allow, any of the following may happen— (a) the application may be heard and final relief given; (b) directions may be given for the future conduct of the proceeding; (c) any interlocutory application may be heard. Before appearing before the Court, you must file a notice of appearance in the prescribed form and serve a copy of it on the plaintiff. The procedure for filing a notice of appearance is set out in Schedule 2 below. Note: Except with the leave of the Court, a defendant that is a corporation cannot appear at a hearing otherwise than by a legal practitioner. C. FILING Date of filing: [to be inserted by the Court] This originating process is filed by [name] for the plaintiff. D. SERVICE The plaintiff’s address for service is [address of plaintiff’s legal practitioner or of plaintiff]. * [Where plaintiff appears in person] Email address is: 302

Corporations – Court Rules and Related Legislation 2017

Form 2A

Contact telephone number is: * [Where plaintiff appears by a legal practitioner] The name or firm and the business address within Victoria of the case manager legal practitioner for the plaintiff is: Name of the case manager legal practitioner within the firm is: Individual email address of the case manager legal practitioner within the firm is: Contact telephone number of the case manager legal practitioner is: * It is not intended to serve a copy of this originating process on any person. OR * It is intended to serve a copy of this originating process on each defendant and on any person listed below: [name of defendant and any other person on whom a copy of the originating process is to be served] [Complete the following section if the time for service has been abridged] The time by which a copy of this originating process is to be served has been abridged by order made by [name of Judge of the Court] on [date] to [time and date]. SCHEDULE 1 SCHEDULE OF PARTIES [if applicable] SCHEDULE 2 FILING AN APPEARANCE IN REDCREST RedCrest All documents to be filed in this proceeding must be filed in RedCrest unless the Court has otherwise ordered in a particular case or unless documents cannot be filed in RedCrest because of an impediment affecting RedCrest itself or affecting general access to RedCrest. These Instructions The Notice of Appearance is an important document. These instructions set out the basic steps for filing a Notice of Appearance in RedCrest. Self-represented persons—Filing a Notice of Appearance A self-represented person who is served with an Originating Process—RedCrest and who wishes to contest the claim must— 1. Complete the Notice of Appearance—RedCrest (Corporations) (Form 4A); and 2. Within the time stated in the Originating Process—RedCrest (Corporations), deliver the Notice of Appearance to the Supreme Court Registry. Assistance will be given by Registry staff to ensure that the Notice of Appearance is correctly completed. Registry staff will then file the Notice of Appearance into the electronic file for the proceeding. There will also be an instruction manual available at Registry for all users. Persons Represented by a Solicitor—Filing a Notice of Appearance A solicitor who is required to file a Notice of Appearance on behalf of a client must follow the steps below. These are described in more detail in the online instruction manual available on the RedCrest public homepage http://www.redcrest.com.au. 1. If you do not have a username and password for RedCrest, complete and submit the application form available on the RedCrest public homepage at: http://www.redcrest.com.au (“Username and Password Applications”), and await processing and email advice for the assigned username and password. This will usually be provided within 24 hours (weekdays). 2. Assign your practitioner particulars to this case in accordance with the instruction manual. 3. Complete the Notice of Appearance—RedCrest (Corporations) (Form 4A) using the online form available from the RedCrest public homepage. ©

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Schedule 1 – Forms Originating Process—RedCrest (Corporations)

Form 2A

Supreme Court (Corporations) Rules 2013 (Vic)

4. File the Notice of Appearance in the case page file for the matter in the manner described in the online instruction manual. 5. If, by virtue of an order of the Court you are not required to file the Notice of Appearance in RedCrest or the Notice of Appearance cannot be filed in RedCrest because of an impediment affecting RedCrest itself or affecting general access to RedCrest, then you must file a Notice of Appearance-RedCrest (Corporations) (Form 4A) in paper form or such other form or manner as the Prothonotary may allow at the Supreme Court Registry. 6. For further filings, follow the online instruction manual for the operation of RedCrest available on the RedCrest public homepage http://www.redcrest.com.au. Any Questions? If you have any questions, please call the RedCrest Help Desk or contact the Supreme Court Registry. RedCrest Help Desk Contact Details: See RedCrest public homepage. Supreme Court Registry [insert address] Melbourne, Tel: [insert telephone number], Hours. 9:30 am to 4:00 pm each business day. * complete or delete as appropriate. [Form 2A insrt SR 48 of 2014, r 28, with effect from 1 Jul 2014]

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Corporations – Court Rules and Related Legislation 2017

Schedule 1 – Forms Interlocutory Process

Form 3

Form 3 – Interlocutory Process [Title] A. DETAILS OF APPLICATION * This application is made under *section/*regulation [number] of the *Corporations Act/*ASIC Act/*CrossBorder Insolvency Act/*Corporations Regulations. On the facts stated in the supporting affidavit(s), the applicant, [name], applies for the following relief— 1. 2. etc. AND Date: Signature of applicant making this application or applicant’s legal practitioner This interlocutory application will be heard by ......................... at [address of Court] at .................................................. *am/*pm on .......... [insert date]. B. NOTICE TO RESPONDENT(S) (IF ANY) TO: [name and address of each respondent to this interlocutory process (if any). If applicable, also state the respondent’s address for service.] If you or your legal practitioner do not appear before the Court at the time shown above, the application may be dealt with, and an order made, in your absence. Before appearing before the Court, you must, except if you have already done so or you are the plaintiff in this proceeding, file a notice of appearance, in the prescribed form, in the office of the Prothonotary and serve a copy of it on the plaintiff in the originating process. Note: Unless the Court otherwise orders, a respondent that is a corporation must be represented at a hearing by a legal practitioner. It may be represented at a hearing by a director of the corporation only if the Court grants leave. C. FILING This interlocutory process is filed by [name] for the applicant. D. SERVICE The applicant’s address for service is [address of applicant’s legal practitioner or of applicant]. * It is not intended to serve a copy of this interlocutory process on any person. OR * It is intended to serve a copy of this interlocutory process on each respondent and on any person listed below: [name of respondent and any other person on whom a copy of the interlocutory process is to be served] [Complete the following section if the time for service has been abridged] The time by which a copy of this interlocutory process is to be served has been abridged by order made by [name of Judge of the Court or Associate Judge] on [date] to [time and date]. *

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Vic

Rules 2.2, 15A.4, 15A.8 and 15A.9

Form 4

Supreme Court (Corporations) Rules 2013 (Vic)

Form 4 – Notice of Appearance Rule 2.9

[Title] A. DETAILS OF PERSON INTENDING TO APPEAR Notice is given that [state full name and address], [briefly state your interest in the proceeding, e.g. a creditor for $ (amount), or a contributory, of the corporation] intends to appear before the Court at the hearing of the application to be heard at [name of Court and address] on [date] and, if applicable, to * oppose/*support the application. Note: Except with the leave of the Court, a defendant that is a corporation cannot appear at a hearing otherwise than by a legal practitioner. B. GROUNDS OF OPPOSITION TO WINDING UP [Complete this section only if you are opposing an application to wind up a company] The grounds on which I oppose the application for winding up are— 1. 2. etc. C. SERVICE [This section must be completed] The address for service of the person giving this notice is [address of person’s legal practitioner or of person]. .................................. Signature of person giving notice or of person’s legal practitioner *

Omit if not applicable.

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Corporations – Court Rules and Related Legislation 2017

Schedule 1 – Forms Notice of Appearance—RedCrest (Corporations)

Form 4A

Form 4A – Notice of Appearance—RedCrest (Corporations) [Title] A. DETAILS OF PERSON INTENDING TO APPEAR Notice is given that [state full name and address], [briefly state your interest in the proceeding, e.g. a creditor for $ (amount), or a contributory, of the corporation] intends to appear before the Court at the hearing of the application to be heard at [name of Court and address] on [date] and, if applicable, to * oppose/*support the application. Note: Except with the leave of the Court, a defendant that is a corporation cannot appear at a hearing otherwise than by a legal practitioner. B. SERVICE [This section must be completed] The address for service of the person giving this notice is [address of person’s legal practitioner or of person]. * [Where the person giving this notice appears in person] Email address is: Contact telephone number is: * [Where the person giving this notice appears by a legal practitioner] The name or firm and the business address within Victoria of the case manager legal practitioner for the person is: Name of the case manager legal practitioner within the firm is: Individual email address of the case manager legal practitioner within the firm is: Contact telephone number of the case manager legal practitioner is: .................................. Signature of person giving this notice or of person’s legal practitioner. The electronic version is to be signed in accordance with the RedCrest protocol for signatures e.g. /s/ Jane Doe or s/ John Doe. Date: .......... * Omit if not applicable. [Form 4A insrt SR 48 of 2014, r 29, with effect from 1 Jul 2014]

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Vic

Rule 2.9

Form 5

Supreme Court (Corporations) Rules 2013 (Vic)

Form 5 – Notice of Intervention by ASIC Rule 2.10

[Title] The Australian Securities and Investments Commission, whose address for service is [address], intervenes in this proceeding. Date: ..................................................................... Signed on behalf of ASIC Name of signatory: [name] Capacity of signatory: [capacity].

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Corporations – Court Rules and Related Legislation 2017

Schedule 1 – Forms Notice of Hearing to Approve Compromise or Arrangement

Form 6

Form 6 – Notice of Hearing to Approve Compromise or Arrangement TO all the creditors and members of [name of company] ......................... TAKE NOTICE that at .................................................. *am/*pm on .......... the .......... at [address of Court] will hear an application by [name of plaintiff] seeking the approval of a compromise or arrangement between the above-named company and its *members/*creditors as proposed by a resolution passed by the meeting of the * members/*creditors of the company held on [date]. [Complete this section if applicable] The proposed compromise or arrangement as passed by the meeting was amended from the form of compromise or arrangement previously sent to you in the following respects— [Set out the details of any amendment made at the meeting] If you wish to oppose the approval of the compromise or arrangement, you must file and serve on the plaintiff a notice of appearance, in the prescribed form, together with any affidavit on which you wish to rely at the hearing. The notice of appearance and affidavit must be served on the plaintiff at its address for service at least 1 day before the date fixed for the hearing of the application. [This section must be completed] The address for service of the plaintiff is [address of plaintiff’s legal practitioner or of plaintiff]. Name of person giving notice or of person’s legal practitioner [name] *

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Rule 3.4

Form 7

Supreme Court (Corporations) Rules 2013 (Vic)

Form 7 – Affidavit Accompanying Statutory Demand Rule 5.2

[Name of creditor(s)] Creditor(s) [Name of debtor company] Debtor company I, [name] of [address and occupation], *say on oath/*affirm [or *make oath and say/*solemnly and sincerely declare and affirm]— 1. I am [state deponent’s relationship to the creditor(s), e.g. “the creditor”, “(name), one of the creditors”] in respect of *a debt of $ ......................... [amount]/*debts totalling $ ......................... [amount] owed by [name of debtor company] to *it/*them relating to [state nature of debt, or debts, ensuring that what is stated corresponds with the description of the debt, or debts, to be given in the proposed statutory demand, with which this affıdavit is to be served on the debtor company]. 2. [If the deponent is not the creditor, state the facts entitling the deponent to make the affıdavit, e.g. “I am authorised by the creditor(s) to make this affıdavit on its/their behalf”]. 3. [State the source of the deponent’s knowledge of the matters stated in the affıdavit in relation to the debt or each of the debts, e.g. “I am the person who, on behalf of the creditor(s), had the dealings with the debtor company that gave rise to the debt”, “I have inspected the business records of the creditor in relation to the debtor company’s account with the creditor”]. * The debt/*The total of the amounts of the debts, mentioned in paragraph 1 of this affidavit, is 4. due and payable by the debtor company. 5. I believe that there is no genuine dispute about the existence or amount of the *debt/*any of the debts. * Sworn/*affirmed at: [place of swearing or affırmation] on [date] OR * Sworn/*affirmed by the above-named deponent at: [place of swearing or affırmation] this .......... date of [month] [year] ..................................... Signature of deponent Before me: ................................................................................................................................................................................ Signature and designation of person before whom deponent swears or affırms affıdavit *

Omit if not applicable Note: The form of the opening words and the jurat of this affidavit may be changed to conform to the form of affidavit used in a particular State or Territory—see Rule 2.6.

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Corporations – Court Rules and Related Legislation 2017

Schedule 1 – Forms Consent of Liquidator/Provisional Liquidator

Form 8

Form 8 – Consent of Liquidator/Provisional Liquidator and Declaration of Relevant Relationships [Title] I, [name], of [address], an official liquidator, consent to be appointed by the Court and to act as the * liquidator/*provisional liquidator of [name of company]. I DECLARE under section 60(2) of the Corporations Act 2001 that I [and if the liquidator’s firm is a partnership] *and any partner in the partnership conducting my firm [or if the liquidator’s firm is a body corporate] *and the body corporate conducting my firm or an associate of that body corporate, *has or has had /*does not have or has not had, within the preceding 24 months a relationship with— * the company; or * an associate of the company; or * a former liquidator, or former provisional liquidator, of the company; or * a former administrator of the company; or * a former administrator of a deed of company arrangement executed by the company. [If there is a relevant relationship, describe that relationship, and state the liquidator’s reasons for believing that the relevant relationships does not result in the liquidator having a conflict of interest or duty]. The hourly rates currently charged in respect of work done as *liquidator/*provisional liquidator by me, and by my partners and employees who may perform work in this administration, are set out in the Schedule which is attached to this Consent. I acknowledge that my appointment by the Court does not constitute an express or implied approval by the Court of these hourly rates. Note: The requirement to disclose hourly rates should not be taken to imply that remuneration on an hourly rate is the most desirable or appropriate arrangement in every case. The Corporations Act acknowledges that another method of calculating remuneration may be appropriate (see, for example, section 473(2) and (3)). Date: .................................. Signature of offıcial liquidator *

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Vic

Rules 5.5, 6.1

Form 9

Supreme Court (Corporations) Rules 2013 (Vic)

Form 9 – Notice of Application for Winding up Order Rule 5.6

IN THE [name of Court] No. .......... of [year] [Name of company] ABN or ACN: [ABN or ACN of company to which proceeding relates] 1. A proceeding for the winding up of [name of company] was commenced by the plaintiff, [name of plaintiff], on [date of filing of originating process] and will be heard by ......................... at [address of Court] at .................................................. *am/*pm on .......... Copies of documents filed may be obtained from the plaintiff’s address for service. 2. The plaintiff’s address for service is [address of plaintiff’s legal practitioner or of plaintiff]. 3. Any person intending to appear at the hearing must file a notice of appearance, in accordance with the prescribed form, together with any affidavit on which the person intends to rely, and serve a copy of the notice and any affidavit on the plaintiff at the plaintiff’s address for service at least 3 days before the date fixed for the hearing. Date: Name of plaintiff or plaintiff’s legal practitioner: [name] *

Omit if not applicable.

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Corporations – Court Rules and Related Legislation 2017

Schedule 1 – Forms Notice of Application for Winding up Order by Substituted Plaintiff

Form 10

Form 10 – Notice of Application for Winding up Order by Substituted Plaintiff IN THE [name of Court] No. .......... of [year] [Name of company] ABN or ACN: [ABN or ACN of company to which proceeding relates] 1. [Name of substituted plaintiff], who was, by order of the [name of Court], substituted as a plaintiff, will apply to the Court at .................................................. *am/*pm on .......... at [address of Court] for an order that the above company be wound up. 2. The address for service of the substituted plaintiff is [address of substituted plaintiff’s legal practitioner or of substituted plaintiff]. 3. Any person intending to appear at the hearing must file a notice of appearance, in accordance with the prescribed form, together with any affidavit on which the person intends to rely, and serve a copy of the notice and any affidavit on the substituted plaintiff at its address for service at least 3 days before the date fixed for the hearing. Date: Name of substituted plaintiff or substituted plaintiff’s legal practitioner: [name]. *

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Rule 5.10

Form 11

Supreme Court (Corporations) Rules 2013 (Vic)

Form 11 – Notice of Winding up Order and of Appointment of Liquidator Rule 5.11

IN 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].

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Corporations – Court Rules and Related Legislation 2017

Schedule 1 – Forms Notice of Appointment of Provisional Liquidator

Form 12

Form 12 – Notice of Appointment of Provisional Liquidator Rule 6.2

Vic

IN 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], 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].

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Form 13

Supreme Court (Corporations) Rules 2013 (Vic)

Form 13 – Notice by Creditor or Contributory of Objection to Release of Liquidator Rule 7.6

[Title] [Name of creditor/contributory] of [address of creditor/contributory], a creditor of [name of company] for $ [amount], or a contributory of [name of company] holding [number] shares in the company, objects to the grant of a release to [name of liquidator] of [address of liquidator], who is the liquidator of [name of company], on the following grounds— [set out the grounds upon which the objection is made] Date: .................................. Signature of objector or objector’s legal practitioner Name of objector or objector’s legal practitioner: [name]. The objector’s address for service is [address of objector or objector’s legal practitioner].

316

Corporations – Court Rules and Related Legislation 2017

Schedule 1 – Forms Affidavit in Support of Application for Order for Payment of Call

Form 14

Form 14 – Affidavit in Support of Application for Order for Payment of Call [Title] I, [name] of [address], liquidator, *make oath and say/*solemnly and sincerely declare and affirm— 1. I am the liquidator of [name of company] (the company). 2. On [date] I made a call of $ [amount] per share on all the contributories of the company [or specify the class of contributories on whom the call was made]. *Exhibited and marked A is a copy of the notice of the call. Each contributory whose name is shown in the Schedule marked B was duly served with notice of the call in the form exhibited and marked A. 3. Each contributory of the company whose name is set out in column 2 of the Schedule marked B has not paid, or caused to be paid, to me the sum specified opposite the contributory’s name in column 5 of the Schedule, which is due from that contributory under the call. 4. The amount set out opposite the name of each contributory in column 6 of the Schedule is an estimate of the amount due by that contributory in respect of the costs of applying for and giving effect to the order for payment of the call. The estimate of the amounts so due by the several contributories has been reached by apportioning the costs among the contributories who have not paid the call according to the liability of the respective contributories to contribute. 5. The amount set out opposite the name of each contributory in column 7 of the Schedule is the total of the amount due by that contributory in respect of the call as set out in column 5 and the amount due in respect of costs as set out in column 6. * Sworn/*Affirmed at: [place of swearing or affırmation] on [date] .................................................. Signature of deponent Before me: .................................................. Signature and designation of person before whom deponent swears or affırms affıdavit * Omit if not applicable. Number on list of contributories

©

Name

2017 THOMSON REUTERS

Schedule B Address Character in which Unpaid Proportion of included in the list amount of call costs of application

Total amount payable

317

Vic

Rule 7.8

Form 15

Supreme Court (Corporations) Rules 2013 (Vic)

Form 15 – Notice of Application for Leave to Distribute a Surplus Rule 7.9

IN THE [name of Court] AT APPLICATION NO.: IN THE MATTER OF [company name] ABN or ACN: [ABN or ACN of company to which proceeding relates] On [date] at .................................................. *am/*pm, the *Judge of the Court /*Associate Judge at [address of Court] will hear an application by the liquidator of [name of company] in Proceeding No. .......... of [year] for leave to distribute a surplus in respect of the liquidation of the company. Any person intending to appear at the hearing must file a notice of appearance, in accordance with the prescribed form, together with any affidavit on which the person intends to rely, and serve a copy of the notice and affidavit on the liquidator at the address shown below at least 3 days before the date fixed for the hearing. Name of liquidator: [name]. The liquidator’s address for service is [address]. .................................. Signature of liquidator *

Omit if not applicable.

318

Corporations – Court Rules and Related Legislation 2017

Schedule 1 – Forms Notice of Intention to Apply for Remuneration

Form 16

Form 16 – Notice of Intention to Apply for Remuneration Rule 9.1 – 9.5

IN THE MATTER OF [company name] ABN or ACN: [ABN or ACN of company to which proceeding relates] TO: [name and address of person to whom notice is given] TAKE NOTICE that, not less than 21 days after this notice is served on you, I, [name and address], the * receiver/*administrator/*liquidator/*provisional liquidator/*special manager of the above company, intend to apply to the Court to determine my remuneration. If you object to my application, you must, within 21 days after being served with this notice, serve on me a notice of objection stating the grounds of objection to the remuneration claimed. Date: .................................. Signature of * receiver/ administrator/ * liquidator/ * provisional liquidator/*special manager *

©

Omit if not applicable.

2017 THOMSON REUTERS

319

Vic

*

Form 16A

Supreme Court (Corporations) Rules 2013 (Vic)

Form 16A – Notice of Intention to Apply for Review of Remuneration Rule 9.2A and 9.4A

IN THE MATTER OF [company name] ABN or ACN: [ABN or ACN of company to which proceeding relates] TO: [name and address of person to whom notice is given] TAKE NOTICE that, not less than 21 days after this notice is served on you, I, [name and address of plaintiff or applicant], the *administrator/*liquidator/ of the above company, intend to apply to the Court to review *the remuneration of/*my remuneration as the *administrator/*liquidator/ of the above company. The amount of the remuneration that has been determined or fixed is [state the amount]. The remuneration was determined or fixed by [state who determined or fixed the remuneration] on [state the date when the remuneration was determined or fixed]. I intend to apply for an order to *confirm/*increase/*reduce the remuneration. [Set out the grounds upon which an order or orders will be sought. If an order to increase or reduce the remuneration is sought, set out the amount by which the remuneration is sought to be increased or reduced.] If you wish to appear at the hearing of the application, in order to raise any issues before the Court, you must, within 21 days after being served with this notice, serve on me a notice under Rule *9.2A(4)/ 9.4A(4) of the Supreme Court (Corporations) Rules 2013 stating your intention to appear at the hearing and setting out the issues that you seek to raise before the Court. Date: .................................. Signature of plaintiff or applicant *

Omit if not applicable.

320

Corporations – Court Rules and Related Legislation 2017

Schedule 1 – Forms Summons for Examination

Form 17

Form 17 – Summons for Examination Rule 11.3

Prothonotary B. NOTICE TO PERSON TO BE EXAMINED The Court may order that the questions put to you and the answers given by you at the examination are to be recorded in writing and signed by you. If you do not attend the examination in accordance with this summons, without reasonable cause, you may be arrested and imprisoned without further notice. This summons is issued at the request of [name] whose address for service is [address of person’s legal practitioner or of person]. *

©

Omit if not applicable.

2017 THOMSON REUTERS

321

Vic

[Title] A. DETAILS OF SUMMONS TO: [name and address of person to be examined] You are summoned under *section 596A/*section 596B of the Corporations Act to— (a) attend before .......... at [address of Court] at .................................................. *am/*pm on .......... and from day to day until excused by the Court, to be examined on oath or affirmation about the examinable affairs of [name of corporation]; and * to produce at the examination the following books [specify books—include in a schedule if (b) necessary]. Date: .....................................

Form 17A

Supreme Court (Corporations) Rules 2013 (Vic)

Form 17A – Arrest Warrant Corporations Act 2001 Section 486B Rule 11A.01

[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 IS SATISFIED THAT [name of person] * is about to leave this jurisdiction or Australia in order to avoid— (a) * paying money payable to the Company; or (i) * being examined about the Company’s affairs; or (ii) * complying with an order of the Court, or some other obligation, under Chapter 5 (iii) of the Corporations Act 2001 of the Commonwealth in connection with the winding up; or * has concealed or removed property of the Company in order to prevent or delay the taking of (b) the property into the liquidator’s custody or control; or * has destroyed, concealed or removed books of the Company or is about to do so; (c) 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. THIS WARRANT ALSO requires and authorises you to seize any property or books of the Company in the possession of [name of person] and to deliver them into the custody of the Prothonotary or registrar in the office or registry from which the warrant issued to be kept by the Prothonotary or registrar until the Court makes an order for their disposal. Note: Section 489A of the Corporations Act 2001 provides that if the Court issues a warrant under section 486B for a person to be arrested and brought before the Court, and the person is not in prison, then the person named in the warrant may be arrested by an officer of the police force of the State or Territory in which the person is found, or the Sheriff of that State or Territory or any of the Sheriff’s officers, or a member or special member of the Australian Federal Police. Date: Signature of Prothonotary *

Omit if not applicable

322

Corporations – Court Rules and Related Legislation 2017

Schedule 1 – Forms Summons for Appearance in Relation to Registration of Transfer of Interests

Form 18

Form 18 – Summons for Appearance in Relation to Registration of Transfer of Interests Rule 12.2

[Title] TO: [name and address] You are required to appear before the ......................... at [address of Court] at .................................................. *am/*pm .......... on and show cause why the document(s) specified in the Schedule should not be *delivered up/*produced at the office of [name of company] at [address of company] within [period as ordered], as required by the attached notice. The address for service of the person applying for this summons is [address of person’s legal practitioner or of person]. Date: .................................. Prothonotary *

Omit if not applicable.

©

2017 THOMSON REUTERS

Vic

SCHEDULE [description of document(s)]

323

Form 18A

Supreme Court (Corporations) Rules 2013 (Vic)

Form 18A – Request to Deliver Bill for Taxation Rule 17.2

[Title] TO: [name and address of person to whom request is made] I request that, within .......... days of delivery of this request, you deliver to me for taxation by the proper officer your bill of costs [or charges] [or expenses] as [state nature of employment] employed by me as liquidator in the winding up of the abovenamed company. If this request is not met within the time provided for above, or within any extended time allowed by an Associate Judge of the Supreme Court, I am entitled to declare and distribute a dividend without regard to any claim you may have against the assets of the company and your claim against the assets of the company will be liable to be forfeited. Date: Signature of liquidator

324

Corporations – Court Rules and Related Legislation 2017

Schedule 1 – Forms Consent to Act as Designated Person

Form 19

Form 19 – Consent to Act as Designated Person Rule 15A.5

[Title] I, [name], of [address], an official liquidator, consent to be appointed by the Court and to act as the person designated by the Court under *article 19/*article 21 of the Model Law to distribute the assets of [name of company]. I am not aware of any conflict of interest or duty that would make it improper for me to act as the person designated by the Court. The hourly rates currently charged in respect of work done as the person designated by the Court by me, and by my partners and employees who may perform work in this administration, are set out below or in the Schedule which is attached to this Consent. I acknowledge that my appointment by the Court does not constitute an express or implied approval by the Court of these hourly rates. Date: Signature of offıcial liquidator *

Vic

Omit if not applicable Schedule [description of hourly rate(s)]

©

2017 THOMSON REUTERS

325

Form 20

Supreme Court (Corporations) Rules 2013 (Vic)

Form 20 – Notice of Filing of Application for Recognition of Foreign Proceeding Rule 15A.6

IN THE [name of Court] No. .......... of [year] [Name of company] ABN or ACN: [ABN or ACN of company to which proceeding relates] TO all the creditors of [name of company]. TAKE NOTICE that: 1. An application under the Cross-Border Insolvency Act 2008 for recognition of a foreign proceeding in relation to [name of company] was commenced by the plaintiff, [name of plaintiff], on [date of filing of originating process] and will be heard by .......... at [address of Court] at .......... *am/*pm on .......... . Copies of documents filed may be obtained from the plaintiff’s address for service. 2. The plaintiff’s address for service is [name and address of plaintiff’s legal practitioner or, if there is no legal practitioner, address of the plaintiff]. 3. Any person intending to appear at the hearing must file a notice of appearance, in accordance with the prescribed form, together with any affidavit on which the person intends to rely, and serve a copy of the notice and any affidavit on the plaintiff at the plaintiff’s address for service at least 3 days before the date fixed for the hearing. 4. If you are a foreign creditor you must file in the registry of the Court at the address mentioned in paragraph 1 an affidavit setting out the details of any claim, secured or unsecured, that you may have against the company above at least 3 days before the date fixed for the hearing. Date: Name of plaintiff or plaintiff’s legal practitioner: [name] *

Omit if not applicable

326

Corporations – Court Rules and Related Legislation 2017

Schedule 1 – Forms Notice of making of order under the Cross-Border Insolvency Act 2008

Form 21

Form 21 – Notice of making of order under the Cross-Border Insolvency Act 2008 IN THE [name of Court] No. of .......... [year] [Name of company] ABN or ACN: [ABN or ACN of company to which proceeding relates] TO all the creditors of [name of company]. TAKE NOTICE that: 1. On [date], the [name of Court] in Proceeding No. .......... of [year], commenced by the plaintiff [name of plaintiff], made the following orders under the Cross-Border Insolvency Act 2008 in relation to [name of company]: [insert details of order]. 2. The plaintiff’s address for service is [name and address of plaintiff’s legal practitioner or, if there is no legal practitioner, address of the plaintiff]. 3. The name and address of the foreign representative is [insert name and address]. 4. The name and address of the person entrusted with distribution of the company’s assets is [insert name and address].* Date: Name of plaintiff or plaintiff’s legal practitioner: [name] *

Omit if not applicable

©

2017 THOMSON REUTERS

327

Vic

Rule 15A.7

Form 22

Supreme Court (Corporations) Rules 2013 (Vic)

Form 22 – Notice of Dismissal or Discontinuance of Application for Recognition of Foreign Proceeding Rule 15A.7

IN THE [name of Court] No. .......... of [year] [Name of company] ABN or ACN: [ABN or ACN of company to which proceeding relates] TO all the creditors of [name of company]. TAKE NOTICE that the application under the Cross-Border Insolvency Act 2008 for recognition of a foreign proceeding in relation to [name of company] commenced by the plaintiff, [name of plaintiff], on [date of filing of originating process] was dismissed*/discontinued* on [date of dismissal/discontinuance]. Date: Name of person giving notice or of person’s legal practitioner [name] *

Omit if not applicable

328

Corporations – Court Rules and Related Legislation 2017

Schedule 1 – Forms Notice of filing of application to modify/terminate an order for recognition/other reliefForm 23

Form 23 – Notice of filing of application to modify or terminate an order for recognition or other relief IN THE [name of Court] No. .......... of [year] [Name of company] ABN or ACN: [ABN or ACN of company to which proceeding relates] TO all the creditors of [name of company]. TAKE NOTICE that: * 1. An application under the Cross-Border Insolvency Act 2008 for an order *modifying/*terminating an order for recognition of a foreign proceeding in relation to [name of company] was filed by the applicant, [name of applicant], on [date of filing of interlocutory process] and will be heard by ......................... at [address of Court] at .......... *am/*pm on .......... . Copies of documents filed may be obtained from the applicant’s address for service. * 1. An application under the Cross-Border Insolvency Act 2008 for an order *modifying/*terminating relief granted under *article 19/*article 21 of the Model Law in relation to [name of company] was filed by the applicant, [name of applicant], on [date of filing of interlocutory process] and will be heard by ......................... at [address of Court] at .......... *am/*pm on .......... . Copies of documents filed may be obtained from the applicant’s address for service. 2. The applicant’s address for service is [name and address of applicant’s legal practitioner or of applicant]. 3. Any person intending to appear at the hearing must file a notice of appearance (if the person has not already done so), in accordance with the prescribed form, together with any affidavit on which the person intends to rely, and serve a copy of the notice (if applicable) and any affidavit on the applicant at the applicant’s address for service at least 3 days before the date fixed for the hearing. Date: Name of applicant or applicant’s legal practitioner: [name] *

Omit if not applicable

©

2017 THOMSON REUTERS

329

Vic

Rule 15A.9

Supreme Court (Corporations) Rules 2013 (Vic)

SCHEDULE 2 – POWERS OF THE COURT THAT MAY BE EXERCISED BY AN ASSOCIATE JUDGE Rule 16.1

Item No.

2

Column 1 Provision THE ASIC ACT s. 79(4) THE CORPORATIONS ACT s. 227

3 4 5 6 7 8 9 10 11

s. s. s. s. s. s. s. s. s.

12 13

s. 411(16) s. 418A

14

s. 420B

15

s. 420C

16 17 18 19 20 21

s. s. s. s. s. s.

22

s. 440D(1)(b)

23

s. 440F

24

s. 440G(7)

25

s. 440J

26

s. 442C

27

s. 443B(8)

1

330

247A 247B 252E 266(4) 267(3) 274 283AE(2) 283EC 283HA

425 429(3) 434 438D(3) 439A(6) 440B

Column 2 Description To extend time for service of notice. Declaration that conditions prescribed by Division 3 of Part 2E.1 have been satisfied. To order inspection of books. To make ancillary order about inspection of books. To order meeting of members of registered scheme. For extension of time for registration of charge. To give leave to enforce charge. To rectify omission or misstatement. For appointment of corporation to be trustee. To order meeting of debenture holders. To give directions and make declarations about trustee’s functions or interests of debenture holders. To restrain further proceedings. Declaration as to validity of controller’s appointment and in relation to control of property. To authorise managing controller to dispose of property despite prior security interest. To authorise receiver to carry on corporation’s business during the winding up. To fix remuneration of receiver. To extend time for report. That receiver remedy default. To direct administrator to lodge a report. For extension of convening period. To grant leave to exercise third party property rights. For leave to begin or proceed with proceeding against company during administration. For leave to begin or proceed with enforcement process re property of company during administration. To permit a court officer to take action or make a payment during administration. To grant leave to take enforcement action under a guarantee. To grant leave to administrator to dispose of encumbered property. To excuse administrator from personal liability for rent. Corporations – Court Rules and Related Legislation 2017

Schedule 2 – Powers of the Court that may be Exercised by an Associate Judge Schedule 2

28 29

30

Column 1 Provision s. 444B(2)(b) s. 444E(3)(c)

31

s. 447A(1) (where winding up order to be made by an Associate Judge) s. 447C

32

s. 447E(2)

33

s. 449C(6)

34 35

s. 449D(1) s. 449D(2)

36 37 38

s. 449E(1)(c) and (1A)(c) s. 449E(2) s. 459F(2)(a)

39 40 41

s. 459G s. 459P(2) s. 459R

42 43 44

s. 459S s. 465B(1) s. 465C(if the application is pending before an Associate Judge)

45 46

s. 467(7) s. 468

47

s. 468A

48 49

s. 470(2)(b) s. 471A

50

s. 471B

51

s. 472(1) (where winding up order made by an Associate Judge) s. 472(2)

52

©

2017 THOMSON REUTERS

Column 2 Description To extend time for company to execute deed. For leave to person bound by deed to begin or proceed with proceeding against company etc. or enforcement process against company. To end administration of company. To declare whether administrator is validly appointed. For order where office of administrator is vacant or no administrator is acting. For appointment of an administrator of company under administration when none is acting. To fill vacancy in office of administrator of deed. For appointment of an administrator of deed where none is acting. To determine the remuneration of an administrator. For review etc. of administrator’s remuneration. For order extending period for compliance with demand. For order on application to set aside a demand. For leave to apply for winding up. For extension of time for determination of application for winding up in insolvency. For leave to company to oppose application. For order substituting applicant. For leave to oppose application when there has been failure to file and serve notice of grounds of opposition and verifying affidavit. For stay of proceedings. For validation of disposition of property, attachments etc. For order authorising transfer of shares after commencement of winding up. To serve a copy order on another person. For approval by the Court to perform or exercise a function or power as an officer of the company. For leave to begin or proceed with a proceeding or begin or proceed with enforcement process against a company being wound up in insolvency or by the Court or in respect of which a provisional liquidator is acting. For appointment of liquidator. For appointment of provisional liquidator.

331

Vic

Item No.

Supreme Court (Corporations) Rules 2013 (Vic) Item No. 53

Column 1 Provision s. 472(6)

54

s. 473(2)

55

s. 473(3), (5), (6)

56 57

s. 473(7) s. 473(8)

58 59 60

s. 474(2) s. 477(2A) s. 477(2B)

61

s. 477(6)

62 63

s. 480 s. 481

64 65 66 67

s. s. s. s.

68

s. 483(4)

69

s. 484

70 71 72

s. 486 s. 488(2) s. 490

73 74 75 76 77 78 79 80 81

s. s. s. s. s. s. s. s. s.

82

s. 507(10)

332

482(1) 483(1) 483(2) 483(3)

495(4) 496(3) 497(3) 500(2) 500(3) 502 504 507(6) 507(9)

Schedule 2

Column 2 Description For order on application with respect to the exercise or proposed exercise of a power of a provisional liquidator. Determination of provisional liquidator’s remuneration. Determination or review of liquidator’s remuneration. To fill vacancy in office of liquidator. To declare what may be done by liquidator, where more than one appointed. To vest property in liquidator. For approval of liquidator’s compromising a debt. For approval of liquidator’s entering an agreement which may last or obligations which may be performable more than 3 months later. For order on application with respect to the exercise or proposed exercise of a power by liquidator. To release liquidator and deregister company. To order auditor’s report and liquidator to make good any loss. To stay or terminate winding up. For delivery of property etc. to liquidator. To direct contributory to pay money. To make calls for payment by contributories and order payment of calls made by court or liquidator. To order payment to bank to the liquidator’s account. To appoint or remove special manager, to fix security or remuneration. For inspection of books. To grant special leave to distribute a surplus. For leave to company to resolve that it be wound up voluntarily. As to manner of holding meeting. For order that list of creditors be sent. For order that list of creditors be sent. For leave to proceed. For delivery of property etc. to liquidator. To appoint liquidator. To review liquidator’s remuneration. To sanction resolution. For directions for initiation and conduct of arbitration. For approval for exercise of powers. Corporations – Court Rules and Related Legislation 2017

Item No. 83 84 85 86

Column 1 Provision s. 509(6) s. 510(3) s. 511(1)(b) s. 532(2)

87 88 89 90 91 92

s. s. s. s. s. s.

93 94

s. 552 s. 554A

95

s. 554G

96 97 98

s. 564 s. 568 s. 568B

99

s. 568E

100 101 102

s. 568F s. 583 s. 587

103 104 105 106 107

s. s. s. s. s.

108 109

s. 596F(1)(b) to (g) s. 597(5B)

110 111 112

s. 597(7) s. 597(9) s. 597(13)

113

s. 597(15)

114 115

s. 597(17) s. 597A

©

542(3)(a) 543(1) 544 545(2) 547(1) 551

588FF 588T(2)(b) 596A 596B 596F(1)(a)

2017 THOMSON REUTERS

Column 2 Description To order deregistration on a specified day. To settle dispute. For exercise of powers. To grant leave for person to be appointed as liquidator. As to destruction of books. As to investment of funds. As to accounts or payment of unclaimed funds. To direct liquidator to incur a particular expense. To direct meeting. Leave to member of committee of inspection to accept benefit. To give direction or permission. To estimate, or determine method to be applied in working out, value of debts and claims of uncertain value in liquidation. To grant leave to secured creditor to amend valuation of security in proof of debt. To make an order in favour of certain creditors. For leave to disclaim. To set aside disclaimer of property before disclaimer takes effect. To set aside disclaimer of property after disclaimer has taken effect. For orders re vesting of disclaimed property. To wind up Part 5.7 bodies. To stay proceedings or for leave to commence or proceed. To make order about voidable transactions. For leave to creditor to begin proceeding. For mandatory examination. For discretionary examination. For directions about matters to be inquired into at examination. For directions about examination. To put, or allow to be put, questions to a person being examined. For direction to answer question. For direction to produce books. For order that questions and answers be recorded in writing, and that person sign that written record. For direction for examination to be held before another court. To adjourn the examination from time to time. For mandatory affidavit. 333

Vic

Schedule 2 – Powers of the Court that may be Exercised by an Associate Judge Schedule 2

Supreme Court (Corporations) Rules 2013 (Vic) Item No. 116 117

Column 1 Provision s. 597B s. 600A

118

s. 600B

119

s. 600C

120

s. 600D

121 122 123

s. 601AH(2) s. 601BJ s. 601CC(8)

124

s. 601CL(9)

125

s. 601FN

126

s. 1071D

127

s. 1071F

128 129 130 131 132

s. s. s. s. s.

133 134 135 136 137

s. 1322(4) s. 1335 s. 1341(3) CORPORATIONS REGULATIONS reg. 5.6.06 reg. 5.6.09

138

reg. 5.6.15(2)

334

1071H 1274(11) 1303 1319 1321

Schedule 2

Column 2 Description For costs of unnecessary examination. To make order setting aside creditors’ resolution or in respect of consideration and voting on proposed resolution or entitlement to vote on proposed resolution or amendment or variation of proposed resolution. To order setting aside or varying of creditors’ resolution passed on casting vote of person presiding at meeting. To order proposed creditors’ resolution to be taken as passed at meeting. To make interim order where application under section 600A(1), 600B(2) or 600C(2) not yet determined. For reinstatement of the registration of a company. To approve modification of constitution. For restoration of name of registered Australian body. For restoration of name of registered foreign company. For appointment of a temporary responsible entity of a scheme. To issue summons and make consequential orders under section 1071D(5). For order following failure by directors to register etc. To remedy default in issuing certificate. For order to remedy default. To order immediate inspection of books. For direction with respect to meeting. To confirm, reverse or modify act or decision of receiver, receiver and manager, administrator or liquidator or remedy omission of receiver, receiver and manager, administrator or liquidator on appeal from aggrieved person. For order in relation to irregularities etc. To order security for costs. For payment of money. For order not to open liquidator’s general account. For directions with respect to money or securities and authorisation of payments to special bank accounts. For repayment of costs of meeting.

Corporations – Court Rules and Related Legislation 2017

Schedule 2 – Powers of the Court that may be Exercised by an Associate Judge Schedule 2

139

Column 1 Provision reg. 5.6.16(7)

140 141 142

reg. 5.6.18(3) reg. 5.6.24(3) reg. 5C.2.02

Column 2 Description For declaration that adjourned meeting be taken to be incompetent to act. For order as to place of adjourned meeting. To determine whether security surrendered. To appoint a temporary responsible entity of a scheme.

Vic

Item No.

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2017 THOMSON REUTERS

335

Supreme Court (Corporations) Rules 2013 (Vic)

SCHEDULE 2A – POWERS OF THE COURT THAT MAY BE EXERCISED BY A JUDICIAL REGISTRAR Rule 16B.2

Item No.

2 3

Column 1 Provision THE ASIC ACT s. 79(4) THE CORPORATIONS ACT s. 425 s. 440A

4 5 6 7

s. s. s. s.

8 9 10

s. 459S s. 465B(1) s. 473(2)

11

s. 473(3), (5) and (6)

12 13 14 15

s. s. s. s.

16 17

s. 596F(1)(b) to (g) s. 597(5B)

18 19

s. 597(7) s. 597(9) (if examination before the judicial registrar) s. 597(13) (if examination before the judicial registrar) s. 597(15) (if examination before the judicial registrar) s. 597(17) (if examination before the judicial registrar) s. 597A s. 597B (if examination before the judicial registrar)

1

20 21 22 23 24

449E(1)(c) and (1A)(c) 449E(2) 459P(2) 459R

484(2)(b) 596A 596B 596F(1)(a)

Column 2 Description To extend time for service of notice. To fix remuneration of receiver. To adjourn winding up application where company under administration. To determine the remuneration of an administrator. For review etc. of administrator’s remuneration. For leave to apply for winding up. For extension of time for determination of application for winding up in insolvency. For leave to company to oppose application. For order substituting applicant. Determination of provisional liquidator’s remuneration. Determination or review of liquidator’s remuneration. To fix remuneration of a special manager. For mandatory examination. For discretionary examination. For directions about matters to be inquired into at examination. For directions about examination. To put, or allow to be put, questions to a person being examined. For direction to answer question. For direction to produce books. For order that questions and answers be recorded in writing, and that person sign that written record. For direction for examination to be held before another court. To adjourn the examination from time to time. For mandatory affidavit. For costs of unnecessary examination.

[Sch 2A insrt SR 10 of 2015, r 22, with effect from 1 Mar 2015]

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Schedule 3 – Notes to these Rules Schedule 3

Note 1—see Rule 2.2 (Form 2 Part C) C. APPLICATION FOR WINDING UP ON GROUND OF INSOLVENCY 1. The plaintiff relies on failure by the defendant to comply with a statutory demand. A copy of the demand, marked A, is attached to this originating process. 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 section 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 UP IN INSOLVENCY 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. 2. Annexed to this affidavit is a current and historical extract of the records maintained by the Australian Securities and Investments Commission with respect to the defendant. 3. [Where the defendant is registered or taken to be registered in another State or a Territory, state any facts—apart from the defendant’s principal place of business—which bear upon jurisdiction being exercised in Victoria rather than in another State or Territory.] 4. The following facts are within my own personal knowledge save as otherwise stated. 5. The defendant was on [state date of statutory demand or other relevant date] indebted to the plaintiff in the sum of $ .......... for [state concisely the consideration, for example, goods sold and delivered etc.] which sum was then due and payable. 6. The demand, a copy of which is attached to the originating process, was signed by or on behalf of the plaintiff. I served the demand [or the demand and the accompanying affidavit] as referred to in the originating process [or X.Y. has been instructed to make an affidavit of service of the demand [or the demand and the accompanying affidavit]]. 7. The matters stated in the originating process concerning the demand and failure of the defendant to comply with it are true and correct. 8. The sum demanded remains due and payable by the defendant to me [or the plaintiff]. Sworn, etc.

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SCHEDULE 3 – NOTES TO THESE RULES

Practice Note SC CC 1 – Commercial Court ..................................................................... [VICPN.10] Practice Note SC CC 5 – RedCrest Electronic Case Management System (Commercial Court) ............................................................................................................................. [VICPN.20] Practice Note SC CC 6 – Cross-Border Insolvency Cooperation with Foreign Courts or Representatives and Coordination Agreements ............................................................ [VICPN.30] Practice Note SC CC 8 – Oppressive conduct of the affairs of a company ..................... [VICPN.40] Practice Note SC Gen 1 – Practice Notes and Notice to the Profession .......................... [VICPN.50] Practice Note SC Gen 2 – Structure of the Trial Division .................................................. [VICPN.60] Practice Note SC Gen 3 – Citation of authorities and legislation ...................................... [VICPN.70] Practice Note SC Gen 16 – Search Orders ....................................................................... [VICPN.80] Practice Note SC Gen 17 – Freezing Orders .................................................................... [VICPN.90] Notice to Profession 2006 – Applications pursuant to s 588FF of the (Cth) Corporations Act 2001 .........................................................................................................................[VICPN.100] Notice to the Profession – Changes to Commercial Court Lists and Establishment of Insurance List .................................................................................................................[VICPN.110] Notice to the Profession – Specialist Lists 2017: Judges-in-Charge .................................[VICPN.120] Notice to Profession 2010 – Schemes of arrangement .....................................................[VICPN.130] Notice to the Profession – Updated Practice Court procedures (Commercial Court) .......[VICPN.140] Victorian Practice Notes From 30 January 2017, the Supreme Court of Victoria introduces a new system of publishing and organising its Practice Notes to make them easier to locate and navigate and to ensure that information provided is up to date. Existing Practice Notes and accompanying Notices to the Profession are revoked and new Practice Notes and Notices to the Profession will commence operation on 30 January 2017. Practice Notes and Notices to Profession relevant to Corporations Court Rules are included herein, following the Supreme Court (Corporations) Rules 2013 (Vic).

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VIC PRACTICE NOTES

Vic Practice Notes [VICPN.10]

[VICPN.10]

Practice Note SC CC 1

Commercial Court

COMMERCIAL COURT REGISTRY: URGENT APPLICATIONS:

CONTACT DETAILS (03) 9603 4105 (03) 9603 4105 (after hours only: 0439 153 522 or 0447 054 310)

1 INTRODUCTION 1.1 The Chief Justice has authorised the issue of the following Practice Note: 1.2 This Practice Note is to be read in conjunction with the provisions of the Civil Procedure Act 2010 (Vic) and supersedes Practice Note 10 of 2011. In particular, it should be read with s 9 of the Act, which requires the Court to further the Overarching Purpose when making orders or giving directions. 1.3 The Commercial Court gives effect to the Overarching Purpose by the early identification of the substantial questions of controversy, and the flexible adoption of appropriate and timely procedures for the conduct of each proceeding, including the use of Appropriate Dispute Resolution. 1.4 This Practice Note must also be read with the Supreme Court (General Civil Procedure) Rules 2015 (Vic), and other Practice Notes applying to the Division, including the Conduct of Group Proceedings (Class Actions) Practice Note SC Gen 10 and the Technology in Civil Litigation Practice Note SC Gen 5. 1.5 The Commercial Court is a separate Division of the Supreme Court of Victoria. It comprises specialist Judges, Associate Judges and a Judicial Registrar. A feature of the Commercial Court is the expertise and experience of its Judges, applied in an environment of continuous and, in varying degrees as appropriate, intensive case management of proceedings. 1.6 A list of the judicial officers of the Commercial Court and their Associates’ contact details appear on the Supreme Court website: www.supremecourt.vic.gov.au–contact us–judicial support contacts. 1.7 The Commercial Court hears and determines the types and categories of proceedings set out in Practice Note SC Gen 2 – Structure of Trial Division. 1.8 Where a party is experiencing difficulties in meeting a timetable, the problem should be immediately notified to the List Judge’s associate so that the difficulties can be properly managed and consequential delays avoided or minimised. 1.9 Parties should ensure that all material filed in Commercial Court proceedings use size 12 point type and 1.5 spacing. 2 COMMENCEMENT 2.1 This Practice Note was issued on 30 January 2017 and commences on 30 January 2017 and applies to all proceedings in the Commercial Court. 3 DICTIONARY 3.1 In this Practice Note: Act or Civil Procedure Act means the Civil Procedure Act 2010 (Vic)1; Admiralty Proceeding means any proceeding within the admiralty jurisdiction of the Court and to which Practice Note SC CC 4 applies; Appropriate Dispute Resolution means a process attended, or participated in, by a party for the purposes of negotiating a settlement or resolving or narrowing the issues in dispute, including each of the processes identified in s 3 of the Civil Procedure Act; Arbitration Proceeding means any proceeding to which Practice Note SC CC 3 – Commercial Arbitration Business applies; Business Hours means between the hours of 9:00am to 5:00pm, Monday to Friday (and excluding weekends and public holidays); Commercial Court Duty Judge means a judge appointed by the Principal Judge or the Deputy Principal Judge to be the Commercial Court Duty Judge at the relevant time or times; Commercial Court Registry means the registry of the Commercial Court located at ground floor, Old High Court Building, 450 Little Bourke Street, Melbourne; Commercial List or List is a list of proceedings in the Commercial Court managed by a List Judge, identified as List [name of Judge managing the List] or the name of a Specialist List; 340

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Commercial Proceeding means a proceeding arising out of ordinary commercial transactions, including a Taxation Proceeding and a commercial partnership (urban or rural) dispute, but not including a Corporations Proceeding; Corporations Proceeding means any proceeding to which the Corporations Rules apply and (without limitation) any proceeding under or relating to the Cross-Border Insolvency Act 2008 (Cth)2; Corporations Rules means the Supreme Court (Corporations) Rules 2013 (Vic); Court Book means a court book of documents for use at the trial; Court Documents means current pleadings, requests for particulars and particulars, notices to admit and notices of dispute and any summary of admissions or agreed facts; Deputy Principal Judge means a Commercial Court Judge appointed to that position from time to time3; Discovery Conference means a meeting or conferral of the parties or their legal representatives, with or without the assistance of an Associate Judge, Judicial Registrar or other suitably qualified person, at an early stage of the proceeding, to consider and attempt to reach agreement regarding the manner in which discovery is to be conducted, including consideration of whether technology and electronic exchange of documents should be utilised; Evidentiary Documents means all documents which are not Court Documents which any party intends to tender in evidence in chief or reasonably expects to refer to in cross-examination; List Judge means a Commercial Court Judge who manages a List, or such other judicial officer who may, from time to time, manage or hear a proceeding in that List; Miscellaneous Rules means the Supreme Court (Miscellaneous Civil Proceedings) Rules 2008 (Vic); Overarching Purpose means to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute having regard to the objects specified in s 9 of the Civil Procedure Act; Preferred Supplier means Victorian Transcription Services Pty Ltd; Principal Judge means a Commercial Court Judge appointed to that position from time to time4; Relevant Document Test is satisfied when a document strictly satisfies the description of a document any party intends to tender in evidence or reasonably expects to refer to in cross-examination; Rules means the Supreme Court (General Civil Procedure) Rules 2015 (Vic); Specialist List includes any of the Lists in paragraphs 5.1.2 – 5.1.8; Taxation Appeal means any proceeding to which order 7 of the Miscellaneous Rules applies; Taxation Proceeding means a Taxation Appeal and any proceeding which raises a substantial issue relating to taxation, including a taxation recovery proceeding and a dispute with respect to goods and services tax; Witness Outline means a brief written outline of the evidence that a witness will give; and Witness Statement means a written statement for the purpose of leading evidence in chief. 4 COURT PRACTICES AND PROCEDURES 4.1 The practices and procedures set out in this Practice Note and used by the Commercial Court must be read and understood in light of the Overarching Purpose. 4.2 The Commercial Court aims to bring proceedings not otherwise resolved to trial within nine months of issue. Parties are required to act promptly unless there is good reason to the contrary. Shorter time periods than permitted under the Rules will usually be ordered for interlocutory steps. At trial, time limits may be imposed for the examination and cross-examination of witnesses and for oral submissions. Opening and closing submissions may be written or oral, or both. 4.3 With a view to achieving the Overarching Purpose, the Commercial Court approaches the management and trial of proceedings as follows: 4.3.1 procedures are designed and implemented to ensure that, so far as is practicable, the cost and the work involved will not be disproportionate to the complexity of the issues and the value or importance of the matters in dispute in the proceeding; and 4.3.2 parties are encouraged to consider whether their dispute might be better resolved by methods other than judicial adjudication in an adversarial proceeding. 4.4 Trials in the Commercial Court are normally conducted on Monday to Thursday, reserving Fridays for directions and applications. 5 ENTRY OR REMOVAL OF PROCEEDINGS 5.1 Any party to a Commercial Proceeding filed in the Commercial Court may apply at the time of initiation for the proceeding to be entered into a List and managed by a List Judge. 5.2 Entry may be refused where the Plaintiff is self-represented. ©

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5.3 All Corporations Proceedings, Taxation Appeals, Arbitration Proceedings and Admiralty Proceedings must be filed in the Commercial Court. 5.4 Practitioners should note the following: 5.4.1 the heading of all Commercial Court documents should conform with Schedule 1; 5.4.2 the initiating process should not specify a particular List, unless the Commercial Court has already allocated the proceeding to a List; and 5.4.3 once a proceeding has been allocated to a List, all Court documents filed in the proceeding should identify that List in accordance with Schedule 1. 5.5 Any party to a proceeding that has not been entered in a Commercial List may apply for entry by filing a summons seeking entry and directions. An application for entry must be filed with the Commercial Court Registry, which will nominate a time, date and Commercial Court Judge for hearing the application. 5.6 On occasion, the Commercial Court may determine that a proceeding initiated in another Division of the Supreme Court, or managed by an Associate Judge, should be managed and determined by a List Judge. In the absence of any order by a Judge of the Commercial Court confirming the transfer, written notification by the Commercial Court Registry shall be sufficient to effect the transfer. 5.7 On application of any party, or upon the Court’s own motion, a proceeding in the Commercial Court, other than a Corporations Proceeding, a Taxation Appeal, an Arbitration Proceeding or an Admiralty Proceeding, may at any time be removed from a Commercial List for good reason, including the nature of the proceeding, its anticipated duration, the conduct of the parties and the identification of a more appropriate court, tribunal or dispute resolution process. 5.8 In order to facilitate communications with the Commercial Court, the party entering a proceeding into a Commercial List must provide to the Commercial Court Registry and List Judge’s Associate their contact details (address, telephone and email). Where possible, those contact details should also be provided to all other parties. Where a party is represented, only the contact details for their legal practitioners need be provided. 5.9 Parties and their solicitors are subject to a continuing obligation to ensure that contact information is current and accurate. 5.10 At the time of commencement of a Commercial Proceeding or Corporations Proceeding, or upon application to enter a List or otherwise following allocation to a List, the party filing the material shall complete a signed purchase order directed to the Preferred Supplier for the provision of recording and transcription services for all directions hearings and all other interlocutory hearings in accordance with Practice Note SC Gen 7. That party shall deliver the purchase order to the Preferred Supplier. 5.11 The solicitor, or the litigant if unrepresented, signing the purchase order shall pay the Preferred Supplier the cost of all transcript provided pursuant to a purchase order. 6 ALLOCATION OF PROCEEDINGS 6.1 In general, the business of the Commercial Court will be allocated (as the named Lists indicate) as follows: 6.1.1 General Commercial Lists – eg: List [name of Judge managing the List] (for matters not falling into any of the Specialist Lists below); 6.1.2 Admiralty List; 6.1.3 Arbitration List; 6.1.4 Corporations List; 6.1.5 Insurance List; 6.1.6 Intellectual Property List; 6.1.7 Taxation List; and 6.1.8 Technology, Engineering and Construction List. 6.2 A Judge will be assigned to each List and will manage and usually hear and determine each proceeding within that List. 6.3 The formal allocation to a particular List will be made following initiation and a review by the Commercial Court of the features and characteristics of the proceeding. The parties will be notified by the Commercial Court Registry. 342

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7 COMMUNICATIONS WITH THE COMMERCIAL COURT 7.1 A practitioner, or litigant in person where no practitioner has been engaged, may only communicate with a Judge, other than in open court, through: (a) the List Judge’s Associate; or (b) the Commercial Court Registry; or (c) otherwise to the Associate of the Principal Judge or the Deputy Principal Judge. 7.2 All communications with an Associate must be confined to uncontroversial matters. Persons communicating with an Associate must not engage the Associate in a dispute. 7.3 It is also not a function of an Associate to give procedural or legal advice. Persons communicating with an Associate should not request such advice. 7.4 Wherever possible, communication with an Associate should be in writing, and preferably by email.5 Any person writing to an Associate must, except for communications relating to a proposed proceeding or application without notice to any other party, simultaneously send a copy to each other party to the proceeding. Communication by telephone should be avoided unless the circumstances make it absolutely necessary. Except in relation to an urgent application to be made without notice, all other parties should be notified immediately by email of the substance of the telephone communication. 7.5 Associates may be contacted in relation to the following: 7.5.1 the listing of applications or directions; 7.5.2 whether a summons is required or whether an application can be listed less formally; and 7.5.3 the provision of material for the judicial officer in addition to filing with the Commercial Court Registry. 7.6 Before contacting an Associate to obtain a date for a hearing of an application, parties should first consult with other parties on the time for hearing (except applications to be made without notice, or where otherwise unavoidable) and endeavour to reach agreement. 7.7 Any issue as to whether a List Judge will fix a proceeding for trial should only be raised in open court and should not be directed to Associates. 8 PLEADINGS AND PARTICULARS Pleadings 8.1 Pleadings must focus on the real or substantial issues in dispute, supported by proper particulars. Prolix, irrelevant or evasive pleadings (such as denials not containing a substantive allegation) are likely to cause delays and unnecessary costs. Legal practitioners and parties responsible for the filing of pleadings of this nature are not acting in accordance with the Overarching Purpose and may become liable for costs and other sanctions under the Civil Procedure Act. A defective pleading may be struck out on the Court’s own motion. 8.2 Parties will be expected to file a responsive pleading promptly. Holding defences are not acceptable. 8.3 Pleadings may be dispensed with where the List Judge considers that this would facilitate the Overarching Purpose. 8.4 Judgment may only be entered in default of pleading in accordance with paragraph 16.5 below. Particulars 8.5 Proper particulars should be provided in all pleadings as required by r 13.10 of the Rules, unless there is a proper basis for postponing the provision of the required particulars until discovery has occurred. 8.6 A request for particulars may be made by letter, and so may a response. Directions about particulars are not usually made unless a party unreasonably requests, or refuses to provide, particulars. 9 DISCOVERY AND INTERROGATORIES Discovery 9.1 Parties are encouraged to agree upon orders for discovery and to consider whether limited categories of discovery should be exchanged.6 Where parties cannot agree, a Discovery Conference may be ordered. The process of discovery does not affect the overarching obligation to disclose documents critical to the resolution of the dispute in the proceeding under s 26 of the Civil Procedure Act. ©

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9.2 Subject to any directions the List Judge may make, parties to a proceeding in the Commercial Court are required to comply with s 26 of the Civil Procedure Act at the earliest reasonable time after becoming aware of the existence of such documents. 9.3 Parties are expected to comply with the following procedures: 9.3.1 discovery is made pursuant to an order of the Court, not by notice for discovery; 9.3.2 discovery is normally made by the filing and service of a list of discoverable documents, not an affidavit; 9.3.3 the list of discoverable documents should include the following descriptive identifying fields: document discovery number (using numeric, not alphabetical, numbering; and where extra documents are to be inserted in a list, the numeric numbering should read, for example, 10.1, 10.2, 10.3, etc); document date; document description (including identifying documents as copies or originals); document source or provenance (for example, the particular file and from which party a document was discovered or from what person the document was obtained under subpoena); and 9.3.4 whenever a claim of privilege is made, the document should be listed and properly described, unless the claim is unlikely to be contentious. Non-contentious privileged documents include draft court documents, solicitor client correspondence and fee agreements. 9.4 In appropriate cases, orders may be made for the provision of affidavits by any party as to where relevant documents are stored, what type of documents exist, in what form they are held and the costs of making discovery of documents. Interrogatories 9.5 Service of interrogatories is not permitted other than in exceptional circumstances and, in any event, only with the leave of the List Judge. If an application for leave to serve interrogatories is made, it must be supported by an affidavit setting out the circumstances relied on and exhibiting a draft of the proposed questions. Leave to serve interrogatories will normally only be given if the opposing party has already refused to reveal a fact in response to a reasonable request, which cannot be proved in some other cost effective way. 10 DIRECTIONS HEARINGS 10.1 Directions hearings will be conducted by the List Judge, usually on Fridays. 10.2 Notwithstanding that most interlocutory steps will be taken pursuant to court order, practitioners are encouraged to be pro-active in taking any appropriate interlocutory steps, without the need for a court order. 10.3 To ensure the efficient management of cases, transcript will be required for all directions hearings, subject to any contrary order under s 130 of the Evidence (Miscellaneous Provisions) Act 1958 (Vic). First directions hearing 10.4 Where a proceeding is entered into a Commercial List, the Commercial Court Registry will appoint a date for the first directions hearing. 10.5 Plaintiffs must ensure, as far as practicable, that all other parties are served with the originating process a reasonable time before the first directions hearing. 10.6 Unless the List Judge agrees to make orders on the papers, parties are expected to appear by their legal practitioner who should be ready to briefly explain the nature of the dispute and the substantial questions in controversy, and to assist the Court to determine the course to be followed in order to achieve the Overarching Purpose. 10.7 In shareholder oppression proceedings, partnership disputes and other proceedings where the value of a business is likely to be in issue, the Commercial Court will usually direct the immediate appointment of a valuer. A standard valuation order appears in Schedule 2. Matters for consideration at the first directions hearing 10.8 At the first directions hearing, parties are expected to have considered whether directions should be made relating to: 10.8.1 the filing and service of pleadings; 344

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the provision of proper particulars; the joinder of any further parties or making of any further claims between parties; whether an order should be made for the separate trial of any question; whether the proceeding or any matter arising in the proceeding should be managed by an Associate Judge; 10.8.6 whether the matter should be referred to mediation, or to some other Appropriate Dispute Resolution process; 10.8.7 the use of technology in preparing the matter for trial and what further directions and protocols may be necessary7; and 10.8.8 the application of any international conventions, for example, the United Nations Convention on Contracts for the International Sale of Goods (Vienna 1980) (also known as the Vienna Sales Convention)8. Further directions hearings 10.9 Further directions hearings will usually be heard by the List Judge. The parties should endeavour to keep the number of directions hearings to a minimum to avoid unnecessary costs. 10.10 Depending on the nature of the case, a proceeding may be fixed for trial at the first or any subsequent directions hearing. Trial directions may include some or all of the matters set out in Schedule 3.9 Taxation Appeals 10.11 The List Judge will usually set the appeal down for hearing at the first directions hearing and give the appropriate directions for the hearing, including outlines of argument. 10.12 In an application for leave to appeal from the Victorian Civil and Administrative Tribunal, the List Judge will normally set the application down to be heard with the appeal. It should not be assumed that this will always occur and the applicant should be prepared to state in summary form at the directions hearing why the application for leave should proceed.10 11 APPLICATIONS 11.1 Interlocutory applications: 11.1.1 are usually made returnable before the List Judge; 11.1.2 should not be brought unless the parties have already made appropriate endeavours to resolve their disputes. Where the parties cannot resolve a dispute, they should cooperate in listing the application and agree on a timetable for the preparation of material evidence and submissions for hearing; and 11.1.3 will usually be made returnable on a directions day. 11.2 Where this is permitted,11 an application may be referred by a List Judge for hearing and determination to an Associate Judge. Applications on notice and not by summons 11.3 Except in the circumstances described in paragraph 11.5, routine applications may be made on notice without the need to file a summons. As a general guide, the Commercial Court considers the following to be routine: 11.3.1 directions as to the timing of interlocutory steps; 11.3.2 applications for extensions of time; and 11.3.3 applications for the minor amendment of pleadings or other documents. 11.4 The Court will be flexible as to the form of notice, provided the applicant has made a clear and unambiguous statement of the nature of the application, the basis upon which it is made and the orders sought. This may be achieved by email, with or without the use of attached correspondence or other documentation. Application by summons 11.5 Applications must be made by summons in the following circumstances, unless the List Judge orders otherwise: • where a respondent to the application is not legally represented; • where a respondent to the application is not a party to the proceeding; • applications to enter a proceeding in a Commercial List; ©

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10.8.2 10.8.3 10.8.4 10.8.5

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[VICPN.10]

• applications for security for costs; • applications to strike out any part of a pleading, for summary judgment, for summary stay, or for dismissal of a claim, or similar applications; • applications to join a party;12 • applications for significant amendments to pleadings or other documents; • applications for further and better particulars; • applications for further, particular or non-party discovery; • applications to challenge privilege or confidentiality claims; • applications to vacate a trial date; • applications for injunctive relief; • cross-vesting and other forum-related applications; • applications concerning subpoenas; and • applications for leave to proceed against a person, whether by reason of liquidation, bankruptcy or for any other reason. Filing and service of interlocutory applications between parties 11.6 Applications and supporting material should be filed and served as early as possible to enable the respondent to prepare for the hearing and file and serve responsive material in a timely manner, and to provide sufficient time for the List Judge to read the material before the hearing. 11.7 Oral submissions must be confined to the real issues in dispute to ensure the List Judge is not unduly delayed in completing all business of the Court. 11.8 Subject to any directions of the List Judge, where an application is to be made on a Friday: 11.8.1 the applicant’s material should be filed and served by 4.00 pm on the previous Monday; 11.8.2 the respondent’s material should be filed and served by 4.00 pm on Wednesday; 11.8.3 the parties should exchange written outlines of submissions, limited (save for exceptional circumstances) to five A4 pages with normal font size and formatting, and forward them by email to the List Judge’s associate no later than 2.00 pm on Thursday. 11.9 Where an application is listed for hearing on a day other than Friday, material should be filed and served on a corresponding timetable. 11.10 Where a failure by a party to observe the timetable is the cause of an adjournment, an order for costs may be made. 11.11 Exhibits are to be filed with all affidavits. 11.12 Correspondence between practitioners to be relied on for the purpose of an application need not be exhibited to an affidavit. Where the applicant intends to rely on such correspondence, the applicant should email to the List Judge’s Associate a paginated bundle of all relevant correspondence between the practitioners in chronological order. 11.13 Parties may contact the List Judge’s Associate for instructions as to whether material should be filed at the Commercial Court Registry or with the Associate. 11.14 In substantial contested applications, the applicant should provide the Court in advance of the hearing with an application book containing working copies of key documents. Transcript for interlocutory applications 11.15 To ensure the efficient management of cases, transcript will be required for all interlocutory hearings, subject to any contrary order under s 130 of the Evidence (Miscellaneous Provisions) Act 1958 (Vic). Orders on the papers 11.16 Subject to any direction of the List Judge, consent orders may be submitted to the Court and may be made on the papers without an appearance. 11.17 Consent orders, signed by each party, should be emailed to the List Judge’s Associate by 2.00 pm on the day before the directions hearing. Where consent orders are not received by 2.00 pm on the day before the directions hearing, parties should assume that they will be required to appear unless notified otherwise by the Court. 11.18 Notwithstanding that the parties have agreed to and submitted proposed consent orders, the List Judge may require the attendance of practitioners, and may decline to make the proposed orders. 346

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11.19 In addition to applications disposed of by consent, the List Judge may determine any other application on the papers and may give directions for that purpose.

Applications to join additional parties 11.22 An application for leave to join a party should be made by summons supported by an affidavit setting out the basis for the joinder and including a proposed statement of claim against the party to be joined. 11.23 Any such application must be made as soon as practicable. The List Judge may fix a date by which an application must be initiated and made. The List Judge may make costs orders against a party which unnecessarily delays making such an application. 11.24 The summons and supporting affidavit must be filed and served on all existing parties. 12 URGENT APPLICATIONS 12.1 Commercial Court judges are ordinarily available to hear all urgent applications. 12.2 During Business Hours, an application for genuinely urgent relief may be made as follows: 12.2.1 where a proceeding has not yet been commenced or, if commenced, is not yet under management of a List Judge, by contacting the Commercial Court Registry on (03) 9603 4105. The application may, depending on the nature of the matter and judicial availability, either be referred to the Commercial Court Duty Judge or a Corporations List Judge; or 12.2.2 where a proceeding is under management by a List Judge, by contacting the Associate to the List Judge and then informing the Commercial Court Registry of the allocated return date. If the Associate to the List Judge is unavailable, practitioners should contact the Commercial Court Registry on the above number. 12.3 An application for urgent relief before the Commercial Court Duty Judge may be initiated outside Business Hours by calling the “urgent applications” telephone number notified at the start of this Practice Note (page ii) and on the Commercial Court page of the Supreme Court website. The protocols for making urgent applications in the Arbitration List and Admiralty List as set out in Practice Note SC CC 3 and Practice Note SC CC 4, respectively continue to apply. 12.4 If the application is one that is properly made without notice to any other party, this should be clearly stated in all communications with any of the individuals specified in the preceding paragraphs and such communications need not be copied to the respondent until the interim determination of the application or as the List Judge otherwise directs. 12.5 The requirements for transcript as outlined in paragraph 10.15 above apply to the extent appropriate or possible. 13 APPROPRIATE DISPUTE RESOLUTION 13.1 At any stage of a proceeding (including during trial), the Court may order or direct that the proceeding be referred for Appropriate Dispute Resolution. 13.2 All proceedings will be referred to mediation or other Appropriate Dispute Resolution, unless the List Judge decides that there is a good reason not to do so. 13.3 The List Judge may refer the proceeding or any question or application arising in a proceeding to an Associate Judge or Judicial Registrar for judicial mediation, or to a private mediator. 13.4 A standard mediation order appears in Schedule 4. 13.5 Practitioners are encouraged to identify whether questions in the proceeding should be referred to a special referee pursuant to order 50 of the Rules or to a court appointed expert under s 65M of the Civil Procedure Act, and, if so, at what stage. 13.6 A standard order for reference to a special referee appears in Schedule 5. 13.7 A standard order for appointing an expert to assist the Court appears in Schedule 6. ©

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Usual undertaking as to damages 11.20 Where an applicant for an interlocutory order offers, or the Court accepts, or an order or other court document records the giving of “the usual undertaking as to damages”, this will be taken to mean the following undertaking given to the Court: To abide by any order the Court may make as to damages, in case the Court shall hereafter be of the opinion that any person shall have sustained any loss, by reason of this order, which the party giving the undertaking ought to pay.13 Costs 11.21 The Commercial Court may fix the costs awarded on an interlocutory application.

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13.8 In the appropriate case, a specially qualified assessor may be appointed pursuant to s 77 of the Supreme Court Act 1986 (Vic) to assist the Court. The role of the assessor may include consulting with the List Judge during the course of a trial and preparing any report, advice or opinion. 14 SETTING DOWN FOR TRIAL AND CONDUCT OF TRIAL 14.1 A proceeding is set down for trial by order of a List Judge. A typical form of trial order is set out in Schedule 7 [Witness Outlines Ordered] and Schedule 8 [Witness Statements Ordered]. 14.2 Before the Plaintiff files and serves a chronology in accordance with trial orders, it must confer with the other parties to ensure that the chronology identifies agreed facts and facts in dispute. 14.3 The quantum of damages may be assessed after all other questions in the proceeding have been determined. Parties must, however, ensure that full particulars of loss and damage are given and may be required to file evidence concerning quantum of loss before mediation or trial. 14.4 In order to facilitate early hearings, a List Judge may place a trial on standby for a particular date when time might become available. 14.5 Parties are required to immediately notify the List Judge and the Commercial Court Registry upon becoming aware of any matters which may result in a hearing date being vacated, including the settlement of the proceeding. Similarly, parties are required to immediately notify the List Judge if it appears that the estimated duration of trial no longer remains accurate. 14.6 Any application by a solicitor for leave to cease acting for a party14 will not ordinarily be entertained by the List Judge any later than 21 days from the date the matter is set down for trial. 14.7 Parties should expect that a trial fixed for hearing will commence on the date fixed and that a trial which is not finished within the estimated duration may be adjourned part-heard to the next date convenient to the List Judge. It is common practice for Commercial Court judges to require consecutive openings by counsel for all parties before any evidence is adduced at trial. 14.8 To achieve the Overarching Purpose the List Judge may limit the number of witnesses (including expert witnesses) that each party may call and the time to be taken at trial to examine and cross-examine witnesses, and for opening and closing addresses. 14.9 After the preparation of the Court Book, if the pleadings or particulars have been amended or additional Evidentiary Documents tendered at trial, the legal practitioner for the Plaintiff must, at the conclusion of the trial, ensure that the Court Book includes the new or additional documents, inserted in accordance with paragraph 15.4 below. 14.10 Where a Court Book is not ordered, a party must provide a working copy for the List Judge of any exhibit tendered at trial, together with a working copy of the current pleadings. All working copy documents must be hole punched, and not stapled. 14.11 During the opening of their case, counsel are expected to identify the critical documents in the proceeding by reference to the Court Book. Use of authorities at trial 14.12 The attention of practitioners is drawn to Practice Note SC Gen 3, dealing with the production and the citation of judgments. 14.13 Parties must consult to eliminate duplication of authorities provided to the List Judge. If hard copies are produced, costs for excessive photocopying will not be allowed. 14.14 Parties should, where possible, restrict copying to the part or parts of each case report relevant to the issues in the proceeding. 15 EVIDENCE AT TRIAL Court Books 15.1 The parties may, at the discretion of the List Judge, prepare a Court Book for use at the trial. 15.2 The purpose of a Court Book is to provide to the Court, the parties and witnesses an accessible bundle of the documents for use at trial. Documents contained in the Court Book will not stand as evidence in a proceeding unless the List Judge so orders. 15.3 As a general principle, a Court Book will consist of the Court Documents, and then a legible copy of all the Evidentiary Documents that satisfy the Relevant Document Test, strictly in date order. Parties must ensure that, as far as possible, all such documents are included in the Court Book and that unnecessary documents are not included. Practitioners responsible for the conduct of the trial must ensure compliance with the Relevant Document Test. Court Book requirements 348

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15.4 The Court Book must be prepared as follows: 15.4.1 each volume must contain an index of the contents of the whole Court Book; 15.4.2 unless the List Judge otherwise directs, the index must list the Court Documents, with the current pleadings first, and the other Court Documents to immediately follow in a rational order, and then the Evidentiary Documents in strict date order; 15.4.3 the index must include at least the following descriptive identifying fields: • Court Book document number; • document date and description; and additionally for the Evidentiary Documents the source or provenance (as set out in the list of discoverable documents, if the document has been discovered); • Court Book page number at which each document commences and ends; 15.4.4 each page of a Court Book must be numbered sequentially; 15.4.5 where exhibits to an affidavit are included in a Court Book, the exhibits must be included in the Evidentiary Documents section and not as if they came into existence only at the time the affidavit was sworn, with the description including a reference to the deponent, the date of the affidavit and the exhibit number; and 15.4.6 unless the trial is exclusively conducted electronically15, documents in the Court Book should be single-sided (double-sided copies must not be used), in good quality lever arch folders, not bound, and must not be separated by dividers or tabs. 15.5 Parties have an entitlement to add documents into the Court Book against the wish of the opposing party, provided that each document satisfies the Relevant Document Test, but not to insist that another party exclude documents from the Court Book. 15.6 Where any dispute as to the contents of a Court Book arises between the parties, the matter should be raised with the List Judge’s associate, preferably by email, without delay. 15.7 Regardless of whether a trial is conducted electronically, the Court Book must be produced in portable document format (PDF), and be fully searchable. 15.8 A document in a Court Book may be tendered as authentic without formal proof, unless a party objects. If objection is taken, then any tender will be subject to the direction of the List Judge. 15.9 A Court Book should contain no unnecessary duplication of documents. 15.10 Where emails are included in the Court Book, email chains should be avoided. Each email should be included once as a single document, unless the associated chain has evidentiary significance. 15.11 Parties should expect that, where the Relevant Document Test has not been satisfied and unnecessary or irrelevant documents are included in a Court Book, or the Evidentiary Documents are not arranged in strict date order, an order may be made that the costs associated with the inclusion of such documents not be recoverable by the party that included those documents or that the costs be paid by that party. Witness Statements and Witness Outlines 15.12 Evidence in chief at trial may be led orally or in writing, at the direction of the List Judge (and subject to any further order at trial). 15.13 A party seeking to utilise a Witness Statement for the purpose of leading evidence in chief will be required to satisfy the List Judge that this course will better achieve the Overarching Purpose than if evidence were to be given orally in the usual way. Generally, the use of a Witness Statement will not be appropriate where contentious evidence is to be given of facts dependent on the recollection of the witness or where the credit of the witness is likely to be challenged on the topic. The List Judge may order that Witness Statements be provided by only some witnesses, or that only part of the evidence in chief of a witness be provided by way of Witness Statement. 15.14 A Witness Statement is, in written form, the evidence that a witness would otherwise give orally and, subject to any contrary order, will, when adopted, stand as the evidence in chief of the witness. 15.15 The evidence contained in a Witness Statement must: • be directed only to matters in issue; • be in admissible form, in accordance with the rules of evidence, including the rules with respect to hearsay evidence, in accordance with the Evidence Act 2008 (Vic); • include at the end of the statement the following verification: ©

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15.16 15.17 15.18 15.19

15.20 15.21

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15.23

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15.26

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I verify that I have read the contents of this my witness statement and the documents referred to in it and that I am satisfied that this is the evidence in chief which I wish to give at the trial of the proceeding. Where a party has not been permitted to provide evidence in chief by Witness Statement, in whole or in part, the List Judge may order the provision of a Witness Outline. A Witness Outline must be directed only to matters in issue. A Witness Outline must clearly identify the topics in respect of which evidence will be given and the substance of that evidence, including the substance of each important conversation. Where a Witness Outline is ordered, the List Judge may also order that no party may use any part of the contents of that document for the purpose of cross-examining the witness without leave of the List Judge. Each Witness Statement and Witness Outline must be provided to all parties and to the List Judge in electronic format. Practitioners who draft a Witness Statement or a Witness Outline should bear in mind that, unless it is written in the witness’s own words, such a document is unlikely to assist either the Court or the witness. A party will be taken to have waived, for the purpose of the proceeding, client legal privilege to the content of a Witness Statement or Witness Outline which has been served in that proceeding. Client legal privilege attaching to the content of an unserved draft Witness Statement, including an expert’s Witness Statement, or Witness Outline is not taken to be waived merely by the filing or service of the final form of such Witness Statement or Witness Outline. Subject to paragraph 15.19 above, a party may refer to or use the contents of a Witness Statement or Witness Outline served by another party before it is adopted by the intended witness, but only for the purposes of the proceeding. A party receiving a Witness Statement or Witness Outline is taken to have done so subject to an implied undertaking to the Court that the Witness Statement or Witness Outline, and its contents, will not be used for any purpose other than for the legitimate purposes of the proceeding. Where a witness will prove or refer to a document in a Witness Statement or a Witness Outline it must identify each such document by description and either by page number in the Court Book or, in the absence of a Court Book, by document discovery number. Where an order for Witness Statements or Witness Outlines is made, a party may not, without leave, adduce from the witness evidence in chief other than evidence included in the Witness Statement or referred to in a Witness Outline of the witness.

Expert evidence 15.27 The List Judge may give directions to the effect that: 15.27.1 expert evidence at trial will follow factual evidence upon which the expert evidence is predicated; 15.27.2 two or more experts engaged by the respective parties be sworn and present their evidence concurrently, and may, if permitted by the List Judge, question each other in relation to their evidence; and 15.27.3 the parties consult and propose matters upon which the experts are to confer. 15.28 Where contentious expert evidence is to be adduced, the Commercial Court will almost invariably direct that experts confer before trial pursuant to r 44.06 of the Rules. Typical directions appear in Schedule 9. 15.29 Where a conference of experts is directed, legal practitioners and the experts must ensure the expert code of conduct is strictly adhered to. In particular, legal practitioners are not to participate in the conference. In appropriate cases, the List Judge may order that the conference of experts be facilitated by an Associate Judge, Judicial Registrar or other suitably qualified person. 15.30 Following any conference, the experts must prepare a joint report for the Court stating: 15.30.1 the matters upon which they were directed to confer; 15.30.2 that they have met and discussed each matter upon which they have been directed to confer; 15.30.3 the matters on which they agree; 350

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15.30.4 the matters on which they disagree; and 15.30.5 a brief summary of the reasons for any disagreement.

17 FEES 17.1 Part 1A of the Schedule to the Supreme Court (Fees) Regulations 2012 (Vic) prescribes the fees payable in the Commercial Court. 17.2 A fee for entering a proceeding into a List may be payable pursuant to item 1A.8 of Part 1A of the Schedule. Practitioners should read the Regulations in conjunction with Practice Note SC CC 7 – Imposition of Fees in Commercial Court Judge-Managed Lists and any other Practice Notes the Court issues from time to time. Vivienne Macgillivray Executive Associate to the Chief Justice 30 January 2017

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16 ORDERS AND JUDGMENTS 16.1 Practitioners should prepare and submit draft orders for all hearings where orders are sought. 16.2 Liberty to apply is implied in all orders and need not be expressly ordered. 16.3 As a general rule, orders will be authenticated by the List Judge pursuant to r 60.02 of the Rules. After a hearing, the Plaintiff will usually be required to prepare a draft order and email it to the Associate. 16.4 Where a party is experiencing difficulties in meeting a timetable, the problem should be immediately notified to the List Judge’s Associate so that the difficulties can be properly managed and consequential delays avoided or minimised. 16.5 Judgment may not be entered administratively in a proceeding within a Commercial List unless the List Judge gives leave to do so.

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Vic Practice Notes SCHEDULE 116 – Heading To Proceedings In The Commercial Court [Non-Corporations Proceeding] IN THE SUPREME COURT OF VICTORIA AT MELBOURNE COMMERCIAL COURT COMMERCIAL LIST [JUDGE NAME] [RELEVANT SPECIALIST] LIST S ECI 20XX BETWEEN: # Plaintiff - and # Defendant

[Corporations Proceeding] IN THE SUPREME COURT OF VICTORIA AT MELBOURNE COMMERCIAL COURT CORPORATIONS LIST XX S ECI 20XX IN THE MATTER OF XY Pty Ltd (ACN 111 111 111) BETWEEN: # Plaintiff - and # Defendant SCHEDULE 217 – Standard Valuation Order [PROCEEDING HEADING] Order JUDGE: DATE MADE: ORIGINATING PROCESS: HOW OBTAINED: ATTENDANCE: OTHER MATTERS:

The Honourable Justice/Associate Justice # # # # # #

THE COURT ORDERS THAT: 1. An independent person (“the Valuer”) be appointed to express an opinion as to the value of the shares of # (“the Company”). 2. The Valuer be a person agreed upon by the parties by 4.00 pm on #. 3. Pursuant to s 247A of the Corporations Act 2001 (Cth), the plaintiff and one representative of each of his or her legal and accounting advisers is authorised to inspect the books (as the term “books” is defined in s 9 of the Corporations Act 2001 (Cth)) of the Company. 352

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SCHEDULE 318 – Matters For Consideration At A Final Directions Hearing 1. Confirmation that the parties will be ready for trial on the appointed trial date and that the estimated trial duration remains accurate. 2. The order of opening submissions by all parties prior to evidence from witnesses. 3. The length of opening oral submissions. 4. The exchange of written outlines of opening submissions. 5. The filing of agreed statements of facts. 6. The filing of a chronology. 7. The filing of an agreed statement on any expert evidence, identifying the issues which remain in dispute between the parties’ experts. 8. The timing of the giving of expert evidence, and whether it should be given concurrently. 9. Where witness statements have been ordered or affidavits are to be relied upon, the procedure for and time for notices of objection to evidence and responses, and consultation to resolve the objections. 10. The exchange of written outlines of closing submissions. 11. The proposed order of closing oral submissions. 12. Time limits to be imposed on parties for: (a) opening addresses; (b) presentation of a party’s case, including cross-examination; and (c) closing addresses. 13. The mode of proof of any particular facts in dispute. 14. Whether any questions should be referred to a special referee or a Court appointed expert. 15. The appointment of any specially qualified assessor to assist the Court. 16. Whether a further mediation or other form of Appropriate Dispute Resolution is required. 17. Whether the quantum of damages should be assessed after all other questions in the proceeding have been determined19. Whether the trial should be conducted electronically, and if so, what further directions and protocols may be necessary.20

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4. The defendant by its officers and employees, including #, must make the books of the Company available for inspection and copying in accordance with paragraph 3 of these orders between the hours of 9.00 am and 5.00 pm commencing on # and ending on #. 5. The plaintiff provide to the Valuer a copy of each document which the parties or either of them wish the Valuer to see for the purposes of the valuation by 4.00 pm on #. 6. Any submission which either party wishes to make to the Valuer be in writing and provided to the Valuer and to the other party by 4.00 pm on #. 7. The Valuer may inspect all or any of the books of the Company for the purposes of the valuation. 8. Each party must comply with the reasonable requests of the Valuer, including for the provision of any information or documents including copy documents, as soon as reasonably practicable after the making of such a request. 9. The Valuer must complete the valuation and provide a copy to the parties and the Court by 4.00 pm on #. 10. The parties pay the costs of the Valuer in equal shares in the first instance. 11. The further hearing of the summons for directions is adjourned to #. 12. Liberty to apply is reserved to the parties and the Valuer on reasonable notice. 13. Costs are reserved.

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SCHEDULE 421 – Standard Mediation Order [PROCEEDING HEADING] Order JUDGE:

The Honourable Justice/Associate Justice # # # # # #

DATE MADE: ORIGINATING PROCESS: HOW OBTAINED: ATTENDANCE: OTHER MATTERS:

THE COURT ORDERS THAT: 1. The proceeding be referred to a mediator to be agreed between the parties, or in default of agreement to be appointed by the Court, such mediation to take place by/not to take place before #. 2. Subject to the terms of this order, the solicitor for the plaintiff must, after consultation with all parties, deliver to the mediator a copy of this order, all pleadings (including requests for and further particulars) and a copy of any other necessary information, and take all steps necessary to ensure that the mediation commences as soon as practicable. 3. The mediation must be attended by those persons who have the ultimate responsibility for deciding whether to settle the dispute and the terms of any settlement and the lawyers who have ultimate responsibility to advise the parties in relation to the dispute and its settlement. 4. The mediator not later than # report back to the court whether the mediation is finished. 5. Subject to any further order, the costs of the mediation be paid in the first instance by the parties in equal shares. SCHEDULE 522 – Standard Reference To Special Referee [PROCEEDING HEADING] Order JUDGE: DATE MADE: ORIGINATING PROCESS: HOW OBTAINED: ATTENDANCE: OTHER MATTERS:

The Honourable Justice/Associate Justice # # # # # #

1. Pursuant to r 50.01(1)(b) of the Rules it is ordered that the questions set out in Annexure 1 [or as the case may be] be referred to a special referee. 2. # is nominated as the special referee. 3. The special referee may indicate the acceptance of the nomination by filing with the Commercial Court Registry, within 7 days of the date of this order, a written consent to act. The special referee must thereupon deliver to each of the parties a copy of the consent to act and a statement of proposed remuneration for so acting. 4. Subject to the filing by the nominee of a written consent to act as special referee under this order, and provided no party objects to the proposed remuneration within 7 days after the date of the filing of the consent to act, the nominee is appointed as the special referee under this order such appointment to be effective on the date of the filing of the consent to act. 354

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5. The special referee must make a report in writing to the Court on each of the questions. The report must state the opinion of the special referee upon each of the questions giving reasons for this opinion. The report together with a copy for each of the parties must be delivered to the Commercial Court Registry not later than # or by such later date as the Court may direct. 6. Within 14 days after the date of the filing of the consent to act the parties must provide security for the payment of the remuneration of the special referee by the payment into Court or if all parties agree in writing by payment into an interest bearing account in the names of the solicitors for the parties. The amount of security will be the amount proposed by the special referee or such other sum as the Court may from time to time direct. In the event that this direction be not complied with the reference will be stayed pending further order. 7. Security for the payment of the remuneration of the special referee be provided in the first instance in equal shares by the parties. All other questions as to the remuneration of the special referee, including its final determination and which party or parties should ultimately bear it, are reserved. 8. The sum provided by way of security for the remuneration of the special referee, including interest, shall not be disbursed otherwise than pursuant to an order of the Court. 9. At the time of giving the report pursuant to this order the special referee must deliver to each of the parties a signed memorandum setting out the remuneration claimed including any disbursements and file a copy with the Court. 10. Each of the parties and the special referee have liberty to apply. 11. Costs of this application are reserved. ANNEXURE 1 - QUESTIONS REFERRED # INSERT QUESTION(S)# ANNEXURE 2 - CONDUCT OF THE REFERENCE The following directions are given pursuant to r 50.02 of the Rules: 1. Subject to the requirements of the rules of natural justice and the following directions and any further directions which may be given by the Court, the special referee may conduct the reference in such manner as is appropriate for the efficient and economical implementation of this order. 2. Within 21 days after the date of appointment the special referee must conduct a preliminary conference with the parties or their legal representatives to determine the manner of conducting the reference. 3. The special referee is authorised for the purposes of the reference to have and use the following material in addition to any material which may be tendered and received as evidence in the reference: (i) a copy of this order; (ii) a copy of the pleadings including any particulars; (iii) the following exhibits tendered at the trial: Ex .......... A copy of each of the above must be delivered to the special referee by the plaintiff within 14 days after the date of appointment. 4. The special referee may make such enquiry and inspection of any document or thing and apply such personal knowledge and expertise as is reasonably necessary for the purpose of the reference. 5. The special referee is not bound by the rules of evidence. 6. The attendance of witnesses and the production of documents may be compelled by the issue of subpoena in accordance with order 42 of the Rules. 7. Each of the parties must comply with any lawful direction that the special referee considers necessary for the reference. 8. Where a party wishes to rely upon the opinion of an expert the special referee may direct that a copy of the expert’s opinion and the reasons in support be provided to the other parties. The special referee may direct that the experts meet in the absence of the special referee and the parties with a view to settling any points of difference between them and to presenting a joint report for use in the reference. Except as all the parties whose experts have participated in such a meeting in writing agree, no evidence may be admitted in the reference or otherwise in this proceeding of anything said or done at the meeting. ©

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9. The parties may be represented on the reference by legal practitioners. 10. The special referee may administer an oath or take an affirmation for the purpose of the reference. SCHEDULE 623 – Standard Order for appointment of an Expert to assist the Court [PROCEEDING HEADING] Order JUDGE: DATE MADE: ORIGINATING PROCESS: HOW OBTAINED: ATTENDANCE: OTHER MATTERS:

i. The Honourable Justice/Associate Justice # ii. # iii. # iv. # v. # 1. The parties have agreed [alternatively: Upon the application of (insert relevant parties); alternatively: Upon the Court’s own motion] that [insert name of expert] be appointed as Expert pursuant to section 65M of the Civil Procedure Act 2010 (Vic). 2. [Insert name of Expert] has signed a consent to act.

THE COURT ORDERS THAT: 1. [Insert name of expert] (“the Expert”) be and is hereby appointed by the Court pursuant to section 65M of the Civil Procedure Act 2010 (Vic) as an independent [insert field of expertise] expert for the purpose of assisting the Court and inquiring into and reporting to the Court on the following questions: #INSERT QUESTIONS# 2. During business hours on the giving of reasonable notice by the Expert: (a) [Insert parties or relevant parties] respectively, must: (1) permit the Expert to have full access to inspect all books and documents of [insert relevant parties]; and (2) permit copies to be taken by the Expert and provided to the Expert of such books and documents as are in its respective possession, custody or control and are requested by the Expert; and (b) [Insert relevant parties] must: (1) provide written answers to questions posed by the Expert; and (2) (if applicable) make available its accountants, [insert name] to provide written answers to questions posed by the Expert. 3. The costs of the Expert are costs in the proceeding, and in the first instance be paid in advance within 7 days after receipt of each invoice issued by the Expert, as to 50% by the plaintiffs, and as to 50% by the defendants [or such other apportionment as is appropriate]. 4. Each of the parties and the Expert have liberty to apply. SCHEDULE 724 – Typical Form Of Trial Order - Witness Outlines Ordered

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[PROCEEDING HEADING] Order JUDGE: DATE MADE: ORIGINATING PROCESS: HOW OBTAINED: ATTENDANCE: OTHER MATTERS:

The Honourable Justice/Associate Justice # # # # # #

THE COURT ORDERS THAT:

Mediation 2. See Schedule 4 – standard mediation order. Court Book [only if Court Book ordered] 3. The plaintiff prepare a Court Book containing the following documents: (a) the current pleadings including requests for and particulars; (b) all documents, in date order, which any party expects to tender in evidence in chief or refer to in cross–examination. 4. The plaintiff by # serve on each other party a draft index for the proposed Court Book. Each of those other parties must send a list of documents to be included or documents to be excluded from the proposed Court Book and all parties must consult as to and agree upon the contents of the Court Book by #. 5. The plaintiff by # serve on each other party and file for the use of the judge a copy of the Court Book*. The plaintiff must also provide the judge with the index to the Court Book in electronic form. Witness Outlines 6. Subject to any order of the judge, evidence in the trial be given orally with the parties providing a witness outline for each witness they intend to call. 7. The plaintiff file and serve its witness outlines by 4:00 pm on #. 8. The defendant file and serve its witness outlines by 4:00 pm on #. 9. Each party have available for use by the judge a copy of all its witness outlines in paper form and in electronic form. 10. Each witness outline must satisfy the following requirements: (a) it should be set out in numbered paragraphs; (b) it should be a brief outline of the evidence the witness will give; (c) it must clearly identify the topics in respect of which evidence will be given and the substance of that evidence, including the substance of each important conversation. 11. The content of a witness outline served pursuant to an order of the Court is subject to the same implied undertaking as to confidentiality as applies to a document produced upon discovery. 12. No person may use any part of the contents of a witness outline for the purposes of cross-examination of the person providing the witness outline or any other person without leave of the judge. 13. The plaintiff have available at the hearing a further copy of documents tendered in evidence [or the Court Book if ordered] for the exclusive use of witnesses during their examination. 14. The plaintiff file and serve a chronology of the relevant facts and events by 4:00 pm on #. 15. The parties file and exchange written outlines of opening submissions, limited to # A4 pages, 1.5 spaced text in a common font style, size 12, by 4:00 pm on #. 16. Costs are reserved. ©

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Trial date 1. The proceeding is set down for trial and fixed for hearing on # on an estimated duration of # days.

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Vic Practice Notes SCHEDULE 825 – Typical Form Of Trial Order - Witness Statements Ordered [PROCEEDING HEADING] Order JUDGE: DATE MADE: ORIGINATING PROCESS: HOW OBTAINED: ATTENDANCE: OTHER MATTERS:

The Honourable Justice/Associate Justice # # # # # #

THE COURT ORDERS THAT: Trial date 1. The proceeding is set down for trial and fixed for hearing on # on an estimated duration of # days. Mediation 2. See Schedule 4 – standard mediation order. Court Book [only if Court Book ordered] 3. The plaintiff prepare a Court Book containing the following documents: (c) the current pleadings including requests for particulars and particulars; (d) all documents, in date order, which any party expects to tender in evidence in chief or to be referred to in cross–examination. 4. The plaintiff by # serve on each other party a draft index for the proposed Court Book. Each of those other parties must send a list of documents to be included or documents to be excluded from the proposed Court Book and all parties must consult as to and agree upon the contents of the Court Book by #. 5. The plaintiff by # serve on each other party and file for the use of the judge a copy of the Court Book26. The plaintiff must also provide the judge with the index to the Court Book in electronic form. Witness statements 6. Subject to any order of the judge, evidence in the trial be by witness statement. 7. The plaintiff file and serve its witness statements by 4:00 pm on #. 8. The defendant file and serve its witness statements by 4:00 pm on #. 9. Each party have available for use by the judge a copy of all its witness statements in paper form and in electronic form. 10. Each witness statement satisfy the following formal requirements: (a) it should be set out in numbered paragraphs; (b) as far as possible, it should be expressed in the witness’s own words; (c) it should contain evidence only in admissible form. For example, hearsay should be avoided; (d) where the witness statement contains conversations these should, if the witness’s recollection permits, be expressed in direct speech. If this is not possible, this fact should be stated and the witness’s best recollection or the substance of the conversation may be set out; (e) it should contain at the end of the statement the following verification: I verify that I have read the contents of this my witness statement and the documents referred to in it and that I am satisfied that this is the evidence in chief which I wish to give at the trial of the proceeding. 11. Where the statement of the witness, if admitted in evidence, proves a document, a copy of the document may be annexed to the witness statement or the document may be identified and tendered separately whether in the Court Book [if a Court Book has been ordered] or otherwise. 358

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12. The content of a witness statement served pursuant to an order of the Court is subject to the same implied undertaking as to confidentiality as applies to a document produced upon discovery. 13. Where any witness is not willing to provide a witness statement, the party calling the witness must, by the date fixed for the delivery of the witness statement of that witness, file and serve a statement of the substance of the evidence which the party expects that witness to give and will be entitled to lead oral evidence in chief from that witness. 14. The plaintiff have available at the hearing a further copy of the documents tendered in evidence [or the Court Book if ordered] for the exclusive use of witnesses during their examination. 15. The plaintiff file and serve a chronology of the relevant facts and events by 4:00 pm on #. 16. The parties file and exchange written outlines of opening submissions, limited to # A4 pages, 1.5 spaced text in font size 12, by 4:00 pm on #. 17. Any party receiving a witness statement may, not less than # working days before the witness is due to give evidence, give notice to the party proposing to call the witness stating: (a) that a specified part of the witness statement is objected to as being inadmissible; (b) that the witness is required to give oral evidence as to any part of the contents of the witness statement. If no such notice is given the party calling the witness may take it that no part of the witness statement is objected to and that it will stand as the witness’ evidence in chief if adopted by the witness. 18. If the party calling the witness accepts the requirement referred to in the preceding sub–paragraph, evidence of that part of the content of the witness statement must be given orally. 19. The judge will, before the witness is sworn, determine any unresolved issues arising out of any such notice. 20. The judge may require the witness to give oral evidence as to any part of the content of the witness statement, notwithstanding that no party has required this. 21. A copy of the witness statement, after deletion of any inadmissible passages and passages as to which oral evidence is to be given, must be available at trial for use by the witness and for tender in evidence. 22. A witness when sworn, and having given evidence of formal matters, must be asked whether the content of the witness statement is true and correct. If an affirmative answer is given, the witness will be taken to have adopted the witness statement and the witness statement may be admitted into evidence. 23. The witness statement when adopted will stand as the evidence in chief of the witness subject to these orders. The party calling a witness may not, without leave, adduce further evidence in chief from that witness. 24. Costs are reserved. 25. There is liberty to apply. SCHEDULE 927 – Standard Joint Experts Order [PROCEEDING HEADING] Order JUDGE:

vi. The Honourable Associate Justice #

DATE MADE:

vii.

ORIGINATING PROCESS:

viii.

HOW OBTAINED:

ix.

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ATTENDANCE:

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THE COURT ORDERS THAT: 1. On or before #, each of the plaintiff and the defendants must nominate an expert (“the Experts”) and provide that expert with a copy of the Expert Witness Code of Conduct. 2. The parties each provide the Experts with copies of or access to all documents, and any other information, requested by the Experts to complete their joint report referred to below. 3. By #, the Experts confer and provide to the court and to the parties a joint report (“the Joint Report”) containing their joint opinion as to each of the following questions: #INSERT QUESTIONS# 4. If the Experts are unable to express a joint opinion on any question, the Joint Report must describe the difference(s) between the opinions and set out their respective reasons for disagreeing. 5. The Experts’ conference is intended to be a consultation of Experts without any influence from a party to the proceeding. To that end, subject to paragraph 6: (a) The conference of experts and all further communications between them in relation to the preparation of the Joint Report must be conducted in the absence of the parties, their employees or agents, or any practitioner for or associated with any party; [optional: The conference of experts shall be facilitated by as associate judge, judicial registrar or other suitably qualified person.] (b) None of the Experts may in the preparation of the Joint Report consult with any party, their employees or agents, or any practitioner for or associated with any party; and (c) Notwithstanding (a) and (b), the Experts may jointly request further information or direction by letter signed by them directed to the practitioner for each of the parties and may receive such further information. 6. Save as contained in the Joint Report, unless the parties agree in writing no evidence may be admitted of anything said or done by any person at the conference between the Experts. 1 The Civil Procedure Act is available at the www.legislation.vic.gov.au – Victorian Law Today – Acts – Civil Procedure Act 2010. 2 See Corporations Rules, r 1.3 and, in relation to the Cross-Border Insolvency Act 2008 (Cth) see also Practice Note SC CC 6 Cross-Border Insolvency Applications and Cooperation with Foreign Courts or Foreign Representatives. 3 The name of the Deputy Principal Judge is published on the Supreme Court website: www.supremecourt.vic.gov.au. 4 The name of the Principal Judge is published on the Supreme Court website: www.supremecourt.vic.gov.au. 5 Email addresses are published on the Supreme Court website: see par 1.6 above. 6 See r 29.05 of the Rules which provides for orders limiting discovery. 7 Practitioners are directed to the Technology in Civil Litigation Practice Note SC Gen 5. 8 For guidance, see the online resources hosted by Pace University, New York and coordinated by the Institute of International Commercial Law www.cisg.law.pace.edu 9 See also schedules 7 and 8. 10 See De Simone v Bevnol Constructions and Developments Pty Ltd [2011] VSCA 54, [13]-[15]; Secretary to the Department of Premier and Cabinet v Hulls [1999] 3 VR 331, 335-337 [8]–[17]. 11 See r 77.05 of the Rules, r 16.1(3) of the Corporations Rules and rr 1.11–1.12 of the Miscellaneous Rules. 12 See paras 10.21–10.23 below. 13 In relation to the form of the usual undertaking as to damages see Williams, Civil Procedure Victoria, para 38.01.320 and Love v Thwaites (No 4) [2014] VSCA 56, [1], [55]. 14 See r 20.03(3)(b) of the Rules and also Investec Bank (Australia) Ltd v Mann [2012] VSC 81 which notes at [8] the potentially adverse impact of a late ceasing to act on the Court and other parties. 15 See the Technology in Civil Litigation Practice Note SC Gen 5. 16 See par 5.4 above. 17 See par 10.7 above. 18 See par 10.10 above. 360

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19 Where quantum is to be assessed separately, parties must, however, ensure that full particulars of loss and damage are given and may be required to file evidence concerning quantum of loss before mediation or trial. 20 Practitioners are directed to the Technology in Civil Litigation Practice Note SC Gen 5. 21 See par 13.4 above. 22 See par 13.6 above. 23 See par 13.7 above. 24 See par 14.1 above. 25 See par 14.1 above. 26 See par 14.7 above. 27 See par 15.28 above.

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Practice Note SC CC 5

RedCrest Electronic Case Management System (Commercial Court) 1. INTRODUCTION 1.1 The Chief Justice has authorised the issue of the following Practice Note. 1.2 The purpose of this Practice Note is to outline the conduct of proceedings initiated on RedCrest, the electronic lodgement, court file and case administration system currently used in the Commercial Court. 1.3 RedCrest is presently used for proceedings in the following judge-managed lists in the Commercial Court: 1.3.1 General Commercial Lists; 1.3.2 Technology, Engineering and Construction List; 1.3.3 Corporations List (excluding associate judge-managed proceedings); 1.3.4 Intellectual Property List; and 1.3.5 Insurance List. 1.4 This Practice Note is to be read in conjunction with the Supreme Court (RedCrest Electronic Case Management System Amendment) Rules 2014 (‘RedCrest Rules’) as incorporated into Order 28A of the Supreme Court (General Civil Procedure) Rules 2015 (the ‘Rules’) and the Supreme Court (Corporations) Rules 2013. 1.5 This Practice Note is also to be read in conjunction with: 1.5.1 Practice Note SC CC 1 – Commercial Court; 1.5.2 Practice Note SC CC 7 – Imposition of Fees in Commercial Court judge-managed lists; 1.5.3 Notice to the Profession February 2016 - Updated Practice Court Procedures (Commercial Court); and 1.5.4 The How-to Guide for Practitioners (maintained and updated by the RedCrest Service Desk and available for download from the RedCrest Homepage at www.redcrest.com.au). 1.6 All enquiries in relation to RedCrest may be directed to the RedCrest Service Desk located in the Commercial Court Registry at [email protected] or on 03 9603 6042. 2. COMMENCEMENT 2.1 This Practice Note was issued on 30 January 2017 and commences on 30 January 2017 and applies to all relevant RedCrest proceedings initiated on or after 1 August 2014. 3. DEFINITIONS 3.1 In this Practice Note: Commercial Court Practice Note means Practice Note SC CC 1 – Commercial Court and any amendments thereto. How-To Guide means the RedCrest How-to Guide for Practitioners (maintained and updated by the RedCrest Service Desk and available for download from the RedCrest Homepage at www.redcrest.com.au). List Judge means a Commercial Court Judge who manages a List set out in paragraph 1.3. RedCrest proceeding means a proceeding in any of the Judge- managed Lists set out in paragraph 1.3 to which RedCrest applies. RedCrest Rules means the Supreme Court (RedCrest Electronic Case Management System Amendment) Rules 2014 (‘RedCrest Rules’) as incorporated into Order 28A, of the Supreme Court (General Civil Procedure) Rules 2015 and the Supreme Court (Corporations) Rules 2013; Registry and Commercial Court Registry mean the Commercial Court Registry situated on the Ground Floor, 450 Little Bourke Street, Melbourne 3000 Rules means the Supreme Court (General Civil Procedure) Rules 2015. 4. DOCUMENT HEADINGS 4.1 The heading of all Commercial Court documents filed into RedCrest should conform with the example provided at Schedule 1. 4.2 For RedCrest matters, the Proceeding Number will commence with the prefix ‘S ECI’ meaning a Supreme Court Electronic Civil proceeding. 4.3 Where a non-Corporations proceeding is entered in the Commercial Court, upon commencement, the Originating Process must specify the particular List into which it is intended that the proceeding be filed (e.g: ‘Commercial Court’ for general commercial matters; ‘TEC List’ for Technology, 362

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5. FORMS AND FILING IN REDCREST 5.1 Proceedings initiated on RedCrest will be initiated using the ‘ORIGINATING PROCESS [REDCREST]’ form as prescribed by the Rules. Form 5F will be for general usage and Form 2A will be used for Judge-managed Corporations matters. 5.2 An Originating Process which includes a statement of claim will, for the purposes of the Rules, be deemed to be a writ, and one which merely claims the relief sought will be deemed to be an originating motion. 5.3 The initiation process requires that the following critical information be supplied: 5.3.1 Nomination of the Case Manager appointed by the filing party; 5.3.2 A short statement describing the subject matter of the claim. This information will subsequently appear in the case management section of the case page upon filing the Originating Process; 5.3.3 The Certifications required by the Civil Procedure Act 2010; and 5.3.4 Trial estimate. This will also appear in the case management section of the case page upon filing the Originating Process. 5.4 Upon the filing of the Originating Process and payment online of the prescribed fee, RedCrest will complete the following steps: 5.4.1 Insert a new Supreme Court Electronic Civil proceeding case number for the Originating Process; 5.4.2 Seal the Originating Process with the Court seal; 5.4.3 Insert the date of filing; 5.4.4 Open a new case page for the proceeding using information derived from the Originating Process; 5.4.5 Assign a date for the first directions hearing (this may be changed if necessary by arrangement with the List Judge, once the case has been allocated); 5.4.6 File the completed Originating Process in the new case page; and 5.4.7 Display acknowledgement of filing. This will enable the filing party to access the new case page and print out the completed filed and sealed Originating Process and arrange for its service in the usual way in accordance with the Rules. 5.5 An Appearance to be filed in RedCrest is to be in the Form 8AB (for general use), Form 8AC (for a Conditional Appearance) and Form 4A (for Corporations matters). 5.6 A Third Party Notice filed in RedCrest must be filed Form 11C, under the RedCrest Rules. This form will permit the addition of new parties to the Schedule of Parties and to the case page. 5.7 All other documents are to be prepared in accordance with the Rules (with the heading for Commercial Court documents as in Schedule 1) and filed on RedCrest via the case page established for the relevant proceeding, following the instructions contained in the RedCrest How-To Guide. 6. ROLE OF CASE MANAGER 6.1 Each party to a proceeding is to appoint a Case Manager to manage that party’s engagement with RedCrest. The person who files the Originating Process and the Notice of Appearance in each case, automatically becomes the Case Manager for the relevant party on behalf of whom the document is filed. There can be only one Case Manager for each party at any time. 6.2 The Case Manager appointed by a party has particular and important functions and responsibilities in relation to RedCrest, namely: 6.2.1 Granting access to other registered persons to the relevant proceeding; ©

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Engineering and Construction matters; or ‘IP List’ for Intellectual Property matters). When commencing matters suitable for the Insurance List on RedCrest, practitioners are directed to the Insurance List page on the Supreme Court website at http://www.supremecourt.vic.gov.au/home/law+and+practice/specialist+areas+of+law/insurance. 4.4 Form 2A must be used for Judge-managed Corporations matters, which will include in the heading the list identifier ‘Corporations List’. 4.5 After commencement, all Court documents filed in the proceeding must bear the list identifier in the document heading in accordance with the example in Schedule 1.

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6.2.2 The ability to remove access, for example, where a practitioner leaves a legal firm; 6.2.3 Assigning the functions of Case Manager to another Case Manager if necessary; 6.2.4 Keeping the Schedule of Parties up to date (if applicable); and 6.2.5 It is the responsibility of the Case Manager to keep this information up to date at all times. 6.3 In the case of a self-represented party, the Prothonotary or a Deputy Prothonotary will act as the Case Manager. 6.4 It is the Case Manager’s responsibility to ensure the correct users associated with a party to a case have access and that the accuracy of these details is maintained (for example, where a legal practitioner leaves a firm or where new counsel is briefed). Similarly, if a user who has access to a case leaves a firm or ceases working on a case, that user must advise the Case Manager so that the Case Manager can remove that user’s access to any applicable RedCrest case(s). Where the departing legal practitioner is also the RedCrest Case Manager, that person must transfer the Case Manager status to a nominated person prior to departure. They must also notify the RedCrest Service Desk in writing of the change of Case Manager so that the outgoing Case Manager’s system account can be deactivated. 7. ALLOCATION OF PROCEEDINGS 7.1 After initiation, the proceeding will be allocated to a Judge-managed List by the Commercial Court following a review of the features and characteristics of the proceeding. Following allocation of a proceeding to a Judge-managed List, the parties will be notified of the allocation by the Commercial Court Registry. If a party nominates a particular Judge-managed List at the time of initiation, this will either be confirmed or changed as a result of the allocation process. 8. URGENT APPLICATIONS 8.1 Applications of a genuinely urgent nature should be brought in accordance with the Commercial Court’s urgent application procedure as set out in the ‘Notice to the Profession - Updated Practice Court Procedures (Commercial Court)’, which can be found on the Supreme Court’s website. 8.2 New Commercial Court proceedings requiring urgent interlocutory relief may be initiated on RedCrest, particularly if interlocutory relief will form part of ongoing proceedings. However, practitioners must direct their enquiries about urgent listings, in the first instance, to Commercial Court Registry on (03) 9603 4105 and by email at [email protected] prior to initiating proceedings on RedCrest. 8.3 Where a proceeding is under Judge management, urgent applications may be sought by contacting the Associate to the List Judge and then informing the Commercial Court Registry of the allocated return date. If the Associate to the List Judge is unavailable, practitioners should contact the Commercial Court Registry on the above number. 9. SUMMONS FOR DIRECTIONS 9.1 The notice of a first directions hearing contained in an Originating Process filed in RedCrest is deemed to be a summons for directions in the proceeding. 9.2 On the filing of an Originating Process in RedCrest (Form 5F), the date of the first directions hearing will automatically appear on the Case page for the proceeding. The date set will be several weeks in advance, usually on a Friday. 9.3 On the Court’s own motion or on application by a party to the proceeding, the date for the first directions hearing may be changed. 10. ORDER FOR ELECTRONIC SERVICE 10.1 Practitioners are directed to rule 28A.16 of the Rules. The Court may, on application by a party, order that the filing of documents in RedCrest between parties shall have effect as service of those documents on the parties to be served. 11. CONFIDENTIALITY STATUS OF DOCUMENTS 11.1 Upon filing, a document may be designated as ‘Public’ or ‘Confidential’. 11.2 A document that is to be designated ‘Confidential’ upon filing is confidential as between the parties. In other words, confidential documents will be made available on RedCrest only to the Court and to practitioners and parties registered for that case. While a Confidential document will form part of the Court record, it will not be made accessible by file search to the public or persons who are not registered for the particular case. 364

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11.3 The following documents will be designated Confidential upon filing into RedCrest: 11.3.1 Exhibits to Affidavits; 11.3.2 Outlines of Submissions; 11.3.3 Outlines of Argument; 11.3.4 Lists of Authorities; 11.3.5 Order 44 Reports (Expert Witness Statements); 11.3.6 Witness Statements; 11.3.7 Outlines of Evidence; 11.3.8 Synopses of Evidence; 11.3.9 Chronologies; 11.3.10 Documents that by Court order are to be treated as confidential; and 11.3.11 De Bene Esse evidence. 11.4 Rule 28A.17 of the Rules provides that the Court may make any order it thinks fit as to confidentiality and privacy in relation to the filing of documents on RedCrest. For example, the Court may: 11.4.1 Designate a particular document not referred to in paragraph 11.3 be treated as confidential; 11.4.2 Direct that a particular document be filed in a redacted form; and/or 11.4.3 Direct that a particular document be filed with an additional level of confidentiality (see further below). COMMERCIAL IN CONFIDENCE MATERIAL 12.1 Practitioners who intend to file material that is Commercial-in-Confidence, and which is not intended to be made available to other parties or made available only on a restricted basis, require an order of the Court in advance of filing. 12.2 It is critical that a practitioner who anticipates filing material of this nature contacts the Commercial Court Registry or the Associate to the List Judge managing the case before filing to ensure that appropriate arrangements are in place for the treatment of that material. FILING A DOCUMENT IN ERROR 13.1 If a document or part of a document is filed into RedCrest in error, on notification made to the Court by any means (including by telephone or email to the Associate to the List Judge or Associate Judge who has been assigned to the proceeding) and without prior notice to any other party, a Judge, Associate Judge or Judicial Registrar may direct that the document or part of the document be removed from the RedCrest file. A Judge’s Associate, the Prothonotary, Deputy Prothonotary or a Registry officer may then be directed to remove the erroneous document, or part of the document from RedCrest. OFFERS OF COMPROMISE 14.1 Offers of compromise must not be filed in RedCrest. IMPEDIMENTS TO FILING 15.1 Access to RedCrest and/or filing of a document may be impeded in circumstances where: 15.1.1 There is a planned outage to RedCrest e.g: the Court may be required to take RedCrest offline temporarily for scheduled maintenance; or 15.1.2 There is an unplanned outage to RedCrest e.g: RedCrest may become unavailable due to an incident beyond the control of the Court (such as host server failure); or 15.1.3 A system error occurs during attempts by a practitioner to file or make a payment which results in an inability to successfully file a particular document and/or the unsuccessful processing of a specific payment. 15.2 A practitioner who is experiencing difficulties in filing a document or initiating proceedings on RedCrest within business hours should refer their inquiries in the first instance to the RedCrest Helpdesk within the Commercial Court Registry on (03) 9603 6042. 15.3 Where a practitioner is unable to file due to outage or system failure, they are referred to the Impediment Rule contained in Order 28A(8) of the RedCrest Rules which provides that if there is an impediment affecting the general access to RedCrest, the parties may file the document with the Prothonotary in any form the Prothonotary may allow (such as via email or by delivery of the document(s) on a USB stick). 2017 THOMSON REUTERS

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15.4 Practitioners who wish to invoke the Impediment Rule should email the Commercial Court Registry at [email protected] with electronic copies of the documents they intend to file, along with a description of the impediment. The email should refer to the time the outage, error or impediment occurred and be sent as soon as reasonably possible. This should be done regardless of any other means by which a practitioner may also deliver documents to the Prothonotary pursuant to the Impediment Rule. 15.5 Where there is an impediment in the form of an outage or a system error on RedCrest which prevents a time-critical document from being filed, and which may give rise to a limitation of actions issue or result in non-compliance with a Court order, and such outage or system error occurs outside of the business hours of the Commercial Court Registry or the RedCrest Service Desk, then: 15.5.1 An application may be made to the Court to have the filing deemed to be successful, pursuant to the Impediment Rule. 15.5.2 A practitioner requesting that the Impediment Rule be invoked in this way must provide evidence of the circumstances of the outage or system error at the time the outage or system error occurred, preferably in the form of screenshots of the incident. 15.5.3 The Court may also require a sworn affidavit from the practitioner which outlines the circumstances in which the impediment to filing occurred, the time-critical nature of the impeded filing, and the reasons why the Impediment Rule is sought to be applied. 15.5.4 Such an application may be granted upon the Court’s satisfaction that an outage or system error occurred and that compliance with the relevant filing deadline was affected as a result. 15.6 The Impediment Rule may not be applied where the instructions contained in the How-to Guide are not followed, or where the legal practitioner themselves or the legal practitioner’s equipment was otherwise the cause of the error occurring. 15.7 In the case of any inconsistency between the investigations of the Court as to the cause of the impediment to filing and the assertions of the legal practitioner as to the cause of the impediment to filing, the Court shall inform the legal practitioner as to its findings, and invite submissions in response. 16. PERMITTED FILING FORMATS 16.1 All Court documents which are specifically prepared for a proceeding (eg. Pleadings, Witness Statements, Affidavits, Submissions and all Court documents as listed the RedCrest Document Naming Protocol which is available on the RedCrest webpage at www.redcrest.com.au) and which are filed on RedCrest must be in format which is able to be copied and edited such as ‘Word’ format. 16.2 Affidavit Exhibits, Court Books and Authorities may be filed on RedCrest in PDF format. 17. FILING EXHIBITS TO AFFIDAVITS 17.1 Exhibits to Affidavits must be paginated and, where possible, shall be contained in a single file for upload, named in accordance with the RedCrest Document Naming Protocol (eg. ‘Exhibits 1-5 to the Affidavit of [name] sworn/affirmed on [date] filed on behalf of [party]’). 17.2 Where the exhibits to an affidavit exceed two in number, an index is to be provided which is hyperlinked to the first page of each exhibit. 18. REMOVAL OF HIDDEN VERSION HISTORIES 18.1 All documents filed into RedCrest must have ‘track changes’ and any other review functions and version histories removed. The onus is on filing practitioners and filing parties to ensure that this is done. 19. ACCESS BY PARTIES INCLUDING SELF-REPRESENTED LITIGANTS 19.1 Only a legal practitioner or an employee of a legal practice with administrative responsibility for the relevant RedCrest matter will be able to apply for a username and password online. 19.2 A self-represented party seeking access to RedCrest to view a case page for a matter in which they are involved, should make the request by email to [email protected]. 19.3 A Court officer will review and determine any request by a self-represented party for access, taking into account the party’s reasons for the request and the party’s capacity to comply with the Court Rules and the User Instructions. 19.4 A self-represented party (unless otherwise ordered by the Court), who is granted access and issued a username and password will: 366

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19.4.1 have full access to view each case for which the party is registered (including public and confidential documents). 19.4.2 not be able to file any documents via RedCrest. Instead, they may seek to file documents by email to [email protected]. Once the documents have been checked and approved for filing, Registry staff can assist in the filing process. 19.5 A self-represented party who is served with an Originating Process, a Third Party Notice or a Counterclaim (as a new party) and who wishes to contest the claim must: 19.5.1 Complete a Notice of Appearance Form 8AB (General), 8AC (Conditional) or 4A (Corporations); and 19.5.2 Within the time stated in the Originating Process, file their Notice of Appearance by email to [email protected]. 19.6 Assistance will be given by Registry staff to ensure that the Notice of Appearance is correctly completed. Registry staff will then file the Notice of Appearance in the electronic file in RedCrest for the proceeding.

21. CITEC 21.1 Matters to which RedCrest applies will not be permitted to be filed via the Citec efiling system under Order 28A of the Rules. 22. GROUP PROCEEDINGS 22.1 A practitioner seeking to initiate a Group Proceeding on RedCrest pursuant to Part 4A of the Supreme Court Act 1986 (Vic) should not do so without prior consultation with the Commercial Court Registry, and may be required to seek the permission of the Court. 23. REDCREST USAGE RULES 23.1 As a condition of being issued with a username and password for RedCrest and of continuing to use RedCrest, each registrant must read and agree to the following terms and conditions of RedCrest use: 23.1.1 To protect and maintain the confidentiality of any parts of a Court file in RedCrest designated as confidential; 23.1.2 To keep confidential the username and password used for access to RedCrest for the exclusive use of the registrant and any person who is a personal assistant of the registrant; 23.1.3 To comply with any condition or limitation of registration issued in relation to RedCrest; 23.1.4 To comply with the RedCrest Rules and this RedCrest Practice Note; and 23.1.5 To pay the fees prescribed by Supreme Court (Fees) Regulations 2012 which are the payable in respect of the RedCrest matter. See also Practice Note SC CC 7 – Imposition of Fees in Commercial Court Judge-managed Lists. 23.2 Under the RedCrest Rules the Prothonotary may refuse to issue a username to a person or may cancel the username of a person if the person, amongst other things, fails to comply with these terms and conditions. 24. PAYMENT METHODS 24.1 Payments of prescribed Court fees may be undertaken online using AMEX, Visa or Mastercard. Until further notice, no other online payment method will be accepted. 25. JUDICIAL ELECTRONIC SIGNATURE FOR JUDGMENTS AND ORDERS 25.1 For the purposes of the authentication of judgments and orders in RedCrest pursuant to Rule 28A.11 of the RedCrest Rules, the electronic signature of a Judge, Associate Judge, Judicial Registrar or the Deputy Prothonotary may be the name of the Judge, Associate Judge, Judicial Registrar or the Deputy Prothonotary electronically printed in any font.

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20. FILE INSPECTIONS IN REDCREST MATTERS 20.1 Any person wishing to conduct a file inspection of a RedCrest matter must contact the Commercial Court Registry by telephone or email to arrange an inspection prior to attending the Commercial Court Registry.

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26. PRACTITIONER ELECTRONIC SIGNATURE 26.1 For the purposes of signature on RedCrest forms, including Civil Procedure Act Certifications, or any electronic document required to be signed pursuant to Rule 28A.08 of the RedCrest Rules, an electronic signature must be used. The electronic signature of a practitioner may be that practitioner’s full name, preceded by ‘s/’.

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Vic Practice Notes Practice Note SC CC 6

Cross-Border Insolvency Cooperation with Foreign Courts or Representatives and Coordination Agreements 1. INTRODUCTION 1.1 The Chief Justice has authorised the issue of the following Practice Note. 1.2 The purpose of this Practice Note is to describe the procedures to be followed for proceedings regarding cross-border insolvency and cooperation with foreign courts or foreign representatives.

3. DEFINITIONS 3.1 In this Practice Note: Act means the Cross-Border Insolvency Act 2008 (Cth) Model Law means the Model Law on Cross-Border Insolvency of the United Nations Commission on International Trade Law (UNCITRAL) 4. FILING PROCEEDINGS UNDER THE ACT 4.1 All proceedings under the Act should be filed in the Commercial Court Corporations List. 5. HEARING OF URGENT APPLICATIONS 5.1 Urgent matters or matters involving courts operating in a different time zone, may be heard outside normal sitting hours. 5.2 Practitioners should follow the Commercial Court Duty Judge System procedure as outlined in Practice Note SC CC 1 – Commercial Court and on the Supreme Court website. 6. THE MODEL LAW 6.1 Chapter IV of the Model Law, provides for cooperation between Australian Courts1 and registered liquidators2 and the foreign equivalents in cross-border insolvency matters referred to in Article 1 of the Model Law. The Model Law is contained in Schedule 1 of, and has the force of law in Australia3 under, the Act. 6.2 Articles 1 and 25 to 27 of the Model Law (as modified by the Act) are set out in the Appendix. 7. THE CORPORATIONS RULES 7.1 Subdivision 3 of Division 15A of the Corporations Rules of the Federal and Supreme Courts addresses cooperation under Chapter IV of the Model Law insofar as it involves the Court. 7.2 Rule 15A. 10 provides that cooperation that involves the Court and a foreign court or foreign representative under Part IV of the Model Law should generally occur in accordance with a coordination agreement prepared by the parties and approved by the Court under rule 15A. 11. 8. REFERENCE MATERIAL 8.1 The following reference material is referred to below: • The Global Principles for Cooperation in International Insolvency Cases (Global Principles) http://iiiglobal.org/sites/default/files/alireportmarch_0.pdf • Global Guidelines for Court-to-Court Communications in International Insolvency Cases (Global Guidelines) http://iiiglobal.org/sites/default/files/alireportmarch_0.pdf4 • UNCITRAL Practice Guide on Cross-Border Insolvency Cooperation (Practice Guide) http://www.uncitral.org/pdf/english/texts/insolven/Practice_Guide_Ebook_eng.pdf • Global Rules on Conflict-of-Laws Matters in International Insolvency Cases (Global Rules) http://iiiglobal.org/sites/default/files/alireportmarch_0.pdf 8.2 In having regard to this reference material as suggested below, it is important for practitioners to note: (a) In the case of the Global Guidelines and Global Principles, their terms make clear that neither the guidelines nor the principles attempt to confer substantive rights or encroach ©

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2. COMMENCEMENT 2.1 This Practice Note was issued on 30 January 2017 and commences on 30 January 2017 and will apply to relevant proceedings commenced in the Supreme Court concerning cross-border insolvency and/or cooperation with foreign courts or foreign representatives.

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upon substantive Australian law. (Global Principle 3, Global Guideline 18) The aims and objectives of these guidelines and principles are set out in Global Principles I and 2 and Global Guideline I. (b) The purpose of the Practice Guide is set out in paragraph I on page I. That purpose essentially is “to provide information for practitioners and Judges on practical aspects of cooperation and communication in cross-border insolvency cases”. (c) While the Global Rules have been drafted with the intention of ultimately providing a comprehensive set of conflict-of-laws principles, they are referred to below as potentially helpful reference material and not as an indication that the identified rules necessarily represent Australian law or are necessarily appropriate for inclusion in cross-border insolvency agreements. 9. AUTHORITY OF THE COURT 9.1 Global Principle 3 provides: Nothing in these Global Principles is intended to: (i) Interfere with the independent exercise of jurisdiction by a national court involved, including in its authority or supervision over an insolvency administrator; (ii) Interfere with the national rules or ethical principles by which an insolvency administrator is bound according to applicable national law and professional rules; (iii) Prevent a court from refusing to take an action that would be manifestly contrary to the public policy of the forum state; or (iv) Confer substantive rights, interfere with any function or duty arising out of an applicable law, or encroach upon any local law. 9.2 Global Guideline 18 provides: Arrangements contemplated under these Global Guidelines do not constitute a compromise or waiver by the Court of any powers, responsibilities, or authority and do not constitute a substantive determination of any matter in controversy before the Court or before the other court nor a wavier by any of the parties of any of their substantive rights and claims or a diminution of the effect of any of the orders made by the Court or the other court. 10. GUIDANCE IN DRAFTING COORDINATION AGREEMENTS 10.1 In drafting a coordination agreement for approval of the Court, the parties should have regard to the Global Guidelines, and may find the practical guidance in the Practice Guide useful. 11. TRANSPARENCY AND PROCEDURAL FAIRNESS 11.1 Parties should have regard to the aspects of the Global Guidelines designed to provide transparency and accord procedural fairness to all parties including: • communications being subject to ex parte communication rules (Guideline 6); • communications between courts being notified in advance to counsel (Guideline 7); • advance notice of telephone or video conference communications between courts (Guideline 8), or between the Court and a Court representative or foreign insolvency administrator (Guideline 9) and the ability of counsel to participate; and • the development of service lists (Guideline 13). 12. DEALING WITH CREDITORS AND CLAIMS 12.1 A coordination agreement should generally address the processes for coordination of: • notifications of creditors; • submission of creditor claims; • the administration of claims; and • the hearing of appeals where claims are rejected. 12.2 The parties may find the practical guidance in the Practice Guide ([128] - [139]) to be useful. 13. CHOICE OF LAW PROVISIONS 13.1 If choice of law provisions are considered for inclusion in cross-border insolvency agreements, the Global Rules may provide useful reference material. 14. INDEPENDENT INTERMEDIARY 14.1 Rule 15A.12 of the Corporations Rules addresses the appointment of independent intermediaries. 370

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14.2 Parties applying to the Court to appoint an independent intermediary to assist the coordination of proceedings should have regard to Global Principle 23. AMENDMENT HISTORY 30 January 2017: This Practice Note was issued on 30 January 2017 and replaced former Practice Note 6 of 2011. Vivienne Macgillivray Executive Associate to the Chief Justice 30 January 2017

Scope of application 1. The present Law applies where: (a) Assistance is sought in this State by a foreign court or a foreign representative in connection with a foreign proceeding; or (b) Assistance is sought in a foreign State in connection with a proceeding under Chapter 5 (other than Parts 5.2 and 5.4A), and section 601CL, of the Corporations Act 2001; or (c) A foreign proceeding and a proceeding under Chapter 5 (other than Parts 5.2 and 5.4A), and section 601CL, of the Corporations Act 2001 in respect of the same debtor are taking place concurrently; or (d) Creditors or other interested persons in a foreign State have an interest in requesting the commencement of, or participation in, a proceeding under Chapter 5 (other than Parts 5.2 and 5.4A), and section 601CL, of the Corporations Act 2001. Article 25 Cooperation and direct communication between a Court of Australia and foreign courts for foreign representatives 1. In matters referred to in article I, the Court shall cooperate to the maximum extent possible with foreign courts or foreign representatives, either directly or through a registered liquidator (within the meaning of section 9 of the Corporations Act 2001). 2. The Court is entitled to communicate directly with, or to request information or assistance directly from, foreign courts or foreign representatives. Article 26 Cooperation and direct communication between the registered liquidator and foreign courts or foreign representatives 1. In matters referred to in article 1, the registered liquidator shall, in the exercise of its functions and subject to the supervision of the Court, cooperate to the maximum extent possible with foreign courts or foreign representatives. 2. The registered liquidator is entitled, in the exercise of its functions and subject to the supervision of the Court, to communicate directly with foreign courts or foreign representatives. Article 27 Forms of cooperation Cooperation referred to in articles 25 and 26 may be implemented by any appropriate meaning, including: (a) Appointment of a person or body to act at the direction of the Court (b) Communication of information by any means considered appropriate by the Court; (c) Coordination of the administration and supervision of the debtor’s assets and affairs; (d) Approval or implementation by courts of agreements concerning the coordination of proceedings; (e) Coordination of concurrent proceedings regarding the same debtor. 1 The Model Law refers to a “court of this State”. Section 10 of the Act provides “The following courts are taken to be specified in Article 4 of the Model Law (as it has the force of law in Australia) as courts competent to perform the functions referred tom the Model Law relating to recognition of foreign proceedings and cooperation with foreign ©

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courts: … if the functions relate to a proceeding involving a debtor other than an individual: … the Federal Court of Australia; and … the Supreme Court of a State or Territory” 2 The Model Law refers to “[insert the title of a person or body administering a reorganization or liquidation under the law of the enacting State]”. Section 11 of the Act provides The Model Law has the force of law in Australia as if the Model Law referred [in the case of a company] to … a registered liquidator (within the meaning of section 9 of the Corporations Act 2001) wherever the Model Law indicates that the title of the person or body administering a reorganization or liquidation under the law of the enacting “State is to be inserted” 3 Cross-Border Insolvency Act 2008 (Cth) s 6. The Act modifies some provisions of the Model Law but not Part IV 4 Both the Principles and Guidelines appear in the same document published by the American Law Institute and International Insolvency Institute

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Vic Practice Notes Practice Note SC CC 8

Oppressive conduct of the affairs of a company 1. INTRODUCTION 1.1 The Chief Justice has authorised the issue of the following Practice Note. 1.2 The purpose of this Practice Note is to describe the procedures to be followed for applications made pursuant to s 233 of the Corporations Act 2001 (Cth).

3. DEFINITIONS 3.1 In this Practice Note: Act means the Corporations Act 2001 (Cth) ASIC means the Australian Securities and Investments Commission Pilot means the pilot program referred to in paragraph 5 of this Practice Note Rules means Supreme Court (Corporations) Rules 2013 4. BACKGROUND 4.1 Many applications each month are issued in the Court seeking relief under s 233 of the Act where it is alleged that the affairs of a company have been conducted in an oppressive manner. Under the Rules, such applications must be commenced by originating process.1 Unless the Court otherwise directs, the originating process2 must be supported by an affidavit stating the facts in support of the process and must annexe an ASIC search of the company.3 4.2 Almost all of the claims seeking relief under s 233 of the Act relate to small businesses, most commonly family businesses. Frequently, the value of the business is not substantial. Nevertheless, applications are often supported by affidavits which run to many pages and considerable detail. At the first return of the originating process, it is common for orders to be made for inspection and copying of the books of the company, for valuation of the shares in the company and for mediation.4 5. PILOT PROGRAM 5.1 On 1 October 2014, the Court commenced operating a six month pilot programme in respect of oppression applications. The Court embarked on this course with a view to facilitating the just, efficient, timely and cost effective resolution of the real issues in dispute in applications under s 233 Act. In particular, the Pilot sought to trial initiatives aimed at exploring resolution of the dispute at a very early stage of the proceeding before significant costs had been incurred. 5.2 The Pilot set out a streamlined procedure for the case management of oppression proceedings in the Court. During the life of the Pilot, a significant number of matters were commenced and subject to the new process. The Pilot resulted in the early resolution of a number of those matters or, where early resolution was not practicable, a significant narrowing of the issues in dispute. 5.3 The Pilot ceased its term on 1 April 2015. Following the initial results of the Pilot, the Court has resolved to extend its operation until 1 August 2017. However, in order to improve the efficiency of the Pilot, a number of important changes have been made. The revised procedures for the Pilot are set out below. 6. REVISED PILOT 6.1 From 1 September 2015 until 1 August 2017 and subject to any contrary order of the Court, the following procedure will apply in respect of applications under s 233 of the Act (whether or not other relief is also sought). 6.2 Applications for relief are to be made by originating process filed via RedCrest5 and supported by an affidavit which: (a) is no more than three pages in length; (b) sets out a clear and succinct summary of the facts alleged to constitute the acts of oppression; (c) sets out a preliminary estimate of the value of the shares in the company (where practicable); (d) exhibits a current ASIC search of the company; and has no other exhibits. ©

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2. COMMENCEMENT 2.1 This Practice Note was issued on 30 January 2017 and commences on 30 January 2017 and applies to relevant proceedings commenced in the Corporations List.

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6.3 In preparing the affidavit, practitioners should have regard to the relevant authorities which provide examples of the type of conduct that may ground a claim under s 233 of the Act. 6.4 Upon initiation, the matter will be entered into the Judge-managed Corporations List and will attract an Entry into List fee in accordance with regulation 8A of the Supreme Court Fee Regulations 2012 (Vic). 6.5 The Corporations List Judge will review the proceeding to decide whether it is a matter which lends itself to management under the Pilot or whether the characteristics of the case suggest it would be more appropriately managed and determined by a Judge. For example, it is unlikely that the procedure will be appropriate if the application concerns a publicly listed company or involves complex trust structures. If the matter is suitable for inclusion in the Pilot, the Corporations List Judge will formally refer the matter on the papers. 6.6 Following entry into the Pilot and the filing of a notice of appearance by the Defendant(s), the application will be made returnable for an initial conference before an Associate Judge or a Judicial Registrar. The parties (as well as their practitioners) will be expected to attend that conference. The Associate Judge or Judicial Registrar will explore with the parties whether the matter is ready for referral to mediation or whether any preliminary steps are required to be undertaken, for example, whether: 6.6.1 the Defendant(s) should first be afforded an opportunity to file a responding affidavit of no more than three pages; 6.6.2 a valuation of the company should be arranged; or 6.6.3 an order for access and inspection of the books of the company should be made. Orders for points of claim, points of defence and more detailed affidavits are unlikely to be made until after the mediation. 6.7 A number of matters will be listed for initial conference before an Associate Judge or Judicial Registrar on the same day. Whilst the parties are encouraged to adopt a pragmatic and collaborative approach to identifying any necessary preliminary steps, consent orders will not be made in advance of the initial conference. 6.8 If urgent orders are sought at the initial conference that are beyond the jurisdiction of Associate Judges or the Judicial Registrar, or for some other reason the presiding judicial officer forms the view that the application should be referred back to the Corporations List Judge, then that referral will be made. 6.9 Matters under the Pilot will generally be mediated by either an Associate Judge or a Judicial Registrar. In some cases, the matter may be considered appropriate for referral to external private mediation. 6.10 If a matter does not resolve at the mediation, an Associate Judge or Judicial Registrar may make consent directions for the future conduct of the matter. 6.11 Once these steps have been completed, and if the dispute has not resolved, the application may be referred to a judge for further directions and/or hearing. 7. REVIEW PROCESS 7.1 This process will be reviewed by the Court after 1 August 2017. AMENDMENT HISTORY 30 January 2017: This Practice Note was issued on 30 January 2017 and replaced Practice Notes No 13 of 2015 and No 5 of 2014 Vivienne Macgillivray Executive Associate to the Chief Justice 30 January 2017 1 r 2.2(1)(a) of the Rules 2 r 2.4(1) of the Rules. 3 r 2.4(2) of the Rules. 4 See Practice Note SC CC 1 – Commercial Court for the form of standard valuation and mediation orders. 374

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5 See Order 28A of the Supreme Court (General Civil Procedure) Rules 2015.

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Practice Note SC Gen 1

Practice Notes and Notice to the Profession 1. INTRODUCTION 1.1 The Chief Justice has authorised the issue of the following Practice Note. 1.2 The purpose of this Practice Note is to explain the Court’s processes with respect to the issue of Practice Notes and Notices to the Profession. 2. COMMENCEMENT 2.1 This Practice Note was issued on 30 January 2017 and commences on 30 January 2017. 3. DEFINITIONS 3.1 In this Practice Note: Former Practice Notes and Practice Directions means the all Practice Notes and Practice Directions issued prior to 30 January 2017 4. PRACTICE NOTES 4.1 The power to issue Practice Notes derives from the inherent power of the Court to control its own practice and procedure. 4.2 Practice Notes of the Supreme Court are issued by the Chief Justice, and are approved by the Council of Judges. 4.3 Practice Notes provide information about the Court’s practice and procedure. They also set out the Court’s expectations of parties coming before the Court. While they do not have the force of law, lawyers with the conduct of proceedings are expected to be familiar with their content and follow their requirements where applicable. The Court may take a failure to comply with a Practice Note into account in the exercise of its case management and costs powers. 4.4 The Court may depart from the practice set out in a Practice Note, or adapt its requirements according to the particular circumstances or requirements of individual cases. To the extent that the Court makes orders or gives directions which are inconsistent with a Practice Note, those orders or directions prevail. 5. NUMBERING OF PRACTICE NOTES 5.1 All Practice Notes in the Supreme Court begin with the letters “SC” followed by one of the following abbreviations denoting the Division of the Court to which it applies: CA CC CL CR

Court of Appeal Commercial Court Common Law Division Criminal Division

5.2 Practice Notes with the Abbreviation “SC Gen” apply generally across the Court or to a specific topic not necessarily falling within a particular Division. 5.3 Within each category, Practice Notes are numbered sequentially without reference to the year they were made. 5.4 Practice Notes are to be cited as follows in accordance with the following format “Practice Note SC Gen 1” or “PN SC CL 2”. 5.5 Practice Notes are amended from time to time. They retain their designated number, however the history of amendment of each Practice Note is recorded at the end of the document. 6. REPEAL OF FORMER PRACTICE NOTES 6.1 All former Practice Notes and Practice Directions are revoked from 30 January 2017. 6.2 Anything done under a provision of the former Practice Notes for which there is a corresponding provision in a current Practice Note is taken to have been done under the corresponding provision of the current Practice Note. 7. NOTICES TO THE PROFESSION 7.1 Notices to the Profession are issued by the Court where there is a need to convey information, rather than as a means for the Court to set out its practice in a particular area. 7.2 Examples of when a Notice to the Profession may be issued include: 376

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(a) advising which judges are responsible for which specialist Lists for the year; (b) informing the profession of temporary arrangements or circumstances; (c) reminders to the profession about certain rules and practices if it appears there is confusion or non-compliance; and (d) notices from the Prothonotary or a Registrar about registry practice. 7.3 Notices to the Profession will generally not be issued for (a) establishing a new List; (b) setting out the procedures of a specialist List or in a particular class of cases; (c) fixing requirements to be complied with by the profession; (d) describing substantial new practices where there is a need for an ongoing reference document. AMENDMENT HISTORY 30 January 2017: This Practice Note was issued on 30 January 2017. Vivienne Macgillivray Executive Associate to the Chief Justice

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Practice Note SC Gen 2

Structure of the Trial Division 1. INTRODUCTION 1.1 The Chief Justice has authorised the issue of the following Practice Note. 1.2 The purpose of this Practice Note is to set out the divisional structure of the Trial Division of the Court, the specialist Lists within the Trial Division and the allocation of matters within that structure. 2. COMMENCEMENT 2.1 This Practice Note was issued on 30 January 2017 and commences on 30 January 2017. 3. DIVISIONAL STRUCTURE 3.1 The Trial Division of the Court consists of the: • Commercial Court; • Common Law Division; and • Criminal Division. 3.2 Each Division has a Principal and Deputy Principal Judge whose responsibilities include: • overall supervision of cases in the Division; • oversight of the allocation of cases for hearing; • chairing regular meetings of the Division; and • maintaining links with members of the legal profession practising in the Divisions. 4. COMMERCIAL COURT 4.1 The Commercial Court comprises Judges, Associate Judges and Judicial Registrars allocated by the Chief Justice from time to time. 4.2 The business of the Commercial Court is managed through such Lists as may be determined by the Chief Justice from time to time. The judge-managed Lists with this Division are: • The General Commercial Lists, which correspond to the relevant managing Judge; • The Corporations List; • The Arbitration List; • The Taxation List; • The Admiralty List; • The Technology, Engineering and Construction (TEC) List; • The Intellectual Property List; and • The Insurance List. 4.3 The Commercial Court will hear and determine the following categories of cases: (a) those which arise out of ordinary commercial transactions, including any proceeding relating to– (i) the construction of commercial, shipping or transport documents; (ii) the export or import of merchandise; (iii) the carriage of goods for the purpose of trade or commerce; (iv) insurance; (v) banking; (vi) finance; (vii) commercial agency; (viii) commercial usage; (b) those in which there is a question that has importance in trade or commerce; (c) those in which a remedy is sought under the Corporations Act 2001 (Cth) and Australian Securities and Investments Commission Act 2001 (Cth); (d) those in which court assistance is required to support an arbitration, enforce an award or review a decision; (e) those in which a substantial issue is raised in respect of technology, engineering and/or construction; 378

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(f) those in which proceedings concern loss or damage to a ship or by a ship, or to goods carried by sea and/or is brought pursuant to the Admiralty Act 1988 (Cth); (g) those in which a substantial issue is raised in respect of taxation, including proceedings regarding taxation recovery and Victorian Taxation Appeals1 save for proceedings for damages against a taxation adviser which are to be initiated in the Professional Liability List in the Common Law Division; (h) those in which a substantial issue is raised in respect of intellectual property; and (i) those in which a substantial issue of a commercial nature is raised in respect of an insurance policy. 4.4 Mortgage default, debt recovery and related enforcement proceedings initiated in the Commercial Court are ordinarily to be managed by an Associate Judge, unless assigned to a specific judge-managed List after the filing of a defence. 4.5 Court documents in Commercial Court matters not filed electronically should be filed with the Commercial Court Registry which is located on the ground floor of the Old High Court Building at 450 Little Bourke Street Melbourne. 4.6 Contact details for general inquiries are: Phone: 03 9603 4105 Email: [email protected] 5. COMMON LAW DIVISION 5.1 The Common Law Division comprises Judges, Associate Judges and Judicial Registrars allocated by the Chief Justice from time to time. 5.2 At present, the Common Law Division includes the following specialist Lists: • Civil Circuit; • Judicial Review and Appeals; • Major Torts; • Personal Injuries; • Dust Diseases; • Professional Liability; • Valuation, Compensation and Planning; • Employment and Industrial; • Trust, Equity and Probate; • Testators Family Maintenance; • Property; and • Confiscation and Proceeds of Crime. 5.3 The Common Law Division manages any proceeding founded or concurrently brought in tort and in breach of contract or statute. 5.4 Documents in Common Law Division matters not filed electronically should be filed with the Principal Registry which is located on Level 2 of 436 Lonsdale Street, Melbourne. 6. CRIMINAL DIVISION 6.1 The Criminal Division comprises Judges, Associate Judges and Judicial Registrars allocated by the Chief Justice from time to time to the Division. 6.2 The Criminal Division hears all criminal trials, criminal interlocutory applications, criminal appeals other than on a question of law from the Magistrates’ Court of Victoria and the Children’s Court of Victoria; and any other matters deemed appropriate. 7. ALLOCATION OF CASES TO THE DIVISIONS AND LISTS 7.1 If at any time after the issue of a proceeding in a particular Division it appears to the Court that it is more appropriate to have the proceeding determined in another Division or List, the proceeding may be transferred to that Division or List. Additional court fees may apply upon transfer. AMENDMENT HISTORY 30 January 2017: This Practice Note was issued on 30 January 2017 and replaced Practice Note No 4 of 2014 Vivienne Macgillivray ©

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Executive Associate to the Chief Justice 30 January 2017 1 Whilst Victorian Taxation Appeals are to be initiated in the Commercial Court Taxation List, the existing fee structure set out in Part 1 of the Schedule to the Supreme Court (Fees) Regulations 2012 applies.

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Vic Practice Notes Practice Note SC Gen 3

Citation of authorities and legislation 1. INTRODUCTION 1.1 The Chief Justice has authorised the issue of the following Practice Note. 1.2 The purpose of this Practice Note is to set out the requirements in relation to the citation of authorities and legislation and the provision of those to the Court and other parties. 2. COMMENCEMENT 2.1 This Practice Note was issued on 30 January 2017 and commences on 30 January 2017.

5. CITATION OF JUDGMENTS 5.1 Where a judgment is reported in an authorised series of law reports, all references and citations must be to, and any copy provided to the Court must be a copy of, the authorised report. 5.2 Where a judgment is not reported in an authorised series of law reports but is available electronically, reference must be made to its medium neutral citation. 5.3 Reference may also be made to any report in an unauthorised series of reports. 5.4 Judgments provided to the Court are to be from the Rich Text Format (RTF) or Portable Document Format (PDF) of the judgment where available. Judgments delivered in Australia are generally available in one or both of these formats, with a medium neutral citation, on various websites including the Australasian Legal Information Institute at: www.austlii.edu.au 5.5 Where a judgment is not reported in an authorised series of law reports and is not available electronically with a medium neutral citation, references and citations may be to, and any copy provided to the Court may be from, an unauthorised series of law reports. 5.6 If a party intends to rely upon a judgment which is not reported in an authorised or unauthorised series of law reports and is not available electronically, a copy of this judgment must be provided to all other parties, and to the Court, as soon as it is reasonably practicable to do so. 5.7 Judgments provided to the Court must be in portrait, as opposed to landscape, orientation and hard copies are to be printed double-sided. 5.8 Where a judgment is divided into numbered paragraphs, all references to that judgment must be to the relevant paragraph or paragraphs and, where the judgment has been published in hard copy, the page on which those paragraphs commence. For example: Smith v Jones (2010) 28 VR 415, 420 [45]–[46] (authorised report where 415 is the first page of the judgment in the report, 420 is the page on which the passage is found at paragraphs 45–46). Smith v Jones [2010] VSCA 14, [56] (medium neutral citation, where 14 is the number of an unreported judgment of the Court of Appeal and 56 is the paragraph in which the cited passage is found). 6. CITATION OF LEGISLATION 6.1 Legislation from any Australian jurisdiction may be cited without producing a copy to the Court. However, where proceedings involved detailed consideration of point-in-time legislation parties may wish to consider providing copies of the relevant parts of the enactments for the assistance of the Court. 7. FOREIGN LAW 7.1 Parties should cooperate to avoid the need for formal proofs of foreign law wherever possible and agree upon the format to be provided to the Court and referenced by the parties. AMENDMENT HISTORY ©

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3. DEFINITIONS 3.1 In this Practice Note: AGLC means the Australian Guide the Legal Citation published by the Melbourne University Law Review. Authorised series of law reports means a series of law reports authorised by the Court whose judgments are contained in the report. 4. CITATION FORMAT 4.1 The Court uses the AGLC as the basis for citation formats in its publications and parties are invited to do the same to assist the Court.

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30 January 2017: This Practice Note was issued on 30 January 2017 and replaced Practice Note(s) No 9 of 2011 2 of 1999 and 4 of 1998 Vivienne Macgillivray Executive Associate to the Chief Justice 30 January 2017

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Vic Practice Notes Practice Note SC Gen 16

Search Orders 1. INTRODUCTION 1.1 The Chief Justice has authorised the issue of the following Practice Note. 1.2 This Practice Note supplements Order 37B of the Supreme Court (General Civil Procedure) Rules 2015 relating to search orders (also known as “Anton Piller orders”, after Anton Piller KG v Manufacturing Processes Ltd [1976] Ch 55). 1.3 Order 37B has been made as part of an endeavour to harmonise Court Rules and orders in such applications across the Supreme Courts of all other States and Territories and the Federal Court. 1.4 This Practice Note addresses (among other things) the Court’s usual practice relating to the making of a search order and the usual terms of such an order. 1.5 While a standard practice has benefits, this Practice Note and the example form of order contained in Form 37BA cannot limit the judicial discretion to make such order as is appropriate in the circumstances of the particular case.

3. DEFINITIONS 3.1 Words and expressions in this Practice Note that are defined in Order 37B of the Supreme Court (General Civil Procedure) Rules 2015 have the meanings given to them in that Order. 4. SEARCH ORDERS 4.1 Ordinarily, a search order is made without notice and compels the respondent to permit persons specified in the order (’search party’) to enter premises and to search for, inspect, copy and remove the things described in the order. The order is designed to preserve important evidence pending the hearing and determination of the applicant’s claim in a proceeding brought or to be brought by the applicant against the respondent or against another person. The order is an extraordinary remedy in that it is intrusive, potentially disruptive, and made without notice and prior to judgment. 4.2 A form of a search order without notice is contained in Form 37BA (the footnotes and references to footnotes in Form 37BA should not be set out in the order). The Form may be adapted to meet the circumstances of the particular case. It contains provisions which are aimed at achieving the permissible objectives of a search order, while minimising the potential for disruption or damage to the respondent and for abuse of the Court’s process. 4.3 The search party must include an independent solicitor who will supervise the search and a solicitor or solicitors representing the applicant. It may be necessary that it include other persons, such as an independent computer expert, and a person able to identify things being searched for if difficulties of identification may arise. Ordinarily, the search party should not include the applicant or the applicant’s directors, officers, employees or partners or any other person associated with the applicant (other than the applicant’s solicitor). 4.4 The order should be clear about the maximum number of persons permitted to be in the search party. The number of people in the search party should be as small as is reasonably practicable. Form 37BA contemplates that they will be named in the order. This is desirable, but if it is not possible, the order should at least give a description of the class of person who will be there (e.g. “one solicitor employed by A, B and Co.”). 4.5 Consistently with Rule 37B.03(2), unless the Court otherwise orders, the affidavits in support of an application for a search order should include the following information: (a) a description of the things or the categories of things in relation to which the order is sought; (b) the address or location of any premises in relation to which the order is sought and whether they are private or business premises; (c) why the order is sought, including why there is a real possibility that the things to be searched for will be destroyed or otherwise made unavailable for use in evidence before the Court unless the order is made; ©

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2. COMMENCEMENT 2.1 This Practice Note was issued on 30 January 2017 and commences on 30 January 2017 and will apply to all applications made or after that date.

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4.7 4.8 4.9

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(d) the prejudice, loss or damage likely to be suffered by the applicant if the order is not made; (e) the name, address, firm, and commercial litigation experience of an independent solicitor, who consents to being appointed to serve the order, supervise its execution, and do such other things and give such undertakings as the Court considers appropriate; and (f) if the premises to be searched are or include residential premises, whether or not the applicant believes that the only occupant of the premises is likely to be: (i) a female; or (ii) a child under the age of 18; or (iii) any other person (’vulnerable person’) that a reasonable person would consider to be in a position of vulnerability because of that person’s age, mental capacity, infirmity or English language ability; or (iv) any combination of (i), (ii) and (iii), and any one or more of such persons. If it is envisaged that specialised computer expertise may be required to search the respondent’s computers for documents, or if the respondent’s computers are to be imaged (i.e. hard drives are to be copied wholesale, thereby reproducing documents referred to in the order and other documents indiscriminately), special provision will need to be made, and an independent computer specialist will need to be appointed who should be required to give undertakings to the Court. The applicant’s solicitor must undertake to the Court to pay the reasonable costs and disbursements of the independent solicitor and of any independent computer expert. The independent solicitor is an important safeguard against abuse of the order. The independent solicitor must not be a member or employee of the applicant’s firm of solicitors. The independent solicitor should be a solicitor experienced in commercial litigation, preferably in the execution of search orders. The Law Institute of Victoria has been requested to maintain a list of solicitors who have indicated willingness to be appointed as an independent solicitor for the purpose of executing search orders, but it is not only persons on such a list who may be appointed. The responsibilities of the independent solicitor are important and ordinarily include the following: (a) serve the order and the documents referred to in Rule 37B.08(1)(b); (b) offer to explain, and, if the offer is accepted, explain the terms of the search order to the respondent; (c) explain to the respondent that he or she has the right to obtain legal advice; (d) supervise the carrying out of the order; (e) before removing things from the premises, make a list of them, allow the respondent a reasonable opportunity to check the correctness of the list, sign the list, and provide the parties with a copy of the list; (f) take custody of all things removed from the premises until further order of the Court; (g) if the independent solicitor considers it necessary to remove a computer from the premises for safekeeping or for the purpose of copying its contents electronically or printing out information in documentary form, remove the computer from the premises for that purpose, and return the computer to the premises within any time prescribed by the order together with a list of any documents that have been copied or printed out; (h) submit a written report to the Court within the time prescribed by the order as to the execution of the order; and (i) attend the hearing on the return date of the summons, and have available to be brought to the Court all things that were removed from the premises. On the return date, the independent solicitor may be required to release material in his or her custody which has been removed from the respondent’s premises or to provide information to the Court, and may raise any issue before the Court as to execution of the order. Ordinarily, the applicant is not permitted, without the leave of the Court, to inspect things removed from the premises or copies of them, or to be given any information about them by members of the search party. Ordinarily, a search order should be served between 9.00 am and 2.00 pm on a business day in order to permit the respondent more readily to obtain legal advice. However, there may be circumstances in which such a restriction is not appropriate. Corporations – Court Rules and Related Legislation 2017

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4.12 A search order must not be executed at the same time as the execution of a search warrant by the police or by any other proper authority. 4.13 If the premises are or include residential premises and the applicant is aware that when service of the order is effected the only occupant of the residential premises is likely to be any one or more of a female, a child under the age of 18 or a vulnerable person, the Court will give consideration to whether: (a) if the occupants are likely to include a female or child, the independent solicitor should be a woman or the search party should otherwise include a woman; and (b) the occupants are likely to include a vulnerable person, the search party should include a person capable of addressing the relevant vulnerability. 4.14 Any period during which the respondent is to be restrained from informing any other person (other than for the purposes of obtaining legal advice) of the existence of the search order should be as short as possible and not extend beyond 4.30 pm on the return date. 4.15 Appropriate undertakings to the Court will be required of the applicant, the applicant’s solicitor and the independent solicitor, as conditions of the making of the search order. The undertakings required of the applicant will normally include the Court’s usual undertaking as to damages. The applicant’s solicitor’s undertaking includes an undertaking not to disclose to the applicant any information that the solicitor has acquired during or as a result of the execution of the search order, without the leave of the Court. Release from this undertaking in whole or in part may be sought on the return date. 4.16 If it is demonstrated that the applicant has or may have insufficient assets within the jurisdiction of the Court to provide substance for the usual undertaking as to damages, the applicant may be required to provide security for the due performance of that undertaking. The security may, for example, take the form of a bank’s irrevocable undertaking to pay or a payment into Court. 4.17 An applicant without notice for a search order is under a duty to the Court to make full and frank disclosure of all material facts to the Court. This includes disclosure of possible defences known to the applicant and of any financial information which may cast doubt on the applicant’s ability to meet the usual undertaking as to damages from assets within Australia. 4.18 The order to be served should be endorsed with a notice which meets the requirements of Rule 66.10. 4.19 Form 37BA refers to privilege in paras 21 and 24. Section 128A of the Evidence Act 1995 (Cth), the Evidence Act 1995 (NSW) and the Evidence Act 2008 (Vic) govern, within those jurisdictions, objection to compliance on the self-incrimination ground. In particular section 128A(3)–(10) govern the procedure to be followed after objection is taken in accordance with paras 21 and 24 of Form 37BA. 4.20 At the hearing of the summons on the return date, the Court will consider the following issues— (a) what is to happen to any things removed from the premises or to any copies which have been made; (b) how any commercial confidentiality of the respondent is to be maintained; (c) any claim of privilege by the respondent; (d) any application by a party; and (e) any issue raised by the independent solicitor. AMENDMENT HISTORY 30 January 2017: This Practice Note was issued on 30 January 2017 and replaced Practice Note No 6 of 2010 Vivienne Macgillivray Executive Associate to the Chief Justice 30 January 2017

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[VICPN.80]

Vic Practice Notes [VICPN.90]

[VICPN.90]

Practice Note SC Gen 17

Freezing Orders 1. INTRODUCTION 1.1 The Chief Justice has authorised the issue of the following Practice Note. 1.2 This Practice Note supplements Order 37A of Supreme Court (General Civil Procedure) Rules 2015 relating to freezing orders (also known as’“Mareva orders” after Mareva Compania Naviera SA v International Bulkcarriers SA (The Mareva) [1975] 2 Lloyd’s Rep 509, or’“asset preservation orders”). Order 37A has been made as part of an endeavour to harmonise Court Rules and orders in such applications across the Supreme Courts of all other States and Territories and the Federal Court. 1.3 This Practice Note addresses (among other things) the Court’s usual practice relating to the making of a freezing order and the usual terms of such an order. 1.4 While a standard practice has benefits, this Practice Note and the example form of order contained in Form 37AA cannot limit the judicial discretion to make such order as is appropriate in the circumstances of the particular case. 2. COMMENCEMENT 2.1 This Practice Note was issued on 30 January 2017 and commences on 30 January 2017 and will apply to applications made on or after that date. 3. DEFINITIONS 3.1 Words and expressions in this Practice Note that are defined in Order 37A have the meanings given to them in that Order. 4. FREEZING ORDERS 4.1 A form of freezing order without notice is contained in Form 37AA. The Form may be adapted to meet the circumstances of the particular case. It may be adapted for a freezing order made on notice as indicated in the footnotes to the Form (the footnotes and references to footnotes in Form 37AA should not be set out in the order). Form 37AA contains provisions aimed at achieving the permissible objectives of the order, consistently with the proper protection of the respondent and third parties. 4.2 The purpose of a freezing order is to prevent frustration or abuse of the process of the Court, not to provide security in respect of a judgment or order. 4.3 A freezing order should be viewed as an extraordinary interim remedy because it can restrict the right to deal with assets, even before judgment, and is commonly granted without notice. 4.4 The respondent is often the person said to be liable on a substantive cause of action of the applicant. However, the respondent may also be a third party, in the sense of a person who has possession, custody or control, or even ownership, of assets which he or she may be obliged ultimately to disgorge to help satisfy a judgment against another person. Rule 37A.05 addresses the minimum requirements that must ordinarily be satisfied on an application for a freezing order against such a third party before the discretion is enlivened. 4.5 The third party will not necessarily be a party to the substantive proceeding, (see Cardile v LED Builders Pty Ltd (1999) 198 CLR 380) but will be a respondent to the application for the freezing order or ancillary order. Where a freezing order against a third party seeks only to freeze the assets of another person in the third party’s possession, custody or control (but not ownership), Form 37AA will require adaptation. In particular, the references to “your assets” and“’in your name” should be changed to refer to the other person’s assets or name (e.g. “John Smith’s assets”, “’in John Smith’s name”). 4.6 A freezing order or an ancillary order may be limited to assets in Australia or in a defined part of Australia, or may extend to assets anywhere in the world, and may cover all assets without limitation, assets of a particular class, or specific assets (such as the amounts standing to the credit of identified bank accounts). 4.7 The duration of a freezing order made without notice will ordinarily be limited to a period terminating on the return date of the summons, which should be as early as practicable (usually not more than a day or two) after the order is made, when the respondent will have the opportunity to be heard. The applicant will then bear the onus of satisfying the Court that the order should be continued or renewed. 386

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Vic Practice Notes

4.8 A freezing order should reserve liberty for the respondent to apply on short notice. An application by the respondent to discharge or vary a freezing order will normally be treated by the Court as urgent. 4.9 The value of the assets covered by a freezing order should not exceed the likely maximum amount of the applicant’s claim, including interest and costs. Sometimes it may not be possible to satisfy this principle (for example, an employer may discover that an employee has been making fraudulent misappropriations, but does not know how much has been misappropriated at the time of the discovery and at the time of the approach to the Court). 4.10 The order should exclude dealings by the respondent with assets for legitimate purposes, in particular: (a) payment of ordinary living expenses; (b) payment of reasonable legal expenses; (c) dealings and dispositions in the ordinary and proper course of the respondent’s business, including paying business expenses bona fide and properly incurred; and (d) dealings and dispositions in the discharge of obligations bona fide and properly incurred under a contract entered into before the order was made. 4.11 Where a freezing order extends to assets outside Australia, the order should provide for the protection of persons outside Australia and third parties. Such provisions are included in Form 37AA. 4.12 The Court may make ancillary orders. The most common example of an ancillary order is an order for disclosure of assets. Form 37AA provides for such an order in para 8 and for the privilege against self-incrimination in para 9. Section 128A of the Evidence Act 1995 (Cth), the Evidence Act 1995 (NSW) and the Evidence Act 2008 (Vic) govern, within those jurisdictions, objection to compliance on the self-incrimination ground. In particular section 128A(3)–(10) govern the procedure to be followed after objection is taken in accordance with para 9 of Form 37AA. 4.13 The Rules of Court confirm that certain restrictions expressed in The Siskina [1979] AC 210 do not apply in this jurisdiction. Firstly, the Court may make a freezing order before a cause of action has accrued (a “prospective” cause of action). Secondly, the Court may make a free-standing freezing order in aid of foreign proceedings in prescribed circumstances. Thirdly, where there are assets in Australia, service out of Australia is permitted under a new “long arm” service rule. 4.14 As a condition of the making of a freezing order, the Court will normally require appropriate undertakings by the applicant to the Court, including the usual undertaking as to damages. 4.15 If it is demonstrated that the applicant has or may have insufficient assets within the jurisdiction of the Court to provide substance for the usual undertaking as to damages, the applicant may be required to support the undertaking by providing security. 4.16 The order to be served should be endorsed with a notice which meets the requirements of Rule 66.10. 4.17 An applicant for a freezing order without notice is under a duty to make full and frank disclosure of all material facts to the Court. This includes disclosure of possible defences known to the applicant and of any information which may cast doubt on the applicant’s ability to meet the usual undertaking as to damages from assets within Australia. 4.18 The affidavits relied on in support of an application for a freezing order or an ancillary order should, if possible, address the following: (a) information about the judgment that has been obtained, or, if no judgment has been obtained, the following information about the cause of action: (i) the basis of the claim for substantive relief; (ii) the amount of the claim; and (iii) if the application is made without notice to the respondent, the applicant’s knowledge of any possible defence; (b) the nature and value of the respondent’s assets, so far as they are known to the applicant, within and outside Australia; (c) the matters referred to in Rule 37A.05; and (d) the identity of any person, other than the respondent, who, the applicant believes, may be affected by the order, and how that person may be affected by it. ©

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[VICPN.90]

Vic Practice Notes

[VICPN.90]

AMENDMENT HISTORY 30 January 2017: This Practice Note was issued on 30 January 2017 and replaced Practice Note No 5 of 2010 Vivienne Macgillivray Executive Associate to the Chief Justice 30 January 2017

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[VICPN.100] [VICPN.100]

Vic Practice Notes Notice to Profession 2006

Applications pursuant to s 588FF of the (Cth) Corporations Act 2001 This notice is issued at the direction of the Judge in Charge of the Corporations List to clarify the procedure to be followed when filing an application in the Court under section 588FF of the Corporations Act 2001 (Cth). In accordance with Rule 2.2 of the Supreme Court (Corporations) Rules 2003 (Chapter V), such applications should be commenced by originating process or, if the winding up is pursuant to an order of the Court, by interlocutory process filed in the proceeding in which the winding up order was made. By reason of the recent amendments to Schedule 2 to the Rules, in the first instance, such applications will be made to a Master.

Vic

Dated: 21 August 2006 J. Saltalamacchia Prothonotary

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Vic Practice Notes [VICPN.110]

[VICPN.110]

Notice to the Profession

Changes to Commercial Court Lists and Establishment of Insurance List From 1 July 2016, the Commercial Court Judge-managed Lists will be re-modelled to enhance efficiencies in case management, accuracy of listings, data completeness and ease of use by the legal profession. New Commercial Court Lists Under the changes, General Commercial Court Lists A-E will be retired and existing matters in these Lists will be administratively transferred to the relevant managing Judge eg: matters in Commercial Court “List B” will be transferred to “Commercial List – Judd J”. Commercial Court matters not currently entered into Lists A-E but which are being managed by Commercial Court Judges will also be transferred to the relevant managing Judge ie: matters being managed by Hargrave, Digby, Sloss and Cameron JJ. The table below summarises these changes. Matters within the Commercial Court’s Specialist Lists will be unaffected. Insurance List In order to promote an efficient approach to the management of insurance disputes, the Commercial Court will establish an Insurance List commencing 1 July 2016. Justice Hargrave will be the Judge-in-Charge of the List. The Insurance List will deal with insurance cases involving the construction of particular insurance or reinsurance policies, the interpretation of relevant legislation or the determination of questions of law which may have application to the insurance sector more broadly, especially where the underlying issue in dispute is of a commercial nature. The Commercial Court homepage provides further information about the Insurance List and additional examples of the type of matters which may be initiated in the List: http://www.supremecourt.vic.gov.au/home/law+and+practice/specialist+areas+of+law/insurance The Insurance List will not cover proceedings which would otherwise be more appropriately determined in the Common Law Division, particularly in its Personal Injuries, Dust Diseases Major Tort, Professional Liability or General Lists. Please refer to the Common Law Division’s homepage for further details as to the type of matters which should be initiated in its Specialist Lists: http://www.supremecourt.vic.gov.au/home/law+and+practice/areas+of+the+court/common+l aw+division Summary of changes A summary of the changes to the Commercial Court Judge-managed Lists is contained in the table below. Commercial Court Lists Pre- 1 July 2016 Commercial Court Lists Post- 1 July 2016 Commercial Court Lists Commercial List A Commercial List – Almond J Commercial List B Commercial List – Judd J Commercial List C Commercial List – Croft J Commercial List D Commercial List – Elliott J Commercial List E Commercial List – Sifris J Commercial List – Dodds-Streeton JA Commercial List – Hargrave J Commercial List – Robson J Commercial List – Vickery J Commercial List – Digby J Commercial List – Sloss J Commercial List – Cameron J Corporations List Corporations List Admiralty List Admiralty List Arbitration List Arbitration List 390

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Vic Practice Notes

Commercial Pre- 1 July 2016 Commercial Court Lists Intellectual Property List Taxation List Technology, Engineering and Construction (TEC) List -

Court Lists Post- 1 July 2016 Commercial Court Lists Intellectual Property List Taxation List Technology, Engineering and Construction (TEC) List Insurance List (New)

Practitioners should adopt these new List headings on Court documents from 1 July 2016. Where a matter in a Judge-managed List is temporarily dealt with by another Judge (eg: in an urgent application or for the determination of a question of legal professional privilege), practitioners will not be required to change the List heading on Court documents. 29 June 2016 Vivienne Macgillivray

Vic

Executive Associate to the Chief Justice

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Vic Practice Notes [VICPN.120]

[VICPN.120]

Notice to the Profession

The Chief Justice has authorised the issue of the following notice. Specialist Lists 2017: Judges-in-Charge COMMERCIAL COURT Admiralty List Justice Digby (Judge in Charge) Arbitration List Justice Croft (Judge in Charge) Justice Riordan (Deputy Judge in Charge) General Commercial Lists Commercial List – Hargrave J Commercial List – Robson J (Reserve Judge) Commercial List – Judd J Commercial List – Vickery J Commercial List – Croft J Commercial List – Sifris J Commercial List – Almond J Commercial List – Digby J Commercial List – Elliott J Commercial List – Sloss J Commercial List – Kennedy J Commercial List – Dodds-Streeton J (Reserve Judge) Corporations List Justice Sifris (Judge in Charge) Justice Robson (Reserve Judge) Justice Judd Associate Justice Efthim Associate Justice Gardiner Associate Justice Randall Intellectual Property List Justice Vickery (Judge in Charge) Justice Elliott (Deputy Judge in Charge) Insurance List Justice Hargrave (Judge in Charge) Justice Almond (Deputy Judge in Charge) Taxation List Justice Croft (Judge in Charge) Justice Kennedy (Deputy Judge in Charge) Technology, Engineering & Construction List Justice Vickery (Judge in Charge until 28 February 2017, thereafter TEC List Judge) Justice Digby (Judge in Charge from 1 March 2017) COMMON LAW DIVISION Civil Circuit List Justice J Forrest Assisted by Associate Justice Daly Confiscation & Proceeds of Crime List Justice J Forrest Dust Diseases List Justice Zammit Justice Keogh Assisted by Associate Justice Ierodiaconou 392

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[VICPN.120]

Vic Practice Notes

Vic

Employment & Industrial List Justice McDonald Assisted by Associate Justice Ierodiaconou Judicial Review & Appeals List Justice Cavanough Justice Ginnane Major Torts List Justice John Dixon Personal Injuries List Justice Zammit Assisted by Associate Justice Ierodiaconou Professional Liability List Justice Macaulay Assisted by Associate Justice Daly Property List Justice Riordan Assisted by Associate Justice Derham Testators Family Maintenance List Justice McMillan Assisted by Associate Justice Derham Trusts, Equity & Probate List Justice McMillan Assisted by Associate Justice Derham Valuation, Compensation & Planning List Justice Emerton Justice Ginnane Vivienne Macgillivray Executive Associate to the Chief Justice 30 January 2017

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Vic Practice Notes [VICPN.130]

[VICPN.130]

Notice to Profession 2010 – Schemes of arrangement

Commercial Court NOTICE TO THE PROFESSION 1/2010 SCHEMES OF ARRANGEMENT 1. The profession is advised that Chapter V of the Rules of the Supreme Court (Corporations) Rules 2003 Rule 3.3 has been amended to insert, after Rule 3.3(3), a new sub rule (4) in the following terms: (4) An order under s 411 of the Corporations Act shall require that the explanatory statement or a document accompanying the explanatory statement prominently display a notice in the following form or to the following effect – IMPORTANT NOTICE ASSOCIATED WITH COURT ORDER UNDER SECTION 411(1) OF THE CORPORATIONS ACT 2001 The fact that under section 411(1) of the Corporations Act 2001 the Court has ordered that a meeting be convened and has approved the explanatory statement required to accompany the notices of the meeting does not mean that the Court: (a) has formed any view as to the merits of the proposed scheme or as to how members/creditors should vote (on this matter members/creditors must reach their own decision); or (b) has prepared, or is responsible for, the content of the explanatory statement. 2. The rule takes effect on 1 September 2010. 3. The inclusion of this notice in the explanatory statement or a document accompanying the explanatory statement follows the recommendation of the Harmonised Corporations Rules Monitoring Committee and the notice requirement will be adopted by, and be consistent across, all jurisdictions. 27 August 2010

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[VICPN.140] [VICPN.140]

Vic Practice Notes Notice to the Profession

Updated Practice Court procedures (Commercial Court) From 29 February 2016, urgent applications involving a commercial dispute will no longer be heard in the Practice Court but instead will be dealt with in accordance with the procedures set out below.

An application for urgent relief before the Commercial Court Duty Judge may be initiated outside ordinary business hours by calling the ‘urgent applications’ telephone number notified on the Commercial Court page of the Supreme Court website. An applicant seeking urgent relief must be in a position to provide the person so contacted with the information set out in the Schedule to this Notice. The protocols for making urgent applications in the Arbitration List as set out in Practice Note 8 of 2014 continue to apply. Schedule Information to be provided by party making urgent application

New proceeding Existing proceeding Applicant and legal representative Respondent and legal representative Nature of Application

Reason for urgency

On notice/ex parte/no respondent Counsel briefed Hearing estimate Preferred date(s) and time(s) When will documents be filed?

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Example only Yes/No File number: S ECI 2015 123123 Name/Name Legal representative contact number: Name/Name Legal representative contact number: E.g. Restraining order to prevent re-entry to premises by Respondent. Respondent alleges breaches of lease which are denied by Applicant who operates a business from the premises. Applicant seeks an interim injunction to prevent re-entry and disruption to business pending hearing and determination of substantive issues regarding lease conditions. Respondent issued a Notice of intention to re-enter premises within 48 hours at 9am this morning and despite several discussions between the parties solicitors, the Respondent’s solicitor has refused to give any assurance to delay re-entry pending hearing of substantial issues or give an undertaking as to damages. On notice H Rumpole of Old Bailey Chambers 1-2 hours Tomorrow any time Today by 4pm

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During ordinary business hours, an application for genuinely urgent relief may be made as follows: 1. Where a proceeding has not yet been commenced or, if commenced, is not yet under management by a nominated judge, by contacting the Commercial Court Registry on 03 9603 4105. The application may, depending on the nature of the matter and judicial availability, either be referred to the Commercial Court Duty Judge or the Corporations List Managing Judge. 2. Where a proceeding is under management by a nominated judge, by contacting the associate to the judge and then informing the Commercial Court Registry of the allocated return date. If the associate to the managing judge is unavailable, practitioners should contact the Commercial Court Registry on the above number.

Queensland Uniform Civil Procedure Rules 1999 (Qld) [Extracts] ..................................................................... 399 Qld Practice Directions ................................................................................................................... 457

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UNIFORM CIVIL PROCEDURE RULES 1999 (QLD) – (EXTRACTS) CHAPTER 23 – PROCEEDINGS UNDER CORPORATIONS ACT OR ASIC ACT 995

Rules for proceedings under Corporations Act or ASIC Act........................................................... 403

SCHEDULE 1A – RULES FOR PROCEEDINGS UNDER CORPORATIONS ACT OR ASIC ACT Part 1 – Preliminary 1.1 1.2 1.3 1.4 1.5 1.6 1.7 1.8 1.9 1.10

Short title......................................................................................................................................... 404 Notes in text.................................................................................................................................... 404 Application of these rules and other rules of the court...................................................................404 Expressions used in the Corporations Act...................................................................................... 404 Definitions for these rules............................................................................................................... 405 References to rules and forms........................................................................................................405 Substantial compliance with forms..................................................................................................405 Court’s power to give directions......................................................................................................405 Calculation of time...........................................................................................................................405 Extension and abridgement of time................................................................................................ 406

2.1 2.2 2.3 2.4 2.4A 2.5 2.6 2.7 2.8 2.9 2.10 2.11 2.12 2.13 2.14 2.15

Title of documents in a proceeding—form 1................................................................................... 406 Originating application and interlocutory application—forms 2 and 3............................................ 406 Fixing of hearing..............................................................................................................................406 Supporting affidavits........................................................................................................................ 407 Application for order setting aside statutory demand (Corporations Act, s 459G)......................... 407 Affidavits made by creditors............................................................................................................ 407 Form of affidavits.............................................................................................................................407 Service of originating application or interlocutory application and supporting affidavit.................. 407 Notice of certain applications to be given to ASIC......................................................................... 408 Notice of appearance (Corporations Act, s 465C)—form 4............................................................ 408 Intervention in proceeding by ASIC (Corporations Act, s 1330)—form 5....................................... 409 Publication of notices...................................................................................................................... 409 Proof of publication......................................................................................................................... 409 Leave to creditor, contributory or officer to be heard......................................................................409 Inquiry in relation to corporation’s debts etc................................................................................... 410 Meetings ordered by the court........................................................................................................ 410

Part 3 – Compromises and arrangements in relation to part 5.1 bodies 3.1 3.2 3.3 3.4 3.5

Application of pt 3........................................................................................................................... 410 Nomination of chairperson for meeting........................................................................................... 410 Order for meetings to identify proposed scheme............................................................................410 Notice of hearing (Corporations Act, ss 411(4) and 413(1))—form 6............................................. 411 Copy of order approving compromise or arrangement to be lodged with ASIC.............................411

Part 4 – Receivers and other controllers of corporation property (Corporations Act, part 5.2) 4.1

Inquiry into conduct of controller (Corporations Act, s 423)............................................................411

Part 5 – Winding-up proceedings (including oppression proceedings where winding-up is sought) 5.1 5.2 5.3 5.4 5.5 5.6 5.7 5.8 5.9 5.10 ©

Application of pt 5............................................................................................................................411 Affidavit accompanying statutory demand (Corporations Act, s 459E(3))—form 7........................ 411 Application for leave to apply for winding-up in insolvency (Corporations Act, s 459P(2))............412 .........................................................................................................................................................412 Affidavit in support of application for winding-up (Corporations Act, ss 459P, 462 and 464) Consent of liquidator (Corporations Act, s 532(9))—form 8........................................................... 412 Notice of application for winding-up—form 9.................................................................................. 412 Applicant to make copies of documents available..........................................................................413 Discontinuance of application for winding-up..................................................................................413 Appearance before registrar........................................................................................................... 413 Order substituting applicant in application for winding-up (Corporations Act, s 465B)—form

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Part 2 – Proceedings generally

Uniform Civil Procedure Rules 1999 (Qld) – (Extracts) 5.11

10.....................................................................................................................................................413 Notice of winding-up order and appointment of liquidator—form 11.............................................. 413

Part 6 – Provisional liquidators (Corporations Act, part 5.4B) 6.1 6.2

Appointment of provisional liquidator (Corporations Act, s 472)—form 8.......................................413 Notice of appointment of provisional liquidator—form 12............................................................... 414

Part 7 – Liquidators 7.1 7.2 7.3 7.4 7.5 7.6 7.7 7.8 7.9 7.10 7.11

Resignation of liquidator (Corporations Act, s 473(1))....................................................................414 Filling vacancy in office of liquidator (Corporations Act, ss 473(7) and 502)................................. 414 Report to liquidator as to company’s affairs (Corporations Act, s 475).......................................... 414 .........................................................................................................................................................415 Liquidator to file certificate and copy of settled list of contributories (Corporations Act, s 478) Release of liquidator and deregistration of company (Corporations Act, s 480(c) and (d))...........415 Objection to release of liquidator—form 13.................................................................................... 416 Report on accounts of liquidator (Corporations Act, s 481)............................................................416 Application for payment of call (Corporations Act, s 483(3)(b))—form 14......................................416 Distribution of surplus by liquidator with special leave of the court (Corporations Act, s 488(2))—form 15.......................................................................................................................... 417 Powers delegated to liquidator by the court (Corporations Act, s 488)..........................................417 Inquiry into conduct of liquidator (Corporations Act, s 536(1) and (2)).......................................... 417

Part 8 – Special managers (Corporations Act, part 5.4B) 8.1 8.2 8.3

Application for appointment of special manager (Corporations Act, s 484)................................... 417 Security given by special manager (Corporations Act, s 484)........................................................418 Special manager’s receipts and payments (Corporations Act, s 484)............................................418

Part 9 – Remuneration of office-holders 9.1 9.2 9.2A 9.3 9.4 9.4A 9.5

Remuneration of receiver (Corporations Act, s 425(1))—form 16.................................................. 418 Determination by court of remuneration of administrator (Corporations Act, s 449E(1)(c) and (1A)(c))—form 16............................................................................................................................ 419 Review of remuneration of administrator (Corporations Act, s 449E(2))—form 16A..................... 420 Remuneration of provisional liquidator (Corporations Act, s 473(2))—form 16..............................421 Determination by court of liquidator’s remuneration (Corporations Act, s 473(3)(b)(ii))—form 16.....................................................................................................................................................422 Review of remuneration of liquidator (Corporations Act, s 473(5) and (6) and s 504(1))—form 16A.................................................................................................................................................. 423 Remuneration of special manager (Corporations Act, s 484(2))—form 16.................................... 424

Part 10 – Winding up generally 10.1 10.2 10.3

Determination of value of debts or claims (Corporations Act, s 554A(2))...................................... 425 Disclaimer of contract (Corporations Act, s 568(1A))..................................................................... 425 Winding up part 5.7 bodies (Corporations Act, ss 583 and 585) and registered schemes (Corporations Act, s 601ND)........................................................................................................... 425

Part 11 – Examinations and orders (Corporations Act, part 5.9, divisions 1 and 2) 11.1 11.2 11.3 11.4 11.5 11.6 11.7 11.8 11.9 11.10 11.11

Definition for pt 11........................................................................................................................... 425 Application for examination or investigation under Corporations Act, s 411(9)(b), 423 or 536(3).............................................................................................................................................. 425 Application for examination summons (Corporations Act, ss 596A and 596B)—form 17.............. 426 Service of examination summons................................................................................................... 426 Discharge of examination summons............................................................................................... 426 Filing of record of examination (Corporations Act, s 597(13))........................................................426 Authentication of transcript of examination (Corporations Act, s 597(14))..................................... 427 Inspection of record or transcript of examination or investigation under Corporations Act, s 411, 423 or 536............................................................................................................................ 427 Entitlement to record or transcript of examination held in public................................................... 427 Default in relation to examination....................................................................................................427 Service of application for order in relation to breaches etc. by person concerned with corporation (Corporations Act, s 598)............................................................................................. 427

Part 11A – Warrants (Corporations Act, section 486B and part 5.4B, division 3, subdivision B) 11A.1 400

Arrest of person (Corporations Act, s 486B)—form 17A................................................................ 428 Corporations – Court Rules and Related Legislation 2017

Table of provisions Part 12 – Takeovers, acquisitions of shares etc. (Corporations Act, chapters 6 to 6D) and Securities (Corporations Act, chapter 7) 12.1 12.1A 12.2 12.3

Service on ASIC in relation to proceedings under Corporations Act, chapter 6, 6A, 6B, 6C, 6D or 7............................................................................................................................................ 428 Reference to court of questions of law arising in proceeding before takeovers panel (Corporations Act, s 659A).............................................................................................................. 428 Application .........................................................................................................................................................428 for summons for appearance of person (Corporations Act, s 1071D(4))—form 18 Application for orders relating to refusal to register transfer or transmission of securities (Corporations Act, s 1071F)............................................................................................................ 429

Part 13 – The futures industry (chapter 8 of the Law) [Repealed] 13.1 13.2

Appeal against decision of futures association (s 1135 of the Law) [Repealed]............................429 Proceedings against futures organisation to establish claim against fidelity fund (s 1243 of the Law) [Repealed].........................................................................................................................429

Part 14 – Powers of courts (Corporations Act, part 9.5) 14.1

Appeal from act, omission or decision of administrator, receiver or liquidator etc. (Corporations Act, ss 554A and 1321)............................................................................................ 429

Part 15 – Proceedings under the ASIC Act 15.1 15.2 15.3

Reference to court of question of law arising at hearing of ASIC (ASIC Act, s 61).......................429 Court may draw inferences............................................................................................................. 430 Application for inquiry (ASIC Act, ss 70, 201 and 219).................................................................. 430

Part 16 – Powers of registrars 16.1 16.2

Powers of registrars........................................................................................................................ 430 Reference by registrar.....................................................................................................................430

Qld

SCHEDULE 1B – POWERS OF THE COURT THAT MAY BE EXERCISED BY A REGISTRAR...431 431 APPROVED FORMS........................................................................................................................................34

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Uniform Civil Procedure Rules 1999 (Qld) – (Extracts) Table of Amending Legislation Principal legislation

Number

Date of gazettal/ assent/registration

Date of commencement

Uniform Civil Procedure 111 of 1999 Rr 1 and 2: 11 Jun 1999; Rules 1999 remainder: 1 Jul 1999 Amending legislation The extracts of these Rules have been amended up to and including the Uniform Civil Procedure and Another Rule Amendment Rule (No.1) 2014, SL 320 of 2014, date of commencement 19 Dec 2014.

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Chapter 23 – Proceedings under Corporations Act or ASIC Act r 995

CHAPTER 23 – PROCEEDINGS UNDER CORPORATIONS ACT OR ASIC ACT [Ch 23 heading am SL 115 of 2004, s 22, with effect from 2 Jul 2004] [Ch 23 subst SL 232 of 2000, s 3, with effect from 8 Sep 2000]

995 Rules for proceedings under Corporations Act or ASIC Act The rules in schedule 1A apply to a proceeding in the Supreme Court under the Corporations Act or the ASIC Act, and are intended to apply in harmony with similar rules in the Federal Court and other Australian courts.

Qld

[R 995 subst SL 115 of 2004, s 23, with effect from 2 Jul 2004; insrt SL 232 of 2000. s 3, with effect from 8 Sep 2000]

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Uniform Civil Procedure Rules 1999 (Qld) – (Extracts)

SCHEDULE 1A – RULES FOR PROCEEDINGS UNDER CORPORATIONS ACT OR ASIC ACT rule 995 [Sch 1A heading subst SL 115 of 2004, s 2 and Sch 1 item 1, with effect from 2 Jul 2004]

Part 1 – Preliminary 1.1 Short title The rules in this schedule may be cited as the Corporations Proceedings Rules. [R 1.1 am SL 115 of 2004, s 2 and Sch 1 item 2, with effect from 2 Jul 2004]

1.2 Notes in text A note in the text of this schedule is part of the schedule. 1.3 Application of these rules and other rules of the court (1) Unless the court otherwise orders, these rules apply to a proceeding in the court under the Corporations Act, or the ASIC Act, that is commenced on or after the commencement of these rules. (2) The other rules of the court apply, so far as they are relevant and not inconsistent with these rules, to a proceeding in the court under the Corporations Act, or the ASIC Act, that is commenced on or after the commencement of these rules. (3) Unless the court otherwise orders, the rules applying to a proceeding in the court under the Corporations Act, or the ASIC Act, as in force immediately before the commencement of these rules, continue to apply to a proceeding under the Corporations Act, or the ASIC Act, that was commenced before the commencement of these rules. Note: Under the Acts Interpretation Act 1954, section 7, a reference to the Corporations Act includes a reference to the Corporations Regulations. [R 1.3 am SL 115 of 2004, s 2 and Sch 1 items 3 and 4, with effect from 2 Jul 2004]

1.4 Expressions used in the Corporations Act An expression used in these rules and in the Corporations Act has the same meaning in these rules as it has in the Corporations Act. Notes: 1 Expressions used in these rules (including the notes to these rules) that are defined in the Corporations Act include— ACN (short for ‘Australian Company Number’)—see section 9 ARBN (short for ‘Australian Registered Body Number’)—see section 9 ASIC—see section 9 body—see section 9 body corporate—see section 9 books—see section 9 company—see section 9 corporation—see section 57A daily newspaper—see section 9 foreign company—see section 9 officer, in relation to a corporation—see section 9 officer, in relation to an entity—see section 9 official liquidator—see section 9 Part 5.1 body—see section 9 Part 5.7 body—see section 9 register—see section 9 registered liquidator—see section 9 registered office—see section 9 404

Corporations – Court Rules and Related Legislation 2017

Schedule 1A – Rules for proceedings under Corporations Act or ASIC Act Schedule 1A

r 1.9

statutory demand—see section 9. 2 This rule applies ‘except so far as the context or subject matter otherwise indicates or requires’: Acts Interpretation Act 1954, section 32A (Definitions to be read in context) and schedule 1, definition of definition as applied by the Statutory Instruments Act 1992, section 14(1). [R 1.4 am SL 320 of 2014, s 5, with effect from 19 Dec 2014; SL 303 of 2008, s 2 and Sch item 1, with effect from 12 Sep 2008; SL 96 of 2007, s 22, with effect from 1 Jun 2007; SL 115 of 2004, s 2 and Sch 1 items 5–7, with effect from 2 Jul 2004]

1.5 Definitions for these rules In these rules— applicant means a person claiming relief in a proceeding. interlocutory application means an application in a proceeding. originating application means an application starting a proceeding in the court under the Corporations Act or the ASIC Act. [Def subst SL 115 of 2004, s 2 and Sch 1 items 8 and 9, with effect from 2 Jul 2004]

respondent means a person against whom relief is claimed. the court means the Supreme Court of Queensland. the law [Repealed] [Def rep SL 115 of 2004, s 2 and Sch 1 item 8, with effect from 2 Jul 2004] Note: See note 2 to rule 1.4. [R 1.5 am SL 115 of 2004]

In these rules— (a) a reference to a rule is a reference to a rule in this schedule; and (b) a reference to a form followed by a number is a reference to the approved form for these rules having that number. Note: See note 2 to rule 1.4. 1.7 Substantial compliance with forms (1) It is sufficient compliance with these rules in relation to a document that is required to be in accordance with a form if the document is substantially in accordance with the form required or has only such variations as the nature of the case requires. (2) Without limiting subrule (1), the registrar must not reject a document for filing only because a term used to describe a party in the document differs from the term used in these rules. (3) This rule does not limit the Acts Interpretation Act 1954, section 48A. [R 1.7 am SL 320 of 2014, s 18, with effect from 19 Dec 2014]

1.8 Court’s power to give directions The court may give directions in relation to the practice and procedure to be followed in a proceeding if it is satisfied, in the circumstances of the proceeding, that— (a) provisions of the Corporations Act, the ASIC Act, or the rules of the court do not adequately provide for the practice and procedure to be followed in the proceeding; or (b) a difficulty arises, or doubt exists, in relation to the practice and procedure to be followed in the proceeding. [R 1.8 am SL 115 of 2004, s 2 and Sch 1 item 10, with effect from 2 Jul 2004]

1.9 Calculation of time (1) If, for any purpose, these rules— (a) prohibit, permit or require an act or thing to be done within, by, or before the end of; or (b) otherwise prescribe, allow or provide for; a period of time before or after a particular day, act or event, the period is to be calculated without counting that day, or the day of the act or event, as the case may be. ©

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(2) Without limiting subrule (1), in calculating how many days a particular day, act or event is before or after another day, act or event, only the first day, or the day of the first act or event, is to be counted. (3) If the last day of any period prescribed or allowed by these rules for an act or thing to be done falls on a day that is not a business day in the place where the act or thing is to be or may be done, the act or thing may be done on the first business day in the place after that day. (4) In calculating a period of time for the purposes of these rules, the period beginning on 25 December in a year and ending at the end of 1 January in the next year is not to be counted. (5) Subject to subrules (1) to (4), the Acts Interpretation Act 1954, section 38 applies in relation to these rules. 1.10 Extension and abridgement of time Unless the Corporations Act, the ASIC Act, or these rules otherwise provide, the rules of the court that provide for the extension or shortening of a period of time fixed for the doing of any act or thing in relation to a proceeding apply to a proceeding to which these rules apply. [R 1.10 am SL 115 of 2004, s 2 and Sch 1 item 10, with effect from 2 Jul 2004]

Part 2 – Proceedings generally 2.1 Title of documents in a proceeding—form 1 The title of a document filed in a proceeding must be in form 1. 2.2 Originating application and interlocutory application—forms 2 and 3 (1) Unless these rules otherwise provide, a person must make an application required or permitted by the Corporations Act to be made to the court— (a) if the application is not made in a proceeding already commenced in the court—by filing an originating application; and (b) in any other case—by filing an interlocutory application. [Subr (1) am SL 115 of 2004, s 2 and Sch 1 item 11, with effect from 2 Jul 2004]

(2) Unless the court otherwise directs, a person may make an application to the court in relation to a proceeding in respect of which final relief has been granted by filing an interlocutory application in that proceeding. (3) An originating application must— (a) be in form 2; and (b) state— (i) each section of the Corporations Act or the ASIC Act, or each regulation of the Corporations Regulations, under which the proceeding is brought; and (ii) the relief sought. [Subr (3) am SL 115 of 2004, s 2 and Sch 1 item 12, with effect from 2 Jul 2004]

(4) An interlocutory application must— (a) be in form 3; and (b) state— (i) if appropriate, each section of the Corporations Act or the ASIC Act, or each regulation of the Corporations Regulations, or each rule of court under which the interlocutory application is made; and (ii) the relief sought. [Subr (4) am SL 115 of 2004, s 2 and Sch 1 item 12, with effect from 2 Jul 2004] [R 2.2 am SL 115 of 2004]

2.3 Fixing of hearing On receiving an originating application or interlocutory application, the registrar— (a) must fix a time, date and place for hearing and endorse those details on the originating application or interlocutory application; and (b) may seal a sufficient number of copies for service and proof of service. 406

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2.4 Supporting affidavits (1) Unless the court otherwise directs, an originating application, or interlocutory application, must be supported by an affidavit stating the facts in support of the relief claimed. (2) An affidavit in support of an originating application must exhibit a record of a search of the records maintained by ASIC, in relation to the company that is the subject of the application carried out no earlier than 7 days before the application is filed. [Subr (2) am SL 115 of 2004, s 2 and Sch 1 item 13, with effect from 2 Jul 2004] Note: In an application for winding-up in insolvency on the ground that the company has failed to comply with a statutory demand, the applicant should consider completing form 2, part C. [R 2.4 am SL 115 of 2004, s 2 and Sch 1 item 14, with effect from 2 Jul 2004]

2.4A Application for order setting aside statutory demand (Corporations Act, s 459G) (1) This rule applies, and rule 2.4(2) does not apply, to an originating application by a company under the Corporations Act, section 459G for an order setting aside a statutory demand served on the company. (2) The applicant may file with the originating application seeking the order a copy of the statutory demand and a copy of any affidavit that accompanied the statutory demand. (3) The applicant must— (a) no earlier than 7 days before the originating application is filed, and not later than the day before the hearing of the application, carry out a search of the records maintained by ASIC in relation to the applicant; and (b) either— (i) annex the record of the search to the affidavit in support of the originating application; or (ii) file the record of the search before, or tender it on, the hearing of the application. Qld

[R 2.4A insrt SL 303 of 2008, s 2 and Sch item 2, with effect from 12 Sep 2008]

2.5 Affidavits made by creditors Subject to rule 5.4, an affidavit that is to be made by a creditor may be made— (a) if the creditor is a corporation—by a director, secretary, or other principal officer of the corporation, or by a person employed by the corporation who is authorised to make the affidavit on its behalf; or (b) if the creditor is a company to which a liquidator, provisional liquidator, receiver, administrator or controller has been appointed—by that person; or (c) in any other case—by the creditor or a person authorised by the creditor to make the affidavit on behalf of the creditor. 2.6 Form of affidavits An affidavit must be in a form that complies with— (a) the rules of the court; or (b) the rules of the Supreme Court of the State (if any) or Territory (if any) where the affidavit was sworn or affirmed; or (c) the rules of the Federal Court of Australia. 2.7 Service of originating application or interlocutory application and supporting affidavit (1) As soon as practicable after filing an originating application and, in any case, at least 5 days before the date fixed for hearing, the applicant must serve a copy of the application and any supporting affidavit on— (a) each respondent (if any) to the proceeding; and (b) if the corporation to which the proceeding relates is not a party to the proceeding—the corporation. (2) As soon as practicable after filing an interlocutory application and, in any case, at least 3 days before the date fixed for hearing, the applicant must serve a copy of the interlocutory application and any supporting affidavit on— (a) each respondent (if any) to the interlocutory application; and (b) if the corporation to which the interlocutory application relates is not a party to the interlocutory application—the corporation. ©

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2.8 Notice of certain applications to be given to ASIC (1) This rule has effect in addition to the requirements of the Corporations Act that, in relation to a proceeding, particular documents are to be served on ASIC or notice of particular matters is to be given to ASIC. [Subr (1) am SL 115 of 2004, s 2 and Sch 1 items 16 and 17, with effect from 2 Jul 2004]

(2) This rule does not apply to a person making an application if the person is ASIC or a person authorised by ASIC. [Subr (2) am SL 115 of 2004, s 2 and Sch 1 item 16, with effect from 2 Jul 2004]

(3) Unless the court otherwise orders, if a person makes an application under a provision of the Corporations Act mentioned in column 1 of the following table, the person must serve on ASIC, a reasonable time before the hearing of the application, a copy of the application and supporting affidavit in respect of the application. Column 1 Provision section 480 section section section section section

482(1) 509(6) 536(1) 601AH(2) 601CC(8)

section 601CL(9) chapter 6, 6A, 6B, 6C, 6D or 7 section 1317S(2), (4) and (5)

Column 2 Description of application application for the release of a liquidator of a company and the deregistration of the company application for the stay of a compulsory winding-up application for the deregistration of a company application for an inquiry into the conduct of a liquidator application to reinstate the registration of a company application to restore the name of an Australian body to the register application to restore the name of a foreign company to the register any application under these chapters application for relief from liability for contravention of a civil penalty provision

[Subr (3) am SL 303 of 2008, s 2 and Sch item 3, with effect from 12 Sep 2008; SL 115 of 2004, s 2 and Sch 1 items 16–22, with effect from 2 Jul 2004] [R 2.8 am SL 303 of 2008; SL 115 of 2004, s 2 and Sch 1 item 15, with effect from 2 Jul 2004]

2.9 Notice of appearance (Corporations Act, s 465C)—form 4 (1) A person who intends to appear before the court at the hearing of an application must, before appearing— (a) file— (i) a notice of appearance in form 4; and (ii) if appropriate—an affidavit stating any facts on which the person intends to rely; and (b) serve on the applicant a copy of the notice of appearance and any affidavit not later than— (i) if the person is named in an originating application—3 days before the date fixed for hearing; or (ii) if the person is named in an interlocutory application—1 day before the date fixed for hearing. (2) If the person intends to appear before the court to oppose an application for winding-up, the person may include in the notice of appearance the notice of the grounds on which the person opposes the application required by the Corporations Act, section 465C. [Subr (2) am SL 115 of 2004, s 2 and Sch 1 item 24, with effect from 2 Jul 2004]

(3) The period prescribed for filing and serving the notice and affidavit required by the Corporations Act, section 465C is the period mentioned in subrule (1)(b)(i). [Subr (3) am SL 150 of 2012, s 54, with effect from 1 Sep 2012; SL 115 of 2004, s 2 and Sch 1 item 25, with effect from 2 Jul 2004] 408

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Under the Corporations Act, section 465C, a person may not, without the leave of the court, oppose an application for winding-up unless, within the period prescribed by the rules (see subrule (3) of this rule), the person has filed, and served on the applicant, notice of the grounds on which the person opposes the application and an affidavit verifying the matters stated in the notice. [R 2.9 am SL 150 of 2012; SL 115 of 2004, s 2 and Sch 1 item 23, with effect from 2 Jul 2004]

2.10 Intervention in proceeding by ASIC (Corporations Act, s 1330)—form 5 (1) If ASIC intends to intervene in a proceeding, ASIC must file a notice of intervention in form 5. (2) Not later than 3 days before the date fixed for the hearing at which ASIC intends to appear in the proceeding, ASIC must serve a copy of the notice, and any affidavit on which it intends to rely, on the applicant and on any other party to the proceeding. [R 2.10 am SL 115 of 2004, s 2 and Sch 1 item 26 and 27, with effect from 2 Jul 2004]

2.11 Publication of notices If a rule requires a notice in relation to a body to be published in accordance with this rule, the notice must be published once in a daily newspaper circulating generally in the State or Territory where the body has its principal, or last known, place of business. Note: Under the Corporations Act, certain notices may also be required to be published in the Commonwealth Government Gazette. Nothing in this rule is intended to affect the operation of any provision of the law that requires publication of a notice in that gazette. [R 2.11 am SL 115 of 2004, s 2 and Sch 1 item 28, with effect from 2 Jul 2004]

2.12 Proof of publication (2) Unless these rules otherwise provide, or the court otherwise orders, the person responsible for the publication of the matter, or the person’s legal practitioner, must file— (a) an affidavit made by the person, or the person’s legal practitioner, that states the date of publication and to which is exhibited a copy of the published matter; or (b) a memorandum signed by the person, or the person’s legal practitioner, that states the date of publication and refers to and annexes a copy of the published matter. (3) The affidavit or memorandum is prima facie evidence that the publication took place on the date and otherwise as stated in the affidavit or memorandum. 2.13 Leave to creditor, contributory or officer to be heard (1) The court may grant leave to any person who is, or who claims to be— (a) a creditor, contributory or officer of a corporation; or (b) an officer of a creditor, or contributory, of a corporation; to be heard in a proceeding without becoming a party to the proceeding. (2) If the court considers that the attendance of a person to whom leave has been granted under subrule (1) has resulted in additional costs for any party, or the corporation, that should be borne by the person to whom leave was granted, the court may— (a) direct that the person pay the costs; and (b) order that the person not be heard further in the proceeding until the costs are paid or secured to the court’s satisfaction. (3) The court may order that a person who is, or who claims to be, a creditor, contributory or officer of a corporation be added as a respondent to the proceeding. (4) The court may grant leave to a person under subrule (1), or order that a person be added as a respondent to a proceeding under subrule (3)— (a) on application by the person or a party to the proceeding; or (b) on the court’s own initiative. (5) The court may— (a) appoint a creditor or contributory to represent all or any class of the creditors or contributories on any question, or in relation to any proceeding, before the court, at the expense of the corporation; and ©

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remove any person so appointed.

2.14 Inquiry in relation to corporation’s debts etc. The court may direct an inquiry in relation to the debts, claims or liabilities, or a class of debts, claims or liabilities, of or affecting a corporation to which a proceeding relates. 2.15 Meetings ordered by the court Subject to the Corporations Act, these rules and any direction of the court to the contrary, regulations 5.6.11 to 5.6.36A of the Corporations Regulations apply to meetings ordered by the court. [R 2.15 am SL 303 of 2008, s 2 and Sch item 4, with effect from 12 Sep 2008; SL 115 of 2004, s 2 and Sch 1 item 29, with effect from 2 Jul 2004]

Part 3 – Compromises and arrangements in relation to part 5.1 bodies 3.1 Application of pt 3 This part applies if an application is made to the court for approval of a compromise or arrangement between a part 5.1 body and its creditors or members, or any class of its creditors or members. 3.2 Nomination of chairperson for meeting Before the hearing of an application under the Corporations Act, section 411(1), (1A) or (1B), the applicant must file an affidavit stating— (a) the names of the persons who have been nominated to be the chairperson and alternate chairperson of the meeting; and (b) that each person nominated— (i) is willing to act as chairperson; and (ii) has had no previous relationship or dealing with the body, or any other person interested in the proposed compromise or arrangement, except as disclosed in the affidavit; and (iii) has no interest or obligation that may give rise to a conflict of interest or duty if the person were to act as chairperson of the meeting, except as disclosed in the affidavit; and (c) the name of the person (if any) proposed to be appointed to administer the proposed compromise or arrangement; and (d) that the person does not fall within the Corporations Act, section 411(7)(a) to (f), except as disclosed in the affidavit. [R 3.2 am SL 115 of 2004, s 2 and Sch 1 items 30 and 31, with effect from 2 Jul 2004]

3.3 Order for meetings to identify proposed scheme (1) An order under the Corporations Act, section 411(1) or (1A) ordering a meeting or meetings in relation to a proposed compromise or arrangement must set out in a schedule, or otherwise identify, a copy of the proposed compromise or arrangement. [Subr (1) am SL 115 of 2004, s 2 and Sch 1 item 32, with effect from 2 Jul 2004]

(2) Unless the court otherwise orders, a meeting of members ordered under the Corporations Act, section 411 must be convened, held or conducted in accordance with— (a) the provisions of the Corporations Act, part 2G.2 that apply to the members of the company; and (b) the provisions of the plaintiff’s constitution that apply in relation to meetings of members and are not inconsistent with the Corporations Act, part 2G.2. [Subr (2) insrt SL 194 of 2006, s 7, with effect from 28 Jul 2006]

(3) Unless the court otherwise orders, a meeting of a class of holders of convertible securities ordered under the Corporations Act, section 411 must be convened, held and conducted— (a) in accordance with, and subject to, the applicable provisions of the instrument under which the securities were issued; and (b) as if— (i) the holders were a separate class of members; and 410

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the meeting was a meeting of members convened, held and conducted under subrule (2).

[Subr (3) insrt SL 194 of 2006, s 7, with effect from 28 Jul 2006] [R 3.3 am SL 194 of 2006; SL 115 of 2004]

3.4 Notice of hearing (Corporations Act, ss 411(4) and 413(1))—form 6 (1) This rule applies to— (a) an application, under the Corporations Act, section 411(4), for an order approving a proposed compromise or arrangement in relation to a part 5.1 body; and (b) an application, under the Corporations Act, section 413(1), for an order in relation to the reconstruction of a part 5.1 body, or part 5.1 bodies, or the amalgamation of 2 or more part 5.1 bodies. [Subr (1) am SL 115 of 2004, s 2 and Sch 1 items 34 and 35, with effect from 2 Jul 2004; SL 223 of 2002, s 36, with effect from 1 Sep 2002]

(2) Unless the court otherwise orders, the applicant must publish a notice of the hearing of the application. (3) The notice must be— (a) in form 6; and (b) published in accordance with rule 2.11 at least 5 days before the date fixed for the hearing of the application. [R 3.4 am SL 115 of 2004, s 2 and Sch 1 item 33, with effect from 2 Jul 2004; SL 223 of 2002]

If the court makes an order under the Corporations Act, section 411(1), (1A) or (4), or 413(1), the applicant must, as soon as practicable after the order is made— (a) have the order sealed; and (b) lodge a copy of the order with ASIC; and (c) serve a copy of the order on any person appointed to administer the compromise or arrangement. [R 3.5 am SL 115 of 2004, s 2 and Sch 1 items 36–38, with effect from 2 Jul 2004]

Part 4 – Receivers and other controllers of corporation property (Corporations Act, part 5.2) [Pt 4 heading am SL 115 of 2004, s 2 and Sch 1 item 39, with effect from 2 Jul 2004]

4.1 Inquiry into conduct of controller (Corporations Act, s 423) A complaint to the court under Corporations Act, section 423(1)(b) about an act or omission of a receiver, or a controller appointed by the court, must be made by an originating application seeking an inquiry in relation to the complaint. [R 4.1 am SL 115 of 2004, s 2 and Sch 1 items 40 and 41, with effect from 2 Jul 2004]

Part 5 – Winding-up proceedings (including oppression proceedings where winding-up is sought) 5.1 Application of pt 5 This part applies to the following applications for the winding-up of a company— (a) an application under the Corporations Act, part 2F.1 in a case of oppression or injustice; (b) an application under the Corporations Act, part 5.4 or 5.4A. [R 5.1 am SL 115 of 2004, s 2 and Sch 1 items 42 and 43, with effect from 2 Jul 2004]

5.2 Affidavit accompanying statutory demand (Corporations Act, s 459E(3))—form 7 For the purposes of the Corporations Act, section 459E(3), the affidavit accompanying a statutory demand relating to a debt, or debts, owed by a company must— (a) be in form 7 and state the matters mentioned in that form; and (b) be made by the creditor or by a person with the authority of the creditor or creditors; and ©

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3.5 Copy of order approving compromise or arrangement to be lodged with ASIC

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(c) not state a proceeding number, or refer to a court proceeding, in any heading or title to the affidavit. [R 5.2 am SL 115 of 2004, s 2 and Sch 1 items 44 and 45, with effect from 2 Jul 2004]

5.3 Application for leave to apply for winding-up in insolvency (Corporations Act, s 459P(2)) An application for leave to apply to the court for an order that a company be wound up in insolvency may be made at the same time as the application for an order that the company be wound up in insolvency is made. [R 5.3 am SL 115 of 2004, s 2 and Sch 1 item 46, with effect from 2 Jul 2004]

5.4 Affidavit in support of application for winding-up (Corporations Act, ss 459P, 462 and 464) (1) The affidavit in support of an originating application seeking an order that a company be wound up must be made by the applicant or by a person with the authority of the applicant or applicants. (2) If the application is made in reliance on a failure by the company to comply with a statutory demand, the affidavit must— (a) verify service of the demand on the company; and (b) verify the failure of the company to comply with the demand; and (c) state whether and, if so, to what extent the debt, or each of the debts, to which the demand relates is still due and payable by the company at the date when the affidavit is made. Note: Form 7A is an example of the affidavit in support of an application made in reliance on a failure to comply with a statutory demand. [Subr (2) am SL 115 of 2004, s 2 and Sch 1 item 48, with effect from 2 Jul 2004]

(3) If the application is made in reliance on the ground mentioned in the Corporations Act, section 461(1)(a), the affidavit must— (a) state whether the company is able to pay all its debts as and when they become due and payable; and (b) refer to the company’s most recent balance sheet and profit and loss statement as an exhibit to the affidavit, or explain their absence. [Subr (3) am SL 115 of 2004, s 2 and Sch 1 item 49, with effect from 2 Jul 2004]

(4) The affidavit must be made within 7 days before the originating application is filed. [R 5.4 am SL 115 of 2004, s 2 and Sch 1 item 47, with effect from 2 Jul 2004]

5.5 Consent of liquidator (Corporations Act, s 532(9))—form 8 (1) In this rule— liquidator does not include a provisional liquidator. (2) For the purposes of the Corporations Act, section 532(9), the consent of an official liquidator to act as liquidator of a company must be in form 8. [Subr (2) am SL 115 of 2004, s 2 and Sch 1 item 51, with effect from 2 Jul 2004]

(3) In an application for an order that a company be wound up, the applicant must— (a) before the hearing of the application, file the consent mentioned in subrule (2) of an official liquidator who would be entitled to be appointed as liquidator of the company; and (b) serve a copy of the consent on the company at least 1 day before the hearing. [R 5.5 am SL 115 of 2004, s 2 and Sch 1 item 50, with effect from 2 Jul 2004]

5.6 Notice of application for winding-up—form 9 (1) Unless the court otherwise orders, the applicant must publish a notice of the application for an order that a company be wound up. (2) The notice must be— (a) in form 9; and (b) published in accordance with rule 2.11— (i) at least 3 days after the originating application is served on the company; and (ii) at least 7 days before the date fixed for hearing of the application. 412

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5.7 Applicant to make copies of documents available A copy of any document filed in a proceeding to which this part applies must be available at the applicant’s address for service for inspection by a creditor, contributory or officer of the company, or an officer of a creditor or contributory of the company. 5.8 Discontinuance of application for winding-up An application for an order that a company be wound up may not be discontinued except with the leave of the court. 5.9 Appearance before registrar After filing an originating application seeking an order that a company be wound up, the applicant must, if required— (a) appear before the registrar on a date to be appointed by the registrar; and (b) satisfy the registrar that the applicant has complied with the Corporations Act and these rules in relation to applications for a winding-up order. [R 5.9 am SL 115 of 2004, s 2 and Sch 1 item 52, with effect from 2 Jul 2004]

5.10 Order substituting applicant in application for winding-up (Corporations Act, s 465B)—form 10 (1) If the court makes an order under the Corporations Act, section 465B, the court may also order that the substituted applicant or applicants publish a notice stating that the substituted applicant or applicants intend to apply for an order that the company be wound up. [Subr (1) am SL 115 of 2004, s 2 and Sch 1 item 54, with effect from 2 Jul 2004]

Qld

(2) The notice must be— (a) in form 10; and (b) published in accordance with rule 2.11 or as otherwise directed by the court. [R 5.10 am SL 115 of 2004, s 2 and Sch 1 item 53, with effect from 2 Jul 2004]

5.11 Notice of winding-up order and appointment of liquidator—form 11 (1) This rule applies if the court orders that a company be wound up and an official liquidator be appointed as liquidator of the company. (2) Not later than the day after the order is made, the applicant must inform the liquidator of the appointment. (3) As soon as practicable after being informed of the appointment, the liquidator must publish a notice of the winding-up order and the liquidator’s appointment. (4) The notice must be— (a) in form 11; and (b) published in accordance with rule 2.11. (5) In this rule— liquidator does not include a provisional liquidator.

Part 6 – Provisional liquidators (Corporations Act, part 5.4B) [Pt 6 heading am SL 115 of 2004, s 2 and Sch 1 item 55, with effect from 2 Jul 2004]

6.1 Appointment of provisional liquidator (Corporations Act, s 472)—form 8 (1) An application by a company, a creditor or contributory of the company, or ASIC, under the Corporations Act, section 472(2), for an official liquidator to be appointed as a provisional liquidator of the company must be accompanied by the written consent of the official liquidator. [Subr (1) am SL 115 of 2004, s 2 and Sch 1 item 57, with effect from 2 Jul 2004]

(2) The consent must be in form 8. (3) An order appointing a provisional liquidator of a company must include a short description of the property of the company that the provisional liquidator may take into the provisional liquidator’s custody. ©

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(4) The court may require the applicant to give an undertaking as to damages. [R 6.1 am SL 115 of 2004, s 2 and Sch 1 item 56, with effect from 2 Jul 2004]

6.2 Notice of appointment of provisional liquidator—form 12 (1) This rule applies if the court orders that an official liquidator be appointed as provisional liquidator of a company. (2) Not later than the day after the order is made, the applicant must— (a) except if the applicant is ASIC—lodge an office copy of the order with ASIC; and (b) serve an office copy of the order on the company (except if the applicant is the company) and on any other person as directed by the court; and (c) give to the provisional liquidator an office copy of the order and a written statement that the order has been served as required by paragraph (b). [Subr (2) am SL 115 of 2004, s 2 and Sch 1 item 58, with effect from 2 Jul 2004]

(3) As soon as practicable after the order is made, the provisional liquidator must publish a notice of the provisional liquidator’s appointment. (4) The notice must be— (a) in form 12; and (b) published in accordance with rule 2.11. [R 6.2 am SL 115 of 2004]

Part 7 – Liquidators 7.1 Resignation of liquidator (Corporations Act, s 473(1)) (1) A liquidator appointed by the court who wishes to resign office must file with the registrar, and lodge with ASIC, a memorandum of resignation. [Subr (1) am SL 115 of 2004, s 2 and Sch 1 item 60, with effect from 2 Jul 2004]

(2) The resignation takes effect on the filing and lodging of the memorandum. [R 7.1 am SL 115 of 2004, s 2 and Sch 1 item 59, with effect from 2 Jul 2004]

7.2 Filling vacancy in office of liquidator (Corporations Act, ss 473(7) and 502) (1) If, for any reason, there is no liquidator acting in a winding-up, the court may— (a) in the case of a winding-up by the court—appoint another official liquidator whose written consent in form 8 has been filed; and (b) in the case of a voluntary winding-up—appoint another registered liquidator whose written consent in form 8 has been filed. (2) The court may make the appointment— (a) in any case—on application by ASIC, a creditor or a contributory; or (b) in the case of a winding-up by the court—on its own initiative. [Subr (2) am SL 115 of 2004, s 2 and Sch 1 item 62, with effect from 2 Jul 2004] [R 7.2 am SL 115 of 2004, s 2 and Sch 1 item 61, with effect from 2 Jul 2004]

7.3 Report to liquidator as to company’s affairs (Corporations Act, s 475) (1) If a person is required under the Corporations Act, section 475 to submit and verify a report as to the affairs of a company, the liquidator must give to the person the appropriate forms and instructions for the preparation of the report. [Subr (1) am SL 115 of 2004, s 2 and Sch 1 item 64, with effect from 2 Jul 2004]

(2) Except by order of the court, no person is to be allowed out of the property of a company any costs or expenses incurred in relation to the preparation of the report that have not been— (a) sanctioned by the liquidator before being incurred; or (b) taxed or assessed. (3) The liquidator must report to the court any default in complying with the requirements of the Corporations Act, section 475. [Subr (3) am SL 115 of 2004, s 2 and Sch 1 item 65, with effect from 2 Jul 2004] 414

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(4) In this rule— liquidator includes a provisional liquidator. [R 7.3 am SL 115 of 2004, s 2 and Sch 1 item 63, with effect from 2 Jul 2004]

7.4 Liquidator to file certificate and copy of settled list of contributories (Corporations Act, s 478) If, in a winding-up by the court, a liquidator has settled and certified a list, or supplementary list, of contributories, the liquidator must, within 14 days after doing so, file the certificate and a copy of the list. [R 7.4 am SL 115 of 2004, s 2 and Sch 1 item 64, with effect from 2 Jul 2004]

7.5 Release of liquidator and deregistration of company (Corporations Act, s 480(c) and (d)) (1) This rule applies to an application by the liquidator of a company— (a) for an order that the liquidator be released; or (b) for an order that the liquidator be released and that ASIC deregister the company. [Subr (1) am SL 115 of 2004, s 2 and Sch 1 item 68, with effect from 2 Jul 2004]

(2) The interlocutory application seeking the order must include— (a) a notice stating that any objection to the release of the liquidator must be made by filing and serving a notice of objection, in form 13, within 21 days after the date of service of the interlocutory application; and (b) a statement setting out the terms of the Corporations Act, section 481(3). Note: The Corporations Act, section 481(3) provides that an order of the court releasing a liquidator discharges the liquidator from all liability in respect of any act done or default made by the liquidator in the administration of the affairs of the company, or otherwise in relation to the liquidator’s conduct as liquidator, but any such order may be revoked on proof that it was obtained by fraud or by suppression or by concealment of any material fact.

(3) The supporting affidavit must include details of the following matters— (a) whether the whole of the company’s property has been realised or whether so much of the company’s property has been realised as, in the liquidator’s opinion, can be realised without needlessly protracting the winding-up; (b) any calls made on contributories in the course of the winding-up; (c) any dividends paid in the course of the winding-up; (d) whether the committee of inspection (if any) has passed a resolution approving the liquidator’s release; (e) whether ASIC has appointed an auditor to report on an account or statement of the position in the winding-up under the Corporations Act, section 539(2); (f) whether the court has ordered a report on the accounts of the liquidator to be prepared; (g) whether any objection to the release of the liquidator has been received by the liquidator from— (i) an auditor appointed by ASIC or by the court; or (ii) any creditor, contributory or other interested person; (h) whether any report has been submitted by the liquidator to ASIC under the Corporations Act, section 533; (i) whether the liquidator considers it necessary to report on the affairs of the company or any of its officers; (j) any property disclaimed in the course of the winding-up; (k) any remuneration paid or payable to the liquidator and how such remuneration was determined; (l) any costs, charges or expenses payable by the liquidator if the court grants the liquidator’s release; (m) if the application is made under the Corporations Act, section 480(c)—the facts and circumstances by reason of which it is submitted that the company should not be deregistered. [Subr (3) am SL 115 of 2004, s 2 and Sch 1 items 68 and 71–73, with effect from 2 Jul 2004]

(4) The liquidator must include in the supporting affidavit the statements set out in paragraphs (a) and (b) of this subrule, including, if appropriate, the words in brackets— ©

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(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 that is likely to give rise to any liability to the subject corporation or any creditor or contributory [except as disclosed in this affidavit].’; and (b) ‘I am not aware of any claim made by any person that there has been any such act or default [except as disclosed in this affidavit].’. [Subr (4) am SL 162 of 2009, s 2 and Sch item 19, with effect from 31 Jul 2009]

(5) The liquidator must exhibit to the supporting affidavit— (a) a statement of the financial position of the company at the date when the interlocutory application seeking release was filed; and (b) a summary of the liquidator’s receipts and payments in winding up the company. (6) Unless the court otherwise orders, the liquidator must serve by prepaid post, on each creditor who has proved a debt in the course of the winding-up, and on each contributory, a copy of the interlocutory application accompanied by— (a) a copy of the summary of the liquidator’s receipts and payments in winding up the company; and (b) a copy of the statement of the financial position of the company at the date when the interlocutory application seeking release was filed. [R 7.5 am SL 162 of 2009; SL 115 of 2004, s 2 and Sch 1 item 67, with effect from 2 Jul 2004]

7.6 Objection to release of liquidator—form 13 (1) A creditor or contributory of a company who wishes to object to the release of the liquidator of the company must, within 21 days after the date of service of the interlocutory application seeking release— (a) file— (i) a notice of objection in form 13; and (ii) if appropriate, an affidavit stating any facts relied on; and (b) serve a copy of the notice and the affidavit (if any) on the liquidator. (2) If the liquidator is served with a notice of objection by a creditor or contributory, the liquidator must, within 3 days after being served, serve on the creditor or contributory a copy of the affidavit supporting the interlocutory application. 7.7 Report on accounts of liquidator (Corporations Act, s 481) (1) If the court orders that a report on the accounts of a liquidator be prepared under the Corporations Act, section 481(1), the liquidator must give to the auditor appointed to prepare the report all information, books and vouchers required to prepare the report. [Subr (1) am SL 115 of 2004, s 2 and Sch 1 item 75, with effect from 2 Jul 2004]

(2) On completing the report, the auditor must— (a) file a copy of the report in a sealed envelope that is marked with the title and number of the proceeding and the words ‘Auditor’s report under the Corporations Act, section 481(1)’; and (b) serve a copy of the report on the liquidator; and (c) lodge a copy of the report with ASIC. [Subr (2) am SL 115 of 2004, s 2 and Sch 1 items 76 and 77, with effect from 2 Jul 2004]

(3) Except with the leave of the court, a report is not available for inspection by any person except the liquidator or ASIC. [Subr (3) am SL 115 of 2004, s 2 and Sch 1 item 77, with effect from 2 Jul 2004] [R 7.7 am SL 115 of 2004, s 2 and Sch 1 item 74, with effect from 2 Jul 2004]

7.8 Application for payment of call (Corporations Act, s 483(3)(b))—form 14 The affidavit in support of an application by the liquidator of a company, under the Corporations Act, section 483(3)(b), for an order for the payment of a call must be in form 14. [R 7.8 am SL 115 of 2004, s 2 and Sch 1 items 78 and 79, with effect from 2 Jul 2004]

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7.9 Distribution of surplus by liquidator with special leave of the court (Corporations Act, s 488(2))—form 15 (1) The affidavit in support of an application for special leave to distribute a surplus must state how the liquidator intends to distribute the surplus including the name and address of each person to whom the liquidator intends to distribute any part of the surplus. (2) At least 14 days before the date fixed for hearing of the application, the liquidator must publish a notice of the application. (3) The notice must be— (a) in form 15; and (b) published in accordance with rule 2.11. [R 7.9 am SL 115 of 2004, s 2 and Sch 1 item 80, with effect from 2 Jul 2004]

7.10 Powers delegated to liquidator by the court (Corporations Act, s 488) Subject to the Corporations Act, the Corporations Regulations, these rules, and any order of the court, the powers and duties conferred or imposed on the court by the Corporations Act, part 5.4B in respect of the matters mentioned in the Corporations Act, section 488(1) may be exercised or performed by a liquidator appointed by the court as an officer of the court and subject to the control of the court. [R 7.10 am SL 115 of 2004, s 2 and Sch 1 items 81–84, with effect from 2 Jul 2004]

7.11 Inquiry into conduct of liquidator (Corporations Act, s 536(1) and (2)) (1) A complaint to the court under the Corporations Act, section 536(1)(b) must be made— (a) in the case of a winding-up by the court—by an interlocutory application seeking an inquiry; and (b) in the case of a voluntary winding-up—by an originating application seeking an inquiry. (2) A report to the court by ASIC under the Corporations Act, section 536(2) must be made— (a) in the case of a winding-up by the court, by filing— (i) an interlocutory application seeking orders under the subsection; and (ii) a written report in a sealed envelope that is marked with the title and number of the proceeding; and (b) in the case of a voluntary winding-up, by filing— (i) an originating application seeking orders under the subsection, and (ii) a written report in a sealed envelope that is marked with the title of the proceeding and provision for its number. [Subr (2) am SL 115 of 2004, s 2 and Sch 1 item 88, with effect from 2 Jul 2004]

(3) The contents of a report filed under subrule (2) need not, at the time of filing, be verified by an affidavit. (4) Except with the leave of the court, a report made under the Corporations Act, section 536(2) is not available for inspection by any person except the liquidator or ASIC. [Subr (4) am SL 115 of 2004, s 2 and Sch 1 items 87 and 88, with effect from 2 Jul 2004]

(5) In this rule— liquidator includes a provisional liquidator. [R 7.11 am SL 115 of 2004, s 2 and Sch 1 item 85, with effect from 2 Jul 2004]

Part 8 – Special managers (Corporations Act, part 5.4B) [Pt 8 heading am SL 115 of 2004, s 2 and Sch 1 item 89, with effect from 2 Jul 2004]

8.1 Application for appointment of special manager (Corporations Act, s 484) (1) An application by a liquidator for the appointment of a special manager in relation to a company must state the powers that, in the liquidator’s opinion, should be entrusted by the court to the special manager. (2) The supporting affidavit must state— (a) the circumstances making it proper that a special manager be appointed; and ©

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(b) details of the remuneration proposed to be paid to the special manager; and (c) whether any committee of inspection in the winding-up, or a meeting of creditors, has approved the appointment of a special manager. [R 8.1 am SL 115 of 2004, s 2 and Sch 1 item 90, with effect from 2 Jul 2004]

8.2 Security given by special manager (Corporations Act, s 484) (1) The court may, from time to time, direct that the amount of security given by a special manager be varied. (2) Unless the court otherwise directs, the costs of furnishing the security given by a special manager in respect of a particular winding-up— (a) are the personal expenses of the special manager; and (b) must not be charged against the property of the company as an expense incurred in the winding-up. [R 8.2 am SL 115 of 2004, s 2 and Sch 1 item 90, with effect from 2 Jul 2004]

8.3 Special manager’s receipts and payments (Corporations Act, s 484) (1) A special manager must give to the liquidator— (a) an account of the special manager’s receipts and payments; and (b) a statutory declaration verifying the account. (2) If the liquidator approves the account, the liquidator must include the total amounts of the special manager’s receipts and payments in the liquidator’s accounts. [R 8.3 am SL 115 of 2004, s 2 and Sch 1 item 90, with effect from 2 Jul 2004]

Part 9 – Remuneration of office-holders 9.1 Remuneration of receiver (Corporations Act, s 425(1))—form 16 (1) This rule applies to an application by a receiver of property of a corporation for an order under the Corporations Act, section 425(1) fixing the receiver’s remuneration. Note: 1 Under the Corporations Act, section 425(2)(b), the court may exercise its power to make an order fixing the remuneration of a receiver appointed under an instrument even if the receiver has died, or has ceased to act, before the making of the order or the application for the order. 2 The amendment to the Corporations Act, section 425 made by the Corporations Amendment (Insolvency) Act 2007 applies in relation to a receiver appointed on or after 31 December 2007—see the Corporations Act, section 1480(5). [Subr (1) am SL 303 of 2008, s 2 and Sch item 5, with effect from 12 Sep 2008; SL 115 of 2004, s 2 and Sch 1 items 92 and 93, with effect from 2 Jul 2004]

(2) At least 21 days before filing an originating application, or interlocutory application seeking the order, the receiver must serve a notice in form 16 of the receiver’s intention to apply for the order, and a copy of any affidavit on which the receiver intends to rely, on the following persons— (a) the person who appointed the receiver; (b) any creditor holding security over all or any of the same property of the corporation (except if the creditor is the person who appointed the receiver); (c) any administrator, liquidator or provisional liquidator of the corporation; (d) any administrator of a deed of company arrangement executed by the corporation; (e) if there is no person of the kind mentioned in paragraph (c) or (d)— (i) each of the 5 largest (measured by amount of debt) unsecured creditors of the corporation; and (ii) each member of the corporation whose shareholding represents at least 10% of the issued capital of the corporation. (3) Within 21 days after the last service of the documents mentioned in subrule (2), any creditor or contributory, or any person mentioned in subrule (2)(c), (d) or (e), may give to the receiver a notice of objection to the remuneration claimed, stating the grounds of objection. (4) If the receiver does not receive a notice of objection within the period mentioned in subrule (3)— 418

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(a) the receiver may file an affidavit, made after the end of that period, in support of the originating application, or interlocutory application, seeking the order stating— (i) the date, or dates, when the notice and affidavit required to be served under subrule (2) were served; and (ii) that the receiver has not received any notice of objection to the remuneration claimed within the period mentioned in subrule (3); and (b) the receiver may endorse the originating application, or interlocutory application, with a request that the application be dealt with in the absence of the public and without any attendance by, or on behalf of, the receiver; and (c) the application may be so dealt with. (5) If the receiver receives a notice of objection within the period mentioned in subrule (3), the receiver must serve a copy of the originating application, or interlocutory application, seeking the order on each creditor or contributory, or other person, who has given a notice of objection. (6) An must— (a) (b) (c) (d) (e) (f)

affidavit in support of the originating application, or interlocutory application, seeking the order include evidence of the matters mentioned in the Corporations Act, section 425(8); and state the nature of the work performed or likely to be performed by the receiver; and state the amount of remuneration claimed; and include a summary of the receipts taken and payments made by the receiver; and state particulars of any objection of which the receiver has received notice; and if the receivership is continuing—give details of any matters delaying the completion of the receivership.

[R 9.1 am SL 303 of 2008; SL 115 of 2004, s 2 and Sch 1 item 91, with effect from 2 Jul 2004]

9.2 Determination by court of remuneration of administrator (Corporations Act, s 449E(1)(c) and (1A)(c))—form 16 (1) This rule applies to an application by the administrator of a company under administration, or of a deed of company arrangement, for an order under the Corporations Act, section 449E(1)(c) or (1A)(c) determining the administrator’s remuneration. (2) At least 21 days before filing an originating application, or interlocutory application, seeking the order, the administrator must serve a notice in form 16 of the administrator’s intention to apply for the order, and a copy of any affidavit on which the administrator intends to rely, on the following persons— (a) each creditor who was present, in person or by proxy, at any meeting of creditors; (b) each member of any committee of creditors or committee of inspection; (c) if there is no committee of creditors or committee of inspection, and no meeting of creditors has been convened and held, each of the 5 largest (measured by amount of debt) creditors of the company; (d) each member of the company whose shareholding represents at least 10% of the issued capital of the company. (3) Within 21 days after the last service of the documents mentioned in subrule (2), any creditor or contributory may give to the administrator a notice of objection to the remuneration claimed, stating the grounds of objection. (4) If the administrator does not receive a notice of objection within the period mentioned in subrule (3)— (a) the administrator may file an affidavit, made after the end of that period, in support of the originating application, or interlocutory application, seeking the order stating— (i) the date, or dates, when the notice and affidavit required to be served under subrule (2) were served; and (ii) that the administrator has not received any notice of objection to the remuneration claimed within the period mentioned in subrule (3); and ©

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(b)

the administrator may endorse the originating application, or interlocutory application, with a request that the application be dealt with in the absence of the public and without any attendance by, or on behalf of, the administrator; and (c) the application may be so dealt with.

(5) If the administrator receives a notice of objection within the period mentioned in subrule (3), the administrator must serve a copy of the originating application, or interlocutory application, seeking the order on each creditor or contributory who has given a notice of objection. (6) An must— (a) (b) (c) (d) (e) (f)

affidavit in support of the originating application, or interlocutory application, seeking the order include evidence of the matters mentioned in the Corporations Act, section 449E(4); and state the nature of the work performed or likely to be performed by the administrator; and state the amount of remuneration claimed; and include a summary of the receipts taken and payments made by the administrator; and state particulars of any objection of which the administrator has received notice; and if the administration is continuing—give details of any matters delaying the completion of the administration.

[R 9.2 subst SL 303 of 2008, s 2 and Sch item 7, with effect from 12 Sep 2008; am SL 115 of 2004]

9.2A Review of remuneration of administrator (Corporations Act, s 449E(2))—form 16A (1) This rule applies to an application for review of the amount of the remuneration of an administrator under the Corporations Act, section 449E(2). Note: The amendment to the Corporations Act, section 449E made by the Corporations (Amendment) Insolvency Act 2007 applies in relation to an administrator appointed on or after 31 December 2007—see the Corporations Act, section 1480(6).

(2) The application may be made only after the remuneration has been determined under the Corporations Act, section 449E(1)(a) or (b) or 449E(1A)(a) or (b). (3) At least 21 days before filing the originating application, or the interlocutory application, applying for a review, the applicant must serve a notice, in form 16A, of intention to apply for the review and a copy of any affidavit on which the applicant intends to rely (other than an affidavit required by subrule (9)), on the following persons— (a) if there is a committee of creditors or a committee of inspection—each member of the committee; (b) if the remuneration of the administrator was determined by the creditors—each creditor who was present, in person or by proxy, at the meeting of creditors at which the remuneration was determined; (c) each member of the company whose shareholding represents at least 10% of the issued capital of the company. (4) Within 21 days after the last service of the documents mentioned in subrule (3), any person on whom the notice has been served may serve on the applicant a notice— (a) stating the person’s intention to appear at the hearing of the application for review; and (b) setting out the issues that the person seeks to raise before the court. (5) A person mentioned in subrule (3) is entitled to be heard on the application for review, but only (unless the court otherwise orders) if the person has served on the applicant a notice under subrule (4). (6) If the applicant is served with a notice under subrule (4), the applicant must serve a copy of the originating application, or interlocutory application, applying for the review, on each person who has served such a notice. (7) The administrator must file an affidavit stating the following matters— (a) the matters mentioned in the Corporations Act, section 449E(4); (b) the nature of the work performed or likely to be performed by the administrator; (c) the amount of remuneration claimed by the administrator if that amount is different from the amount of remuneration that has been determined; (d) a summary of the receipts taken and payments made by the administrator; 420

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(e) particulars of any objection to the remuneration as determined, of which the administrator has received notice; (f) if the administration is continuing—details of any matters delaying the completion of the administration. (8) The affidavit mentioned in subrule (7) must annex a copy of the report that the administrator was required to prepare before remuneration was determined. (9) The applicant must— (a) file an affidavit stating whether any notice or notices under subrule (4) has or have been served; and (b) annex or exhibit to the affidavit a copy of any such notice. [R 9.2A insrt SL 303 of 2008, s 2 and Sch item 7, with effect from 12 Sep 2008]

9.3 Remuneration of provisional liquidator (Corporations Act, s 473(2))—form 16 (1) This rule applies to an application by a provisional liquidator of a company for an order under the Corporations Act, section 473(2) determining the provisional liquidator’s remuneration. [Subr (1) am SL 115 of 2004, s 2 and Sch 1 item 98, with effect from 2 Jul 2004]

(2) The application must be made by interlocutory application in the winding-up proceeding.

(4) Within 21 days after the last service of the documents mentioned in subrule (3), the liquidator, or any creditor or contributory, may give to the provisional liquidator a notice of objection to the remuneration claimed, stating the grounds of objection. (5) If the provisional liquidator does not receive a notice of objection within the period mentioned in subrule (4)— (a) the provisional liquidator may file an affidavit, made after the end of that period, in support of the interlocutory application 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 provisional liquidator has not received any notice of objection to the remuneration claimed within the period mentioned in subrule (4); and (b) the provisional liquidator may endorse the interlocutory application with a request that the application be dealt with in the absence of the public and without any attendance by, or on behalf of, the provisional liquidator; and (c) the application may be so dealt with. (6) If the provisional liquidator receives a notice of objection within the period mentioned in subrule (4), the provisional liquidator must serve a copy of the interlocutory application seeking the order— (a) on each creditor or contributory who has given a notice of objection; and (b) on the liquidator (if any). (7) An (a) (b) (c) (d)

©

affidavit in support of the interlocutory application seeking the order must— state the nature of the work performed or likely to be performed by the provisional liquidator; and state the amount of remuneration claimed; and include a summary of the receipts taken and payments made by the provisional liquidator; and if the winding-up proceeding has not been determined—give details of— (i) any reasons known to the provisional liquidator why the winding-up proceeding has not been determined; and

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(3) At least 21 days before filing the interlocutory application seeking the order, the provisional liquidator must serve a notice in form 16 of the provisional liquidator’s intention to apply for the order, and a copy of any affidavit on which the provisional liquidator intends to rely, on the following persons— (a) any liquidator (except the provisional liquidator) of the company; (b) each member of any committee of inspection or, if there is no committee of inspection, each of the 5 largest (measured by amount of debt) creditors of the company; (c) each member of the company whose shareholding represents at least 10% of the issued capital of the company.

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any reasons why the provisional liquidator’s remuneration should be determined before the determination of the winding-up proceeding.

[Subr (7) am SL 303 of 2008, s 2 and Sch items 8 and 9, with effect from 12 Sep 2008]

(8) The affidavit must also provide evidence of the matters mentioned in the Corporations Act, section 473(10)— (a) to the extent that they may be relevant to a provisional liquidator; and (b) as if references in that subsection to ‘liquidator’ were references to ‘provisional liquidator’. [Subr (8) insrt SL 303 of 2008, s 2 and Sch item 10, with effect from 12 Sep 2008] [R 9.3 am SL 303 of 2008; SL 115 of 2004, s 2 and Sch 1 item 97, with effect from 2 Jul 2004]

9.4 Determination by s 473(3)(b)(ii))—form 16

court

of

liquidator’s

remuneration

(Corporations

Act,

(1) This rule applies to an application by a liquidator of a company for an order under the Corporations Act, section 473(3)(b)(ii) determining the liquidator’s remuneration. Note: The amendment to the Corporations Act, section 473 made by the Corporations (Amendment) Insolvency Act 2007 applies in relation to a liquidator appointed on or after 31 December 2007—see the Corporations Act, section 1480(7). [Subr (1) am SL 303 of 2008, s 2 and Sch items 12 and 13, with effect from 12 Sep 2008; SL 115 of 2004, s 2 and Sch 1 item 100, with effect from 2 Jul 2004]

(2) The application— (a) must be made by interlocutory application in the winding-up proceeding; and (b) must not be made until after the end of 28 days after the date of the meeting of creditors mentioned in the Corporations Act, section 473(4). [Subr (2) am SL 115 of 2004, s 2 and Sch 1 item 101, with effect from 2 Jul 2004]

(3) At least 21 days before filing the interlocutory application seeking the order, the liquidator must serve a notice in form 16 of the liquidator’s intention to apply for the order, and a copy of any affidavit on which the liquidator intends to rely, on the following persons— (a) each creditor who was present, in person or by proxy, at any meeting of creditors at which the remuneration of the liquidator was considered; (b) each member of any committee of inspection; (c) if there is no committee of inspection, and no meeting of creditors has been convened and held—each of the 5 largest (measured by amount of debt) creditors of the company; (d) each member of the company whose shareholding represents at least 10% of the issued capital of the company. [Subr (3) am SL 303 of 2008, s 2 and Sch items 14 and 15, with effect from 12 Sep 2008]

(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 application 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 (b) the liquidator may endorse the interlocutory application with a request that the application be dealt with in the absence of the public and without any attendance by, or on behalf of, the liquidator; and (c) the application may be so dealt with. (6) If the liquidator receives a notice of objection within the period mentioned in subrule (4), the liquidator must serve a copy of the interlocutory application seeking the order on each creditor or contributory who has given a notice of objection. (7) An affidavit in support of the interlocutory application seeking the order must— 422

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r 9.4A

include evidence of the matters mentioned in the Corporations Act, section 473(10); and state the nature of the work performed or likely to be performed by the liquidator; and state the amount of remuneration claimed; and include a summary of the receipts taken and payments made by the liquidator; and state particulars of any objection of which the liquidator has received notice; and if the winding-up is continuing—give details of any matters delaying the completion of the winding-up.

[Subr (7) subst SL 303 of 2008, s 2 and Sch item 16, with effect from 12 Sep 2008] [R 9.4 am SL 303 of 2008, s 2 and Sch item 11, with effect from 12 Sep 2008; SL 115 of 2004, s 2 and Sch 1 item 99, with effect from 2 Jul 2004]

9.4A Review of remuneration of liquidator (Corporations Act, s 473(5) and (6) and s 504(1))—form 16A (1) This rule applies to an application for review of the amount of the remuneration of a liquidator under the Corporations Act, section 473(5) or (6) or 504(1). Note: The amendment to the Corporations Act, section 504 made by the Corporations (Amendment) Insolvency Act 2007 applies in relation to a liquidator appointed on or after 31 December 2007—see the Corporations Act, section 1480(7).

(3) At least 21 days before filing the application applying for a review, the applicant must serve a notice, in form 16A, of intention to apply for the review and a copy of any affidavit on which the applicant intends to rely (other than an affidavit required by subrule (9)), on the following persons— (a) if there is a committee of inspection—each member of the committee; (b) if the remuneration of the liquidator was determined or fixed by the creditors—each creditor who was present, in person or by proxy, at the meeting of creditors at which the remuneration was determined or fixed; (c) each member of the company whose shareholding represents at least 10% of the issued capital of the company. (4) Within 21 days after the last service of the documents mentioned in subrule (3), any person on whom the notice has been served may serve on the applicant a notice— (a) stating the person’s intention to appear at the hearing of the application for review; and (b) setting out the issues that the person seeks to raise before the court. (5) A person mentioned in subrule (3) is entitled to be heard on the application for review, but only (unless the court otherwise orders) if the person has served on the applicant a notice under subrule (4). (6) If the applicant is served with a notice under subrule (4), the applicant must serve a copy of the application for the review on each person who has served such a notice. (7) The liquidator must file an affidavit stating the following matters— (a) for an application under the Corporations Act, section 473(5) or (6)—the matters mentioned in the Corporations Act, section 473(10); (b) for an application under the Corporations Act, section 504(1)—the matters mentioned in the Corporations Act, section 504(2); (c) the nature of the work performed or likely to be performed by the liquidator; (d) the amount of remuneration claimed by the liquidator if that amount is different from the amount of remuneration that has been determined or fixed; (e) a summary of the receipts taken and payments made by the liquidator; (f) particulars of any objection to the remuneration as determined or fixed, of which the liquidator has received notice; (g) if the winding-up is continuing—details of any matters delaying the completion of the winding-up. (8) The affidavit under subrule (7) must annex a copy of the report that the liquidator was required to prepare before remuneration was determined or fixed. Note: For the requirement to prepare a report, see the Corporations Act, sections 473(11) and (12), 495(5) and 499(6) and (7). ©

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(2) The application may only be made after remuneration has been determined under the Corporations Act, section 473(3)(a) or (b)(i), or fixed under the Corporations Act, section 495(1) or 499(3).

r 9.4A

Uniform Civil Procedure Rules 1999 (Qld) – (Extracts)

Schedule 1A

(9) The applicant must— (a) file an affidavit stating whether any notice or notices under subrule (4) has or have been served; and (b) annex or exhibit to the affidavit a copy of any such notice. [R 9.4A insrt SL 303 of 2008, s 2 and Sch item 17, with effect from 12 Sep 2008]

9.5 Remuneration of special manager (Corporations Act, s 484(2))—form 16 (1) This rule applies to an application by a special manager of the property or business of a company for an order the Corporations Act, section 484(2) fixing the special manager’s remuneration. [Subr (1) am SL 115 of 2004, s 2 and Sch 1 item 103, with effect from 2 Jul 2004]

(2) The application must be made by interlocutory application in the winding-up proceeding. (3) At least 21 days before filing the interlocutory application seeking the order, the special manager must serve a notice in form 16 of the special manager’s intention to apply for the order, and a copy of any affidavit on which the special manager intends to rely, on the following persons— (a) the liquidator of the company; (b) each member of any committee of creditors or committee of inspection or, if there is no committee of creditors or committee of inspection, each of the 5 largest (measured by amount of debt) creditors of the company; (c) each member of the company whose shareholding represents at least 10% of the issued capital of the company. [Subr (3) am SL 303 of 2008, s 2 and Sch item 18, with effect from 12 Sep 2008]

(4) Within 21 days after the last service of the documents mentioned in subrule (3), the liquidator, or any creditor or contributory, may give to the special manager a notice of objection to the remuneration claimed, stating the grounds of objection. (5) If the special manager does not receive a notice of objection within the period mentioned in subrule (4)— (a) the special manager may file an affidavit, made after the end of that period, in support of the interlocutory application 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 special manager has not received any notice of objection to the remuneration claimed within the period mentioned in subrule (4); and (b) the special manager may endorse the interlocutory application with a request that the application be dealt with in the absence of the public and without any attendance by, or on behalf of, the special manager; and (c) the application may be so dealt with. (6) If the special manager receives a notice of objection within the period mentioned in subrule (4), the special manager must serve a copy of the interlocutory application seeking the order— (a) on each creditor or contributory who has given a notice of objection; and (b) on the liquidator. (7) The affidavit in support of the interlocutory application seeking the order must— (a) state the nature of the work performed or likely to be performed by the special manager; and (b) state the amount of remuneration claimed; and (c) include a summary of the receipts taken and payments made by the special manager; and (d) if the special management is continuing—give details of any matters delaying the completion of the special management. [Subr (7) am SL 303 of 2008, s 2 and Sch items 19 and 20, with effect from 12 Sep 2008] [R 9.5 am SL 303 of 2008; SL 115 of 2004, s 2 and Sch 1 item 102, with effect from 2 Jul 2004]

Part 10 – Winding up generally

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r 11.2

10.1 Determination of value of debts or claims (Corporations Act, s 554A(2)) A reference to the court by a liquidator of a company under the Corporations Act, section 554A(2)(b) must be made— (a) in the case of a winding-up by the court—by filing an interlocutory application seeking an order estimating, or determining a method for working out, the value of the debt or claim; and (b) in the case of a voluntary winding-up—by filing an originating application seeking an order estimating, or determining a method for working out, the value of the debt or claim. [R 10.1 am SL 115 of 2004, s 2 and Sch 1 items 104 and 105, with effect from 2 Jul 2004]

10.2 Disclaimer of contract (Corporations Act, s 568(1A)) (1) The affidavit in support of an application by a liquidator, under the Corporations Act, section 568(1A), for leave to disclaim a contract in relation to a company must— (a) specify the persons interested, and their interests, under the contract; and (b) state the facts on which it is submitted that the contract should be disclaimed. [Subr (1) am SL 115 of 2004, s 2 and Sch 1 item 107, with effect from 2 Jul 2004]

(2) The liquidator must serve the affidavit on each party to the contract (except the company) and on any person interested in the contract. [R 10.2 am SL 115 of 2004, s 2 and Sch 1 item 106, with effect from 2 Jul 2004]

10.3 Winding up part 5.7 bodies (Corporations Act, ss 583 and 585) and registered schemes (Corporations Act, s 601ND) These rules apply, with any necessary adaptations, and in the same way as they apply to a company, in relation to the winding-up of a part 5.7 body or a registered scheme.

Part 11 – Examinations and orders (Corporations Act, part 5.9, divisions 1 and 2) [Pt 11 heading am SL 115 of 2004, s 2 and Sch 1 item 109, with effect from 2 Jul 2004]

11.1 Definition for pt 11 In this part— examination summons means a summons under the Corporations Act, section 596A or 596B for the examination of a person about a corporation’s examinable affairs. [Def am SL 115 of 2004, s 2 and Sch 1 item 110, with effect from 2 Jul 2004] [R 11.1 am SL 115 of 2004]

11.2 Application for examination or investigation under Corporations Act, s 411(9)(b), 423 or 536(3) (1) An application for an order for the examination or investigation of a person under the Corporations Act, section 411(9)(b), 423 or 536(3) may be made by— (a) ASIC; or (b) a person authorised by ASIC; or (c) a creditor or contributory; or (d) any other person aggrieved by the conduct of— (i) a person appointed to administer a compromise or arrangement; or (ii) a controller; or (iii) a liquidator or provisional liquidator. [Subr (1) am SL 115 of 2004, s 2 and Sch 1 items 112 and 113, with effect from 2 Jul 2004]

(2) The application may be made ex parte. (3) The provisions of this part that apply to an examination under the Corporations Act, part 5.9, division 1 apply, with any necessary adaptations, to an examination or an investigation under the Corporations Act, section 411(9)(b), 423 or 536(3). [Subr (3) am SL 115 of 2004, s 2 and Sch 1 items 114 and 115, with effect from 2 Jul 2004] [R 11.2 am SL 115 of 2004, s 2 and Sch 1 item 111, with effect from 2 Jul 2004] ©

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[R 10.3 am SL 115 of 2004, s 2 and Sch 1 item 108, with effect from 2 Jul 2004]

r 11.2

Uniform Civil Procedure Rules 1999 (Qld) – (Extracts)

Schedule 1A

11.3 Application for examination summons (Corporations Act, ss 596A and 596B)—form 17 (1) An application for the issue of an examination summons must be made by filing an interlocutory application or an originating application, as the case requires. (2) The application may be made ex parte. (3) The originating application, or interlocutory application, seeking the issue of the examination summons must be— (a) supported by an affidavit stating the facts in support of the application; and (b) accompanied by a draft examination summons. (4) The originating application, or interlocutory application, and supporting affidavit must be filed in a sealed envelope marked, as appropriate— (a) ‘Application and supporting affidavit for issue of summons for examination under the Corporations Act, section 596A’; or (b) ‘Application and supporting affidavit for issue of summons for examination under the Corporations Act, section 596B’. [Subr (4) am SL 115 of 2004, s 2 and Sch 1 items 117 and 118, with effect from 2 Jul 2004]

(5) If the application is not made by the liquidator, the liquidator must be given notice of the application and, if required by the liquidator, served with a copy of the originating application, or interlocutory application, and the supporting affidavit. (6) If the application is not made by ASIC, ASIC must be given notice of the application and, if required by ASIC, served with a copy of the originating application, or interlocutory application, and the supporting affidavit. [Subr (6) am SL 115 of 2004, s 2 and Sch 1 item 119, with effect from 2 Jul 2004]

(7) Unless the court otherwise orders, an affidavit in support of an application for an examination summons is not available for inspection by any person. (8) An examination summons must be in form 17. [Subr (8) am SL 303 of 2008, s 2 and Sch item 21, with effect from 12 Sep 2008] [R 11.3 am SL 303 of 2008; SL 115 of 2004, s 2 and Sch 1 item 116, with effect from 2 Jul 2004]

11.4 Service of examination summons An examination summons issued by the court must be personally served, or served in any other manner as the court may direct, on the person who is to be examined at least 8 days before the date fixed for the examination. 11.5 Discharge of examination summons (1) This rule applies if a person is served with an examination summons. (2) Within 3 days after the person is served with the examination summons, the person may apply to the court for an order discharging the summons by filing— (a) an interlocutory application seeking an order discharging the summons; and (b) an affidavit stating the facts in support of the interlocutory application. (3) As soon as practicable after filing the interlocutory application seeking the order and the supporting affidavit, the person must serve a copy of the interlocutory application and the supporting affidavit on— (a) the person who applied for the examination; and (b) unless that person is ASIC or a person authorised by ASIC—ASIC. [Subr (3) am SL 115 of 2004, s 2 and Sch 1 item 120, with effect from 2 Jul 2004] [R 11.5 am SL 115 of 2004]

11.6 Filing of record of examination (Corporations Act, s 597(13)) If the court makes an order in relation to an examination under the Corporations Act, section 597(13), the court may give directions for the filing of the written record of the examination. [R 11.6 am SL 115 of 2004, s 2 and Sch 1 items 121 and 122, with effect from 2 Jul 2004]

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Schedule 1A – Rules for proceedings under Corporations Act or ASIC Act Schedule 1A

r 11.11

11.7 Authentication of transcript of examination (Corporations Act, s 597(14)) For the purposes of the Corporations Act, section 597(14), a transcript of an examination may be authenticated— (a) by the person, or persons, who prepared the record of examination, or under whose supervision the record was prepared, certifying in writing signed by the person or persons, that the record is a true transcript of the record of examination; or (b) by any person present at the examination, or any part of the examination, signing the person’s name at the bottom of each page of the written record that records a part of the examination at which the person was present. [R 11.7 am SL 115 of 2004, s 2 and Sch 1 items 123 and 124, with effect from 2 Jul 2004]

11.8 Inspection of record or transcript of examination or investigation under Corporations Act, s 411, 423 or 536 (1) A written record or transcript of an examination or investigation under the Corporations Act, section 411, 423 or 536 is not available for inspection by any person except— (a) with the consent of the liquidator (if any) or ASIC; or (b) by leave of the court. [Subr (1) am SL 115 of 2004, s 2 and Sch 1 items 126 and 127, with effect from 2 Jul 2004]

(2) This rule does not apply to the liquidator, ASIC or any person authorised by ASIC. [Subr (2) am SL 115 of 2004, s 2 and Sch 1 item 127, with effect from 2 Jul 2004] [R 11.8 am SL 115 of 2004, s 2 and Sch 1 item 125, with effect from 2 Jul 2004]

(1) This rule applies if— (a) an examination under the Corporations Act, section 597 is held wholly or partly in public; and (b) a written record or transcript of the examination is filed in the court. [Subr (1) am SL 115 of 2004, s 2 and Sch 1 item 128, with effect from 2 Jul 2004]

(2) The person examined may apply to the registrar, within 3 years after the date of completion of the examination, for a copy of the record or transcript of the part of the examination of the person held in public. (3) On receiving an application from a person under subrule (2), and any applicable fee, the registrar must give a copy of the record or transcript to the person. [R 11.9 am SL 115 of 2004]

11.10 Default in relation to examination (1) This rule applies if a person is summoned or ordered by the court to attend for examination, and— (a) without reasonable cause, the person— (i) fails to attend at the time and place appointed; or (ii) fails to attend from day to day until the conclusion of the examination; or (iii) refuses or fails to take an oath or make an affirmation; or (iv) refuses or fails to answer a question that the court directs the person to answer; or (v) refuses or fails to produce books that the summons requires the person to produce; or (vi) fails to comply with a requirement by the court to sign a written record of the examination; or (b) before the day fixed for the examination, the person who applied for the summons or order satisfies the court that there is reason to believe that the person summoned or ordered to attend for examination has absconded or is about to abscond. (2) The court may— (a) issue a warrant for the arrest of the person summoned or ordered to attend for examination; and (b) make any other orders that the court thinks just or necessary. 11.11 Service of application for order in relation to breaches etc. by person concerned with corporation (Corporations Act, s 598) ©

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11.9 Entitlement to record or transcript of examination held in public

r 11.11

Uniform Civil Procedure Rules 1999 (Qld) – (Extracts)

Schedule 1A

(1) This rule applies to a person applying for an order under the Corporations Act, section 598. [Subr (1) am SL 115 of 2004, s 2 and Sch 1 item 130, with effect from 2 Jul 2004]

(2) In addition to complying with rules 2.7 and 2.8, the person must serve a copy of the originating application, or interlocutory application, as the case requires, and the supporting affidavit on any liquidator or provisional liquidator (except if the person is the liquidator or provisional liquidator) of the corporation or body. Note: Under rule 2.7, an applicant must serve a copy of the originating application, and any supporting affidavit, on a respondent to the proceeding and, if necessary, on the corporation to which the proceeding relates, and must serve a copy of an interlocutory application, and any supporting affidavit, on a respondent to the proceeding and, if necessary, on the corporation to which the proceeding relates. In certain cases, these documents may also be required to be served on ASIC—see rule 2.8. [R 11.11 am SL 115 of 2004, s 2 and Sch 1 items 129 and 131, with effect from 2 Jul 2004]

Part 11A – Warrants (Corporations Act, section 486B and part 5.4B, division 3, subdivision B) [Pt 11A insrt SL 303 of 2008, s 2 and Sch item 22, with effect from 12 Sep 2008]

11A.1 Arrest of person (Corporations Act, s 486B)—form 17A (1) An application for the issue of a warrant under the Corporations Act, section 486B(1) for the arrest of a person must state the grounds for the issue of the warrant. (2) The application must be accompanied by an affidavit stating the facts in support of the application. (3) The warrant must be in form 17A. (4) If a person is arrested under the warrant, the person who carried out the arrest must immediately give notice of the arrest to a registrar in the registry from which the warrant was issued. Note: The Corporations Act, sections 489A to 489E, inserted by the Corporations (Amendment) Insolvency Act 2007, apply in relation to a warrant issued on or after 31 December 2007—see the Corporations Act, section 1481(3). [R 11A.1 insrt SL 303 of 2008, s 2 and Sch item 22, with effect from 12 Sep 2008]

Part 12 – Takeovers, acquisitions of shares etc. (Corporations Act, chapters 6 to 6D) and Securities (Corporations Act, chapter 7) [Pt 12 heading subst SL 115 of 2004, s 2 and Sch 1 item 132, with effect from 2 Jul 2004]

12.1 Service on ASIC in relation to proceedings under Corporations Act, chapter 6, 6A, 6B, 6C, 6D or 7 If ASIC is not a party to an application made under the Corporations Act, chapter 6, 6A, 6B, 6C, 6D or 7, the applicant must serve a copy of the originating application and the supporting affidavit on ASIC as soon as practicable after filing the originating application. [R 12.1 subst SL 115 of 2004, s 2 and Sch 1 item 132, with effect from 2 Jul 2004]

12.1A Reference to court of questions of law arising in proceeding before takeovers panel (Corporations Act, s 659A) The Uniform Civil Procedure Rules 1999, rule 781 applies, with necessary changes, to the reference to the court under the Corporations Act, section 659A of a question of law arising in a proceeding before the takeovers panel. [R 12.1A insrt SL 115 of 2004, s 2 and Sch 1 item 132, with effect from 2 Jul 2004]

12.2 Application for summons for appearance of person (Corporations Act, s 1071D(4))—form 18 (1) An application for the issue of a summons under the Corporations Act, section 1071D(4) must be made by filing an originating application or an interlocutory application. [Subr (1) am SL 115 of 2004, s 2 and Sch 1 item 134, with effect from 2 Jul 2004]

(2) The application may be made ex parte. (3) The originating application, or interlocutory application, seeking the issue of the summons must be— (a) supported by an affidavit stating the facts in support of the application; and 428

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Schedule 1A – Rules for proceedings under Corporations Act or ASIC Act Schedule 1A (b)

r 15.1

accompanied by a draft summons.

(4) Unless the court otherwise orders, a summons issued under this rule must be in form 18. [Subr (4) am SL 303 of 2008, s 2 and Sch item 23, with effect from 12 Sep 2008] [R 12.2 am SL 303 of 2008; SL 115 of 2004, s 2 and Sch 1 item 133, with effect from 2 Jul 2004]

12.3 Application for orders relating to refusal to register transfer or transmission of securities (Corporations Act, s 1071F) (1) An application for an order under the Corporations Act, section 1071F(2) must be made by filing an originating application. (2) As soon as practicable after filing the originating application, the applicant must serve a copy of the originating application and the supporting affidavit on— (a) the company; and (b) any person against whom an order is sought. [R 12.3 subst SL 115 of 2004, s 2 and Sch 1 item 135, with effect from 2 Jul 2004]

Part 13 – The futures industry (chapter 8 of the Law) [Repealed] [Pt 13, rr 13.1 and 13.2, rep SL 115 of 2004, s 2 and Sch 1 item 136, with effect from 2 Jul 2004]

Part 14 – Powers of courts (Corporations Act, part 9.5) [Pt 14 heading am SL 115 of 2004, s 2 and Sch 1 item 137, with effect from 2 Jul 2004]

(1) All appeals to the court authorised by the Corporations Act must be commenced by an originating application, or interlocutory application, stating— (a) the act, omission or decision complained of; and (b) in the case of an appeal against a decision—whether the whole or part only and, if part only, which part of the decision is complained of; and (c) the grounds on which the complaint is based. [Subr (1) am SL 115 of 2004, s 2 and Sch 1 item 139, with effect from 2 Jul 2004]

(2) Unless the Corporations Act or the Corporations Regulations otherwise provide, the originating application, or interlocutory application, must be filed within— (a) 21 days after the date of the act, omission or decision appealed against; or (b) any further time allowed by the court. [Subr (2) am SL 115 of 2004, s 2 and Sch 1 item 139, with effect from 2 Jul 2004]

(3) The court may extend the time for filing the originating application, or interlocutory application, either before or after the time for filing expires and whether or not the application for extension is made before the time expires. (4) As soon as practicable after filing the originating application, or interlocutory application, and, in any case, at least 5 days before the date fixed for hearing, the person instituting the appeal must serve a copy of the application, and any supporting affidavit, on each person directly affected by the appeal. (5) As soon as practicable after being served with a copy of the application, and any supporting affidavit, a person whose act, omission or decision is being appealed against must file an affidavit— (a) stating the basis on which the act, omission or decision was done or made; and (b) exhibiting a copy of all relevant documents that have not been put in evidence by the person instituting the appeal. [R 14.1 am SL 115 of 2004, s 2 and Sch 1 item 138, with effect from 2 Jul 2004]

Part 15 – Proceedings under the ASIC Act [Pt 15 heading am SL 115 of 2004, s 2 and Sch 1 item 140, with effect from 2 Jul 2004]

15.1 Reference to court of question of law arising at hearing of ASIC (ASIC Act, s 61) A reference of a question of law arising at a hearing by ASIC to the court under the ASIC Act, section 61 is to be made by originating application which is to— ©

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14.1 Appeal from act, omission or decision of administrator, receiver or liquidator etc. (Corporations Act, ss 554A and 1321)

r 15.1

Uniform Civil Procedure Rules 1999 (Qld) – (Extracts)

Schedule 1A

(a) set out in clear terms the question of law to be decided; and (b) set out concisely all facts necessary for the decision; and (c) have attached to it all documents necessary to enable the court to decide the question. [R 15.1 am SL 115 of 2004, s 2 and Sch 1 items 141 and 142, with effect from 2 Jul 2004]

15.2 Court may draw inferences On the hearing of a reference under rule 15.1 the court may draw any inference from the facts stated and documents annexed to the application that might have been drawn from them if proved at a trial. 15.3 Application for inquiry (ASIC Act, ss 70, 201 and 219) An application for an inquiry under the ASIC Act, section 70(3), 201(3) or 219(7) must be made by filing an originating application seeking an inquiry and orders under the relevant subsection. [R 15.3 am SL 115 of 2004, s 2 and Sch 1 items 143 and 144, with effect from 2 Jul 2004]

Part 16 – Powers of registrars 16.1 Powers of registrars (1) Unless the court otherwise orders, a registrar may exercise a power of the court under a provision of the Corporations Act or the rules mentioned in schedule 1B. [Subr (1) am SL 115 of 2004, s 2 and Sch 1 item 145, with effect from 2 Jul 2004]

(2) The Chief Justice may direct the registrar either generally or in a particular matter to hear and decide an application made under the Corporations Act or the ASIC Act. [Subr (2) am SL 115 of 2004, s 2 and Sch 1 item 146, with effect from 2 Jul 2004]

(3) A decision, direction or act of a registrar made, given or done under this part, may be reviewed by the court. (4) An application for the review of a decision, direction or act of a registrar made, given or done under this part, must be made within— (a) 21 days after the decision, direction or act complained of; or (b) any further time allowed by the court. [Subr (4) am SL 65 of 2005, s 2 and Sch item 3, with effect from 22 Apr 2005] [R 16.1 am SL 65 of 2005; SL 115 of 2004]

16.2 Reference by registrar (1) If a proceeding before a registrar appears to the registrar to be proper for the decision of the court, the registrar may or, if required by a party to the proceeding, must, refer the matter to the court. (2) If the registrar refers a matter to the court, the court may dispose of the matter or refer it back to the registrar with any direction that the court considers appropriate. [Sch 1A am SL 320 of 2014; SL 150 of 2012; SL 162 of 2009; SL 303 of 2008; SL 96 of 2007; SL 194 of 2006; SL 65 of 2005; SL 115 of 2004; SL 223 of 2002; insrt SL 232 of 2000, s 3, with effect from 8 Sep 2000]

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Schedule 1B – Powers of the court that may be exercised by a registrar Schedule 1B

SCHEDULE 1B – POWERS OF THE COURT THAT MAY BE EXERCISED BY A REGISTRAR Provision of the Corporations Description (for information only) Act or the rules in schedule 1A section 164 power to make order with respect to change of status of company (if uncontested) section 227 power to declare that conditions prescribed by part 2E.1, division 3 have been satisfied section 247A power to order inspection of books of company or registered managed investment scheme section 247B power to make ancillary orders relating to inspection of books section 254E power to make order validating purported issue of shares section 266(4) power to extend period of lodgement of notice in relation to charge or variation in terms of charge section 267(3) power to give leave to enforce charge (if uncontested) section 274 power to rectify register of charges section 283AE(2)(a) power to appoint body corporate as trustee for debenture holders section 283EC power to make an order for meeting of debenture holders to direct trustee section 411(1), (4), (6) for sanction of compromise or arrangement (if uncontested) section 425 power to fix amount of receiver’s remuneration section 429(3) power to extend time for report to controller section 449E power to fix remuneration of administrator section 459A court’s power to order winding-up in insolvency (if uncontested) section 459B court’s power to order winding-up in insolvency (if uncontested) section 459P(2) court’s power to give leave to make winding-up application (if uncontested) section 461 court’s general power to order winding-up on other grounds (if uncontested) section 464 court’s power to order winding-up in connection with investigation under the ASIC Act (if uncontested) section 465B substitution of applicants section 467 powers on hearing winding-up application section 470(2)(b) service of copy of order section 471B for leave to proceed (if uncontested) section 472 appointment of liquidator or provisional liquidator (if uncontested) section 473(2) determination of provisional liquidator’s remuneration section 473(3) determination of liquidator’s remuneration section 473(7) to fill vacancy in office of liquidator section 473(8) power to declare what may be done by liquidator section 474(2) order that property vests in liquidator section 481 report on accounts of liquidator section 483(1) power to require property to be delivered to liquidator section 483(3) calls on contributories ©

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rule 16.1 of sch 1A

Uniform Civil Procedure Rules 1999 (Qld) – (Extracts) Provision of the Corporations Act or the rules in schedule 1A section 484(2)(b) section 486 section 490 section 495(4) section 496(3) section 497(3) section 499 section 500 section 502 section 504 section 507(6) section 507(10) section 509(6) section 511 section section section section

532(2) 542(3)(a) 543(1) 544(2)

section section section section

545 547 568 583

section section section section section section section section section section section section section section section section

587 596A 596B 596F 597(9) 597(13) 597(15) 597A 597B 600A 600B 600C 600D 601AH(2), (3) 601BJ 601CC(9)

432

Schedule 1B

Description (for information only)

power to fix remuneration of special manager order for inspection of books by creditors or contributories leave of court to wind up voluntarily conduct of meetings in member’s voluntary winding-up list of creditors in member’s voluntary winding-up list of creditors in creditor’s voluntary winding-up direction where different liquidators chosen execution of civil proceedings appointment of liquidator in voluntary winding-up review of liquidator’s remuneration in voluntary winding-up power to sanction resolution to accept shares as consideration for sale of property of company approval to liquidator’s exercise of powers in creditor’s voluntary winding-up power to declare date of dissolution application to exercise powers or determine questions in voluntary winding-up leave of court for person to be appointed as liquidator directions as to destruction of books order as to investment of surplus funds court’s power to order account of funds in hands of liquidator, audit or payment of money by liquidator direction to liquidator to incur a particular expense power to direct that meetings of creditors or contributories be held disclaim of onerous property (if uncontested) powers under part 5.7 in winding-up bodies other than companies (if uncontested) power to stay or restrain proceeding (if uncontested) summons for examination summons for discretionary examination directions about examination directions as to production of books orders about recording testimony direction as to other court to require the filing of an affidavit costs of unnecessary examination court’s powers in relation to meetings court’s power to set aside or vary resolution order about passing of proposed resolution interim order on application under section 600A, 600B or 600C reinstatement of company power to approve modification of constitution order for restoration of name of registered Australian body to the register

Corporations – Court Rules and Related Legislation 2017

Schedule 1B – Powers of the court that may be exercised by a registrar Provision of the Corporations Description (for information only) Act or the rules in schedule 1A section 601CL(10) order for restoration of name of registered foreign company to the register section 601ND order winding-up schemes section 601NE winding-up of scheme section 601NF other orders about winding-up section 1071D power to make an order in relation to a person summoned section 1071F power to make an order in relation to a company’s refusal to register a share transfer section 1071H(6) power to make an order to remedy default in issuing certificate etc. section 1274 power to make an order if failure to lodge, amend etc. a document section 1303 order that books be available for inspection section 1319 power to give directions in relation to meetings ordered by court section 1322 irregularities rule 1.8 power to give directions rule 2.8 notice of application to ASIC rule 2.12 proof of publication rule 2.13 power to give leave to creditor, contributory or officer to be heard in proceeding or be added as defendant etc. rule 2.14 power to direct an inquiry in relation to corporation’s debts etc. rule 3.4 notice of hearing rule 5.6 notice of application for winding-up rule 5.10 order substituting applicant in application for winding-up rule 6.1 power to require undertaking as to damages on appointment of provisional liquidator rule 7.2 filling vacancy in office of liquidator rule 7.5(6) service of application for release of liquidator rule 7.7 inspection of report of accounts of liquidator rule 7.11(4) inspection of report of inquiry into conduct of liquidator rule 8.2 security given by special manager rule 11.3(7) inspection of affidavit in support of application for examination summons rule 11.4 service of examination summons rule 11.5 discharge of examination summons rule 11.6 directions for filing of written record of examination rule 11.8 inspection of record or transcript of examination or investigation rule 12.2(4) form of summons rule 14.1(2), (3) extension of time for filing application starting an appeal [Sch 1B am SL 296 of 2011, s 37, with effect from 9 Dec 2011; SL 162 of 2009, s 2 and Sch item 20, with effect from 31 Jul 2009; SL 115 of 2004, s 2 and Sch 2 item 3, with effect from 2 Jul 2004; insrt SL 232 of 2000, s 3, with effect from 8 Sep 2000]

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Schedule 1B

Uniform Civil Procedure Rules 1999 (Qld) – (Extracts)

APPROVED FORMS 1. These forms are approved under section 118A of the Supreme Court of Queensland Act 1991 for use under the provisions of Schedule 1A of the Uniform Civil Procedure Rules 1999 – Proceedings under Corporations Law. 2. The number and name at the top of each form are not part of the form itself. 3. Words in italics and brackets are instructions for the completion of the form. 4. A reference to a rule number is a reference to that rule in Schedule 1A.

Form 1 – Document title Rule 2.1

SUPREME COURT OF QUEENSLAND Registry: .......... No. S IN THE MATTER OF [full name of corporation to which the proceeding relates and, if applicable, the words “(in liquidation)”, “(receiver appointed)”, “(receiver and manager appointed)”, “(controller acting)” or “(under administration)”] ACN or ARBN: [insert ACN or ARBN] Applicant: .................................................. AB (and Others) [list, in a schedule, any further applicants] Respondent: .................................................. CD (and Others) [list, in a schedule, any further respondents]

(Name of document) Filed on behalf of the (party) [Form (form number)] R. (Relevant rule number)

434

(Name, address for service, telephone number, and fax number of solicitor or party filing document.)

Corporations – Court Rules and Related Legislation 2017

Approved Forms Form 2 – Originating application

Form 2 – Originating application Rule 2.2

Version 2 (Title – Form 1) A. DETAILS OF APPLICATION This application is made under *section/*regulation [number] of the *Corporations Act/*ASIC Act/ * Corporations Regulations. [State briefly the nature of the proceeding, eg application for winding-up on ground of insolvency; or complaint about a receiver.] On the facts stated in the supporting affidavit(s), the applicant claims: 1 2 etc AND Date: ..................................................

B. NOTICE TO RESPONDENT(S) TO: [name and address of each respondent (if any)] This application will be heard by the Court at [address of Court] at .......... *am/*pm on .......... If you wish to oppose this application or to argue that any different order should be made, you must appear before the Court in person or by your lawyer and you shall be heard. If you do not appear at the hearing the orders sought may be made without further notice to you. In addition you must before the day for hearing file a notice of appearance in this Registry. The notice should be in Form 4. You must serve a copy of it at the applicant’s address for service shown in this application as soon as possible. Note: Unless the Court otherwise orders, a respondent that is a corporation must be represented at a hearing by a legal practitioner. It may be represented at a hearing by a director of the corporation only if the Court grants leave. C. APPLICATION FOR WINDING UP ON GROUND OF INSOLVENCY [Complete this section if this originating application is seeking an order that a company be wound up in insolvency on the ground that the company has failed to comply with a statutory demand (see section 459Q of the Corporations Act)] 1. The applicant relies on failure by the respondent to comply with a statutory demand. A copy of the demand, marked A, is attached to this originating application. 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 respondent at [insert address] on [insert date] [or, if service was by post, who posted *it/*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.]

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Signature of applicant or applicant’s legal practitioner

Uniform Civil Procedure Rules 1999 (Qld) – (Extracts) 3. The respondent failed to pay the amount of the debt demanded [or the total of the debts demanded] or to secure or compound for that *amount/*total to the applicant’s reasonable satisfaction within 21 days after the demand was served on the respondent [or within 7 days after [insert date] when an application by the respondent 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 application]. [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 application. [The affidavit/s in support of this originating application must: (a) verify service of the demand on the company; and (b) verify the failure of the company to comply with the demand; and (c) state whether and, if so, to what extent the debt, or each of the debts, to which the demand relates is still due and payable at the date when the affidavit is made.] Note: An example of the affidavit in support of an application for winding up in insolvency for failure to comply with a statutory demand is in Form 7A.

D. FILING Date of filing: [date of filing to be entered Registrar] .................................................. Registrar This originating application is filed by [name] for the applicant. E. SERVICE The applicant’s address for service is [address of applicant’s legal practitioner or of applicant]. * It is not intended to serve a copy of this originating application on any person. OR * It is intended to serve a copy of this originating application on each respondent and on any person listed below: [name of respondent and any other person on whom a copy of the originating application is to be served] [Complete the following section if the time for service has been abridged] The time by which a copy of this originating application is to be served has been abridged by order made by [name of Judge or other Court offıcer] on [date] to [time and date]. *

Omit if not applicable Note: An address for service includes telephone number, fax number, email address, and document exchange address where appropriate. [Form 2 subst 1 July 2004.]

436

Corporations – Court Rules and Related Legislation 2017

Approved Forms Form 3 – Interlocutory Application

Form 3 – Interlocutory Application Rule 2.2

Version 2 (Title – Form 1) A. DETAILS OF INTERLOCUTORY APPLICATION * This interlocutory application is made under *section/*regulation [number] of the *Corporations Act/*ASIC Act/*Corporations Regulations. On the facts stated in the supporting affidavit(s), the applicant, [name], applies for the following interlocutory relief: 1 2 etc AND Date: ..................................................

B. NOTICE TO RESPONDENT(S) TO: [name and address of each respondent to this interlocutory application (if any). If applicable, also state the respondent’s address for service.] This application will be heard by the Court at [address of Court] at .......... *am/*pm on .......... If you wish to oppose this application or to argue that any different order should be made, you must appear before the Court in person or by your lawyer and you shall be heard. If you do not appear at the hearing the orders sought may be made without further notice to you. In addition you must before the day for hearing file a notice of appearance in this Registry. The notice should be in Form 4. You must serve a copy of it at the applicant’s address for service shown in this application as soon as possible. Note: Unless the Court otherwise orders, a respondent that is a corporation must be represented at a hearing by a legal practitioner. It may be represented at a hearing by a director of the corporation only if the Court grants leave. C. FILING This interlocutory application is filed by [name] for the applicant. D. SERVICE The applicant’s address for service is [address of applicant’s legal practitioner or of applicant]. * It is not intended to serve a copy of this interlocutory application on any person. OR * It is intended to serve a copy of this interlocutory application on each respondent and on any person listed below: [name of respondent and any other person on whom a copy of the interlocutory application is to be served] [Complete the following section if the time for service has been abridged] The time by which a copy of this interlocutory application is to be served has been abridged by order made by [name of Judge or other Court offıcer] on [date] to [time and date]. *

Omit if not applicable Note: An address for service must include telephone number, fax number, email address and document exchange address when appropriate. [Form 3 subst 1 July 2004.]

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Signature of applicant making this application or applicant’s legal practitioner

Uniform Civil Procedure Rules 1999 (Qld) – (Extracts)

Form 4 – Notice of Appearance Rule 2.9

(Title – Form 1) A. DETAILS OF PERSON INTENDING TO APPEAR Notice is given that [state full name and address], [briefly state your interest in the proceeding, eg a creditor for $ (amount), or a contributory, of the corporation] intends to appear before the Court at the hearing of the application to be heard at the Court at [address] on [date] and, if applicable, to *oppose/*support the application. Note: Unless the Court otherwise orders, a respondent that is a corporation must be represented at a hearing by a legal practitioner. It may be represented at a hearing by a director of the corporation only if the Court grants leave. B. GROUNDS OF OPPOSITION TO WINDING UP [Complete this section only if you are opposing an application to wind up a company] The grounds on which I oppose the application for winding up are: 1 2 etc C. SERVICE [This section must be completed] The address for service of the person giving this notice is [address of person’s legal practitioner or of person]. .................................................. Signature of person giving notice or of person’s legal practitioner *

Omit if not applicable Note: An address for service must include a telephone number, fax number, email address, and document exchange address where appropriate

438

Corporations – Court Rules and Related Legislation 2017

Approved Forms Form 5 – Notice of intervention by the Commission

Form 5 – Notice of intervention by the Commission Rule 2.10

(Title – Form 1) The Australian Securities and Investments Commission, whose address for service is [address], intervenes in this proceeding. Date: ..................................................

Qld

Signed on behalf of the Commission Name of signatory: [name]. Capacity of signatory: [capacity]. Note: An address for service includes telephone number, fax number, email address and document exchange address when appropriate.

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439

Uniform Civil Procedure Rules 1999 (Qld) – (Extracts)

Form 6 – Notice of hearing to approve compromise or arrangement Rule 3.4

(Title – Form 1) TO all the creditors and members of [name of company]. TAKE NOTICE that at .......... *am/*pm on .......... , the Court at [address of Court] will hear an application by [name of applicant] seeking the approval of a compromise or arrangement between the above-named company and its *members/*creditors as proposed by a resolution passed by the meeting of the *members/*creditors of the company held on [date]. [Complete this section if applicable] The proposed compromise or arrangement as passed by the meeting was amended from the form of compromise or arrangement previously sent to you in the following respects: [Set out the details of any amendment made at the meeting] If you wish to oppose the approval of the compromise or arrangement, you must file and serve on the applicant a notice of appearance in form 4, together with any affidavit on which you wish to rely at the hearing. The notice of appearance and affidavit must be served on the applicant at its address for service at least 1 day before the date fixed for the hearing of the application. [This section must be completed] The address for service of the applicant is [address of applicant’s legal practitioner or of applicant]. Name of person giving notice or of person’s legal practitioner [name] *

Omit if not applicable

440

Corporations – Court Rules and Related Legislation 2017

Approved Forms Form 7 – Affidavit accompanying statutory demand

Form 7 – Affidavit accompanying statutory demand [Name of creditor(s)] Creditor(s) [Name of debtor company] Debtor company I, [Full name] of [address and occupation], state on oath/solemnly and sincerely affirm and declare: 1 I am [state deponent’s relationship to the creditor(s), eg, “the creditor”, “(name), one of the creditors”, “a director of the creditor”, “a director of (name), one of the creditors”] named in the statutory demand, which this affidavit accompanies, relating to the *debt/*debts owed by [name of debtor company]. 2 [If the deponent is not the creditor, state the facts entitling the deponent to make the affıdavit, eg “I am authorised by the creditor(s) to make this affıdavit on its/their behalf”]. 3 [State the source of the deponent’s knowledge of the matters stated in the affıdavit in relation to the debt or each of the debts, eg “I am the person who, on behalf of the creditor(s), had the dealings with the debtor company that gave rise to the debt”, “I have inspected the business records of the creditor in relation to the debtor company’s account with the creditor”]. 4 *The debt of $[amount]/*The total $[amount] of the debts mentioned in the statutory demand is due and payable by the debtor company. 5 I believe that there is no genuine dispute about the existence or amount of the *debt/*any of the debts. Sworn/affirmed by [name] on [date] at: [place of swearing or affırmation] in the presence of: .................................................. .................................................. Signed by deponent Signed by person taking Affidavit

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Rule 5.2

Uniform Civil Procedure Rules 1999 (Qld) – (Extracts)

Form 7A – Affidavit in support of application for winding up in insolvency Rules 2.4, 5.4(2)

(Title – Form 1) I, [Full name] of [address and occupation], state on oath/solemnly and sincerely affirm and declare: 1 I am the above-named applicant [or if the applicant is a corporation, I am *a/*the director of the above-named applicant which is registered or taken to be registered in [specify State or Territory]. I am duly authorised to make this affidavit on its behalf]. 2 Exhibit A to this affidavit is a current and historical extract of the records maintained by the Australian Securities and Investments Commission with respect to the respondent. 3 The following facts are within my own personal knowledge save as otherwise stated. 4 The respondent was on [state date of statutory demand or other relevant date] indebted to the applicant in the sum of $ [amount] for [state concisely the consideration, for example, goods sold and delivered etc] which sum was then due and payable. 5 The demand, a copy of which is attached to the originating application, was signed by or on behalf of the applicant. I served the demand [or the demand and the accompanying affidavit] as referred to in the originating application [or X.Y. has been instructed to make an affidavit of service of the demand [or the demand and the accompanying affidavit]]. 6 The matters stated in the originating process concerning the demand and failure of the respondent to comply with it are true and correct. 7 The sum demanded remains due and payable by the respondent to me [or the applicant]. Sworn/affirmed by [name] on [date] at: [place of swearing or affırmation] in the presence of: .................................................. Signed by deponent

.................................................. Signed by person taking Affidavit

*

Omit if not applicable

[Form 7A insrt 1 July 2004.]

442

Corporations – Court Rules and Related Legislation 2017

Approved Forms Form 8 – Consent of liquidator/provisional liquidator

Form 8 – Consent of liquidator/provisional liquidator Rules 5.5, 6.1

Version 2

Note The requirement to disclose hourly rates should not be taken to imply that remuneration on an hourly basis is the most desirable or appropriate arrangement in every case. The Corporations Act acknowledges that another method of calculating remuneration may be appropriate (see, for example, s 473(2) and (3)). Date: .................................................. Signature of offıcial liquidator * Omit if not applicable Schedule [description of hourly rate(s)]

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(Title – Form 1) I, [name], of [address], an official liquidator, consent to be appointed by the Court and to act as the * liquidator/*provisional liquidator of [name of company]. I am not aware of any conflict of interest or duty that would make it improper for me to act as * liquidator/*provisional liquidator of the company. EITHER I am not aware of any relevant relationship mentioned in subsection 60(2) of the Corporations Act 2001. OR I have, or have had within the preceding 24 months, the following relevant relationships mentioned in subsection 60(2) of the Corporations Act 2001: [Set out all relevant relationships] The hourly rates currently charged in respect of work done as *liquidator/*provisional liquidator by me, and by my partners and employees who may perform work in this administration, are set out below or in the Schedule which is attached to this Consent. I acknowledge that my appointment by the Court does not constitute an express or implied approval by the Court of these hourly rates.

Uniform Civil Procedure Rules 1999 (Qld) – (Extracts)

Form 9 – Notice of application for winding up order Rule 5.6

(Title – Form 1) 1. An application for the winding up of [name of company] was commenced by the applicant, [name of applicant], on [date of filing of originating application] and will be heard by the Court at [address of Court] at .......... *am/*pm on .......... Copies of documents filed may be obtained from the applicant’s address for service. 2. The applicant’s address for service is [address of applicant’s legal practitioner or of applicant]. 3. Any person intending to appear at the hearing must file a notice of appearance in form 4, together with any affidavit on which the person intends to rely, and serve a copy of the notice and any affidavit on the applicant at the applicant’s address for service at least 3 days before the date fixed for the hearing. Date: Name of applicant or applicant’s legal practitioner: [name] *

Omit if not applicable

Note: An address for service must include telephone number, fax number, email address and document exchange address where appropriate.

444

Corporations – Court Rules and Related Legislation 2017

Approved Forms Form 10 – Notice of application for winding up order by substituted applicant

Form 10 – Notice of application for winding up order by substituted applicant Rule 5.10

(Title – Form 1) 1 [Name of substituted applicant], who was, by order [Name of Court], substituted as applicant, will apply to the Court at .......... *am/*pm on .......... at [address of Court] for an order that the above company be wound up. 2 The address for service of the substituted applicant is [address of substituted applicant’s legal practitioner or of substituted applicant]. 3 Any person intending to appear at the hearing must file a notice of appearance in form 4, together with any affidavit on which the person intends to rely, and serve a copy of the notice and any affidavit on the substituted applicant at its address for service at least 3 days before the date fixed for the hearing. Date: .................................................. Signature of person giving notice or of person’s legal practitioner *

Qld

Omit if not applicable

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Uniform Civil Procedure Rules 1999 (Qld) – (Extracts)

Form 11 – Notice of winding up order and of appointment of liquidator Rule 5.11

(Title – Form 1) 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]

446

Corporations – Court Rules and Related Legislation 2017

Approved Forms Form 12 – Notice of appointment of provisional liquidator

Form 12 – Notice of appointment of provisional liquidator Rule 6.2

Qld

(Title – Form 1) 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]

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Uniform Civil Procedure Rules 1999 (Qld) – (Extracts)

Form 13 – Notice by creditor or contributory of objection to release of liquidator Rule 7.6

(Title – Form 1) [Name of creditor/contributory] of [address of creditor/contributory], a creditor of [name of company] for $[amount], or a contributory of [name of company] holding [number] shares in the company, objects to the grant of a release to [name of liquidator] of [address of liquidator], who is the liquidator of [name of company], on the following grounds: [set out the grounds upon which the objection is made] Date: .................................................. Signature of objector or objector’s legal practitioner Name of objector or objector’s legal practitioner: [name] The objector’s address for service is [address of objector or objector’s legal practitioner] Note: An address for service includes telephone number, fax number, email address and document exchange address where appropriate.

448

Corporations – Court Rules and Related Legislation 2017

Approved Forms Form 14 – Affidavit in support of application for order for payment of call

Form 14 – Affidavit in support of application for order for payment of call Rule 7.8

Number on list of contributories

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Schedule B Character in Unpaid amount of which call included in the list

Qld

(Title – Form 1) I, [Full name] of [address], liquidator, state on oath or *solemnly and sincerely affirm and declare: 1. I am the liquidator of [name of company] (the company). 2. On [date] I made a call of $[amount] per share on all the contributories of the company [or specify the class of contributories on whom the call was made]. *Exhibited and marked A is a copy of the notice of the call. Each contributory whose name is shown in the Schedule marked B was duly served with notice of the call in the form exhibited and marked A. 3. Each contributory of the company whose name is set out in column 2 of the Schedule marked B has not paid, or caused to be paid, to me the sum specified opposite the contributory’s name in column 5 of the Schedule, which is due from that contributory under the call. 4. The amount set out opposite the name of each contributory in column 6 of the Schedule is an estimate of the amount due by that contributory in respect of the costs of applying for and giving effect to the order for payment of the call. The estimate of the amounts so due by the several contributories has been reached by apportioning the costs among the contributories who have not paid the call according to the liability of the respective contributories to contribute. 5. The amount set out opposite the name of each contributory in column 7 of the Schedule is the total of the amount due by that contributory in respect of the call as set out in column 5 and the amount due in respect of costs as set out in column 6. * Sworn/*affirmed by [name] on [date] at: [place of swearing or affırmation] in the presence of: .................................................. .................................................. Signed by deponent Signed by person taking affidavit

Total Proportion of costs of amount payable application

449

Uniform Civil Procedure Rules 1999 (Qld) – (Extracts)

Form 15 – Notice of application for leave to distribute a surplus Rule 7.9

(Title – Form 1) On [date] at [address], the Court will hear an application by the liquidator of [name of company] in Proceeding No. .......... of [year] for leave to distribute a surplus in respect of the liquidation of the company. Any person intending to appear at the hearing must file a notice of appearance, in form 4, together with any affidavit on which the person intends to rely, and serve a copy of the notice and affidavit on the liquidator at the address shown below at least 3 days before the date fixed for the hearing. Name of liquidator: [name] The liquidator’s address for service is [address] .................................................. Signature of liquidator

450

Corporations – Court Rules and Related Legislation 2017

Approved Forms Form 16 – Notice of intention to apply for remuneration

Form 16 – Notice of intention to apply for remuneration Rules 9.1, 9.2, 9.3, 9.4, 9.5

(Title – Form 1) TO: [name and address of person to whom notice is given] TAKE NOTICE that, not less than 21 days after this notice is served on you, I, [name and address], the * receiver/*administrator/*liquidator/*provisional liquidator/*special manager of the above company, intend to apply to the Court to determine my remuneration. If you object to my application, you must, within 21 days after being served with this notice, serve on me a notice of objection stating the grounds of objection to the remuneration claimed. Date: .................................................. Signature of receiver/administrator/ * liquidator/*provisional liquidator/ * special manager *

Qld

Omit if not applicable

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Uniform Civil Procedure Rules 1999 (Qld) – (Extracts)

Form 16A – Notice of intention to apply for review of remuneration Rules 9.2A, 9.4A

(Title – Form 1) TO: [name and address of person to whom notice is given] TAKE NOTICE that, not less than 21 days after this notice is served on you, I, [name and address of applicant], *[the *administrator/*liquidator of the above company,] intend to apply to the Court to review *the remuneration of/*my remuneration as the *administrator/*liquidator of the above company. The amount of the remuneration that has been determined or fixed is [state the amount]. The remuneration was determined or fixed by [state who determined or fixed the remuneration] on [state the date when the remuneration was determined or fixed]. I intend to apply for an order to *confirm/*increase/*reduce the remuneration. [Set out the grounds upon which an order or orders will be sought. If an order to increase or reduce the remuneration is sought, set out the amount by which the remuneration is sought to be increased or reduced.] If you wish to appear at the hearing of the application, in order to raise any issues before the Court, you must, within 21 days after being served with this notice, serve on me a notice under subrule *9.2A (4)/*9.4A(4) of the Rules for proceedings under the Corporations Act or ASIC Act, stating your intention to appear at the hearing and setting out the issues that you seek to raise before the Court. Date: .................................................. Signature of applicant * omit if not applicable

452

Corporations – Court Rules and Related Legislation 2017

Approved Forms Form 17 – Summons for public examination

Form 17 – Summons for public examination Rule 11.3

Version 2 (Title – Form 1) A. DETAILS OF SUMMONS TO: [name and address of person to be examined] You are summoned under *section 596A/*section 596B of the Corporations Act to: (a) attend before the [state the name of the Court] at [address of Court] at .......... *am/*pm on .......... and from day to day until excused by the Court, to be examined on oath or affirmation about the examinable affairs of [name of corporation]; and (b) *to produce at the examination the following books [specify books—include in a schedule if necessary]. Date: .................................................. Registrar B. NOTICE TO PERSON TO BE EXAMINED The Court may order that the questions put to you and the answers given by you at the examination are to be recorded in writing and signed by you. If you do not attend the examination in accordance with this summons, without reasonable cause, you may be arrested and imprisoned without further notice. *

Omit if not applicable

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[Form 17 subst 1 July 2004.]

453

Uniform Civil Procedure Rules 1999 (Qld) – (Extracts)

Form 17A – Arrest warrant Rule 11A.1

TO:

(Title – Form 1) – The enforcement officer; and – All police officers in the State requested to assist the enforcement officer who must give the enforcement officer the reasonable help required in the enforcement of this warrant.

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 IS SATISFIED THAT [name of person]: (a) *is about to leave Australia 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 (Cth) 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 to 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. THIS WARRANT ALSO requires and authorises you to seize any property or books of the company in the possession of [name of person] and to deliver them into the custody of the Registrar of the Court to be kept by that Registrar until the Court makes an order for their disposal. Note Section 489A of the Corporations Act 2001 provides that if the Court issues a warrant under section 486B for a person to be arrested and brought before the Court, and the person is not in prison, then the person named in the warrant may be arrested by an officer of the police force of the State or Territory in which the person is found, or the Sheriff of that State or Territory or any of the Sheriff’s officers, or a member or special member of the Australian Federal Police. Dated: .................................................. [signed] Judge *

Omit if not applicable

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Corporations – Court Rules and Related Legislation 2017

Approved Forms Form 18 – Summons for appearance in relation to registration of transfer of interests

Form 18 – Summons for appearance in relation to registration of transfer of interests Rule 12.2

(Title – Form 1) TO: [name and address] You are required to appear before the [state the name of the Court] at [address of Court] at .......... *am/*pm on .......... and show cause why the document(s) specified in the Schedule should not be *delivered up/*produced at the office of [name of company] at [address of company] within [period as ordered], as required by the attached notice. The address for service of the person applying for this summons is [address of person’s legal practitioner or of person]. Date: .................................................. Registrar *

Omit if not applicable

Qld

Schedule [description of document(s)] Note:An address for service includes telephone number, fax number, email address, and document exchange address where appropriate.

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Practice Directions – No 18 of 1993 – Trial division administrative arrangements (Brisbane) .......................................................................................................................[QLDPD.10] Practice Note No 3 of 2002 – Commercial list ...................................................................[QLDPD.20] Practice Direction No 6 of 2004 – Applications Jurisdiction – outline of argument, documents read, appearance slip .................................................................................[QLDPD.25] Practice Note No 2 of 2005 – Expert evidence: Supreme Court .......................................[QLDPD.30] Practice Note No 1 of 2007 – Freezing orders (also known as “Mareva orders” or “asset preservation orders”) ......................................................................................................[QLDPD.40] Practice Note No 2 of 2007 – Search orders (also known as “Anton Piller Orders” .........[QLDPD.50] Practice Directions – No 3 of 2008 – Filing written submissions ......................................[QLDPD.60] Practice Directions – No 20 of 2012 – Direct access briefing ...........................................[QLDPD.70] Practice Directions – No 4 of 2010 – Consent orders of the Registrar .............................[QLDPD.80]

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[QLDPD.10]

[QLDPD.10] Practice Directions – No 18 of 1993 Trial division administrative arrangements (Brisbane) Corporations (Qld) Rules 1993 1. The Corporations (Qld) Rules 1993 (“the Rules”) provide to the effect that the matters identified in Schedule 3 of the Rules may be heard and determined by a Registrar and that applications in respect of such matters must not be made to a Judge without good reason. 2. From the time the Rules come into force a separate Chamber Registrar’s list will be opened in the Registry at Brisbane for the purpose of listing matters within a Registrar’s powers under the Rules to hear and determine. Such applications and supporting material should be filed in the normal manner and the matter listed in the Chamber Registrar’s list. 3. Commencing 26 July a Chamber Registrar will sit in court 1 on level 1 in the Supreme Court at Brisbane from 9.30 a.m. on each day (including during court vacations) to deal with matters on the Chamber Registrar’s list. 4. Until 26 July matters under the Rules within a Registrar’s power to hear and determine will be dealt with by the Chamber Judges in the ordinary course of chamber business. 5. Matters on the Chamber Registrar’s list will be called over at 9.30 am each day to enable arrangements to be made for matters which a Registrar may not hear and determine or for referrals by the Registrar to be dealt with. 6. Once it is known that an application under s 167, 168, 195, 267(3), 411(4) or (6), 459B, 461, 464, 471B, 472, 568, 583 or 585 is contested, notice of that, together with an estimate of the time necessary to deal with the matter, should be given to the Corporations Clerk in the Registry (telephone 227 4313). 7. Matters on the Chamber Registrar’s list will be dealt with by the Registrar in the order listed. 8. If an application within the jurisdiction of a Registrar is to be made to a Judge an affidavit or affidavits deposing to the facts and circumstances alleged to constitute good reason for making the application to a Judge in the first instance shall be filed with the application. 9. An ex parte application for the appointment of a provisional liquidator to s 472 of the Companies Code made other than by the company shall be supported by an affidavit or affidavits deposing to the facts and circumstances relied on to justify the application being made ex parte. 10. Applications in respect of matters which the Registrar may hear and determine made in places other than Brisbane will continue to be dealt with by a Judge until some other arrangement is notified. MARTIN MOYNIHAN Senior Judge Administrator

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Qld Practice Directions

[QLDPD.20] Practice Note No 3 of 2002 Commercial list Purpose 1. The purpose of this Practice Direction is to establish a Commercial List to effect the expeditious resolution of commercial matters. The Commercial List will commence to operate on 1 May 2002.

Nature of listed proceedings 7. (a) A proceeding may be listed on the Commercial List if: (i) the issues involved are, or are likely to be, of a general commercial character, or arise out of trade and commerce in general, and (ii) the estimated trial time is 5 days or less, although a case on the Supervised Case List may be assigned by the Judge responsible - 2 - for that List to a Commercial List Judge, and will then be regarded as included on the Commercial List. (b) The Commercial List Judges have a discretion as to the entering and retention of matters on the Commercial List. It may be expected priority will be given to urgent matters. (c) Without being exhaustive, proceedings which involve, or are likely to involve, any one or more of the following may be regarded as of a general commercial character, or as arising out of trade or commerce in general: (i) construction of a business contract or a commercial document; (ii) insurance and re-insurance; (iii) provision of banking and financial services; (iv) provision and enforcement of securities of any kind; (v) business and commercial agents; (vi) exploitation of or rights to technology; (vii) entitlement to intellectual property; (viii) takeovers; (ix) exporting or importing of goods; (x) carriage of goods by land, sea, air or pipeline for commercial purposes; (xi) arbitration and proceedings arising under the Commercial Arbitration Act 1990; (xii) exploitation of natural resources; (xiii) conduct or operation of markets and exchanges. (d) Proceedings which concern the above topics but exhibit no serious commercial element, or in which there is no real dispute, should not be listed on the Commercial List. Applying for listing 8. A proceeding may be listed on the Commercial List upon application to a Commercial List Judge or by the Senior Judge Administrator. ©

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Application 2. The Chief Justice in consultation with the Senior Judge Administrator may from time to time allocate any one or more judges to conduct the Commercial List (“the Commercial List Judges”). The inaugural Commercial List Judges will be Muir and Chesterman JJ. 3. Subject to any direction by the Chief Justice in consultation with the Senior Judge Administrator, the Commercial List will be conducted by the Commercial List Judges. 4. The Commercial List Manager within the Registry is responsible to the Commercial List Judges for the administration and management of the Commercial List. The inaugural Commercial List Manager will be Mr E Kempin, Senior Deputy Registrar. 5. The Commercial List Manager will generally be the first point of contact about the Commercial List and may be contacted by email ( [email protected]), fax ((07) 3247 5316), telephone ((07) 3247 4301). Contact by email is encouraged. 6. The Commercial List Manager and the Associates to the Commercial List Judges will liaise to ensure the Judges and the Registry are kept well informed about matters on the Commercial List.

Qld Practice Directions

[QLDPD.20]

9. Unless otherwise directed, an application to have a proceeding listed on the Commercial List may be made only: (a) after the claim or originating application has been served on the defendants or respondents; (b) after the views of the defendants or respondents as to its listing have been sought by the applicant; (c) on service of an application to list together with a supporting statement, on the other parties to the proceedings, on at least two clear business days’ notice. 10. Prior to filing a listing application the solicitor for an applicant must contact the Commercial List Manager or the Associate to a Commercial List Judge and ascertain a date and time for the hearing and the identity of the Commercial List Judge before whom the application will be heard. 11. An application for listing and a listing statement may be filed by email or fax. Email filings are encouraged. 12. (a) A listing application is to be made by application supported by a statement made in accordance with this practice direction (“a listing statement”). (b) The form of a listing statement should substantially comply with schedule A. The statement must include: (i) a succinct statement of the nature of the dispute; (ii) brief particulars of the issues said to arise and why their nature warrants determination via the Commercial List; (iii) a statement whether or not the other party or parties agree that the proceeding should be listed; (iv) a statement, avoiding undue formality, of the applicant’s contentions in relation to the proceedings, which should identify: (A) the general facts on which the applicant relies in seeking relief; (B) the legal grounds, including statutory rights, relied on; (v) details of any considerations of urgency; (vi) a timetable for the progress of the action to resolution, including estimated trial length. 13. An applicant for listing should prepare a draft order setting out the directions sought on the return of the application. The draft is to be delivered by the applicant to the Commercial List Judge who is to hear the application, and to the other party or parties, not later than 24 hours prior to the time set for the hearing. Any consent by respondents should be endorsed on the draft. In the event of agreement by the parties, a Commercial List Judge may without more proceed to include the proceedings on the Commercial List, obviating the need for a hearing. 14. TThere will be no appeal from a decision to include proceedings on the Commercial List (see Commercial Causes Act 1910 s 4(2)). After listing 15. Upon the entering of a proceeding on the Commercial List, the Commercial List Judge making the listing will designate a Commercial List Judge to be responsible for the case. 16. Thereafter, subject to any direction from time to time by the Senior Judge Administrator, it is intended that all interlocutory applications and the trial of the proceedings be conducted, if practicable, by a Commercial List Judge. 17. A Commercial List Judge may give leave for an application to be brought in the applications jurisdiction. Directions 18.

(a) The Commercial List Judges may make such orders or give such directions as appropriate to ensure the just, efficient and expeditious disposal of cases on the List. Such orders and directions may follow the short form orders contained in Annexure B to Practice Direction no. 6 of 2000 (“Supervised Case List”), adapted to the circumstances of the case. (b) Such directions may extend to dispensing with pleadings or further pleadings.

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19. Where a proceeding has been commenced in a Registry other than Brisbane, an applicant for listing may file the application in that Registry, which will then transmit the application to the Commercial List Manager. 20. On a hearing for directions in a proceeding which has been listed, the Commercial List Judge may make orders, as necessary, as to the place for hearing further interlocutory applications and any trial.

Commercial List appeals 24. An application for an expedited appeal is to be made by way of application supported by affidavit of the party or the party’s solicitor. 25. Such affidavit should: (a) set out a brief statement of the reasons for the urgency of the appeal; (b) provide a brief statement of the issues said to arise on the appeal; (c) set out a proposal as to steps necessary to have the proceeding prepared expeditiously for appeal; (d) provide an estimate of the length of the time required for the hearing of the appeal; (e) attach a copy of the reasons for judgment of the Judge from whose decision the appeal is brought. 26. On the making of an order that the appeal be expedited, the President, or the Judge of Appeal appointed by the President for that purpose, may give directions for the hearing of the appeal, including any or all of the following: (a) a timetable for the taking of steps to prepare the appeal; (b) the exchange of outlines; (c) the manner in which records are to be prepared; (d) a date for the hearing. PAUL de JERSEY Chief Justice 26 March 2002 SCHEDULE “A” SUPREME COURT OF QUEENSLAND Registry: Number: Plaintiff: First Defendant: [Second Defendant;] COMMERCIAL LIST STATEMENT The Applicant/Plaintiff [or Defendant] makes the following statement in support of an application to have the above proceeding listed on the Commercial List: 1. The nature of the dispute is … [set out in a summary way] 2. The issues which arise in the proceedings are... [set out in a summary way] 3. The proceeding ought be included on the Commercial List for the following reasons: 4. The attitude of the other parties to this litigation as to the listing of this proceeding on the Commercial List is as follows: 5. The applicant’s contentions in relation to the proceeding are: (a) [set out a brief and informal statement of the relevant general facts giving rise to the proceeding]; ©

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Removal from Commercial List 21. A Commercial List Judge may by order remove a proceeding from the Commercial List. 22. On the making of an order that a proceeding be removed from the Commercial List, this practice direction will no longer apply to the proceeding unless otherwise ordered. 23. The making of an order removing a proceeding from the Commercial List in no way affects any order or direction made or given in the proceeding prior to removal.

Qld Practice Directions

[QLDPD.20]

(b) [set out a brief statement of the grounds on which the applicant claims relief, including any statutory rights etc]; 6. The special directions required in this proceeding, and the reasons why, are: 7. The circumstances of urgency in relation to the proceeding are: Solicitor for the Applicant/plaintiff [as may be]

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[QLDPD.25]

Qld Practice Directions

[QLDPD.25] Practice Direction No 6 of 2004 SUPREME COURT OF QUEENSLAND Applications Jurisdiction – outline of argument, documents read, appearance slip Outline of Argument 1. Practitioners are to provide written outlines of argument in all contested and ex parte hearings before a Judge or Registrar (including, where practicable. bail applications) in the applications jurisdiction. 2. An outline should: (a) provide a concise summary of the argument, in point form; (b) identify relevant authorities and legislative provisions; (c) usually not exceed four pages; and (d) attach a chronology where appropriate. 3. Outlines should be exchanged as early as practicable prior to the hearing. In all cases they should be handed to the Judge or Registrar at the commencement of the hearing. At the conclusion of the hearing they will be placed in the court file for future reference and retained for at least 24 months. 4. Practitioners should provide copies of relevant authorities and legislative provisions for the Judge or Registrar. Material to be read 5. Practitioners should familiarise themselves with the Court File Index relevant to each case. (Go to www.ecourts.courts.qld.gov.au – Part Search – View Documents.) 6. The Court File Index contains the following details of filed documents: Qld

• document number under the courts filing system • date filed • document type • document description • name of filing party 7. Practitioners should provide two copies of the list of material to be read. Filed documents should be identified by the Court File Index document number. If any material is to be filed by leave, the swearing date should be listed. Appearance Slip 8. Practicioners must complete an appearance slip for each proceeding in the Applications Jurisdiction before a Court or Registrar and are encouraged to insert the court file document number of documents read in the spaces provided on the forms. 9. The form may be completed and downloaded from the courts’ website: www.courts.qld.gov.au. Two copies must be provided at the commencement of the hearing, one for the Judge or Registrar and one for the Court Reports. (The Court does not have facilities for the electronic lodgement of appearance slips. 10. If an appearance slip is not completed and handed up in this way a duplicate appearance slip, available at the court room, should be completed and handed to the Associate. 11. No additional change is to be made for the preparation of a file index search, preparation of an outline, list of material or completion of an appearance slip. PAUL de JERSEY Chief Justice 13 April 2004 ©

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[QLDPD.30]

Qld Practice Directions

Expert evidence: Supreme Court 1. The attention of litigants and intending litigants is drawn to Part 5 Chapter II of the Uniform Civil Procedure Rules (“Expert evidence”). 2. In any proceeding, or intended proceeding, where expert evidence will or may be called, early consideration must be given to the requirements of the Rules, particularly as to the appointment of an expert to be the only expert witness on a particular substantial issue in the proceeding. 3. Costs sanctions may follow where multiple experts are needlessly retained in relation to an issue (r 429D). 4. Either before commencement of any such proceeding, or soon afterwards, a party intending to call expert evidence on a substantial issue should raise with all other parties the prospect of their jointly appointing an expert, who would become the only expert to give evidence on that issue (unless the court otherwise ordered) (rr 429G(1), 429H(6)). 5. As soon as it is apparent to a party that expert evidence on a substantial issue in a proceeding will be called at the trial or hearing, that party must file an application for directions. On the hearing of that application, that party must inform the court of steps taken or to be taken to conform with these Rules. 6. Paragraph 5 does not apply to a proceeding for a claim to which the Motor Accident Insurance Act 1994, the Workers’ Compensation and Rehabilitation Act 2003 or the (repealed) WorkCover Queensland Act 1996 applies. 7. If the parties agree on the orders to be made, including as to the identity of the expert, a consent order may be filed with the Registrar (clearly specifying that it is an “expert evidence case”). Such proposed order will be referred as a matter of routine to a Judge (designated by the Senior Judge Administrator), and will take effect subject to that Judge’s signifying agreement to the proposed order. 8. Enquiries about the operation of this direction, or administrative arrangements within the Registry in these matters, should be directed in the first instance to the Civil List Manager, at [email protected]. E-mail communications are encouraged. 9. Attention is drawn to the related amendment of form 48 – “Request for trial date”. (For filing in the Supreme Court an additional paragraph will be required.) PAUL de JERSEY Chief Justice 12 April 2005

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[QLDPD.30] Practice Note No 2 of 2005

Qld Practice Directions

[QLDPD.40]

[QLDPD.40] Practice Note No 1 of 2007 Freezing orders (also known as “Mareva orders” or “asset preservation orders”) 1. This Practice Direction concerns Chapter 8 Part 2 Division 2 of the Uniform Civil Procedure Rules (“UCPR”) relating to freezing orders (also known as “Mareva orders” after Mareva Compania Naviera SA v International Bulkcarriers SA (The Mareva) [1975] 2 Lloyd’s Rep 509, or “asset preservation orders”). 2. A pro-forma freezing order is set out below as an appendix. 3. The respondent to an application for a freezing order may be the person alleged to be liable on a substantive cause of action of the applicant or a third party, such as a person who has possession, custody or control, or even ownership, of assets which he or she may be obliged ultimately to disgorge to help satisfy a judgment against another person. Rule 260D(4) of the UCPR addresses the minimum requirements which must ordinarily be satisfied on an application for a freezing order against such a third party before the discretion is enlivened. The third party will not necessarily be a party to the substantive proceeding (see Cardile v LED Builders Pty Ltd (1999) 198 CLR 380), but may be a respondent to the application for the freezing or ancillary order. 4. The duration of a freezing order made without notice should be limited to a period terminating on the return date of the application which should be as soon as practicable after the order is made, when the respondent will have the opportunity to be heard. The applicant will then bear the onus of satisfying the Court that the order should be continued or renewed. 5. A freezing order should reserve liberty for the respondent to apply on short notice. An application by the respondent to discharge or vary a freezing order will normally be treated by the Court as urgent. 6. The value of the assets covered by a freezing order should not exceed the likely maximum amount of the applicant’s claim, including interest and costs. 7. The order should exclude dealings by the respondent with its assets for legitimate purposes, in particular: (a) payment of ordinary living expenses; (b) payment of reasonable legal expenses; (c) dealings and dispositions in the ordinary and proper course of the respondent’s business, including paying business expenses bona fide and properly incurred; and (d) dealings and dispositions in the discharge of obligations bona fide and properly incurred under a contract entered into before the order was made. 8. The Court may make ancillary orders. The most common example of an ancillary order is an order for disclosure of assets. 9. The UCPR confirm that certain restrictions expressed in The Siskina [1979] AC 210 do not apply in this jurisdiction. First, the Court may make a freezing order before a cause of action has accrued (a “prospective” cause of action). Second, the Court may make a free-standing freezing order in aid of foreign proceedings in prescribed circumstances. Third, where there are assets in Australia, service out of Australia is permitted. 10. The affidavits relied on in support of an application for a freezing or ancillary order should, if possible, address the following: (a) information about the judgment which has been obtained, or, if no judgment has been obtained, the following information about the cause of action: (i) the basis of the claim for substantive relief; (ii) the amount of the claim; and (iii) if the application is made without notice to the respondent, the applicant’s knowledge of any possible defence; (b) the nature and value of the respondent’s assets, so far as they are known to the applicant, within and outside Australia; (c) the matters referred to in rule 260D of the UCPR; and (d) the identity of any person, other than the respondent, who, the applicant believes, may be affected by the order, and how that person may be affected by it. PAUL de JERSEY 466

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Qld Practice Directions

Chief Justice 8 May 2007

THE COURT ORDERS AS FOLLOWS: Introduction 1. (a) The application for this order is made returnable immediately. (b) The time for service of [describe documents required to be served] is abridged and service is to be effected by [insert time and date].1 2. Subject to the next paragraph, this order has effect up to and including [insert date] (“the return date”). On the return date at [insert time] am/pm there will be a further hearing in respect of this order before a judge listed in Applications.2 3. Anyone served with or notified of this order may apply to the Court at any time to vary or discharge this order or so much of it as affects the person served or notified. 4. In this order: (a) “applicant”, if there is more than one, includes all the applicants; (b) “respondent”, if there is more than one, includes all the respondents; (c) “third party” means a person other than the respondent and the applicant; (d) “unencumbered value” means value free of mortgages, charges, liens or other encumbrances. 5. (a) A respondent ordered to do something must do it by himself or herself or through directors, officers, partners, employees or agents; (b) A respondent ordered not to do something must not do it personally or through directors, officers, partners, employees, agents or in any other way. Freezing of assets [For order limited to assets in Australia] 6. (a) The respondent must not remove from Australia or in any way dispose of, deal with or diminish the value of any of its assets in Australia (“Australian assets”) up to the unencumbered value of AUD$ (“the relevant amount”) until [trial or further order, or until 4pm on (the return date)]. (b) If the unencumbered value of the respondent’s Australian assets exceeds the relevant amount, the respondent may remove any of those assets from Australia or dispose of or deal with them or diminish their value, so long as the total unencumbered value of the respondent’s Australian assets still exceeds the relevant amount. [If the Court makes a worldwide order, the following additional paragraph (c) also applies.] (c) If the unencumbered value of the respondent’s Australian assets is less than the relevant amount, and the respondent has assets outside Australia (“ex-Australian assets”): (i) The respondent must not dispose of, deal with or diminish the value of any of its Australian assets and ex-Australian assets up to the unencumbered value of its Australian and ex-Australian assets of the relevant amount; and (ii) The respondent may dispose of, deal with or diminish the value of any of its ex-Australian assets, so long as the unencumbered value of its Australian assets and ex-Australian assets still exceeds the relevant amount. [For either form of order] 7. For the purposes of this order, the respondent’s assets include: (a) all its assets, whether or not they are in its name and whether they are solely or co-owned; (b) any asset which it has the power, directly or indirectly, to dispose of or deal with as if it were its own (you are to be regarded as having such power if a third party holds or controls the asset in accordance with the respondent’s direct or indirect instructions); and (c) the following assets in particular: ©

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APPENDIX SUPREME COURT OF QUEENSLAND Pro-forma Freezing Order On the undertakings in Schedule A to this order,

Qld Practice Directions

[QLDPD.40]

(i) the property known as [title/address] or, if it has been sold, the net proceeds of the sale; (ii) [name]] [carried on at [address]] or, if any or all of the assets have been sold, the net proceeds of the sale ; and (iii) any money in account [numbered account number] [in the name of] at [name of bank and name and address of branch]. Provision of information 8. Subject to paragraph 9, the respondent must: (a) on or before the return date for the further hearing (or within such further time as the Court may allow) to the best of its ability inform the applicant in writing of all the respondent’s assets in [Australia] [world wide], giving their value, location and details (including any mortgages, charges or other encumbrances to which they are subject) and the extent of the respondent’s interest in the assets; (b) within [ ] working days after being served with this order, swear and serve on the applicant an affidavit setting out the above information. 9. (a) This paragraph applies if the respondent is not a corporation and wishes to object that compliance with paragraph 8 may tend to incriminate the respondent or make the respondent liable to a civil penalty; (b) This paragraph also applies if the respondent is a corporation and all of the persons who are able to comply with paragraph 8 on its behalf and with whom it has been able to communicate, wish to object that compliance may tend to incriminate them respectively or make them respectively liable to a civil penalty; (c) The respondent must, on or before the return date for the further hearing (or within such further time as the Court may allow), notify the applicant in writing that the respondent or all the persons referred to in (b) wish to take such objection and identify the extent of the objection; (d) If such notice is given, compliance with paragraph 8 is necessary only to the extent that it is possible to do so without disclosure of the material in respect of which the objection is taken; and (e) If such notice is given, the Court may give directions as to the filing and service of affidavits setting out such matters as the respondent or the persons referred to in (b) wish to place before the Court in support of the objection. Exceptions to this order 10. This order does not prohibit the respondent from: (a) paying [up to $.......... a week/day on] [the respondent’s ordinary] living expenses; (b) paying [$.......... on] [the respondent’s reasonable] legal expenses; (c) dealing with or disposing of any of the respondent’s assets in the ordinary and proper course of the respondent’s business, including paying business expenses bona fide and properly incurred; and (d) in relation to matters not falling within (a), (b) or (c), dealing with or disposing of any of the respondent’s assets in discharging obligations bona fide and properly incurred under a contract entered into before this order was made, provided that before doing so the respondent gives the applicant, if possible, at least two working days written notice of the particulars of the obligation. 11. The respondent and the applicant may agree in writing that the exceptions in the preceding paragraph are to be varied. In that case the applicant or the respondent must as soon as practicable file with the Court and serve on the other a minute of a proposed consent order recording the variation signed by or on behalf of the applicant and the respondent, and the Court may order that the exceptions are varied accordingly. 12. (a) This order will cease to have effect if the respondent: (i) pays the sum of $.......... into Court; or (ii) pays that sum into a joint bank account in the name of the respondent’s solicitor and the solicitor for the applicant as agreed in writing between them; or 468

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Qld Practice Directions (iii) provides security in that sum by a method agreed in writing with the applicant to be held subject to the order of the Court. (b) Any such payment and any such security will not provide the applicant with any priority over the respondent’s other creditors in the event of the respondent’s insolvency. (c) If this order ceases to have effect pursuant to (a), the respondent must as soon as practicable file with the Court and serve on the applicant notice of that fact.

Persons other than the applicant and respondent 14. Set off by banks This order does not prevent any bank from exercising any right of set off it has in respect of any facility which it gave the respondent before it was notified of this order. 15. Bank withdrawals by the respondent No bank need inquire as to the application or proposed application of any money withdrawn by the respondent if the withdrawal appears to be permitted by this order. [For world wide order] 16. Persons outside Australia (a) Except as provided in subparagraph (b) below, the terms of this order do not affect or concern anyone outside Australia. (b) The terms of this order will affect the following persons outside Australia: (i) the respondent and its directors, officers, employees and agents (except banks and financial institutions); (ii) any person (including a bank or financial institution) who: (A) is subject to the jurisdiction of this Court; and (B) has been given written notice of this order, or has actual knowledge of the substance of the order and of its requirements; and (C) is able to prevent or impede acts or omissions outside Australia which constitute or assist in a disobedience of the terms of this order; and (iii) any other person (including a bank or financial institution), only to the extent that this order is declared enforceable by or is enforced by a court in a country or state that has jurisdiction over that person or over any of that person’s assets. [For world wide order] 17. Assets located outside Australia Nothing in this order shall, in respect of assets located outside Australia, prevent any third party from complying or acting in conformity with what it reasonably believes to be its bona fide and properly incurred legal obligations, whether contractual or pursuant to a court order or otherwise, under the law of the country or state in which those assets are situated or under the proper law of any contract between a third party and the respondent, provided that in the case of any future order of a court of that country or state made on the respondent’s or the third party’s application, reasonable written notice of the making of the application is given to the applicant. SCHEDULE A Undertakings given to the court by the applicant (1) The applicant undertakes to submit to such order (if any) as the Court may consider just for the payment of compensation (to be assessed by the Court or as it may direct) to any person (whether or not a party) affected by the operation of the order. (2) As soon as practicable, the applicant will – (a) file [describe documents required to be filed]; and (b) serve on the respondent copies of this order and [describe documents required to be served]. (3) As soon as practicable, the applicant will cause anyone notified of this order to be given a copy of it. (4) The applicant will pay the reasonable costs of anyone other than the respondent which have been incurred as a result of this order, including the costs of finding out whether that person holds any of the respondent’s assets. ©

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Costs 13. The costs of this application are reserved.

Qld Practice Directions

[QLDPD.40]

(5) If this order ceases to have effect3 the applicant will promptly take all reasonable steps to inform in writing anyone who has been notified of this order, or who he has reasonable grounds for supposing may act upon this order, that it has ceased to have effect. (6) The applicant will not, without leave of the Court, use any information obtained as a result of this order for the purpose of any civil or criminal proceedings, either in or outside Australia, other than this proceeding. (7) The applicant will not, without leave of the Court, seek to enforce this order in any country outside Australia or seek in any country outside Australia an order of a similar nature or an order conferring a charge or other security against the respondent or the respondent’s assets. (8) The applicant will: (a) on or before [date] cause an irrevocable undertaking to pay in the sum of $ to be issued by a bank with a place of business within Australia, in respect of any order the court may make pursuant to undertaking (1) above; and (b) immediately upon issue of the irrevocable undertaking, cause a copy of it to be served on the respondent. 1 Paragraph 1 is appropriate only in the case of an ex parte order. 2 Paragraph 2 is appropriate only in the case of an ex parte order. 3 For example, if the respondent pays money into Court or provides security, as provided for in paragraph 12 of this Order.

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Qld Practice Directions

Search orders (also known as “Anton Piller Orders” 1. This Practice Direction concerns Chapter 8 Part 2 Division 3 of the Uniform Civil Procedure Rules (“UCPR”) relating to search orders (also known as Anton Piller orders, after Anton Piller KG v Manufacturing Processes Ltd [1976] Ch 55). 2. A pro-forma search order is set out below as an appendix. 3. The search party must include an independent solicitor who will supervise the search and a solicitor or solicitors representing the applicant. It may be necessary that it include other persons, such as an independent computer expert, and a person able to identify things being searched for if difficulties of identification may arise. Ordinarily, the search party should not include the applicant or the applicant’s directors, officers, employees or partners or any other person associated with the applicant (other than the applicant’s solicitor). 4. The number of persons permitted in the search party should be as small as reasonably practicable. 5. The affidavits in support of an application for a search order should ordinarily include the following information: (a) a description of the things or the categories of things, in relation to which the order is sought; (b) the address or location of any premises in relation to which the order is sought and whether they are private or business premises; (c) why the order is sought, including why there is a real possibility that the things to be searched for will be destroyed or otherwise made unavailable for use in evidence before the court unless the order is made; (d) the prejudice, loss or damage likely to be suffered by the applicant if the order is not made; (e) the name, address, firm, and commercial litigation experience of an independent solicitor, who consents to being appointed to serve the order, supervise its execution, and do such other things as the Court considers appropriate; and (f) identification of any person likely to be on the premises at the time of the proposed search who could reasonably be considered to be in a position of vulnerability. 6. If it is envisaged that specialised computer expertise may be required to search the respondent’s computers, an independent computer specialist will need to be appointed who should be required to give undertakings to the Court. 7. The responsibilities of the independent solicitor ordinarily will include the following: (a) serve the order, the application, the affidavits in support, and the originating process; (b) offer to explain, and, if the offer is accepted, explain the terms of the search order to the respondent; (c) explain to the respondent that he or she has the right to obtain legal advice; (d) supervise the carrying out of the order; (e) before removing things from the premises, make a list of them, allow the respondent a reasonable opportunity to check the correctness of the list, sign the list, and provide the parties with a copy of the list; (f) take custody of all things removed from the premises until further order of the Court; (g) if the independent solicitor considers it necessary to remove a computer from the premises for safekeeping or for the purpose of copying its contents electronically or printing out information in documentary form, remove the computer from the premises for that purpose, and return the computer to the premises within any time prescribed by the order together with a list of any documents copied or printed out; (h) submit a written report to the Court within the time prescribed by the order as to the execution of the order; and (i) attend the hearing on the return date of the application, and have available to be brought to the Court all things removed from the premises. On the return date the independent solicitor may be required to release material in his or her custody which has been removed ©

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[QLDPD.50] Practice Note No 2 of 2007

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from the respondent’s premises or to provide information to the Court, and may raise any issue before the Court as to execution of the order. Ordinarily, the applicant is not permitted, without the leave of the Court, to inspect things removed from the premises or copies of them, or to be given any information about them by members of the search party. Ordinarily, a search order should be served between 9:00am and 2:00pm on a business day in order to permit the respondent more readily to obtain legal advice. However, there may be circumstances in which such a restriction is not appropriate. A search order must not be executed at the same time as the execution of a search warrant or similar process. The terms of the search order may make provision in respect of any person thought to be in a position of vulnerability. Any period during which the respondent is to be restrained from informing any other person (other than for the purposes of obtaining legal advice) of the existence of the search order should be as short as possible. Appropriate undertakings to the Court will be required of the applicant, the applicant’s solicitor and the independent solicitor, as conditions of the making of the search order. The applicant’s solicitor’s undertaking should include an undertaking not to disclose to the applicant any information the solicitor has acquired during or as a result of execution of the search order, without the leave of the Court. Release from this undertaking in whole or in part may be sought on the return date. The applicant may be required to provide security for the due performance of any undertaking as to damages. A search order is subject to the Court’s adjudication of any claim of privilege against self-incrimination. Included in the matters to be considered on the return date of the application are: (a) the disposition of any things removed from the premises and any copies which have been made; (b) maintenance of confidentiality of the respondent; and (c) claims of privilege.

PAUL de JERSEY Chief Justice 8 May 2007 APPENDIX SUPREME COURT OF QUEENSLAND Pro-forma Search Order On the undertakings in Schedule B to this order, THE COURT ORDERS AS FOLLOWS: Introduction 1. (a) The application for this order is made returnable immediately. (b) The time for service of [describe documents required to be served] is abridged and service is to be effected by [insert time and date]. 2. Subject to the next paragraph, this order has effect up to and including [insert date] (“the return date”). On the return date there will be a further hearing in respect of this order before a judge listed in Applications. 3. The respondent may apply to the Court at any time to vary or discharge this order. 4. This order may be served only between [insert time] am/pm and [insert time] am/pm [on a business day].1 5. In this order: (a) “applicant” means the person who applied for this order, and if there is more than one applicant, includes all the applicants. (b) “independent computer expert” means the person (if any) identified as the independent computer expert in the search party referred to in Schedule A to this order. 472

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Entry, search and removal 7. Subject to paragraphs 9 to 19 below, upon service of this order the respondent must: (a) permit members of the search party to enter the premises so that they can carry out the search and other activities referred to in this order; (b) permit members of the search party to leave and re-enter the premises on the same and the following day until the search and other activities referred to in this order are complete; (c) permit members of the search party to search for and inspect the listed things and to make or obtain a copy, photograph, film, sample, test or other record of the listed things; (d) disclose to members of the search party the whereabouts of all the listed things in the respondent’s possession, custody or power, whether at the premises or elsewhere; (e) disclose to members of the search party the whereabouts of all computers, computer disks and electronic information storage devices or systems at the premises in which any documents among the listed things are or may be stored, located or recorded and cause and permit those documents to be printed out; (f) do all things necessary to enable members of the search party to access the listed things, including opening or providing keys to locks and enabling them to access and operate computers and providing them with all necessary passwords; (g) permit the independent solicitor to remove from the premises into the independent solicitor’s custody: (i) the listed things and any things the subject of dispute as to whether they are listed things; and (ii) the copies, photographs, films, samples, tests, other records and printed out documents referred to above; and (h) permit the independent computer expert to search any computer and make a copy or digital copy of any computer hard drive and permit the independent computer expert or the independent solicitor to remove any computer hard drive and computer from the premises as set out in paragraphs 18 and 19 below. Restrictions on entry, search and removal 8. This order may not be executed at the same time as a search warrant (or similar process) is executed. 9. The respondent is not required to permit anyone to enter the premises until: (a) the respondent has been served with copies of this order and any affidavits referred to in Schedule C (confidential exhibits, if any, need not be served until further order of the Court); and (b) the respondent has been given an opportunity to read this order and, if the respondent so requests, the independent solicitor has explained the terms of this order. 10. Before permitting entry to the premises by anyone other than the independent solicitor, the respondent, for a time (not exceeding two hours from the time of service or such longer period as the independent solicitor may permit): (a) may seek legal advice; (b) may apply to the Court to vary or discharge this order; ©

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(c) “independent solicitor” means the person identified as the independent solicitor in the search party referred to in Schedule A to this order. (d) “listed thing” means any thing referred to in Schedule A to this order. (e) “premises” means the premises and any of the premises identified in Schedule A to this order, including any vehicles and vessels that are under the respondent’s control on or about the premises or that are otherwise identified in Schedule A. (f) “search party” means the persons identified or described as constituting the search party in Schedule A to this order. (g) “thing” includes a document. (h) “respondent” where the context permits includes the respondent’s servants or agents. 6. This order must be served by, and be executed under the supervision of, the independent solicitor.

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(c) the respondent not being a corporation, may gather together any things which the respondent believes may tend to incriminate the respondent or make the respondent liable to a civil penalty and hand them to the independent solicitor in (if the respondent wishes) a sealed envelope or container; and (d) may gather together any documents that passed between the respondent and its lawyers for the purpose of obtaining legal advice or that are otherwise subject to legal professional privilege and hand them to the independent solicitor in (if the respondent wishes) a sealed envelope or container. Subject to paragraph 20 below, the independent solicitor must not inspect or permit to be inspected by anyone, including the applicant and the applicant’s solicitors, any thing handed to the independent solicitor in accordance with subparagraphs 10(c) and (d) above and the independent solicitor must deliver it to the Court at or prior to the hearing on the return date. During any period referred to in paragraph 10 above, the respondent must: (a) inform and keep the independent solicitor informed of the steps being taken; (b) permit the independent solicitor to enter the premises but not to start the search; (c) not disturb or remove any listed things; and (d) comply with the terms of paragraphs 23 and 24 below. If there is a dispute whether something is a listed thing, that thing must promptly be handed to the independent solicitor for safekeeping pending resolution of the dispute or further order of the Court. Before removing any listed things from the premises the independent solicitor must supply a list of them to the respondent, give the respondent a reasonable time to check the correctness of the list, and give the respondent and the applicant’s solicitors a copy of the list signed by the independent solicitor. The premises must not be searched, and things must not be removed from the premises, except in the presence of the respondent or a person who appears to the independent solicitor to be a director, officer, partner, employee, or agent of the respondent. If the independent solicitor is satisfied that full compliance with the immediately preceding paragraph is not reasonably practicable, the independent solicitor may permit the search to proceed and the listed things to be removed without full compliance. The applicant’s solicitors and the independent solicitor must not allow the applicant to inspect or take copies of any thing removed from the premises, or give to the applicant information about its contents or about anything observed at the premises, until 4:30pm on the return date or other time fixed by further order of the Court.

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(a) If it is expected that a computer will be searched, the search party must include a computer expert who is independent of the applicant and of the applicant’s solicitors (“the independent computer expert”). (b) Any search of a computer must be carried out only by the independent computer expert. (c) The independent computer expert may make a copy or digital copy of the computer hard drive and remove that copy or digital copy from the premises. (d) The independent computer expert may search the computer or the copy or digital copy of the computer hard drive at the premises and/or away from the premises for listed things and may copy the listed things electronically or in hard copy or both. (e) The independent computer expert must as soon as practicable and, in any event, prior to the hearing on the return date, deliver the copy or digital copy of the computer hard drive and all electronic and hard copies of listed things to the independent solicitor, together with a report of what the independent computer expert has done including a list of such electronic and hard copies. (f) The independent solicitor must, at or prior to the hearing on the return date, deliver to the Court all things received from the independent computer expert and serve a copy of the latter’s report on the parties. (g) If no independent computer expert has been appointed, but the independent solicitor considers it necessary to remove a computer from the premises for safekeeping or for the Corporations – Court Rules and Related Legislation 2017

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purpose of copying its contents electronically and printing out information in documentary form, the independent solicitor may remove the computer from the premises for that purpose. (a) The respondent, not being a corporation, is entitled to object to the conduct described in paragraphs 18(b) to (f) on the ground that it might tend to incriminate the respondent or make the respondent liable to a civil penalty. (b) The respondent is also entitled to object to the conduct described in paragraphs 18(b) to (f) on the ground that the computer contains material that is otherwise privileged. (c) Upon the making of any objection under paragraph (a) or (b), paragraphs 18(b) to (f) become inoperative to the extent of the objection. In that event, if the applicant’s solicitor communicates to the independent solicitor that the applicant proposes to contest the objection: (i) the independent computer expert shall remove the computer hard drive (or, if that is not practicable, the computer) from the premises and deliver it into the custody of the independent solicitor who shall deliver it to the Court at or prior to the return date. (ii) on the return date or on another date, the applicant may apply to the Court for orders to similar effect as paragraphs 18(b) to (f) and if the respondent objects, the Court may adjudicate upon the objection.

Inspection 20. Prior to the return date, the respondent or its representative shall be entitled, in the presence of the independent solicitor, to inspect any thing removed from the premises and to: (a) make copies of the same; and (b) provide the independent solicitor with a signed list of things which are claimed to be privileged or confidential and which the respondent claims ought not to be inspected by the applicant. Provision of information 21. Subject to paragraph 22 below, the respondent must at or before the further hearing on the return date (or within such further time as the Court may allow) serve on the applicant an affidavit setting out the following: (a) the location of the listed things; (b) the name and address of everyone who has supplied the respondent, or offered to supply the respondent, with any listed thing; (c) the name and address of every person to whom the respondent has supplied, or offered to supply, any listed thing; and (d) details of the dates and quantities of every such supply and offer. 22. (a) This paragraph applies if, (i) the respondent not being a corporation wishes to object that compliance with paragraph 21 may tend to incriminate the respondent or make the respondent liable to a civil penalty; or (ii) if the respondent is a corporation and all of the persons who are able to comply with paragraph 21, on its behalf and with whom it has been able to communicate, wish to object that compliance may tend to incriminate them or make them liable to a civil penalty. (b) The respondent must, at or before the further hearing on the return date (or within such further time as the Court may allow), notify the applicant in writing that the respondent or all such other persons wish to take such objection and identify the extent of the objection. (c) If the respondent gives such notice, the respondent must comply with paragraph 21 only to the extent, if any, that it is possible to do so without disclosure of the material in respect of which the objection is taken. (d) If such notice is given, the Court may give directions as to the filing and service of affidavits setting out such matters as the respondent or such other persons wish to place before the Court in support of the objection. ©

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Prohibited acts 23. Except for the sole purpose of obtaining legal advice, the respondent must not, until 4:30pm on the return date, directly or indirectly inform any person of this proceeding or of the contents of this order, or tell any person that a proceeding has been or may be brought against the respondent by the applicant. 24. Until 4:30pm on the return date the respondent must not destroy, tamper with, cancel or part with possession, power, custody or control of the listed things otherwise than in accordance with the terms of this order or further order of the Court. Costs 25. The costs of this application are reserved. SCHEDULE A Premises The premises located at [insert address or addresses] including any vehicle or vehicles under the respondent’s control on or about those premises. Listed Things 1. 2. 3. Search Party 1. The independent solicitor: [insert name and address] 2. The applicant’s solicitor or solicitors: (a) [insert name and address] [or description e.g. a partner or employed solicitor of A, B and Co]. (b) [insert name and address] [or description e.g. a partner or employed solicitor of A, B and Co]. (c) [insert name and address] [or description e.g. a partner or employed solicitor of A, B and Co]. 3. Other members of the search party: (a) [insert name and address] in the capacity of [e.g. an independent computer expert] (b) [insert name and address] in the capacity of [insert capacity] SCHEDULE B UNDERTAKINGS GIVEN TO THE COURT Undertakings given to the Court by the applicant: (1) The applicant undertakes to submit to such order (if any) as the Court may consider just for the payment of compensation (to be assessed by the Court or as it may direct) to any person (whether or not a party) affected by the operation of the order. (2) The applicant will not, without leave of the Court, use any information, document or thing obtained as a result of the execution of this order for the purpose of any civil or criminal proceeding, either within or outside Australia, other than this proceeding. (3) The applicant will not inform any other person of the existence of this proceeding except for the purposes of this proceeding until after 4:30pm on the return date. (4) If the applicant has not already done so, the applicant will as soon as practicable file a copy of this order and [describe documents required to be filed]. [(5) The applicant will insure the things removed from the premises against loss or damage in an amount reasonably considered to represent their value.]2 [(6) The applicant will: (a) on or before [insert date] cause a written irrevocable undertaking to pay in the sum of $[insert amount] to be issued from a bank with a place of business within Australia, in respect of any order the Court may make referred to in the undertaking as to damages contained in paragraph (1) above; and 476

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Qld Practice Directions (b) immediately upon issue of the irrevocable undertaking to pay, cause a copy of it to be served on the respondent.]

Undertakings given to the Court by the independent solicitor (1) The independent solicitor will use his or her best endeavours to serve the respondent with this order and the other documents referred to in undertaking (1) of the above undertakings by the applicant’s solicitor or solicitors. (2) Before entering the premises, the independent solicitor will: (a) offer to explain the terms and effect of the search order to the person served with the order and, if the offer is accepted, do so; and (b) inform the respondent of his or her right to take legal advice. (3) Subject to undertaking (4) below, the independent solicitor will retain custody of all things removed from the premises by the independent solicitor pursuant to this order until delivery to the Court or further order of the Court. (4) At or before the hearing on the return date, the independent solicitor will provide a written report on the carrying out of the order to the Court and provide a copy to the applicant’s solicitors and to the respondent or the respondent’s solicitors. The report will attach a copy of any list made pursuant to the order and a copy of any report received from an independent computer expert. (5) The independent solicitor will use best endeavours to ensure that members of the search party act in conformity with the order and that the order is executed in a courteous and orderly manner so as to minimise disruption to the respondent, and will give such reasonable directions to other members of the search party as are necessary or convenient for the execution of the order. (6) The independent solicitor will not, without leave of the Court, use any information, document or thing obtained as a result of the execution of this order for the purpose of any civil or criminal proceeding, within or outside Australia, other than this proceeding. (7) The independent solicitor will not inform any other person of the existence of this proceeding except for the purposes of this proceeding until after 4:30pm on the return date. Undertakings given to the Court by the independent computer expert (1) The independent computer expert will use his or her best endeavours to act in conformity with the order and to ensure that the order, so far as it concerns the independent computer expert, is executed in a courteous and orderly manner so as to minimise disruption to the respondent. (2) The independent computer expert will not, without leave of the Court, use any information, document or thing obtained as a result of the execution of this order for the purpose of any civil or criminal proceeding, within or outside Australia, other than this proceeding. (3) The independent computer expert will not inform any other person of the existence of this proceeding except for the purposes of this proceeding until after 4:30pm on the return date. ©

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Undertakings given to the Court by the applicant’s solicitor (1) The applicant’s solicitor will provide to the independent solicitor for service on the respondent copies of this order and the documents which are listed in Schedule C. (2) The applicant’s solicitor will answer to the best of his or her ability any question as to whether a particular thing is a listed thing. (3) The applicant’s solicitor will use his or her best endeavours to act in conformity with the order and to ensure that the order is executed in a courteous and orderly manner so as to minimise disruption to the respondent. (4) The applicant’s solicitor will not, without leave of the Court, use any information, document or thing obtained as a result of the execution of this order for the purpose of any civil or criminal proceeding, within or outside Australia, other than this proceeding. (5) The applicant’s solicitor will not inform any other person of the existence of this proceeding except for the purposes of this proceeding until after 4:30pm on the return date. (6) The applicant’s solicitor will not without the leave of the Court disclose to the applicant any information that the solicitor acquires during or as a result of execution of the search order. (7) The applicant’s solicitor will use best endeavours to follow all directions of the independent solicitor.

Qld Practice Directions

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(4) The independent computer expert will use best endeavours to follow all directions of the independent solicitor. SCHEDULE C DOCUMENTS THAT MUST BE SERVED WITH THIS ORDER The application filed in the court. The originating process (draft originating process) filed in the Court. The following affidavits (including exhibits to them): Name of DeponentDate Sworn/AffirmedDate Filed (1) (2) (3) The following written submissions put to the Court – Other documents provided to the Court – A transcript of proceedings, or if none is available, a note of any oral allegation of fact, and of any oral submission, that was put to the Court. Name and address of applicant’s solicitors The Applicant’s solicitors are: [Insert name, address, reference, fax and telephone numbers both in and out of offıce hours]. 1 Normally the order should be served between 9:00am and 2:00pm on a business day to enable the respondent more readily to obtain legal advice. 2 Depending on the nature of the things likely to be removed and their likely value, and the likely particular risks of their being lost or damaged, this undertaking or a more elaborate one may be required.

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[QLDPD.60] Practice Directions – No 3 of 2008 Filing written submissions 1. The frequency of the presentation of written submissions in proceedings warrants steps to preserve them for future reference, for example should there be an appeal, and to ensure their availability for inspection by an interested person, in order to maintain the public transparency of the judicial process. 2. The purpose of this practice direction is therefore to ensure that where written submissions are presented by or on behalf of a party: a. the submissions will be retained on the court file in relation to the proceeding, and thereby available for future reference in the proceeding; and b. the submissions are available for search under Rule 981 of the Uniform Civil Procedure Rules 1999. 3. Unless the court otherwise orders, it will therefore be taken that where written submissions are presented by or on behalf of a party in a proceeding, there is a concurrent grant of leave that they be filed and read. 4. In such situations, the Judge’s Associate, or other proper officer of the court, will endorse the file in relation to the proceeding, recording the filing and reading of the submissions and identifying the submissions (as to the relevant party, and date), and will place a copy of the submissions on the file in the appropriate place. 5. Where such submissions are presented, two copies should be provided, one for the file and one “working copy” for the Judge. PAUL de JERSEY

Qld

Chief Justice 28 October 2008

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[QLDPD.70] Practice Directions – No 20 of 2012 Direct access briefing (Amending Practice Direction 2 Of 2006) 1. This Practice Direction is intended to minimise the risk of disruption to litigation and to promote the orderly conduct of cases where a barrister accepts a brief from a person other than a solicitor retained on behalf of a client (“a direct access brief”). The Practice Direction does not apply where a barrister has accepted a brief from a “government legal officer” as defined in the Legal Profession Act 2007 (s 12). 2. It is expected that a barrister who accepts a direct access brief will: (a) obtain a detailed understanding of the matter, including the client’s potential case; (b) give consideration to the evidence likely to be required to be called in the case; (c) ascertain the nature and volume of documentary evidence likely to be relevant in the case; (d) ascertain the identity and number of potential witnesses; (e) give detailed consideration to the manner in which the evidence will be collected and prepared for presentation to the Court; (f) give careful consideration to the likely steps to be taken in the matter, including the prospect of interlocutory proceedings, case flow management and whether the matter should be on a specialist list such as the supervised case list; (g) consider whether, having regard to the resources available to the barrister, including the barrister’s experience, general competence, and familiarity with the areas of practice likely to be relevant to the matter, the barrister is satisfied that (i) the barrister will be able properly to prepare the case for hearing bearing in mind the requirements of rr 15 and 17 of the 2011 Barristers’ Rule (see appendix), and (ii) the 2011 Barristers’ Rule (see appendix), and the barrister will be able to take all appropriate action on the client’s behalf, in a timely fashion, and in accordance with any rules of practice and procedure, practice directions, or other likely orders or directions made in respect of the conduct of the matter; (h) refuse to accept the direct access brief unless so satisfied. 3. A barrister who accepts a direct access brief must: (a) comply with the requirements of r 24B of the 2011 Barristers’ Rule (see appendix) (this requirement applies to all direct access briefs, that is, all briefs from a person other than a solicitor retained on behalf of a client, whether or not that person is the client); (b) cause a document to be prepared which:(i) sets out each of the matters which the barrister is required to disclose under r 24B of the 2011 Barristers’ Rule; (ii) includes the written acknowledgement, signed by the prospective client, referred to in r 24B(b) of the 2011 Barristers’ Rule; (iii) contains a certification, signed by the barrister: a. that he or she has complied with paragraph 2 of this Practice Direction; and b. that he or she informed the prospective client that any complaint of professional misconduct, unsatisfactory professional conduct, or of other conduct to which Chapters 3 or 4 of the Legal Profession Act 2007 applies, may be made to the Legal Services Commissioner (Level 30, 400 George Street, Brisbane, Q, 4000); (c) at the time at which any Court proceedings are instituted (or if the barrister is retained subsequent to the institution of proceedings, at the time the next document is filed in Court, and in any event before the barrister appears in Court in relation to the matter), cause: (i) the document to be filed in the Registry, and (ii) a copy of the document to be delivered to the Chief Executive of the Bar Association of Queensland. PAUL de JERSEY Chief Justice 20 August 2012 480

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APPENDIX 2011 Barristers Rule The Work of a Barrister 15. Barristers’ work consists of: (a) appearing as an advocate; (b) preparing to appear as an advocate; (c) negotiating for a client with an opponent to compromise a case; (d) representing a client in a mediation or arbitration or other method of alternative dispute resolution; (e) giving legal advice; (f) preparing or advising on documents to be used by a client or by others in relation to the client’s case or other affairs; (g) carrying out work properly incidental to the kinds of work referred to in (a)-(f); and (h) such other work as is from time to time commonly carried out by barristers. 17. A barrister must not, subject to Rules 18 and19, (a) act as a person’s general agent or attorney in that person’s business or dealings with others; (b) conduct correspondence in the barrister’s name on behalf of any person otherwise than with the opponent; (c) place herself or himself at risk of becoming a witness, by investigating facts for the purposes of appearing as an advocate or giving legal advice, otherwise than by – (i) conferring with the client, the instructing solicitor, prospective witnesses or experts; (ii) examining documents provided by the instructing solicitor or the client, as the case may be, or produced to the court; (iii) viewing a place or things by arrangement with the instructing solicitor or the client; or (iv) library research; (d) act as a person’s only representative in dealings with any court, otherwise than when actually appearing as an advocate; (e) be the address for service of any document or accept service of any document; (f) serve any process of any court; (g) conduct the conveyance of any property for any other person; (h) administer any trust estate or fund for any other person; (i) obtain probate or letters of administration for any other person; (j) incorporate companies or provide shelf companies for any other person; (k) prepare or lodge returns for any other person, unless the barrister is registered or accredited to do so under the applicable taxation legislation; or (l) hold, invest or disburse any fund for any other person. 24B. A barrister who proposes to accept instructions directly from a person who is not a solicitor must: (a) inform the prospective client in writing of: (i) the effect of Rules 15 and 17; (ii) the fact that circumstances may require the client to retain an instructing solicitor at short notice, and possibly during the performance of the work; (iii) any other disadvantage which the barrister believes on reasonable grounds may, as a real possibility, be suffered by the client if the client does not retain an instructing solicitor; (iv) the relative capacity of the barrister in performing barristers’ work to supply the requested facilities or services to the client compared to the capacity of the barrister together with an instructing solicitor to supply them; and (v) a fair description of the advocacy experience of the barrister; and ©

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(b) obtain a written acknowledgement, signed by the prospective client, that he or she has been informed of the matters in (a) above.

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[QLDPD.80]

Qld Practice Directions

Consent orders of the Registrar 1. Practice Directions 3 of 2001 and 5 of 2004 are repealed. 2. This Practice Direction provides a streamlined and cost effective procedure for obtaining a consent order from the Registrar under Rule 666 Uniform Civil Procedure Rules, and offers guidance as to the types of orders which may be made by the Registrar. 3. The Registrar is hereby accorded jurisdiction, where it otherwise does not exist, pursuant to Rule 452(2) UCPR, to hear and determine the applications listed in paragraph 5. 4. The practice direction does not apply to the adjournment of the hearing of an application pursuant to rule 30 UCPR where no other order is sought. Where the parties seek only to adjourn such a hearing, parties must file a Consent Adjournment of Application form (Form 11) 5. The practice direction does not apply to the adjournment of the hearing of an application pursuant to rule 30 UCPR where no other order is sought. Where the parties seek only to adjourn such a hearing, parties must file a Consent Adjournment of Application form (Form 11) (a) directions that a matter be deemed resolved pending a final consent order or discontinuance; (b) the awarding or fixing of costs, including reserved costs; (c) the assessment of costs (an affidavit exhibiting a copy of the order or other authority entitling the party to costs is required); (d) the appointment of an assessor to assess costs; (e) the adjournment of an application with a costs or other simple order; (f) the transfer of a District or Magistrates Court proceeding to the Supreme Court (an affidavit justifying the transfer is required); (g) the transfer of a Supreme Court proceeding from one registry to another; (h) the transfer of a Supreme Court proceeding to the District Court (in this instance, the consent form required under PD 22/97 must be filed instead of form 59A); (i) directions as to the conduct of a proceeding not under judicial case management (for example, but not restricted to, judicial review applications); (j) extension of time for steps to be taken prior to, or in the course of, a proceeding (eg pre-court procedural steps under the Personal Injuries Proceedings Act 2002); (k) extension of an injunction made or an undertaking given in a proceeding before a judge; (l) provision of security for costs, or dealing with security held for that purpose (eg substituting a bank guarantee for money, calling in a guarantee, paying monies out of court); (m) the stay of a judgment or the enforcement of an order pending the determination of an appeal; (n) the setting aside of a judgment (including a default judgment); (o) leave to discontinue a proceeding; (p) leave to commence a proceeding and other orders under the Personal Injuries Proceedings Act 2002, Motor Accident Insurance Act 1994, Workers’ Compensation & Rehabilitation Act 2003; (q) orders for mediation or another alternative dispute resolution process; (r) orders under the Corporations Act 2001 or Schedule 1A UCPR exercising powers of the Court prescribed under Schedule 1B UCPR; (s) security for costs of appeal, dismissing an application for leave to appeal or for other procedural directions in relation to the conduct of an appeal. 6. Applications where consent orders are more appropriately made by a judge, and will generally be refused by the Registrar, include applications for: (a) expert evidence orders; (b) directions about limitations on evidence; (c) trial by affidavit; ©

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[QLDPD.80] Practice Directions – No 4 of 2010

Qld Practice Directions

[QLDPD.80]

(d) directions in Supervised Case List, Commercial List, and other judicially case managed matters; (e) rectification of a will; (f) declaratory relief: (g) a “guillotine” order; (h) the sanctioning of a settlement (eg for children); (i) orders under Pt 19 of the Property Law Act 1974 (de facto relationships) where the orders relate to children; (j) an order that an application continue as a claim; (k) consolidation of proceedings or a direction that proceedings be heard together; (l) an order containing an undertaking (other than the extension of an undertaking made or given before a judge); (m) extension of time orders in “out of time” applications under Pt 19 of the Property Law Act 1974 (de facto relationships); (n) a cross-vesting order; (o) an order seeking dispensation with a procedural requirement (eg dispensing with the signing of a Request for Trial Date form); (p) an order which a judge would not routinely make without submissions, authorities or detailed evidence or explanation; (q) an order directing the disclosure of information about a third party which is protected by privacy legislation; (r) an order under the Corporations Act 2001 or Schedule 1A UCPR exercising powers of the Court which are NOT prescribed under Schedule 1B UCPR; (s) the listing or delisting of a matter for trial; (t) an order waiving compliance with rule 467 UCPR (ie the filing of a request for trial date – form 48); (u) an order in a family provision application under Pt 4 of the Succession Act 1981. 6. 7. The documents lodged when a consent order under Rule 666 UCPR is sought must contain sufficient, yet concise information (including copies of relevant statutory provisions), to persuade the Registrar that the order should be made. The Registrar should not need to search out legislation, or material in the court file, to check that pre-requisites for the making of the consent order have been satisfied. The following documents must be filed together: (i) a Request for Consent Order of Registrar (Form 59A) - if respective parties have signed separate Request forms, all forms must be attached together when filed. If the party is legally represented the form must be signed by a solicitor personally and must state the solicitor’s name and the firm name; (ii) two copies of the proposed draft order – Consent Order (Form 59); (iii) an affidavit may be filed if necessary (this must be as concise as possible and not exhibit unnecessary or extensive material). The Registrar will notify the parties of the result and, if requested, will refer the matter to a judge. 8. In light of the philosophy and the overriding obligations on parties under rule 5 UCPR, if a matter under paragraph 5 is in the first instance brought before a judge, or a party takes the position of “neither consenting to nor opposing” the making of orders which are reasonably warranted and could have been made by consent utilising Rule 666, the judge may require an affidavit of justification. Adverse cost consequences may follow should the Judge consider the matter in that instance could appropriately have been disposed of by consent, utilising rule 666. Paul de Jersey Chief Justice 10 June 2010

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Western Australia Supreme Court (Corporations) (WA) Rules 2004 (WA) ................................................................. 487 WA Practice Directions ................................................................................................................... 551

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SUPREME COURT (CORPORATIONS) (WA) RULES 2004 (WA) Part 1 – Preliminary 1.1 Citation............................................................................................................................................ 491 1.2 Commencement.............................................................................................................................. 491 1.3 Application of these rules and the Supreme Court Rules.............................................................. 491 1.4 Expressions used in the Corporations Act...................................................................................... 492 1.5 Terms used...................................................................................................................................... 492 1.6 References to rules and forms........................................................................................................492 1.7 Substantial compliance with forms..................................................................................................492 1.8 Court’s power to give directions......................................................................................................493 1.9 Calculation of time...........................................................................................................................493 1.10 Extension and abridgment of time.................................................................................................. 493

Part 3 – Compromises and arrangements in relation to Part 5.1 bodies 3.1 Application of Part 3........................................................................................................................ 498 3.2 Nomination of chairperson for meeting........................................................................................... 498 3.3 Order for meetings to identify proposed scheme............................................................................498 3.4 Notice of hearing (Corporations Act s. 411(4) & 413(1)) (Form 6)................................................. 499 3.5 Copy of order approving compromise or arrangement to be lodged with ASIC............................ 499 Part 4 – Receivers and other controllers of corporation property (Corporations Act Part 5.2) 4.1 Inquiry into conduct of controller (Corporations Act s. 423)........................................................... 499 Part 5 – Winding-up proceedings (including oppression proceedings where winding-up is sought) 5.1 Application of Part 5........................................................................................................................ 500 5.2 Affidavit accompanying statutory demand (Corporations Act s. 459E(3)) (Form 7)....................... 500 5.3 Application for leave to apply for winding-up in insolvency (Corporations Act s. 459P(2))............500 5.4 Affidavit in support of application for winding-up (Corporations Act s. 459P, 462 & 464).............500 5.5 Consent of liquidator (Corporations Act s. 532(9)) (Form 8).......................................................... 500 5.6 Notice of application for winding-up (Form 9).................................................................................501 5.7 Applicant to make copies of documents available..........................................................................501 5.8 Discontinuance of application for winding-up..................................................................................501 5.9 Appearance before Principal Registrar........................................................................................... 501 5.10 .........................................................................................................................................................501 Order substituting plaintiff in application for winding-up (Corporations Act s. 465B) (Form 10) 5.11 Notice of winding-up order and appointment of liquidator (Form 11)............................................. 502 Part 6 – Provisional liquidators (Corporations Act Part 5.4B) 6.1 Appointment of provisional liquidator (Corporations Act s. 472) (Form 8)..................................... 502 6.2 Notice of appointment of provisional liquidator (Form 12)..............................................................502 ©

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Part 2 – Proceedings generally 2.1 Title of documents in a proceeding (Form 1)..................................................................................493 2.2 Originating process and interlocutory process (Forms 2 & 3)........................................................ 493 2.3 Fixing of hearing..............................................................................................................................494 2.4 Supporting affidavits........................................................................................................................ 494 2.4A Application for order setting aside statutory demand (Corporations Act s. 459G)......................... 494 2.5 Affidavits made by creditors............................................................................................................ 495 2.6 Form of affidavits.............................................................................................................................495 2.7 Service of originating process or interlocutory process and supporting affidavit........................... 495 2.8 Notice of certain applications to be given to ASIC......................................................................... 496 2.9 Notice of appearance (Corporations Act s. 465C) (Form 4)...........................................................496 2.10 Intervention in proceeding by ASIC (Corporations Act s. 1330) (Form 5)......................................497 2.11 Publication of notices [Repealed]....................................................................................................497 2.12 Proof of publication......................................................................................................................... 497 2.13 Leave to creditor, contributory or officer to be heard......................................................................497 2.14 Inquiry in relation to corporation’s debts etc................................................................................... 498 2.15 Meetings ordered by the Court....................................................................................................... 498

Supreme Court (Corporations) (WA) Rules 2004 (WA) Part 7 – Liquidators 7.1 Resignation of liquidator (Corporations Act s. 473(1))....................................................................503 7.2 Filling vacancy in office of liquidator (Corporations Act s. 473(7) & 502).......................................503 7.3 Report to liquidator as to company’s affairs (Corporations Act s. 475).......................................... 503 7.4 .........................................................................................................................................................503 Liquidator to file certificate and copy of settled list of contributories (Corporations Act s. 478) 7.5 Release of liquidator and deregistration of company (Corporations Act s. 480(c) & (d)).............. 503 7.6 Objection to release of liquidator (Form 13)................................................................................... 504 7.7 Report on accounts of liquidator (Corporations Act s. 481)............................................................505 7.8 Application for payment of call (Corporations Act s. 483(3)(b)) (Form 14).................................... 505 7.9 Distribution of surplus by liquidator with special leave of the Court (Corporations Act s. 488(2)) (Form 15)........................................................................................................................ 505 7.10 Powers delegated to liquidator by the Court (Corporations Act s. 488)......................................... 505 7.11 Inquiry into conduct of liquidator (Corporations Act s. 536(1) & (2)).............................................. 505 Part 8 – Special managers (Corporations Act Part 5.4B) 8.1 Application for appointment of special manager (Corporations Act s. 484)................................... 506 8.2 Security given by special manager (Corporations Act s. 484)........................................................506 8.3 Special manager’s receipts and payments (Corporations Act s. 484)............................................506 Part 9 – Remuneration of office-holders 9.1 Remuneration of receiver (Corporations Act s. 425(1)) (Form 16).................................................506 9.2 Determination by Court of remuneration of administrator (Corporations Act s. 449E(1)(c) & (1A)(c)) (Form 16)........................................................................................................................... 507 9.2A Review of remuneration of administrator (Corporations Act s. 449E(2))........................................508 9.3 Remuneration of provisional liquidator (Corporations Act s. 473(2)) (Form 16).............................509 9.4 Remuneration of liquidator (Corporations Act s. 473(3)) (Form 16)............................................... 510 9.4A Review of remuneration of liquidator (Corporations Act s. 473(5) & (6) & 504(1))........................ 511 9.5 Remuneration of special manager (Corporations Act s. 484(2)) (Form 16)................................... 512 Part 10 – Winding-up generally 10.1 Determination of value of debts or claims (Corporations Act s. 554A(2))...................................... 513 10.2 Disclaimer of contract (Corporations Act s. 568(1A))..................................................................... 513 10.3 Winding-up Part 5.7 bodies (Corporations Act s. 583 & 585) and registered schemes (Corporations Act s. 601ND)........................................................................................................... 513 Part 11 – Examinations and orders (Corporations Act Part 5.9 Divisions 1 and 2) 11.1 Term used: examination summons................................................................................................. 513 11.2 Application for examination or investigation under Corporations Act s. 411, 423 or 536(3).......... 514 11.3 Application for examination summons (Corporations Act s. 596A & 596B) (Form 17).................. 514 11.4 Service of examination summons................................................................................................... 515 11.5 Discharge of examination summons............................................................................................... 515 11.6 Filing of record of examination (Corporations Act s. 597(13))........................................................515 11.7 Authentication of transcript of examination (Corporations Act s. 597(14))..................................... 515 11.8 Inspection of record or transcript of examination or investigation under Corporations Act s. 411, 423 or 536........................................................................................................................... 515 11.9 Entitlement to record or transcript of examination held in public................................................... 515 11.10 Default in relation to examination....................................................................................................516 11.11 Service of application for order in relation to breaches etc. by person concerned with corporation (Corporations Act s. 598)............................................................................................. 516 Part 11A – Warrants (Corporations Act s 486B and Part 5.4B Division 3 Subdivision B) 11A.1 Arrest of person (Corporations Act s. 486B) (Form 17A)............................................................... 516 Part 12 – Takeovers, acquisitions or shares, etc. (Corporations Act Chapters 6 to 6D) and financial services and markets (Corporations Act Chapter 7) 12.1 Service on ASIC in relation to proceedings under Corporations Act Ch. 6, 6A, 6B, 6C, 6D or 7.......................................................................................................................................................517 12.1A Reference to Court of question of law arising in proceeding before the Takeovers Panel (Corporations Act s. 659A).............................................................................................................. 517 12.1B Notification to Court where proceeding is commenced before end of takeover bid period (Corporations Act s. 659B).............................................................................................................. 517 12.2 .........................................................................................................................................................517 Application for summons for appearance of person (Corporations Act s. 1092(3)) (Form 18) 488

Corporations – Court Rules and Related Legislation 2017

Table of provisions 12.3

Application for orders relating to refusal to register transfer or transmission of securities (Corporations Act s. 1071F)............................................................................................................ 517

Part 14 – Powers of Courts (Corporations Act Part 9.5) 14.1 Appeal from act, omission or decision of administrator, receiver or liquidator, etc. (Corporations Act s. 554A & 1321)................................................................................................. 518 Part 15 – Proceedings under the ASIC Act 15.1 Reference to Court of question of law arising at hearing of ASIC (ASIC Act s. 61)...................... 518 15.2 Application for inquiry (ASIC Act s. 70, 201 & 219)........................................................................518 Part 15A – Proceedings under the Cross-Border Insolvency Act 15A.1 Application of this Part and other rules of court............................................................................. 518 15A.2 Expressions used in the Cross-Border Insolvency Act................................................................... 519 15A.3 Application for recognition............................................................................................................... 519 15A.4 Application for provisional relief under article 19 of the Model Law...............................................519 15A.5 Official liquidator’s consent to act................................................................................................... 520 15A.6 Notice of filing of application for recognition................................................................................... 520 15A.7 Notice of order for recognition, withdrawal etc............................................................................... 520 15A.8 Relief after recognition.................................................................................................................... 521 15A.9 Application to modify or terminate an order for recognition or other relief.....................................521 Part 16 – Jurisdiction of masters 16.1 Jurisdiction of masters.................................................................................................................... 522 Form Form Form Form Form Form Form Form Form Form Form Form Form Form Form Form Form Form Form Form Form Form Form Form Form

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 16A 17 17A 18 19 20 21 22 23

Document title................................................................................................................................. 523 Originating process......................................................................................................................... 524 Interlocutory process....................................................................................................................... 526 Notice of appearance...................................................................................................................... 527 Notice of intervention by ASIC........................................................................................................ 528 Notice of hearing to approve compromise or arrangement............................................................ 529 Affidavit accompanying statutory demand...................................................................................... 530 Consent of liquidator/provisional liquidator..................................................................................... 531 Notice of application for winding-up order...................................................................................... 532 Notice of application for winding-up order by substituted plaintiff.................................................. 533 Notice of winding-up order and of appointment of liquidator..........................................................534 Notice of appointment of provisional liquidator............................................................................... 535 Notice by creditor or contributory of objection to release of liquidator........................................... 536 Affidavit in support of application for order for payment of call...................................................... 537 Notice of application for leave to distribute a surplus.....................................................................538 Notice of intention to apply for remuneration..................................................................................539 Notice of intention to apply for review of remuneration.................................................................. 540 Summons for examination.............................................................................................................. 541 Arrest warrant.................................................................................................................................. 542 Summons for appearance in relation to registration of transfer of interests.................................. 543 Consent to act as designated person............................................................................................. 544 Notice of filing of application for recognition of foreign proceeding................................................545 Notice of making of order under the Cross-Border Insolvency Act 2008 (Commonwealth).......... 546 Notice of dismissal or withdrawal of application for recognition of foreign proceeding..................547 Notice of filing of application to modify or terminate an order for recognition or other relief.........548

SCHEDULE 2 – MATTERS OUTSIDE THE JURISDICTION OF A MASTER....................................549 NOTES TO THESE RULES............................................................................................................................ 550

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SCHEDULE 1 – FORMS

Supreme Court (Corporations) (WA) Rules 2004 (WA) Table of Amending Legislation Principal legislation

Number

Date of gazettal/ assent/registration 21 May 2004

Date of commencement 1 Jun 2004

Supreme Court (Corporations) (WA) Rules 2004

Gaz 80 of 2004

Gaz 119 of 2004

Date of gazettal/ assent/registration 6 Jul 2004

Date of commencement 6 Jul 2004

Gaz 78 of 2007

13 Apr 2007

13 Apr 2007

Gaz 138 of 2008

12 Aug 2008

Gaz 19 of 2009

13 Feb 2009

Gaz 203 of 2009

6 Nov 2009

Rr 4–15: 13 Aug 2008 Rr 4–7: 14 Feb 2009 R 4: 7 Nov 2009

Gaz 50 of 2010

1 Apr 2010

R 4: 2 Apr 2010

Gaz 165 of 2012

21 Sep 2012

Rr 4–14: 22 Sep 2012

This legislation has been amended as follows: Amending legislation Number Supreme Court (Corporations) (WA) Amendment Rules 2004 Supreme Court (Corporations) (WA) Amendment Rules 2007 Supreme Court (Corporations) (WA) Amendment Rules 2008 Supreme Court (Corporations) (WA) Amendment Rules 2009 Supreme Court (Corporations) (WA) Amendment Rules (No 2) 2009 Supreme Court (Corporations) (WA) Amendment Rules 2010 Supreme Court (Corporations) (WA) Amendment Rules 2012

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Part 1 – Preliminary r 1.3

HARMONISATION OF RULES OF COURT From 1996, a committee consisting of one judge from the Federal Court and one from each of the Supreme Courts, appointed by the Council of Chief Justices, worked on the harmonisation of rules of court relating to corporations law matters. The Supreme Court (Corporations) (WA) Rules 2004 (constituting O 81G of the Rules of the Supreme Court 1971 (WA)) were made as part of this harmonisation process by the judges of the Supreme Court of Western Australia under s 51of the Corporations (Western Australia) Act 1990 (WA) and came into force on 1 June 2004 (Gaz 21 May 2004, pp 1603–1695).

Part 1 – Preliminary 1.1 Citation These rules may be cited as the Supreme Court (Corporations) (WA) Rules 2004. 1.2 Commencement These rules come into operation on 1 June 2004. 1.3 Application of these rules and the Supreme Court Rules (1) Unless the Court otherwise orders – (a) these rules apply to a proceeding in the Court under the Corporations Act, or the ASIC Act, that is commenced on or after the commencement of these rules; and (b) Part 15A applies to a proceeding in the Court under the Cross-Border Insolvency Act. [Subr (1) subst Gov Gaz 19, 13 Feb 2009, p 302, r 4, with effect from 14 Feb 2009]

(2) The other rules of the Court apply, to the extent that they are relevant and not inconsistent with these rules – (a) to a proceeding in the Court under the Corporations Act, or the ASIC Act, that is commenced on or after the commencement of these rules; and (b) to a proceeding in the Court under the Cross-Border Insolvency Act that is commenced on or after the commencement of Part 15A. (3) Unless the Court otherwise orders, the rules applying to a proceeding in the Court under the Corporations Act, or the ASIC Act, as in force immediately before the commencement of these rules, continue to apply to a proceeding under the Corporations Act, or the ASIC Act, that was commenced before the day on which these rules came into operation. Note: By virtue of the definitions of this Act in the Corporations Act and the ASIC Act, a reference to the Corporations Act or to the ASIC Act includes a reference to the regulations made under that Act. [R 1.3 am Gov Gaz 19, 13 Feb 2009] Editor’s note: Jones v Miami Waterfront Developments Pty Ltd [2012] WASC 483 at [9] — notes that these Rules are silent on the issue of who should be joined as a party to an originating process seeking declaratory relief. Heartlink Ltd v Jones (as liquidator of HL Diagnostics Pty Ltd) (2007) 35 WAR 190; 217 FLR 346; [2007] WASC 254 at [18] – [27], especially [18] — dealing with purported discontinuance of proceedings and under what circumstances a Notice of Discontinuance is effective. Beijing Joseph Investment Co Ltd v Starr World Investment Ltd [2015] WASC 110 at [26]. The case ruled on the principal procedural rules applicable to the proceedings after they had been moved to the Western Australian Supreme Court and found them to be those contained in the Supreme Court Act and the Rules. Assuming the matter to be in federal jurisdiction in dealing with a provision of the Corporations Act 2001 (Cth), the Supreme Court Act and the Rules would be applied by r 1.3(2) of the Supreme Court (Corporations) (WA) Rules 2004 (WA) made under s 23 of the Corporations (Ancillary Provisions) Act 2001 (WA). Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd (No 4) [2015] WASCA 253 at [16]. The Supreme Court of Western Australia found that the proceedings at first instance and on appeal were not proceedings to which r 1.3 applied. The proceedings at first instance and on appeal were not proceedings under the Corporations Act 2001 (Cth) nor the Australian Securities and Investments Commission Act 2001 (Cth) but were proceedings in which damages were claimed for negligent misrepresentation, deceit and misleading or deceptive conduct. Consequently, the application by ©

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[Subr (2) subst Gov Gaz 19, 13 Feb 2009, pp 302 and 303, r 4, with effect from 14 Feb 2009]

r 1.4

Supreme Court (Corporations) (WA) Rules 2004 (WA)

non-parties, Mrs Angela and Mr Hartmut Friggers who were shareholders in and directors of Computer Accounting and Tax Pty Ltd, for leave to be heard in an appeal under r 2.13 was dismissed as r 2.13 had no application to the proceedings.

1.4 Expressions used in the Corporations Act Unless the contrary intention appears, an expression used in these rules and in the Corporations Act has the same meaning in these rules as it has in the Corporations Act. 1.5 Terms used (1) 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; Commission [Repealed] [Def rep Gov Gaz 138, 12 Aug 2008, p 3537, r 4, with effect from 13 Aug 2008]

Corporations Act means the Corporations Act 2001 of the Commonwealth; Corporations Regulations means the Corporations Regulations 2001 of the Commonwealth; Cross-Border Insolvency Act means the Cross-Border Insolvency Act 2008(Commonwealth) including, unless the contrary intention appears, the Model Law; [Def insrt Gov Gaz 19, 13 Feb 2009, p 303, r 5, with effect from 14 Feb 2009]

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 an originating process or not; [Def am Gov Gaz 19, 13 Feb 2009, p 303, r 5, with effect from 14 Feb 2009]

interlocutory process means an interlocutory process in accordance with Form 3; Model Law means the Model Law on Cross-Border 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. [Def insrt Gov Gaz 19, 13 Feb 2009, p 303, r 5, with effect from 14 Feb 2009]

originating process means an originating process in accordance with Form 2; plaintiff means a person claiming relief (except interlocutory relief) under the Corporations Act, the ASIC Act or the Cross-Border Insolvency Act, whether in an originating process or not; [Def am Gov Gaz 19, 13 Feb 2009, p 303, r 5, with effect from 14 Feb 2009]

respondent means a person against whom interlocutory relief is claimed in a proceeding. (2) Unless the contrary intention appears, an expression used in these rules and in the Rules of the Supreme Court 1971 has the same meaning in these rules as it has in the Rules of the Supreme Court 1971. [R 1.5 am Gov Gaz 19, 13 Feb 2009; Gov Gaz 138, 12 Aug 2008]

1.6 References to rules and forms In these rules, unless the contrary intention appears – (a) a reference to a rule is a reference to a rule in these rules; and (b) a reference to a form followed by a number is a reference to the form so numbered in Schedule 1. 1.7 Substantial compliance with forms (1) It is sufficient compliance with these rules in relation to a document that is required to be in accordance with a form in Schedule 1 if the document is substantially in accordance with the form required or has only such variations as the nature of the case requires. (2) Without limiting subrule (1), the Principal Registrar must not reject a document for filing only because a term used to describe a party in the document differs from the term used in these rules. Editor’s note: Smolarek v Liwszyc (2006) 32 WAR 101; 198 FLR 257; 57 ACSR 504; [2006] WASCA 50 at WAR 113; FLR 269; [34]–[35] – which considers whether non-compliance with the replaceable rules constitutes a breach of procedural irregularity under Corporations Act 2001, s 1324.

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Part 2 – Proceedings generally r 2.2 1.8 Court’s power to give directions The Court may give directions in relation to the practice and procedure to be followed in a proceeding if it is satisfied, in the circumstances of the proceeding, that – (a) the provisions of the Corporations Act, the ASIC Act, or the rules of this Court do not adequately provide for the practice and procedure to be followed in the proceeding; or (b) a difficulty arises, or doubt exists, in relation to the practice and procedure to be followed in the proceeding. Editor’s note: Heartlink Ltd v Jones (as liquidator of HL Diagnostics Pty Ltd) (2007) 35 WAR 190; 217 FLR 346; [2007] WASC 254 at [18]–[27], especially [20] – dealing with purported discontinuance of proceedings and under what circumstances a Notice of Discontinuance is effective.

1.9 Calculation of time (1) If, for any purpose, these rules – (a) prohibit, permit or require an act or thing to be done within, by, or before the end of; or (b) otherwise prescribe, allow or provide for, a period of time before or after a particular day, act or event, the period is to be calculated without counting that day, or the day of the act or event, as the case may be. (2) Without limiting subrule (1), in calculating how many days a particular day, act or event is before or after another day, act or event, only the first day, or the day of the first act or event, is to be counted. (3) If the last day of any period prescribed or allowed by these rules for an act or thing to be done falls on a day that is not a business day in the place where the act or thing is to be or may be done, the act or thing may be done on the first business day in the place after that day. (4) In calculating a period of time for the purposes of these rules, the period beginning on 25 December in a year and ending at the end of 1 January in the next year is not to be counted. 1.10 Extension and abridgment of time Unless the Corporations Act, the ASIC Act, or these rules otherwise provide, the Rules of the Supreme Court 1971 that provide for the extension or abridgment of a period of time fixed for the doing of any act or thing in relation to a proceeding apply to a proceeding to which these rules apply.

Part 2 – Proceedings generally WA

2.1 Title of documents in a proceeding (Form 1) The title of a document filed in a proceeding must be in accordance with Form 1. 2.2 Originating process and interlocutory process (Forms 2 & 3) (1) Unless these rules otherwise provide, a person must make an application required or permitted by the Corporations Act to be made to the Court – (a) if the application is not made in a proceeding already commenced in the Court – by filing an originating process; and (b) in any other case, and whether or not final or interlocutory relief is claimed – by filing an interlocutory process. [Subr (1) am Gov Gaz 78, 13 Apr 2007, p 1671, r 3, with effect from 13 Apr 2007]

(2) Unless the Court otherwise directs, a person may make an application to the Court in relation to a proceeding in respect of which final relief has been granted by filing an interlocutory process in that proceeding. (3) An originating process must – (a) be in accordance with Form 2; and (b) state – (i) each section of the Corporations Act or the ASIC Act, or each regulation of the Corporations Regulations, under which the proceeding is brought; and (ii) the relief sought. ©

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r 2.2

Supreme Court (Corporations) (WA) Rules 2004 (WA)

(4) An interlocutory process must – (a) be in accordance with Form 3; and (b) state – (i) if appropriate, each section of the Corporations Act or the ASIC Act, or each regulation of the Corporations Regulations, or each rule of Court under which the application is made; and (ii) the relief sought. Note: In an application for winding up in insolvency on the ground that the company has failed to comply with a statutory demand, the applicant should consider completing Part C of Form 2 as shown in Note 1 to these rules. [Subr (4) am Gov Gaz 78, 13 Apr 2007, p 1672, r 3, with effect from 13 Apr 2007] [R 2.2 am Gov Gaz 78, 13 Apr 2007] Editor’s note: Ngarmula Tharndu Karrungu Maya Ltd v Ngarluma Aboriginal Corporation RNTBC [2014] WASC 79 at [18] – [19]. This case refers to an originating process filed together with an application for an interlocutory injunction made pursuant to r 2.2; to s 249R, s 1322(2) and s 1324 of the Corporations Act 2001 (Cth); and the inherent jurisdiction of the court. Heartlink Ltd v Jones (as liquidator of HL Diagnostics Pty Ltd) (2007) 35 WAR 190; 217 FLR 346; [2007] WASC 254 at [18]–[27], especially [21] – dealing with purported discontinuance of proceedings and under what circumstances a Notice of Discontinuance is effective. McMaster v Eznut Pty Ltd (2006) 58 ACSR 199; [2006] WASC 109 concerns an application, by originating process under r 2.2 of the Corporations Rules, seeking orders under Corporations Act 2001, s 447C or s 447A to do with valid appointment of administrators under s 436A of the Act.

2.3 Fixing of hearing On receiving an originating process or interlocutory process, the Principal Registrar – (a) must fix a time, date and place for hearing and endorse those details on the originating process or interlocutory process; and (b) may seal a sufficient number of copies for service and proof of service. Editor’s note: Heartlink Ltd v Jones (as liquidator of HL Diagnostics Pty Ltd) (2007) 35 WAR 190; 217 FLR 346; [2007] WASC 254 at [18]–[27], especially [21] – dealing with purported discontinuance of proceedings and under what circumstances a Notice of Discontinuance is effective.

2.4 Supporting affidavits (1) Unless the Court otherwise directs, an originating process, or interlocutory process, must be supported by an affidavit stating the facts in support of the process. (2) Subject to rule 2.4A, an affidavit in support of an originating process must annex a record of a search of the records maintained by ASIC, in relation to the company that is the subject of the application to which the originating process relates, carried out no earlier than 7 days before the originating process is filed. Note: An example of the affidavit in support of an application for winding-up in insolvency for failure to comply with a statutory demand is shown in Note 2 to these rules. [Subr (2) am Gov Gaz 138, 12 Aug 2008, p 3548, r 15, with effect from 13 Aug 2008] [R 2.4 am Gov Gaz 138, 12 Aug 2008] Editor’s note: Heartlink Ltd v Jones (as liquidator of HL Diagnostics Pty Ltd) (2007) 35 WAR 190; 217 FLR 346; [2007] WASC 254 at [18]–[27], especially [21] – dealing with purported discontinuance of proceedings and under what circumstances a Notice of Discontinuance is effective. Private Services Corp Pty Ltd v G Squared Enterprises Pty Ltd [2009] WASC 313 at [3]–[8], especially at [5] – dealing with an application to wind-up insolvency and the validity of an affidavit in support of the originating process.

2.4A Application for order setting aside statutory demand (Corporations Act s. 459G) (1) This rule applies, and rule 2.4(2) does not apply, to an application by a company under section 459G of the Corporations Act for an order setting aside a statutory demand served on the company. (2) The plaintiff may file with the originating process seeking the order a copy of the statutory demand and a copy of any affidavit that accompanied the statutory demand. (3) The plaintiff must – 494

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Part 2 – Proceedings generally r 2.7 (a) no earlier than 7 days before the originating process is filed, and no later than the day before the hearing of the application, carry out a search of the records maintained by ASIC in relation to the plaintiff; and (b) either – (i) annex the record of the search to the affidavit in support of the originating process; or (ii) file the record of the search before, or tender it on, the hearing of the application. [Subr (3) am Gov Gaz 138, 12 Aug 2008, p 3548, r 15, with effect from 13 Aug 2008] [R 2.4A am Gov Gaz 138, 12 Aug 2008] Editor’s note: Guardian Risk Management Pty Ltd v Protector Holdings Pty Ltd [2011] WASC 240 especially at [10] – [11]. This case deals with an issue of costs. No order for costs made as no search under r 2.4A(3)(WA) had been conducted.

2.5 Affidavits made by creditors Subject to rule 5.4, an affidavit that is to be made by a creditor may be made – (a) if the creditor is a corporation – by a director, secretary, or other principal officer of the corporation, or by a person employed by the corporation who is authorised to make the affidavit on its behalf; (b) if the creditor is a company to which a liquidator, provisional liquidator, receiver, administrator or controller has been appointed – by that person; or (c) in any other case – by the creditor or a person authorised by the creditor to make the affidavit on behalf of the creditor. 2.6 Form of affidavits An affidavit must be in a form that complies with – (a) the Rules of the Supreme Court 1971; (b) the rules of the Supreme Court of the State (if any) or Territory (if any) where the affidavit was sworn or affirmed; or (c) the rules of the Federal Court of Australia.

Frayson Pty Ltd v Stirfry Enterprises Pty Ltd (2008) 223 FLR 342; [2008] WASC 301, especially at [7]–[9]. This case deals with legality of supporting affidavit. The plaintiff applied to set aside a statutory demand on the basis that it had no supporting affidavit. It argued that under the Oaths, Affıdavits and Statutory Declarations Act 2005 (WA) s 9(7), the person who prepared the affidavit was not a person authorised to witness that affidavit. Heartlink Ltd v Jones (as liquidator of HL Diagnostics Pty Ltd) (2007) 35 WAR 190; 217 FLR 346; [2007] WASC 254 at [18]–[27], especially [21] – dealing with purported discontinuance of proceedings and under what circumstances a Notice of Discontinuance is effective. McMaster v Eznut Pty Ltd (2006) 58 ACSR 199; [2006] WASC 109 concerns an application, by originating process under r 2.2 of the Corporations Rules, seeking orders under Corporations Act 2001, s 447C or s 447A to do with valid appointment of administrators under s 436A of the Act.

2.7 Service of originating process or interlocutory process and supporting affidavit (1) As soon as practicable after filing an originating process and, in any case, at least 5 days before the date fixed for hearing, the plaintiff must serve a copy of the originating process and any supporting affidavit on – (a) each defendant (if any) to the proceeding; and (b) if the corporation to which the proceeding relates is not a party to the proceeding – the corporation. (2) As soon as practicable after filing an interlocutory process and, in any case, at least 3 days before the date fixed for hearing, the applicant must serve a copy of the interlocutory process and any supporting affidavit on – (a) each respondent (if any) to the application in the interlocutory process; and ©

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Editor’s note: Deliver Western Australia Pty Ltd v Truckworld (WA) Pty Ltd [2014] WASC 411 at [6]. This case deals with an application to set aside a statutory demand, where an authorised witness did not print his name or identify qualifications. It explains that an affidavit served with a statutory demand, and sworn in Western Australia, must either comply with the Supreme Court (Corporations) (WA) Rules 2004 (WA) r 2.6 (“SCCR”); the Rules of the Supreme Court 1971 (WA) (“RSC”); or the Federal Court (Corporations) Rules 2000 (Cth) r 2.6.

r 2.7

Supreme Court (Corporations) (WA) Rules 2004 (WA) (b)

if the corporation to which the interlocutory application relates is not a party to the application in the interlocutory process – the corporation.

[Subr (2) am Gov Gaz 78, 13 Apr 2007, p 1672, r 4, with effect from 13 Apr 2007] [R 2.7 am Gov Gaz 78, 13 Apr 2007] Editor’s note: Heartlink Ltd v Jones (as liquidator of HL Diagnostics Pty Ltd) (2007) 35 WAR 190; 217 FLR 346; [2007] WASC 254 at [18]–[27], especially [21] – dealing with purported discontinuance of proceedings and under what circumstances a Notice of Discontinuance is effective.

2.8 Notice of certain applications to be given to ASIC (1) This rule has effect in addition to the requirements of the Corporations Act that, in relation to a proceeding, particular documents are to be served on ASIC or notice of particular matters is to be given to ASIC. [Subr (1) am Gov Gaz 138, 12 Aug 2008, p 3537, r 15, with effect from 13 Aug 2008]

(2) This rule does not apply to a person making an application if the person is ASIC or a person authorised by ASIC. [Subr (2) am Gov Gaz 138, 12 Aug 2008, p 3537, r 15, with effect from 13 Aug 2008]

(3) Unless the Court otherwise orders, if a person makes an application under a provision of the Corporations Act mentioned in column 2 of the Table to this subrule, the person must serve on ASIC, a reasonable time before the hearing of the application, a copy of the originating process, or interlocutory process, and supporting affidavit in respect of the application. Table Item 1. 2. 3. 4. 5. 6. 7. 8. 9.

Provision s. 480

Description of application For the release of a liquidator of a company and the deregistration of the company s. 482(1) For the stay or termination of a winding-up s. 509(6) For the deregistration of a company s. 536(1) For an inquiry into the conduct of a liquidator s. 601AH(2) To reinstate the registration of a company s. 601CC(8) To restore the name of an Australian body to the register s. 601CL(9) To restore the name of a foreign company to the register Ch. 6, 6A, 6B, 6C, 6D or 7 Any application under these Chapters s. 1317S(2), (4) or (5) For relief from liability for contravention of a civil penalty provision

[Subr (3) am Gov Gaz 138, 12 Aug 2008, p 3537, r 15, with effect from 13 Aug 2008; Gov Gaz 138, 12 Aug 2008, p 3537, r 5, with effect from 13 Aug 2008] [R 2.8 am Gov Gaz 138, 12 Aug 2008]

2.9 Notice of appearance (Corporations Act s. 465C) (Form 4) (1) A person who intends to appear before the Court at the hearing of an application must, before appearing – (a) file – (i) a notice of appearance in accordance with Form 4; and (ii) if appropriate – an affidavit stating any facts on which the person intends to rely; and (b) serve on the plaintiff a copy of the notice of appearance and any affidavit not later than – (i) if the person is named in an originating process – 3 days before the date fixed for hearing; or (ii) if the person is named in an interlocutory process – 1 day before the date fixed for hearing. (2) If the person intends to appear before the Court to oppose an application for winding-up, the person 496

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Part 2 – Proceedings generally r 2.13 may include in the notice of appearance the notice of the grounds on which the person opposes the application required by section 465C of the Corporations Act. (3) The period prescribed for filing and serving the notice and affidavit required by section 465C of the Corporations Act is the period mentioned in subsection (1)(b)(i). Note: Under section 465C of the Corporations Act, a person may not, without the leave of the Court, oppose an application for winding-up unless, within the period prescribed by the rules (see subrule (3) of this rule), the person has filed, and served on the plaintiff, notice of the grounds on which the person opposes the application and an affidavit verifying the matters stated in the notice. Editor’s note: Heartlink Ltd v Jones (as liquidator of HL Diagnostics Pty Ltd) (2007) 35 WAR 190; 217 FLR 346; [2007] WASC 254 at [18]–[27], especially [21] – dealing with purported discontinuance of proceedings and under what circumstances a Notice of Discontinuance is effective.

2.10 Intervention in proceeding by ASIC (Corporations Act s. 1330) (Form 5) (1) If ASIC intends to intervene in a proceeding, ASIC must file a notice of intervention in accordance with Form 5. [Subr (1) am Gov Gaz 138, 12 Aug 2008, p 3548, r 15, with effect from 13 Aug 2008]

(2) Not later than 3 days before the date fixed for the hearing at which ASIC intends to appear in the proceeding, ASIC must serve a copy of the notice, and any affidavit on which it intends to rely, on the plaintiff and on any other party to the proceeding. [Subr (2) am Gov Gaz 138, 12 Aug 2008, p 3548, r 15, with effect from 13 Aug 2008] [R 2.10 am Gov Gaz 138, 12 Aug 2008]

2.11 Publication of notices [Repealed] [R 2.11 rep Gov Gaz 165, 21 Sep 2012, p 4425, r 4, with effect from 22 Sep 2012]

2.12 Proof of publication (1) This rule applies in relation to any matter published in connection with a proceeding.

(3) The affidavit or memorandum is prima facie evidence that the publication took place on the date and otherwise as stated in the affidavit or memorandum. 2.13 Leave to creditor, contributory or officer to be heard (1) The Court may grant leave to any person who is, or who claims to be – (a) a creditor, contributory or officer of a corporation; (b) an officer of a creditor, or contributory, of a corporation; or (c) any other interested person, to be heard in a proceeding without becoming a party to the proceeding. (2) If the Court considers that the attendance of a person to whom leave has been granted under subrule (1) has resulted in additional costs for any party, or the corporation, which should be borne by the person to whom leave was granted, the Court may – (a) direct that the person pay the costs; and (b) order that the person not be heard further in the proceeding until the costs are paid or secured to the Court’s satisfaction. (3) The Court may order that a person who is, or who claims to be, a creditor, contributory or officer of a corporation be added as a defendant to the proceeding. (4) The Court may grant leave to a person under subrule (1), or order that a person be added as a defendant to a proceeding under subrule (3) – (a) on application by the person or a party to the proceeding; or ©

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(2) Unless these rules otherwise provide, or the Court otherwise orders, the person responsible for the publication of the matter, or the person’s legal practitioner, must file – (a) an affidavit made by the person, or the person’s legal practitioner, that states the date of publication and to which is annexed or exhibited a copy of the published matter; or (b) a memorandum signed by the person, or the person’s legal practitioner, that states the date of publication and refers to and annexes a copy of the published matter.

r 2.13 (b)

Supreme Court (Corporations) (WA) Rules 2004 (WA) on the Court’s own initiative.

(5) The Court may – (a) appoint a creditor or contributory to represent all or any class of the creditors or contributories on any question, or in relation to any proceeding, before the Court, at the expense of the corporation; and (b) remove any person so appointed. Editor’s note: Cox v T D Joint Venture Pty Ltd [2010] WASC 116 where CTC Marine, a creditor of the defendant, was given leave under r 2.13 to be heard as an intervener. Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd (No 4) [2015] WASCA 253, where the application by non-parties, Mrs Angela and Mr Hartmut Friggers who were shareholders in and directors of Computer Accounting and Tax Pty Ltd, for leave to be heard in an appeal under r 2.13 was dismissed. The proceedings at first instance and on appeal were not proceedings to which r 1.3 applied. The proceedings at first instance and on appeal were not under the Corporations Act 2001 (Cth) nor the Australian Securities and Investments Commission Act 2001 (Cth) but were proceedings in which damages were claimed for negligent misrepresentation, deceit and misleading or deceptive conduct. Consequently, r 2.13 had no application to the proceedings and it was not possible for the Friggers to be heard pursuant to its provisions.

2.14 Inquiry in relation to corporation’s debts etc. The Court may direct an inquiry in relation to the debts, claims or liabilities, or a class of debts, claims or liabilities, of or affecting a corporation to which a proceeding relates. Editor’s note: Private Services Corp Pty Ltd v G Squared Enterprises Pty Ltd [2009] WASC 313 at [3]–[8], especially at [3] – dealing with an application to wind-up insolvency and the validity of an affidavit in support of the originating process.

2.15 Meetings ordered by the Court Subject to the Corporations Act, these rules and any direction of the Court to the contrary, regulations 5.6.11 to 5.6.36A of the Corporations Regulations apply to meetings ordered by the Court. [R 2.15 am Gov Gaz 138, 12 Aug 2008, p 3537, r 6, with effect from 13 Aug 2008]

Part 3 – Compromises and arrangements in relation to Part 5.1 bodies 3.1 Application of Part 3 This Part applies if an application is made to the Court for approval of a compromise or arrangement between a Part 5.1 body and its creditors or members, or any class of its creditors or members. 3.2 Nomination of chairperson for meeting Before the hearing of an application under section 411(1), (1A) or (1B) of the Corporations Act, the plaintiff must file an affidavit stating – (a) the names of the persons who have been nominated to be the chairperson and alternate chairperson of the meeting; (b) that each person nominated – (i) is willing to act as chairperson; (ii) has had no previous relationship or dealing with the body, or any other person interested in the proposed compromise or arrangement, except as disclosed in the affidavit; and (iii) has no interest or obligation that may give rise to a conflict of interest or duty if the person were to act as chairperson of the meeting, except as disclosed in the affidavit; (c) the name of the person (if any) proposed to be appointed to administer the proposed compromise or arrangement; and (d) that the person does not fall within section 411(7)(a) to (f) of the Corporations Act, except as disclosed in the affidavit. 3.3 Order for meetings to identify proposed scheme (1) An order under section 411(1) or (1A) of the Corporations Act ordering a meeting or meetings in 498

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Part 4 – Receivers and other controllers of corporation property (Corporations Act Part 5.2) r 4.1 relation to a proposed compromise or arrangement must set out in a schedule, or otherwise identify, a copy of the proposed compromise or arrangement. (2) Unless the Court otherwise orders, a meeting of members ordered under section 411 of the Corporations Act must be convened, held and conducted in accordance with – (a) the provisions of Part 2G.2 of the Corporations Act that apply to the members of a company; and (b) the provisions of the plaintiff ’s constitution that apply in relation to meetings of members and are not inconsistent with Part 2G.2 of the Corporations Act. (3) Unless the Court otherwise orders, a meeting of a class of holders of convertible securities ordered under section 411 of the Corporations Act must be convened, held and conducted as if – (a) the holders were a separate class of members; and (b) the meeting were a meeting of members convened, held and conducted under subrule (2), but in accordance with, and subject to, the applicable provisions of the instrument under which the securities were issued. 3.4 Notice of hearing (Corporations Act s. 411(4) & 413(1)) (Form 6) (1) This rule applies to – (a) an application, under section 411(4) of the Corporations Act, for an order approving a proposed compromise or arrangement in relation to a Part 5.1 body; and (b) an application, under section 413(1) of the Corporations Act, for an order in relation to the reconstruction of a Part 5.1 body, or Part 5.1 bodies, or the amalgamation of 2 or more Part 5.1 bodies. (2) Unless the Court otherwise orders, the plaintiff must publish a notice of the hearing of the application. (3) The notice must be – (a) in accordance with Form 6; and (b) published at least 5 days before the date fixed for the hearing of the application. [Subr (3) am Gov Gaz 165, 21 Sep 2012, p 4425, r 5, with effect from 22 Sep 2012] [R 3.4 am Gov Gaz 165, 21 Sep 2012]

If the Court makes an order under section 411(1), (1A) or (4), or 413(1) of the Corporations Act, the plaintiff must, as soon as practicable after the order is made – (a) have the order sealed; (b) lodge an office copy of the order with ASIC; and [Para (b) am Gov Gaz 138, 12 Aug 2008, p 3548, r 15, with effect from 13 Aug 2008]

(c) serve an office copy of the order on any person appointed to administer the compromise or arrangement. [R 3.5 am Gov Gaz 138, 12 Aug 2008]

Part 4 – Receivers and other controllers of corporation property (Corporations Act Part 5.2) 4.1 Inquiry into conduct of controller (Corporations Act s. 423) A complaint to the Court under section 423(1)(b) of the Corporations Act about an act or omission of a receiver, or a controller appointed by the Court, must be made by an originating process seeking an inquiry in relation to the complaint. Editor’s note: The Laws of Australia, (Thomson Reuters, subscription service) Business Organisations 4.4 “Appointment of Receiver” at [4.4.260] – A court and ASIC have power to inquire into the conduct of a receiver or other controller of property of a company; r 4.1 makes specific provision for such an inquiry to be undertaken where a third party complains to the court or ASIC about an act or omission on the part of a controller in connection with the performance of her or his duties or functions. ©

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3.5 Copy of order approving compromise or arrangement to be lodged with ASIC

r 5.1

Supreme Court (Corporations) (WA) Rules 2004 (WA)

Part 5 – Winding-up proceedings (including oppression proceedings where winding-up is sought) 5.1 Application of Part 5 This Part applies to the following applications for the winding-up of a company – (a) an application for an order under Part 2F.1 of the Corporations Act; (b) an application under Part 5.4 or Part 5.4A of the Corporations Act. 5.2 Affidavit accompanying statutory demand (Corporations Act s. 459E(3)) (Form 7) For the purposes of section 459E(3) of the Corporations Act, the affidavit accompanying a statutory demand relating to a debt, or debts, owed by a company must – (a) be in accordance with Form 7 and state the matters mentioned in that Form; (b) be made by the creditor or by a person with the authority of the creditor or creditors; and (c) not state a proceeding number, or refer to a Court proceeding, in any heading or title to the affidavit. Editor’s note: Broadwater Bungalows Pty Ltd v Westralia Property Management Ltd [2006] WASC 138 at [49] – deals with an application to set aside statutory demand, with reference to case law dealing with the comparable rule in New South Wales. HL Diagnostics Pty Ltd v Psycadian Ltd [2005] WASC 234 at [21] – deals with an application to set aside statutory demand, with reference to case law dealing with the comparable rule in New South Wales. See Practice Direction 9.5.1, cl 2, Corporations – Disclosure by Insolvency Practitioners as to Fees to be Charged.

5.3 Application for leave to apply for winding-up in insolvency (Corporations Act s. 459P(2)) An application for leave to apply to the Court for an order that a company be wound up in insolvency may be made at the same time as the application for an order that the company be wound up in insolvency is made. 5.4 Affidavit in support of application for winding-up (Corporations Act s. 459P, 462 & 464) (1) The affidavit in support of an originating process seeking an order that a company be wound up must be made by the plaintiff or by a person with the authority of the plaintiff or plaintiffs. (2) If the application is made in reliance on a failure by the company to comply with a statutory demand, the affidavit must – (a) verify service of the demand on the company; (b) verify the failure of the company to comply with the demand; and (c) state whether and, if so, to what extent the debt, or each of the debts, to which the demand relates is still due and payable by the company at the date when the affidavit is made. (3) If the application is made in reliance on the ground mentioned in section 461(1)(a) of the Corporations Act, the affidavit must – (a) state whether the company is able to pay all its debts as and when they become due and payable; and (b) refer to the company’s most recent balance sheet and profit and loss statement as an annexure or exhibit to the affidavit, or explain their absence. (4) The affidavit must be made within 7 days before the originating process is filed. Note: An example of the affidavit in support of an application for winding-up in insolvency for failure to comply with a statutory demand is shown in Note 2 to these rules. Editor’s note: Private Services Corp Pty Ltd v G Squared Enterprises Pty Ltd [2009] WASC 313 at [3]–[8], especially at [3], [6] – dealing with an application to wind-up insolvency and the validity of an affidavit in support of the originating process.

5.5 Consent of liquidator (Corporations Act s. 532(9)) (Form 8) (1) In this rule – liquidator does not include a provisional liquidator. (2) For the purposes of section 532(9) of the Corporations Act, the consent of an official liquidator to act as liquidator of a company must be in accordance with Form 8. (3) In an application for an order that a company be wound up, the plaintiff must – 500

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Pt 5 – Winding-up proceedings r 5.10 (a) before the hearing of the application, file the consent mentioned in subrule (2) of an official liquidator who would be entitled to be appointed as liquidator of the company; and (b) serve a copy of the consent on the company at least one day before the hearing. Editor’s note: Woods v Little Tiger Pty Ltd (in liq) [2014] WASC 372. In this case the Court argued that a person must not be appointed as a liquidator by the Court unless the person has, prior to the appointment, consented to act as liquidator of the company, and that consent must be in accordance with a prescribed form: see r 5.5(2); Corporations Act 2001 (Cth) s 532(9). The Court then referred to r 5.5(3)(b) in reference to filing a copy of the liquidator’s consent and serving a copy of that consent on the company in the case of an applicant winding up a company. See Practice Direction 9.5.1, Corporations – Disclosure by Insolvency Practitioners as to Fees to be Charged, for requirements for official liquidators to consent to be appointed in writing, in accordance with Form 8, where an application is made to the court for an order that a company be wound up or for an official liquidator to be appointed as a provisional liquidator of a company (Corporations Act 2001, s 532(9)).

5.6 Notice of application for winding-up (Form 9) (1) Unless the Court otherwise orders, the plaintiff must publish a notice of the application for an order that a company be wound up. (2) The notice must be – (a) in accordance with Form 9; and (b) published – (i) at least 3 days after the originating process is served on the company; and (ii) at least 7 days before the date fixed for hearing of the application. [Subr (2) am Gov Gaz 165, 21 Sep 2012, p 4425, r 6, with effect from 22 Sep 2012] [R 5.6 am Gov Gaz 165, 21 Sep 2012] Editor’s note: Woods v Little Tiger Pty Ltd (in liq) [2014] WASC 372 – in this case the court discussed the requirements under r 5.6, and s 465A(c) of the Corporations Act 2001 to publish advertisements as to the making of an application which was concerned with orders for the winding up of companies in insolvency.

5.7 Applicant to make copies of documents available A copy of any document filed in a proceeding to which this Part applies must be available at the plaintiff ’s address for service for inspection by a creditor, contributory or officer of the company, or an officer of a creditor or contributory of the company. 5.8 Discontinuance of application for winding-up

WA

An application for an order that a company be wound up may not be discontinued except with the leave of the Court. 5.9 Appearance before Principal Registrar After filing an originating process seeking an order that a company be wound up, the plaintiff must, if required – (a) appear before the Principal Registrar on a date to be appointed by the Principal Registrar; and (b) satisfy the Principal Registrar that the plaintiff has complied with the Corporations Act and these rules in relation to applications for a winding-up order. 5.10 Order substituting plaintiff in application for winding-up (Corporations Act s. 465B) (Form 10) (1) If the Court makes an order under section 465B of the Corporations Act, the Court may also order that the substituted plaintiff or plaintiffs publish a notice stating that the substituted plaintiff or plaintiffs intend to apply for an order that the company be wound-up. (2) The notice must be – (a) in accordance with Form 10; and (b) published – (i) at least 7 days before the date fixed for the hearing of the application; or (ii) as otherwise directed by the Court. [Subr (2) am Gov Gaz 165, 21 Sep 2012, p 4425, r 7, with effect from 22 Sep 2012] [R 5.10 am Gov Gaz 165, 21 Sep 2012] ©

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Editor’s note: Pact Construction Pty Ltd v HBO EMTB WA Projects Pty Ltd [2014] WASC 423 at [27] explains that the requirement to publish a notice in accordance with Form 10 and r 5.10 is to be dispensed with pursuant to s 467(3)(b) of the Corporations Act 2001.

5.11 Notice of winding-up order and appointment of liquidator (Form 11) (1) This rule applies if the Court orders that a company be wound up and an official liquidator be appointed as liquidator of the company. (2) Not later than the day after the order is made, the plaintiff must inform the liquidator of the appointment. (3) As soon as practicable after being informed of the appointment, the liquidator must publish a notice of the winding-up order and the liquidator’s appointment. (4) The notice must be in accordance with Form 11. [Subr (4) subst Gov Gaz 165, 21 Sep 2012, p 4426, r 8, with effect from 22 Sep 2012]

(5) In this rule – liquidator does not include a provisional liquidator. [R 5.11 am Gov Gaz 165, 21 Sep 2012]

Part 6 – Provisional liquidators (Corporations Act Part 5.4B) 6.1 Appointment of provisional liquidator (Corporations Act s. 472) (Form 8) (1) An application for an official liquidator to be appointed under the Corporations Act section 472(2) as a provisional liquidator of a company must be accompanied by the written consent of the official liquidator. [Subr (1) subst Gov Gaz 78, 13 Apr 2007, p 1672, r 5, with effect from 13 Apr 2007]

(2) The consent must be in accordance with Form 8. (3) If — (a) an order is made appointing a provisional liquidator; and (b) the order provides that the provisional liquidator may take into the provisional liquidator’s custody part only of the property of the company, the order must include a short description of the part of the property of the company that the provisional liquidator may take into custody. (4) The Court may require the plaintiff to give an undertaking as to damages. [R 6.1 am Gov Gaz 78, 13 Apr 2007] Editor’s note: See Practice Direction 9.5.1, cl 2, Corporations – Disclosure by Insolvency Practitioners as to Fees to be Charged.

6.2 Notice of appointment of provisional liquidator (Form 12) (1) This rule applies if the Court orders that an official liquidator be appointed as a provisional liquidator of a company. (2) Not later than the day after the order is made, the plaintiff must – (a) except if the plaintiff is ASIC – lodge an office copy of the order with ASIC; (b) serve an office copy of the order on the company (except if the plaintiff is the company) and on any other person as directed by the Court; and (c) give to the provisional liquidator an office copy of the order and a written statement that the order has been served as required by paragraph (b). [Subr (2) am Gov Gaz 138, 12 Aug 2008, p 3548, r 15, with effect from 13 Aug 2008]

(3) As soon as practicable after the order is made, the provisional liquidator must publish a notice of the provisional liquidator’s appointment. (4) The notice must be in accordance with Form 12. [Subr (4) subst Gov Gaz 165, 21 Sep 2012, p 4426, r 9, with effect from 22 Sep 2012] [R 6.2 am Gov Gaz 165, 21 Sep 2012; Gov Gaz 138, 12 Aug 2008] 502

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Part 7 – Liquidators r 7.5

Part 7 – Liquidators 7.1 Resignation of liquidator (Corporations Act s. 473(1)) (1) A liquidator appointed by the Court who wishes to resign office must file with the Principal Registrar, and lodge with ASIC, a memorandum of resignation. [Subr (1) am Gov Gaz 138, 12 Aug 2008, p 3548, r 15, with effect from 13 Aug 2008]

(2) The resignation takes effect on the filing and lodging of the memorandum. [R 7.1 am Gov Gaz 138, 12 Aug 2008]

7.2 Filling vacancy in office of liquidator (Corporations Act s. 473(7) & 502) (1) If, for any reason, there is no liquidator acting in a winding-up, the Court may – (a) in the case of a winding-up by the Court – appoint another official liquidator whose written consent in accordance with Form 8 has been filed; and (b) in the case of a voluntary winding-up – appoint another registered liquidator whose written consent in accordance with Form 8 has been filed. (2) The Court may make the appointment – (a) in any case – on application by ASIC, a creditor or a contributory; or (b) in the case of a winding-up by the Court – on its own initiative. [Subr (2) am Gov Gaz 138, 12 Aug 2008, p 3548, r 15, with effect from 13 Aug 2008] [R 7.2 am Gov Gaz 138, 12 Aug 2008]

7.3 Report to liquidator as to company’s affairs (Corporations Act s. 475) (1) If a person is required under section 475 of the Corporations Act to submit and verify a report as to the affairs of a company, the liquidator must give to the person the appropriate forms and instructions for the preparation of the report. (2) Except by order of the Court, no person is to be allowed out of the property of a company any costs or expenses incurred in relation to the preparation of the report that have not been – (a) sanctioned by the liquidator before being incurred; or (b) taxed or assessed. (3) The liquidator must report to the Court any default in complying with the requirements of section 475 of the Corporations Act. liquidator includes a provisional liquidator. 7.4 Liquidator to file certificate and copy of settled list of contributories (Corporations Act s. 478) If, in a winding-up by the Court, a liquidator has settled and certified a list, or supplementary list, of contributories, the liquidator must, within 14 days after doing so, file the certificate and a copy of the list. 7.5 Release of liquidator and deregistration of company (Corporations Act s. 480(c) & (d)) (1) This rule applies to an application by the liquidator of a company – (a) for an order that the liquidator be released; or (b) for an order that the liquidator be released and that ASIC deregister the company. [Subr (1) am Gov Gaz 138, 12 Aug 2008, p 3536, r 15, with effect from 13 Aug 2008]

(2) The interlocutory process seeking the order must include – (a) a notice stating that any objection to the release of the liquidator must be made by filing and serving a notice of objection, in the prescribed form, within 21 days after the date of service of the interlocutory process; and (b) a statement setting out the terms of section 481(3) of the Corporations Act. Note: Section 481(3) of the Corporations Act provides that an order of the Court releasing a liquidator discharges the liquidator from all liability in respect of any act done or default made by the liquidator in the administration of the affairs of the company, or otherwise in relation to the liquidator’s conduct as liquidator, but any such order may be revoked on proof that it was obtained by fraud or by suppression or by concealment of any material fact. ©

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(4) In this rule –

r 7.5

Supreme Court (Corporations) (WA) Rules 2004 (WA)

(3) The supporting affidavit must include details of the following matters – (a) whether the whole of the company’s property has been realised or whether so much of the company’s property has been realised as, in the liquidator’s opinion, can be realised without needlessly protracting the winding-up; (b) any calls made on contributories in the course of the winding-up; (c) any dividends paid in the course of the winding-up; (d) whether the committee of inspection (if any) has passed a resolution approving the liquidator’s release; (e) whether ASIC has appointed an auditor to report on an account or statement of the position in the winding-up under section 539(2) of the Corporations Act; (f) whether the Court has ordered a report on the accounts of the liquidator to be prepared; (g) whether any objection to the release of the liquidator has been received by the liquidator from – (i) an auditor appointed by ASIC or by the Court; or (ii) any creditor, contributory or other interested person; (h) whether any report has been submitted by the liquidator to ASIC under section 533 of the Corporations Act; (i) whether the liquidator considers it necessary to report on the affairs of the company or any of its officers; (j) any property disclaimed in the course of the winding-up; (k) any remuneration paid or payable to the liquidator and how such remuneration was determined; (l) any costs, charges or expenses payable by the liquidator if the Court grants the liquidator’s release; (m) if the application is made under section 480(c) of the Corporations Act – the facts and circumstances by reason of which it is submitted that the company should not be deregistered. [Subr (3) am Gov Gaz 138, 12 Aug 2008, p 3548, r 15, with effect from 13 Aug 2008]

(4) The liquidator must include in the supporting affidavit the statements set out in paragraphs (a) and (b) of this subrule, including, if appropriate, the words in brackets – (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 (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 (except as disclosed in this affidavit)”. (5) The liquidator must file with, or annex to, the supporting affidavit – (a) a statement of the financial position of the company at the date when the interlocutory process seeking release was filed; and (b) a summary of the liquidator’s receipts and payments in winding-up the company. (6) Unless the Court otherwise orders, the liquidator must serve by prepaid post, on each creditor who has proved a debt in the course of the winding-up, and on each contributory, a copy of the interlocutory process accompanied by – (a) a copy of the summary of the liquidator’s receipts and payments in winding-up the company; and (b) a copy of the statement of the financial position of the company at the date when the interlocutory process seeking release was filed. [R 7.5 am Gov Gaz 138, 12 Aug 2008]

7.6 Objection to release of liquidator (Form 13) (1) A creditor or contributory of a company who wishes to object to the release of the liquidator of the company must, within 21 days after the date of service of the interlocutory process seeking release – (a) file – (i) a notice of objection in accordance with Form 13; and (ii) if appropriate, an affidavit stating any facts relied on; and (b) serve a copy of the notice and the affidavit (if any) on the liquidator. 504

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Part 7 – Liquidators r 7.11 (2) If the liquidator is served with a notice of objection by a creditor or contributory, the liquidator must, within 3 days after being served, serve on the creditor or contributory a copy of the affidavit supporting the interlocutory process. 7.7 Report on accounts of liquidator (Corporations Act s. 481) (1) If the Court orders that a report on the accounts of a liquidator be prepared under section 481(1) of the Corporations Act, the liquidator must give to the auditor appointed to prepare the report all information, books and vouchers required to prepare the report. (2) On completing the report, the auditor must – (a) file a copy of the report in a sealed envelope that is marked with the title and number of the proceeding and the words “Auditor’s report under section 481(1) of the Corporations Act 2001”; (b) serve a copy of the report on the liquidator; and (c) lodge a copy of the report with ASIC. [Subr (2) am Gov Gaz 138, 12 Aug 2008, p 3536, r 15, with effect from 13 Aug 2008]

(3) Except with the leave of the Court, a report is not available for inspection by any person except the liquidator or ASIC. [Subr (3) am Gov Gaz 138, 12 Aug 2008, p 3548, r 15, with effect from 13 Aug 2008] [R 7.7 am Gov Gaz 138, 12 Aug 2008]

7.8 Application for payment of call (Corporations Act s. 483(3)(b)) (Form 14) The affidavit in support of an application by the liquidator of a company, under section 483(3)(b) of the Corporations Act, for an order for the payment of a call must be in accordance with Form 14. 7.9 Distribution of surplus by liquidator with special leave of the Court (Corporations Act s. 488(2)) (Form 15) (1) The affidavit in support of an application for special leave to distribute a surplus must state how the liquidator intends to distribute the surplus including the name and address of each person to whom the liquidator intends to distribute any part of the surplus. (2) At least 14 days before the date fixed for hearing of the application, the liquidator must publish a notice of the application. (3) [Repealed] [Subr (3) rep Gov Gaz 165, 21 Sep 2012, p 4426, r 10, with effect from 22 Sep 2012]

(4) The notice must be in accordance with Form 15. WA

[Subr (4) insrt Gov Gaz 165, 21 Sep 2012, p 4426, r 10, with effect from 22 Sep 2012] [R 7.9 am Gov Gaz 165, 21 Sep 2012]

7.10 Powers delegated to liquidator by the Court (Corporations Act s. 488) Subject to the Corporations Act, the Corporations Regulations, these rules, and any order of the Court, the powers and duties conferred or imposed on the Court by Part 5.4B of the Corporations Act in respect of the matters mentioned in section 488(1) of that Act may be exercised or performed by a liquidator appointed by the Court as an officer of the Court and subject to the control of the Court. Editor’s note: Saraceni v Jones [2012] WASCA 59 at [166] — dealing with validity of Corporations Act 2001, ss 596A and 597 with regard to the delegation of court powers to a liquidator in a voluntary winding up.

7.11 Inquiry into conduct of liquidator (Corporations Act s. 536(1) & (2)) (1) A complaint to the Court under section 536(1)(b) of the Corporations Act must be made – (a) in the case of a winding-up by the Court – by an interlocutory process seeking an inquiry; and (b) in the case of a voluntary winding-up – by an originating process seeking an inquiry. (2) A report to the Court by ASIC under section 536(2) of the Corporations Act must be made – (a) in the case of a winding-up by the Court – by filing – (i) an interlocutory process seeking orders under the subsection; and (ii) a written report in a sealed envelope that is marked with the title and number of the proceeding; and ©

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Supreme Court (Corporations) (WA) Rules 2004 (WA) in the case of a voluntary winding-up – by filing – (i) an originating process seeking orders under the subsection; and (ii) a written report in a sealed envelope that is marked with the title of the proceeding and provision for its number.

[Subr (2) am Gov Gaz 138, 12 Aug 2008, p 3548, r 15, with effect from 13 Aug 2008]

(3) The contents of a report filed under subrule (2) need not, at the time of filing, be verified by an affidavit. (4) Except with the leave of the Court, a report made under section 536(2) of the Corporations Act is not available for inspection by any person except the liquidator or ASIC. [Subr (4) am Gov Gaz 138, 12 Aug 2008, p 3548, r 15, with effect from 13 Aug 2008]

(5) In this rule – liquidator includes a provisional liquidator. [R 7.11 am Gov Gaz 138, 12 Aug 2008]

Part 8 – Special managers (Corporations Act Part 5.4B) 8.1 Application for appointment of special manager (Corporations Act s. 484) (1) An application by a liquidator for the appointment of a special manager in relation to a company must state the powers which, in the liquidator’s opinion, should be entrusted by the Court to the special manager. (2) The supporting affidavit must state – (a) the circumstances making it proper that a special manager be appointed; (b) details of the remuneration proposed to be paid to the special manager; and (c) whether any committee of inspection in the winding-up, or a meeting of creditors, has approved the appointment of a special manager. 8.2 Security given by special manager (Corporations Act s. 484) (1) The Court may, from time to time, direct that the amount of security given by a special manager be varied. (2) Unless the Court otherwise directs, the costs of furnishing the security given by a special manager in respect of a particular winding-up – (a) are the personal expenses of the special manager; and (b) must not be charged against the property of the company as an expense incurred in the winding-up. 8.3 Special manager’s receipts and payments (Corporations Act s. 484) (1) A special manager must give to the liquidator – (a) an account of the special manager’s receipts and payments; and (b) a statutory declaration verifying the account. (2) If the liquidator approves the account, the liquidator must include the total amounts of the special manager’s receipts and payments in the liquidator’s accounts.

Part 9 – Remuneration of office-holders 9.1 Remuneration of receiver (Corporations Act s. 425(1)) (Form 16) (1) This rule applies to an application by a receiver of property of a corporation for an order under section 425(1) of the Corporations Act fixing the receiver’s remuneration. Note 1: Under the Corporations Act s. 425(2)(b), the Court may exercise its power to make an order fixing the remuneration of a receiver appointed under an instrument even if the receiver has died, or has ceased to act, before the making of the order or the application for the order. 506

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Part 9 – Remuneration of office-holders r 9.2 Note 2: The amendment to the Corporations Act s. 425 made by the Corporations Amendment (Insolvency) Act 2007 of the Commonwealth applies in relation to a receiver appointed on or after 31 December 2007 – see Corporations Act s. 1480(5). [Subr (1) am Gov Gaz 138, 12 Aug 2008, p 3537, r 7, with effect from 13 Aug 2008]

(2) At least 21 days before filing an originating process, or interlocutory process, seeking the order, the receiver must serve a notice in accordance with Form 16 of the receiver’s intention to apply for the order, and a copy of any affidavit on which the receiver intends to rely, on the following persons – (a) the person who appointed the receiver; (b) any creditor holding security over all or any of the same property of the corporation (except if the creditor is the person who appointed the receiver); (c) any administrator, liquidator or provisional liquidator of the corporation; (d) any administrator of a deed of company arrangement executed by the corporation; (e) if there is no person of the kind mentioned in paragraph (c) or (d) – (i) each of the 5 largest (measured by amount of debt) unsecured creditors of the corporation; and (ii) each member of the corporation whose shareholding represents at least 10% of the issued capital of the corporation. (3) Within 21 days after the last service of the documents mentioned in subrule (2), any creditor or contributory, or any person mentioned in subrule (2)(c), (d) or (e), may give to the receiver a notice of objection to the remuneration claimed, stating the grounds of objection.

(5) If the receiver receives a notice of objection within the period mentioned in subrule (3), the receiver must serve a copy of the originating process, or interlocutory process, seeking the order on each creditor or contributory, or other person, who has given a notice of objection. (6) An (a) (b) (c) (d) (e) (f)

affidavit in support of the originating process, or interlocutory process, seeking the order must – include evidence of the matters mentioned in the Corporations Act section 425(8); and state the nature of the work performed or likely to be performed by the receiver; and state the amount of remuneration claimed; and include a summary of the receipts taken and payments made by the receiver; and state particulars of any objection of which the receiver has received notice; and if the receivership is continuing, give details of any matters delaying the completion of the receivership.

[Subr (6) subst Gov Gaz 138, 12 Aug 2008, p 3537, r 7, with effect from 13 Aug 2008] [R 9.1 am Gov Gaz 138, 12 Aug 2008] Editor’s note: See Practice Direction 9.5.1, cl 4, Corporations – Disclosure by Insolvency Practitioners as to Fees to be Charged.

9.2 Determination by Court of remuneration of administrator (Corporations Act s. 449E(1)(c) & (1A)(c)) (Form 16) (1) This rule applies to an application by the administrator of a company under administration, or of a deed of company arrangement, for an order under the Corporations Act section 449E(1)(c) or (1A)(c) determining the administrator’s remuneration. ©

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(4) If the receiver does not receive a notice of objection within the period mentioned in subrule (3) – (a) the receiver may file an affidavit, made after the end of that period, in support of the originating process, or interlocutory process, seeking the order stating – (i) the date, or dates, when the notice and affidavit required to be served under subrule (2) were served; and (ii) that the receiver has not received any notice of objection to the remuneration claimed within the period mentioned in subrule (3); (b) the receiver may endorse the originating process, or interlocutory process, with a request that the application be dealt with in the absence of the public and without any attendance by, or on behalf of, the receiver; and (c) the application may be so dealt with.

r 9.2

Supreme Court (Corporations) (WA) Rules 2004 (WA)

(2) At least 21 days before filing an originating process, or interlocutory process, seeking the order, the administrator must serve a notice in accordance with Form 16 of the administrator’s intention to apply for the order, and a copy of any affidavit on which the administrator intends to rely, on the following persons – (a) each creditor who was present, in person or by proxy at any meeting of creditors; (b) each member of any committee of creditors or committee of inspection; (c) if there is no committee of creditors or committee of inspection, and no meeting of creditors has been convened and held, each of the 5 largest (measured by amount of debt) creditors of the company; (d) each member of the company whose shareholding represents at least 10% of the issued capital of the company. (3) Within 21 days after the last service of the documents mentioned in subrule (2), any creditor or contributory may give to the administrator a notice of objection to the remuneration claimed, stating the grounds of objection. (4) If the administrator does not receive a notice of objection within the period mentioned in subrule (3) – (a) the administrator may file an affidavit, made after the end of that period, in support of the originating process, or interlocutory process, seeking the order stating – (i) the date, or dates, when the notice and affidavit required to be served under subrule (2) were served; and (ii) that the administrator has not received any notice of objection to the remuneration claimed within the period mentioned in subrule (3); and (b) the administrator may endorse the originating process, or interlocutory process, with a request that the application be dealt with in the absence of the public and without any attendance by, or on behalf of, the administrator; and (c) the application may be so dealt with. (5) If the administrator receives a notice of objection within the period mentioned in subrule (3), the administrator must serve a copy of the originating process, or interlocutory process, seeking the order on each creditor or contributory who has given a notice of objection. (6) An (a) (b) (c) (d) (e) (f)

affidavit in support of the originating process, or interlocutory process, seeking the order must – include evidence of the matters mentioned in the Corporations Act section 449E(4); and state the nature of the work performed or likely to be performed by the administrator; and state the amount of remuneration claimed; and include a summary of the receipts taken and payments made by the administrator; and state particulars of any objection of which the administrator has received notice; and if the administration is continuing, give details of any matters delaying the completion of the administration.

[R 9.2 subst Gov Gaz 138, 12 Aug 2008, pp 3538 and 3539, r 8, with effect from 13 Aug 2008] Editor’s note: See Practice Direction 9.5.1, cl 4, Corporations – Disclosure by Insolvency Practitioners as to Fees to be Charged.

9.2A Review of remuneration of administrator (Corporations Act s. 449E(2)) (1) This rule applies to an application for review of the amount of the remuneration of an administrator under the Corporations Act section 449E(2). Note: The amendment to the Corporations Act s. 449E made by the Corporations Amendment (Insolvency) Act 2007 of the Commonwealth applies in relation to an administrator appointed on or after 31 December 2007 – see Corporations Act s. 1480(6).

(2) The application may be made only after the remuneration has been determined under the Corporations Act section 449E(1)(a) or (b) or 449E(1A)(a) or (b). (3) At least 21 days before filing the originating process or the interlocutory process applying for a review, the plaintiff or applicant must serve a notice, in accordance with Form 16A, of intention to apply for the review and a copy of any affidavit on which the plaintiff or applicant intends to rely (other than an affidavit required by subrule (9)), on the following persons – (a) if there is a committee of creditors or a committee of inspection, each member of the committee; 508

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Part 9 – Remuneration of office-holders r 9.3 (b)

if the remuneration of the administrator was determined by the creditors, each creditor who was present, in person or by proxy, at the meeting of creditors at which the remuneration was determined; (c) each member of the company whose shareholding represents at least 10% of the issued capital of the company.

(4) Within 21 days after the last service of the documents mentioned in subrule (3), any person on whom the notice has been served may serve on the plaintiff or applicant a notice – (a) stating the person’s intention to appear at the hearing of the applicant for review; and (b) setting out the issues that the person seeks to raise before the Court. (5) A person mentioned in subrule (3) is entitled to be heard on the application for review, but only (unless the Court otherwise orders) if the person has served on the plaintiff or applicant a notice in accordance with subrule (4). (6) If the plaintiff or applicant is served with a notice in accordance with subrule (4), the plaintiff or applicant must serve a copy of the originating process or interlocutory process applying for the review on each person who has served such a notice. (7) The administrator must file an affidavit stating the following matters – (a) the matters mentioned in the Corporations Act section 449E(4); (b) the nature of the work performed or likely to be performed by the administrator; (c) the amount of remuneration claimed by the administrator if that amount is different from the amount of remuneration that has been determined; (d) a summary of the receipts taken and payments made by the administrator; (e) particulars of any objection to the remuneration as determined, of which the administrator has received notice; (f) if the administration is continuing – details of any matters delaying the completion of the administration. (8) The affidavit mentioned in subrule (7) must annex a copy of the report that the administrator was required to prepare before remuneration was determined. (9) The plaintiff or applicant must – (a) file an affidavit stating whether any notice or notices under subrule (4) has or have been served; and (b) annex or exhibit to the affidavit a copy of any such notice. WA

[R 9.2A insrt Gov Gaz 138, 12 Aug 2008, pp 3539–3541, r 8, with effect from 13 Aug 2008]

9.3 Remuneration of provisional liquidator (Corporations Act s. 473(2)) (Form 16) (1) This rule applies to an application by a provisional liquidator of a company for an order under section 473(2) of the Corporations Act determining the provisional liquidator’s remuneration. (2) The application must be made by interlocutory process in the winding-up proceeding. (3) At least 21 days before filing the interlocutory process seeking the order, the provisional liquidator must serve a notice in accordance with Form 16 of the provisional liquidator’s intention to apply for the order, and a copy of any affidavit on which the provisional liquidator intends to rely, on the following persons – (a) any liquidator (except the provisional liquidator) of the company; (b) each member of any committee of inspection or, if there is no committee of inspection, each of the 5 largest (measured by amount of debt) creditors of the company; (c) each member of the company whose shareholding represents at least 10% of the issued capital of the company. [Subr (3) am Gov Gaz 138, 12 Aug 2008, p 3541, r 9, with effect from 13 Aug 2008]

(4) Within 21 days after the last service of the documents mentioned in subrule (3), the liquidator, or any creditor or contributory, may give to the provisional liquidator a notice of objection to the remuneration claimed, stating the grounds of objection. (5) If the provisional liquidator does not receive a notice of objection within the period mentioned in subrule (4) – ©

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Supreme Court (Corporations) (WA) Rules 2004 (WA) (a) the provisional 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 provisional liquidator has not received any notice of objection to the remuneration claimed within the period mentioned in subrule (4); (b) the provisional liquidator may endorse the interlocutory process with a request that the application be dealt with in the absence of the public and without any attendance by, or on behalf of, the provisional liquidator; and (c) the application may be so dealt with.

(6) If the provisional liquidator receives a notice of objection within the period mentioned in subrule (4), the provisional liquidator must serve a copy of the interlocutory process seeking the order – (a) on each creditor or contributory who has given a notice of objection; and (b) on the liquidator (if any). (7) An (a) (b) (c) (d) (e)

affidavit in support of the interlocutory process seeking the order must – state the nature of the work performed or likely to be performed by the provisional liquidator; state the amount of remuneration claimed; include a summary of the receipts taken and payments made by the provisional liquidator; state particulars of any objection of which the provisional liquidator has received notice; and if the winding-up proceeding has not been determined – give details of – (i) any reasons known to the provisional liquidator why the winding-up proceeding has not been determined; and (ii) any reasons why the provisional liquidator’s remuneration should be determined before the determination of the winding-up proceeding.

[Subr (7) am Gov Gaz 138, 12 Aug 2008, p 3541, r 9, with effect from 13 Aug 2008]

(8) The affidavit must also provide evidence of the matters mentioned in the Corporations Act section 473(10) – (a) to the extent that they may be relevant to a provisional liquidator; and (b) as if references in that subsection to “liquidator” were references to “provisional liquidator”. [Subr (8) insrt Gov Gaz 138, 12 Aug 2008, p 3541, r 9, with effect from 13 Aug 2008] [R 9.3 am Gov Gaz 138, 12 Aug 2008] Editor’s note: See Practice Direction 9.5.1, cl 4, Corporations – Disclosure by Insolvency Practitioners as to Fees to be Charged.

9.4 Remuneration of liquidator (Corporations Act s. 473(3)) (Form 16) (1) This rule applies to an application by a liquidator of a company for an order under section 473(3)(b)(ii) of the Corporations Act determining the liquidator’s remuneration. Note: The amendment to the Corporations Act s. 473 made by the Corporations Amendment (Insolvency) Act 2007 of the Commonwealth applies in relation to a liquidator appointed on or after 31 December 2007 – see Corporations Act s. 1480(7). [Subr (1) am Gov Gaz 138, 12 Aug 2008, pp 3541 and 3542, r 10, with effect from 13 Aug 2008]

(2) The application – (a) must be made by interlocutory process in the winding-up proceeding; and (b) must not be made until after the date of the meeting of creditors mentioned in section 473(4) of the Corporations Act. (3) At least 21 days before filing the interlocutory process seeking the order, the liquidator must serve a notice in accordance with Form 16 of the liquidator’s intention to apply for the order, and a copy of any affidavit on which the liquidator intends to rely, on the following persons – (a) each creditor who was present, in person or by proxy, at any meeting of creditors at which the remuneration of the liquidator was considered; (b) each member of any committee of inspection; 510

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Part 9 – Remuneration of office-holders r 9.4A (c) if there is no committee of inspection, and no meeting of creditors has been convened and held, each of the 5 largest (measured by amount of debt) creditors of the company; (d) each member of the company whose shareholding represents at least 10% of the issued capital of the company. [Subr (3) am Gov Gaz 138, 12 Aug 2008, p 3542, r 10, with effect from 13 Aug 2008]

(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); (b) the liquidator may endorse the interlocutory process with a request that the application be dealt with in the absence of the public and without any attendance by, or on behalf of, the liquidator; and (c) the application may be so dealt with. (6) If the liquidator receives a notice of objection within the period mentioned in subrule (4), the liquidator must serve a copy of the interlocutory process seeking the order on each creditor or contributory who has given a notice of objection. (7) An (a) (b) (c) (d) (e) (f)

affidavit in support of the interlocutory process seeking the order must – include evidence of the matters mentioned in the Corporations Act section 473(10); and state the nature of the work performed or likely to be performed by the liquidator; and state the amount of remuneration claimed; and include a summary of the receipts taken and payments made by the liquidator; and state particulars of any objection of which the liquidator has received notice; and if the winding up is continuing, give details of any matters delaying the completion of the winding up.

[Subr (7) subst Gov Gaz 138, 12 Aug 2008, p 3542, r 10, with effect from 13 Aug 2008] Editor’s note: See Practice Direction 9.5.1, cl 4, Corporations – Disclosure by Insolvency Practitioners as to Fees to be Charged.

9.4A Review of remuneration of liquidator (Corporations Act s. 473(5) & (6) & 504(1)) (1) This rule applies to an application for review of the amount of the remuneration of a liquidator under the Corporations Act section 473(5) or (6) or 504(1). Note: The amendment to the Corporations Act s. 504 made by the Corporations Amendment (Insolvency) Act 2007 of the Commonwealth applies in relation to a liquidator appointed on or after 31 December 2007 – see Corporations Act s. 1480(7).

(2) The application may only be made after remuneration has been determined under section 473(3)(a) or (b)(i), or fixed under section 495(1) or 499(3), of the Corporations Act. (3) At least 21 days before filing the originating process or interlocutory process applying for a review, the plaintiff or applicant must serve a notice, in accordance with Form 16A, of intention to apply for the review and a copy of any affidavit on which the plaintiff or applicant intends to rely (other than an affidavit required by subrule (9)), on the following persons – (a) if there is a committee of inspection – each member of the committee; (b) if the remuneration of the liquidator was determined or fixed by the creditors – each creditor who was present, in person or by proxy, at the meeting of creditors at which the remuneration was determined or fixed; (c) each member of the company whose shareholding represents at least 10% of the issued capital of the company. ©

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(4) Within 21 days after the last service of the documents mentioned in subrule (3), any person on whom the notice has been served may serve on the plaintiff or applicant a notice – (a) stating the person’s intention to appear at the hearing of the application for review; and (b) setting out the issues that the person seeks to raise before the Court. (5) A person mentioned in subrule (3) is entitled to be heard on the application for review, but only (unless the Court otherwise orders) if the person has served on the plaintiff or applicant a notice in accordance with subrule (4). (6) If the plaintiff or applicant is served with a notice in accordance with subrule (4), the plaintiff or applicant must serve a copy of the originating process or interlocutory process applying for the review on each person who has served such a notice. (7) The liquidator must file an affidavit stating the following matters – (a) for an application under the Corporations Act section 473(5) or (6) – the matters mentioned in the Corporations Act section 473(10); (b) for an application under the Corporations Act section 504(1) – the matters mentioned in the Corporations Act section 504(2); (c) the nature of the work performed or likely to be performed by the liquidator; (d) the amount of remuneration claimed by the liquidator if the amount is different from the amount of remuneration that has been determined or fixed; (e) a summary of the receipts taken and payments made by the liquidator; (f) particulars of any objection to the remuneration as determined or fixed of which the liquidator has received notice; (g) if the winding up is continuing – details of any matters delaying the completion of the winding up. (8) The affidavit under subrule (7) must annex a copy of the report that the liquidator was required to prepare before remuneration was determined or fixed. Note: For the requirement to prepare a report, see Corporations Act s 473(11), 473(12), 495(5), 499(6) and 499(7). (9) The plaintiff or applicant must – (a) file an affidavit stating whether any notice or notices under subrule (4) has or have been served; and (b) annex or exhibit to the affidavit a copy of any such notice. [R 9.4A insrt Gov Gaz 138, 12 Aug 2008, pp 3543 and 3544, r 11, with effect from 13 Aug 2008]

9.5 Remuneration of special manager (Corporations Act s. 484(2)) (Form 16) (1) This rule applies to an application by a special manager of the property or business of a company for an order under section 484(2) of the Corporations Act fixing the special manager’s remuneration. (2) The application must be made by interlocutory process in the winding-up proceeding. (3) At least 21 days before filing the interlocutory process seeking the order, the special manager must serve a notice in accordance with Form 16 of the special manager’s intention to apply for the order, and a copy of any affidavit on which the special manager intends to rely, on the following persons – (a) the liquidator of the company; (b) each member of any committee of creditors or committee of inspection or, if there is no committee of creditors or committee of inspection, each of the 5 largest (measured by amount of debt) creditors of the company; and (c) each member of the company whose shareholding represents at least 10% of the issued capital of the company. [Subr (3) am Gov Gaz 138, 12 Aug 2008, p 3544, r 12, with effect from 13 Aug 2008]

(4) Within 21 days after the last service of the documents mentioned in subrule (3), the liquidator, or any creditor or contributory, may give to the special manager a notice of objection to the remuneration claimed, stating the grounds of objection. (5) If the special manager does not receive a notice of objection within the period mentioned in subrule (4) – (a) the special manager may file an affidavit, made after the end of that period, in support of the interlocutory process seeking the order stating – 512

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the date, or dates, when the notice and affidavit required to be served under subrule (3) were served; and (ii) that the special manager has not received any notice of objection to the remuneration claimed within the period mentioned in subrule (4); (b) the special manager may endorse the interlocutory process with a request that the application be dealt with in the absence of the public and without any attendance by, or on behalf of, the special manager; and (c) the application may be so dealt with. (6) If the special manager receives a notice of objection within the period mentioned in subrule (4), the special manager must serve a copy of the interlocutory process seeking the order – (a) on each creditor or contributory who has given a notice of objection; and (b) on the liquidator. (7) The affidavit in support of the interlocutory process seeking the order must – (a) state the nature of the work performed or likely to be performed by the special manager; (b) state the amount of remuneration claimed; (c) include a summary of the receipts taken and payments made by the special manager; (d) state particulars of any objection of which the special manager has received notice; and (e) if the special management is continuing – give details of any matters delaying the completion of the special management. [Subr (7) am Gov Gaz 138, 12 Aug 2008, p 3545, r 12, with effect from 13 Aug 2008] [R 9.5 am Gov Gaz 138, 12 Aug 2008]

Part 10 – Winding-up generally 10.1 Determination of value of debts or claims (Corporations Act s. 554A(2))

WA

A reference to the Court by a liquidator of a company under section 554A(2)(b) of the Corporations Act must be made – (a) in the case of a winding-up by the Court – by filing an interlocutory process seeking an order estimating, or determining a method for working out, the value of the debt or claim; and (b) in the case of a voluntary winding-up – by filing an originating process seeking an order estimating, or determining a method for working out, the value of the debt or claim. 10.2 Disclaimer of contract (Corporations Act s. 568(1A)) (1) The affidavit in support of an application by a liquidator, under section 568(1A) of the Corporations Act, for leave to disclaim a contract in relation to a company must – (a) specify the persons interested, and their interests, under the contract; and (b) state the facts on which it is submitted that the contract should be disclaimed. (2) The liquidator must serve the affidavit on each party to the contract (except the company) and on any person interested in the contract. 10.3 Winding-up Part 5.7 bodies (Corporations Act s. 583 & 585) and registered schemes (Corporations Act s. 601ND) These rules apply, with any necessary adaptations, and in the same way as they apply to a company, in relation to the winding-up of a Part 5.7 body or a registered scheme.

Part 11 – Examinations and orders (Corporations Act Part 5.9 Divisions 1 and 2) 11.1 Term used: examination summons In this Part – ©

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examination summons means a summons under section 596A or 596B of the Corporations Act for the examination of a person about a corporation’s examinable affairs. 11.2 Application for examination or investigation under Corporations Act s. 411, 423 or 536(3) (1) An application for an order for the examination or investigation of a person under section 411(9)(b), 423 or 536(3) of the Corporations Act may be made by – (a) ASIC; (b) a person authorised by ASIC; (c) a creditor or contributory; or (d) any other person aggrieved by the conduct of – (i) a person appointed to administer a compromise or arrangement; (ii) a controller; or (iii) a liquidator or provisional liquidator. [Subr (1) am Gov Gaz 138, 12 Aug 2008, p 3548, r 15, with effect from 13 Aug 2008]

(2) The application may be made without notice to any person. (3) The provisions of this Part that apply to an examination under Division 1 of Part 5.9 of the Corporations Act apply, with any necessary adaptations, to an examination or an investigation under section 411(9)(b), 423 or 536(3) of the Corporations Act. [R 11.2 am Gov Gaz 138, 12 Aug 2008]

11.3 Application for examination summons (Corporations Act s. 596A & 596B) (Form 17) (1) An application for the issue of an examination summons must be made by filing an interlocutory process or an originating process, as the case requires. (2) The application may be made without notice to any person. (3) The originating process, or interlocutory process, seeking the issue of the examination summons must be – (a) supported by an affidavit stating the facts in support of the process; and (b) accompanied by a draft examination summons. (4) The originating process, or interlocutory process, and supporting affidavit must be filed in a sealed envelope marked, as appropriate – (a) “Application and supporting affidavit for issue of summons for examination under section 596A of the Corporations Act 2001”; or (b) “Application and supporting affidavit for issue of summons for examination under section 596B of the Corporations Act 2001”. (5) If the application is not made by the liquidator, the liquidator must be given notice of the application and, if required by the liquidator, served with a copy of the originating process, or interlocutory process, and the supporting affidavit. (6) If the application is not made by ASIC, ASIC must be given notice of the application and, if required by ASIC, served with a copy of the originating process, or interlocutory process, and the supporting affidavit. [Subr (6) am Gov Gaz 138, 12 Aug 2008, p 3548, r 15, with effect from 13 Aug 2008]

(7) Unless the Court otherwise orders, an affidavit in support of an application for an examination summons is not available for inspection by any person. (8) An examination summons must be in accordance with Form 17. [R 11.3 am Gov Gaz 138, 12 Aug 2008] Editor’s note: Re Griffın Energy Group Pty Ltd (Subject to Deed of Company Arrangement) [2012] WASC 389; (2012) 8 BFRA 333 – see especially [1], dealing with an application to set aside or vary orders supported by an affidavit as required by r 11.3(3)(a). Under r 11.3(7) that affidavit remained confidential until an order made the affidavit available to the legal representatives of the persons summonsed.

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Part 11 – Examinations and orders (Corporations Act Part 5.9 Divisions 1 and 2) r 11.9 11.4 Service of examination summons An examination summons issued by the Court must be personally served, or served in any other manner as the Court may direct, on the person who is to be examined at least 8 days before the date fixed for the examination. 11.5 Discharge of examination summons (1) This rule applies if a person is served with an examination summons. (2) Within 3 days after the person is served with the examination summons, the person may apply to the Court for an order discharging the summons by filing – (a) an interlocutory process seeking an order discharging the summons; and (b) an affidavit stating the facts in support of the interlocutory process. (3) As soon as practicable after filing the interlocutory process seeking the order and the supporting affidavit, the person must serve a copy of the interlocutory process and the supporting affidavit on – (a) the person who applied for the examination; and (b) unless that person is ASIC or a person authorised by ASIC – ASIC. [Subr (3) am Gov Gaz 138, 12 Aug 2008, p 3548, r 15, with effect from 13 Aug 2008] [R 11.5 am Gov Gaz 138, 12 Aug 2008]

11.6 Filing of record of examination (Corporations Act s. 597(13)) If the Court makes an order in relation to an examination under section 597(13) of the Corporations Act, the Court may give directions for the filing of the written record of the examination. 11.7 Authentication of transcript of examination (Corporations Act s. 597(14)) For the purposes of section 597(14) of the Corporations Act, a transcript of an examination may be authenticated – (a) by the person, or persons, who prepared the record of examination, or under whose supervision the record was prepared, certifying in writing signed by the person or persons, that the record is a true transcript of the record of examination; or (b) by any person present at the examination, or any part of the examination, signing the person’s name at the bottom of each page of the written record that records a part of the examination at which the person was present.

(1) A written record or transcript of an examination or investigation under section 411, 423 or 536 of the Corporations Act is not available for inspection by any person except – (a) with the consent of the liquidator (if any) or ASIC; or (b) by leave of the Court. [Subr (1) am Gov Gaz 138, 12 Aug 2008, p 3548, r 15, with effect from 13 Aug 2008]

(2) This rule does not apply to the liquidator, ASIC or any person authorised by ASIC. [Subr (2) am Gov Gaz 138, 12 Aug 2008, p 3548, r 15, with effect from 13 Aug 2008] [R 11.8 am Gov Gaz 138, 12 Aug 2008]

11.9 Entitlement to record or transcript of examination held in public (1) This rule applies if – (a) an examination under section 597 of the Corporations Act is held wholly or partly in public; and (b) a written record or transcript of the examination is filed in the Court. (2) The person examined may apply to the Principal Registrar, within 3 years after the date of completion of the examination, for a copy of the record or transcript of the part of the examination of the person that was held in public. (3) On receiving an application from a person under subrule (2), and any applicable fee, the Principal Registrar must give a copy of the record or transcript to the person.

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r 11.10

Supreme Court (Corporations) (WA) Rules 2004 (WA)

11.10 Default in relation to examination (1) This rule applies if a person is summoned or ordered by the Court to attend for examination, and – (a) without reasonable cause, the person – (i) fails to attend at the time and place appointed; (ii) fails to attend from day to day until the conclusion of the examination; (iii) refuses or fails to take an oath or make an affirmation; (iv) refuses or fails to answer a question that the Court directs the person to answer; (v) refuses or fails to produce books that the summons requires the person to produce; or (vi) fails to comply with a requirement by the Court to sign a written record of the examination; or (b) before the day fixed for the examination, the person who applied for the summons or order satisfies the Court that there is reason to believe that the person summoned or ordered to attend for examination has absconded or is about to abscond. (2) The Court may – (a) issue a warrant for the arrest of the person summoned or ordered to attend for examination; and (b) make any other orders that the Court thinks just or necessary. 11.11 Service of application for order in relation to breaches etc. by person concerned with corporation (Corporations Act s. 598) (1) This rule applies to a person applying for an order under section 598 of the Corporations Act. (2) In addition to complying with rules 2.7 and 2.8, the person must serve a copy of the originating process, or interlocutory process, as the case requires, and the supporting affidavit on any liquidator or provisional liquidator (except if the person is the liquidator or provisional liquidator) of the corporation or body. Note: Under rule 2.7, a plaintiff must serve a copy of the originating process, and any supporting affidavit, on a defendant to the proceeding and, if necessary, on the corporation to which the proceeding relates; and an applicant must serve a copy of an interlocutory process, and any supporting affidavit, on a respondent to the proceeding and, if necessary, on the corporation to which the proceeding relates. In certain cases, these documents may also be required to be served on ASIC – see rule 2.8. [Subr (2) am Gov Gaz 138, 12 Aug 2008, p 3548, r 15, with effect from 13 Aug 2008] [R 11.11 am Gov Gaz 138, 12 Aug 2008]

Part 11A – Warrants (Corporations Act s 486B and Part 5.4B Division 3 Subdivision B) [Pt 11A insrt Gov Gaz 138, 12 Aug 2008, p 3545, r 13, with effect from 13 Aug 2008]

11A.1 Arrest of person (Corporations Act s. 486B) (Form 17A) (1) An application for the issue of a warrant under the Corporations Act section 486B(1) for the arrest of a person must state the grounds for the issue of the warrant. (2) The application must be accompanied by an affidavit stating the facts in support of the application. (3) The warrant must be in accordance with Form 17A. (4) If a person is arrested under the warrant, the person who carried out the arrest must immediately give notice of the arrest to the Principal Registrar. Note: The Corporations Act s. 489A to 489E, inserted by the Corporations Amendment (Insolvency) Act 2007 of the Commonwealth, apply in relation to a warrant issued on or after 31 December 2007 – see Corporations Act s. 1481(3). [R 11A.1 insrt Gov Gaz 138, 12 Aug 2008, p 3545, r 13, with effect from 13 Aug 2008]

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Pt 12 – Takeovers, acquisitions or shares, etc. & financial services & markets r 12.3

Part 12 – Takeovers, acquisitions or shares, etc. (Corporations Act Chapters 6 to 6D) and financial services and markets (Corporations Act Chapter 7) 12.1 Service on ASIC in relation to proceedings under Corporations Act Ch. 6, 6A, 6B, 6C, 6D or 7 If ASIC is not a party to an application made under Chapter 6, 6A, 6B, 6C, 6D or 7 of the Corporations Act, the plaintiff must serve a copy of the originating process and the supporting affidavit on ASIC as soon as practicable after filing the originating process. [R 12.1 am Gov Gaz 138, 12 Aug 2008, p 3548, r 15, with effect from 13 Aug 2008]

12.1A Reference to Court of question of law arising in proceeding before the Takeovers Panel (Corporations Act s. 659A) Order 31 of the Rules of the Supreme Court 1971 applies, with any necessary adaptations, to a reference of a question of law arising in a proceeding before the Takeovers Panel to the Court under section 659A of the Corporations Act. 12.1B Notification to Court where proceeding is commenced before end of takeover bid period (Corporations Act s. 659B) (1) This rule applies to a party to a proceeding who suspects or becomes aware that – (a) the proceeding was commenced in relation to a takeover bid, or proposed takeover bid, before the end of the bid period; and (b) the proceeding falls within the definition of court proceedings in relation to a takeover bid or proposed takeover bid in the Corporations Act section 659B(4). (2) The party identified in subrule (1) must, immediately on suspecting or becoming aware of the matters mentioned in subrule (1), notify any other party to the proceeding and the Court of that suspicion or knowledge. (3) The party must comply with subrule (2), unless any other party to the proceeding has given a notice under this rule to the party. [R 12.1B insrt Gov Gaz 78, 13 Apr 2007, p 1672, r 6, with effect from 13 Apr 2007]

(1) An application for the issue of a summons under section 1071D(4) of the Corporations Act must be made by filing an originating process or an interlocutory process. (2) The application may be made ex parte. (3) The originating process, or interlocutory process, seeking the issue of the summons must be – (a) supported by an affidavit stating the facts in support of the process; and (b) accompanied by a draft summons. (4) Unless the Court otherwise orders, a summons issued under this rule is to be in accordance with Form 18. 12.3 Application for orders relating to refusal to register transfer or transmission of securities (Corporations Act s. 1071F) As soon as practicable after filing an originating process under section 1071F of the Corporations Act, the plaintiff must serve a copy of the originating process and the supporting affidavit on – (a) the company; and (b) any person against whom an order is sought. Note: Part 13 has not been used so as to be consistent with the Federal Court (Corporations) Rules 2000.

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12.2 Application for summons for appearance of person (Corporations Act s. 1092(3)) (Form 18)

r 14.1

Supreme Court (Corporations) (WA) Rules 2004 (WA)

Part 14 – Powers of Courts (Corporations Act Part 9.5) 14.1 Appeal from act, omission or decision of administrator, receiver or liquidator, etc. (Corporations Act s. 554A & 1321) (1) All appeals to the Court authorised by the Corporations Act must be commenced by an originating process, or interlocutory process, stating – (a) the act, omission or decision complained of; (b) in the case of an appeal against a decision – whether the whole or part only and, if part only, which part of the decision is complained of; and (c) the grounds on which the complaint is based. (2) Unless the Corporations Act or the Corporations Regulations otherwise provide, the originating process, or interlocutory process, must be filed within – (a) 21 days after the date of the act, omission or decision appealed against; or (b) any further time allowed by the Court. (3) The Court may extend the time for filing the originating process, or interlocutory process, either before or after the time for filing expires and whether or not the application for extension is made before the time expires. (4) As soon as practicable after filing the originating process, or interlocutory process, and, in any case, at least 5 days before the date fixed for hearing, the person instituting the appeal must serve a copy of the originating process, or interlocutory process, and any supporting affidavit, on each person directly affected by the appeal. (5) As soon as practicable after being served with a copy of the originating process, or interlocutory process, and any supporting affidavit, a person whose act, omission or decision is being appealed against must file an affidavit – (a) stating the basis on which the act, omission or decision was done or made; and (b) annexing or exhibiting a copy of all relevant documents that have not been put in evidence by the person instituting the appeal. Editor’s note: Frigger v Mervyn Jonathon Kitay in his capacity as Liquidator of Computer Accounting & Tax Pty Ltd (in liq) [No 4] [2014] WASC 165 at [37]. Any review of the acts, omissions or decisions of the liquidator should be by separate application under s 1321 of the Corporations Act and by originating process under the rules, see Pt 14 of the Supreme Court (Corporations)(WA) Rules.

Part 15 – Proceedings under the ASIC Act 15.1 Reference to Court of question of law arising at hearing of ASIC (ASIC Act s. 61) Order 31 of the Rules of the Supreme Court 1971 applies, with any necessary adaptations, to a reference of a question of law arising at a hearing by ASIC to the Court under section 61 of the ASIC Act. [R 15.1 am Gov Gaz 138, 12 Aug 2008, p 3548, r 15, with effect from 13 Aug 2008]

15.2 Application for inquiry (ASIC Act s. 70, 201 & 219) An application for an inquiry under section 70(3), 201(3) or 219(7) of the ASIC Act must be made by filing an originating process seeking an inquiry and orders under the relevant subsection.

Part 15A – Proceedings under the Cross-Border Insolvency Act [Pt 15A insrt Gov Gaz 19, 13 Feb 2009, p 303, r 6, with effect from 14 Feb 2009]

15A.1 Application of this Part and other rules of court Unless the Court otherwise orders – (a) this Part applies to a proceeding in the Court, under the Cross-Border Insolvency Act, involving a debtor other than an individual; and 518

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the rules in the other Parts of these rules, and the other rules of the Court, apply to a proceeding in the Court under the Cross-Border Insolvency Act if they are relevant and not inconsistent with this Part.

[R 15A.1 insrt Gov Gaz 19, 13 Feb 2009, p 303, r 6, with effect from 14 Feb 2009]

15A.2 Expressions used in the Cross-Border Insolvency Act (1) Unless the contrary intention appears, an expression that is used in this Part and in the Cross-Border Insolvency Act, whether or not a particular meaning is given to the expression by the Cross-Border Insolvency Act, has the same meaning in this Part as it has in the Cross-Border Insolvency Act. Note: The following expressions used in this Part (including in the notes to this Part) are defined in the Model Law as having the following meanings: establishment means any place of operations where the debtor carries out a non-transitory economic activity with human means and goods or services; foreign court means a judicial or other authority competent to control or supervise a foreign proceeding; foreign main proceeding means a foreign proceeding taking place in the State where the debtor has the centre of its main interests; foreign non-main proceeding means a foreign proceeding, other than a foreign main proceeding, taking place in a State where the debtor has an establishment within the meaning of subparagraph (f) of the present article; foreign proceeding means a collective judicial or administrative proceeding in a foreign State, including an interim proceeding, pursuant to a law relating to insolvency in which proceeding the assets and affairs of the debtor are subject to control or supervision by a foreign court, for the purpose of reorganization or liquidation; foreign representative means a person or body, including one appointed on an interim basis, authorized in a foreign proceeding to administer the reorganization or the liquidation of the debtor’s assets or affairs or to act as a representative of the foreign proceeding.

(2) This Part is to be interpreted in a manner that gives effect to the Cross-Border Insolvency Act. [R 15A.2 insrt Gov Gaz 19, 13 Feb 2009, p 304, r 6, with effect from 14 Feb 2009]

15A.3 Application for recognition

(2) The originating process must – (a) be accompanied by the statements referred to in article 15 of the Model Law and in section 13 of the Cross-Border Insolvency Act; and (b) name the foreign representative as the plaintiff and the debtor as the defendant; and (c) be accompanied by an affidavit verifying the matters mentioned in paragraphs 2 and 3 of article 15 of the Model Law and in section 13 of the Cross-Border Insolvency Act. (3) When filing the originating process, the foreign representative must file, but need not serve, an interlocutory process seeking directions as to service, and the Court may give any directions about service, and make any incidental orders, that it thinks just. (4) The plaintiff must serve a copy of the originating process and the other documents mentioned in subrule (2) – (a) unless the Court otherwise orders, in accordance with rule 2.7(1); and (b) on any other persons the Court may direct at the hearing of the interlocutory process. (5) A person who intends to appear before the Court at the hearing of an application for recognition must file and serve the documents mentioned in rule 2.9. [R 15A.3 insrt Gov Gaz 19, 13 Feb 2009, pp 304 and 305, r 6, with effect from 14 Feb 2009]

15A.4 Application for provisional relief under article 19 of the Model Law (1) Any application by the plaintiff for provisional relief under article 19 of the Model Law must be made by filing an interlocutory process in accordance with Form 3. (2) Unless the Court otherwise orders, the interlocutory process and any supporting affidavit must be served in accordance with rule 2.7(2). [R 15A.4 insrt Gov Gaz 19, 13 Feb 2009, p 305, r 6, with effect from 14 Feb 2009] ©

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(1) An application by a foreign representative for recognition of a foreign proceeding under article 15 of the Model Law must be made by filing an originating process in accordance with Form 2.

r 15A.4

Supreme Court (Corporations) (WA) Rules 2004 (WA)

15A.5 Official liquidator’s consent to act If an application is made for an order – (a) under article 19 or 21 of the Model Law to entrust the administration or realisation of all or part of the debtor’s assets to a person designated by the Court (other than the foreign representative); or (b) under article 21 to entrust the distribution of all or part of the debtor’s assets to a person designated by the Court (other than the foreign representative), then, unless the Court otherwise orders, the person must – (c) be an official liquidator; and (d) have filed a Consent to Act, in accordance with Form 19, that specifies an address for service for the person within the State. [R 15A.5 subst Gov Gaz 203, 6 Nov 2009, pp 4472 and 4473, r 4, with effect from 7 Nov 2009; insrt Gov Gaz 19, 13 Feb 2009, p 305, r 6, with effect from 14 Feb 2009]

15A.6 Notice of filing of application for recognition (1) Unless the Court otherwise orders, the plaintiff in a proceeding mentioned in rule 15A.3 must – (a) send a notice of the filing of the application in accordance with Form 20 to each person whose claim to be a creditor of the defendant is known to the plaintiff; and (b) publish a notice of the filing of the application for recognition of a foreign proceeding in accordance with Form 20, in a daily newspaper circulating generally in the State or Territory where the defendant has its principal, or last known, place of business. [Subr (1) am Gov Gaz 165, 21 Sep 2012, p 4426, r 11, with effect from 22 Sep 2012]

(2) The Court may direct the plaintiff to publish a notice in accordance with Form 20 in a daily newspaper circulating generally in any State or Territory not described in subrule (1)(b). [Subr (2) am Gov Gaz 165, 21 Sep 2012, p 4426, r 11, with effect from 22 Sep 2012] [R 15A.6 am Gov Gaz 165, 21 Sep 2012; insrt Gov Gaz 19, 13 Feb 2009, pp 305 and 306, r 6, with effect from 14 Feb 2009]

15A.7 Notice of order for recognition, withdrawal etc. (1) If the Court makes an order for recognition of a foreign proceeding under article 17 of the Model Law, or makes any order under article 19 or 21 of the Model Law, the plaintiff must, as soon as practicable after the order is made, do all of the following – (a) have the order entered; (b) serve a copy of the entered order on the defendant; (c) send a notice of the making of the order in accordance with Form 21 to each person whose claim to be a creditor of the defendant is known to the plaintiff; (d) publish a notice of the making of the order in accordance with Form 21, in a daily newspaper circulating generally in the State or Territory where the defendant has its principal, or last known, place of business. [Subr (1) am Gov Gaz 165, 21 Sep 2012, p 4426, r 12, with effect from 22 Sep 2012]

(2) The Court may direct the plaintiff to publish the notice in accordance with Form 21 in a daily newspaper circulating generally in any State or Territory not described in subrule (1)(d). [Subr (2) am Gov Gaz 165, 21 Sep 2012, p 4426, r 12, with effect from 22 Sep 2012]

(3) If the application for recognition is withdrawn or dismissed, the plaintiff must, as soon as practicable, do all of the following – (a) for a dismissal, have the order of dismissal entered; (b) serve a copy of the entered order of dismissal or notice of the withdrawal, on the defendant; (c) send a notice of the dismissal or withdrawal in accordance with Form 22 to each person whose claim to be a creditor of the defendant is known to the plaintiff; (d) publish a notice of the dismissal or withdrawal in accordance with Form 22, in a daily newspaper circulating generally in the State or Territory where the defendant has its principal, or last known, place of business. [Subr (3) am Gov Gaz 165, 21 Sep 2012, p 4427, r 12, with effect from 22 Sep 2012] 520

Corporations – Court Rules and Related Legislation 2017

Part 15A – Proceedings under the Cross-Border Insolvency Act r 15A.9 (4) The Court may direct the plaintiff to publish the notice in accordance with Form 22 in a daily newspaper circulating generally in any State or Territory not described in subrule (3)(d). [Subr (4) am Gov Gaz 165, 21 Sep 2012, p 4427, r 12, with effect from 22 Sep 2012] [R 15A.7 am Gov Gaz 165, 21 Sep 2012; insrt Gov Gaz 19, 13 Feb 2009, p 306, r 6, with effect from 14 Feb 2009]

15A.8 Relief after recognition (1) If the Court has made an order for recognition of a foreign proceeding, any application by the plaintiff for relief under paragraph 1 of article 21 of the Model Law must be made by filing an interlocutory process, and any supporting affidavit, in accordance with Form 3. (2) Unless the Court otherwise orders, an interlocutory process under subrule (1) and any supporting affidavit must be served, in accordance with rule 2.7(2), but on the following persons – (a) the defendant; (b) any person that the Court directed be served with the originating process by which the application for recognition was made; (c) any other person that the Court directs. (3) A person who intends to appear before the Court at the hearing of an application under subrule (1) must file and serve the documents mentioned in rule 2.9. [R 15A.8 insrt Gov Gaz 19, 13 Feb 2009, pp 306 and 307, r 6, with effect from 14 Feb 2009]

15A.9 Application to modify or terminate an order for recognition or other relief (1) This rule applies to – (a) an application under paragraph 4 of article 17 of the Model Law for an order modifying or terminating an order for recognition of a foreign proceeding; and (b) an application under paragraph 3 of article 22 of the Model Law for an order modifying or terminating relief granted under article 19 or 21 of the Model Law. (2) An application mentioned in subrule (1) must be made by filing an interlocutory process in accordance with Form 3.

(4) Unless the Court otherwise orders, a plaintiff who applies for an order under subrule (1) must – (a) send a notice of the filing of the application in accordance with Form 23 to each person whose claim to be a creditor of the defendant is known to the plaintiff; and (b) publish a notice of the filing of the application in accordance with Form 23, in a daily newspaper circulating generally in the State or Territory where the defendant has its principal, or last known, place of business. [Subr (4) am Gov Gaz 165, 21 Sep 2012, p 4427, r 13, with effect from 22 Sep 2012]

(5) The Court may direct the applicant to publish the notice in accordance with Form 23 in a daily newspaper circulating generally in any State or Territory not described in subrule (4)(b). [Subr (5) am Gov Gaz 165, 21 Sep 2012, p 4427, r 13, with effect from 22 Sep 2012]

(6) A person who intends to appear before the Court at the hearing of an application under subrule (1) must file and serve the documents mentioned in rule 2.9. [R 15A.9 am Gov Gaz 165, 21 Sep 2012; insrt Gov Gaz 19, 13 Feb 2009, pp 307 and 308, r 6, with effect from 14 Feb 2009]

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(3) An interlocutory process for an application under subrule (1) and any supporting affidavit must be served on – (a) for an application under subrule(1)(a) – the defendant and other persons who were served with, or filed a notice of appearance in relation to, the application for recognition; and (b) for an application under subrule (1)(b) – the defendant and other persons who were served with, or filed a notice of appearance in relation to, the application for relief under article 19 or 21.

r 16.1

Supreme Court (Corporations) (WA) Rules 2004 (WA)

Part 16 – Jurisdiction of masters 16.1 Jurisdiction of masters (1) A master may exercise any of the Court’s jurisdiction referred to in these rules but may not hear and determine – (a) an appeal to the Court authorised by the Corporations Act or the ASIC Act; (b) a matter referred to in the Table in Schedule 2; or (c) a complaint for an offence. (2) A master, on his or her own motion or on an application by a party, may refer a matter within his or her jurisdiction for hearing and determination by a judge if the master is of the opinion that it should be heard and determined by a judge. (3) A judge, on his or her own motion or on an application by a party, may refer a matter referred under subrule (2) or referred to in the Table in Schedule 2 for hearing and determination by a master with any directions the judge thinks fit. (4) In exercising his or her jurisdiction under these rules, a master may exercise any of the powers conferred on the Court or a judge. (5) This rule does not prevent a judge from exercising the jurisdiction it confers on a master. (6) A master may make an order under section 1322 of the Corporations Act if it is incidental to a matter in which the master otherwise has jurisdiction. (7) The descriptions in column 3 of the Table in Schedule 2 are inserted for convenience only and do not affect the operation of these rules.

522

Corporations – Court Rules and Related Legislation 2017

Schedule 1 – Forms Document title

Form 1

SCHEDULE 1 – FORMS [rule 1.6]

Form 1 – Document title rule 2.1

IN THE SUPREME COURT No. .......... of [year] IN THE MATTER OF [full name of corporation to which the proceeding relates and, if applicable, the words ‘(in liquidation)’, ‘(receiver appointed)’, ‘(receiver and manager appointed)’, ‘(controller acting)’, or ‘(administrator appointed)’] ABN or ACN or ARBN: [insert ABN or ACN or ARBN] AB (and Others) Plaintiff(s) [list, in a schedule, any further plaintiffs] CD (and Others) Defendant(s) [list, in a schedule, any further defendants] [insert information to comply with Order 69 Rule 2(1)(h) of the Rules of the Supreme Court 1971]

WA

[Form 1 am Gov Gaz 19, 13 Feb 2009, p 312, r 7, with effect from 14 Feb 2009]

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Form 2

Supreme Court (Corporations) (WA) Rules 2004 (WA)

Form 2 – Originating process rules 2.2 and 15A.3

[Title] A. DETAILS OF APPLICATION This application is made under *section/*regulation [number] of the *Corporations Act/*ASIC Act/*CrossBorder Insolvency Act/*Corporations Regulations. [State briefly the nature of the proceeding, e.g. application for winding-up on ground of insolvency; or complaint about a receiver.] On the facts stated in the supporting affidavit(s), the plaintiff claims: 1 2 etc. AND Date: .................................................. Signature of plaintiff or plaintiff ’s legal practitioner This application will be heard by ......................... at [address of Court] at .......... *a.m./*p.m. on ......................... B. NOTICE TO DEFENDANT(S) (IF ANY) TO: [name and address of each defendant (if any)]. If you or your legal practitioner do not appear before the Court at the time shown above, the application may be dealt with, and an order made, in your absence. As soon after that time as the business of the Court will allow, any of the following may happen – (a) the application may be heard and final relief given; (b) directions may be given for the future conduct of the proceeding; (c) any interlocutory application may be heard. Before appearing before the Court, you must file a notice of appearance, in the prescribed form, in the Registry and serve a copy of it on the plaintiff. Note: Unless the Court otherwise orders, a defendant that is a corporation must be represented at a hearing by a legal practitioner. It may be represented at a hearing by a director of the corporation only if the Court grants leave. C. APPLICATION FOR WINDING-UP ON GROUND OF INSOLVENCY [Complete this section if this originating process is seeking an order that a company be wound up in insolvency on the ground that the company has failed to comply with a statutory demand (see section 459Q of the Corporations Act).] [Set out particulars of service of the statutory demand on the company and of the failure to comply with the demand.] [Attach to this originating process a copy of the statutory demand and, if the demand has been varied by an order made under section 459H(4) of the Corporations Act because of a dispute or offsetting claim, a copy of the order made under that subsection.] [The affidavit in support of this originating process must – (a) verify service of the demand on the company; (b) verify the failure of the company to comply with the demand; and (c) state whether and, if so, to what extent the debt, or each of the debts, to which the demand relates is still due and payable at the date when the affidavit is made.]

524

Corporations – Court Rules and Related Legislation 2017

Schedule 1 – Forms Originating process

Form 2

Note 1: In an application for winding-up in insolvency on the ground that the company has failed to comply with a statutory demand, the applicant should consider completing Part C of Form 2 as shown in Note 1 to these rules. Note 2: An example of the affidavit in support of an application for winding-up in insolvency for failure to comply with a statutory demand is shown in Note 2 to these rules. D. FILING Date of filing: [date of filing to be entered by Principal Registrar] .................................................. Principal Registrar This originating process is filed by [name] for the plaintiff. E. SERVICE The plaintiff’s address for service is [address of plaintiff’s legal practitioner or of plaintiff]. * It is not intended to serve a copy of this originating process on any person. OR * It is intended to serve a copy of this originating process on each defendant and on any person listed below – [name of defendant and any other person on whom a copy of the originating process is to be served]. [Complete the following section if the time for service has been abridged.] The time by which a copy of this originating process is to be served has been abridged by order made by [name of judge or other Court offıcer] on [date] to [time and date]. * Omit if not applicable

WA

[Form 2 am Gov Gaz 19, 13 Feb 2009, p 308, r 7, with effect from 14 Feb 2009]

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Form 3

Supreme Court (Corporations) (WA) Rules 2004 (WA)

Form 3 – Interlocutory process rules 2.2, 15A.4, 15A.8 and 15A.9

[Title] A. DETAILS OF APPLICATION * This application is made under *section/*regulation [number] of the *Corporations Act/*ASIC Act/*CrossBorder Insolvency Act/*Corporations Regulations. On the facts stated in the supporting affidavit(s), the applicant, [name], applies for the following relief – 1 2 etc. AND Date: .................................................. Signature of applicant making this application or applicant’s legal practitioner This application will be heard by .................................................. at [address of Court] at .......... * a.m./*p.m. on .......... B. NOTICE TO RESPONDENT(S) (IF ANY) TO: [name and address of each respondent to this interlocutory process (if any). If applicable, also state the respondent’s address for service.] If you or your legal practitioner do not appear before the Court at the time shown above, the application may be dealt with, and an order made, in your absence. Before appearing before the Court, you must, except if you have already done so or you are the plaintiff in this proceeding, file a notice of appearance, in the prescribed form, in the Registry and serve a copy of it on the plaintiff in the originating process. Note: Unless the Court otherwise orders, a defendant that is a corporation must be represented at a hearing by a legal practitioner. It may be represented at a hearing by a director of the corporation only if the Court grants leave. C. FILING This interlocutory process is filed by [name] for the applicant. D. SERVICE The applicant’s address for service is [address of applicant’s legal practitioner or of applicant]. * It is not intended to serve a copy of this interlocutory process on any person. OR * It is intended to serve a copy of this interlocutory process on each respondent and on any person listed below – [name of respondent and any other person on whom a copy of the interlocutory process is to be served]. [Complete the following section if the time for service has been abridged.] The time by which a copy of this interlocutory process is to be served has been abridged by order made by [name of judge or other Court offıcer] on [date] to [time and date]. * Omit if not applicable [Form 3 am Gov Gaz 19, 13 Feb 2009, p 308, r 7, with effect from 14 Feb 2009; Gov Gaz 78, 13 Apr 2007, p 1673, r 7, with effect from 13 Apr 2007]

526

Corporations – Court Rules and Related Legislation 2017

Schedule 1 – Forms Notice of appearance

Form 4

Form 4 – Notice of appearance rule 2.9

[Title] A. DETAILS OF PERSON INTENDING TO APPEAR Notice is given that [state full name and address], [briefly state your interest in the proceeding, e.g. a creditor for $ (amount), or a contributory, of the corporation] intends to appear before the Court at the hearing of the application to be heard at [name of Court and address] on [date] and, if applicable, to *oppose/*support the application. Note: Unless the Court otherwise orders, a defendant that is a corporation must be represented at a hearing by a legal practitioner. It may be represented at a hearing by a director of the corporation only if the Court grants leave. B. GROUNDS OF OPPOSITION TO WINDING-UP [Complete this section only if you are opposing an application to wind-up a company.] The grounds on which I oppose the application for winding-up are – 1 2 etc. C. SERVICE [This section must be completed] The address for service of the person giving this notice is [address of person’s legal practitioner or of person] .................................................. Signature of person giving notice or of person’s legal practitioner Omit if not applicable

WA

*

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Form 5

Supreme Court (Corporations) (WA) Rules 2004 (WA)

Form 5 – Notice of intervention by ASIC rule 2.10

[Title] The Australian Securities and Investments Commission, whose address for service is [address], intervenes in this proceeding. Date: .................................................. Signed on behalf of ASIC Name of signatory: [name]. Capacity of signatory: [capacity]. [Form 5 am Gov Gaz 138, 12 Aug 2008, p 3548, r 15, with effect from 13 Aug 2008]

528

Corporations – Court Rules and Related Legislation 2017

Schedule 1 – Forms Notice of hearing to approve compromise or arrangement

Form 6

Form 6 – Notice of hearing to approve compromise or arrangement rule 3.4

WA

TO all the creditors and members of [name of company]. TAKE NOTICE that at .......... *a.m./*p.m. on .......... , the .................................................. at [address of Court] will hear an application by [name of plaintiff] seeking the approval of a compromise or arrangement between the abovenamed company and its *members/*creditors as proposed by a resolution passed by the meeting of the *members/*creditors of the company held on [date]. [Complete this section if applicable] The proposed compromise or arrangement as passed by the meeting was amended from the form of compromise or arrangement previously sent to you in the following respects – [Set out the details of any amendment made at the meeting.] If you wish to oppose the approval of the compromise or arrangement, you must file and serve on the plaintiff a notice of appearance, in the prescribed form, together with any affidavit on which you wish to rely at the hearing. The notice of appearance and affidavit must be served on the plaintiff at its address for service at least one day before the date fixed for the hearing of the application. [This section must be completed] The address for service of the plaintiff is [address of plaintiff’s legal practitioner or of plaintiff]. Name of person giving notice or of person’s legal practitioner [name]. * Omit if not applicable

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Form 7

Supreme Court (Corporations) (WA) Rules 2004 (WA)

Form 7 – Affidavit accompanying statutory demand rule 5.2

[Name of creditor(s)] Creditor(s) [Name of debtor company] Debtor company I, [name] of [address and occupation], *say on oath/*affirm [or *make oath and say/*solemnly and sincerely declare and affirm] – I am [state deponent’s relationship to the creditor(s), e.g., ‘the creditor’, ‘(name), one of the creditors’, 1 ‘a director of the creditor’, ‘a director of (name), one of the creditors’] in respect of *a debt of $[amount]/*debts totalling $[amount] owed by [name of debtor company] to *it/*them relating to [state nature of debt, or debts, ensuring that what is stated corresponds with the description of the debt, or debts, to be given in the proposed statutory demand with which this affıdavit is to be served on the debtor company]. 2 [If the deponent is not the creditor, state the facts entitling the deponent to make the affıdavit, e.g. ‘I am authorised by the creditor(s) to make this affıdavit on its/their behalf’]. [State the source of the deponent’s knowledge of the matters stated in the affıdavit in relation to the debt 3 or each of the debts, eg ‘I am the person who, on behalf of the creditor(s), had the dealings with the debtor company that gave rise to the debt’, ‘I have inspected the business records of the creditor in relation to the debtor company’s account with the creditor’]. 4 The *debt/*total amount of the debts mentioned in paragraph 1 of this affidavit is due and payable by the debtor company. 5 I believe that there is no genuine dispute about the existence or amount of the *debt/*any of the debts. * Sworn/*affirmed at: [place of swearing or affırmation] on [date] OR * Sworn/*affirmed by the abovenamed deponent at: [place of swearing or affırmation] this .......... day of [month] [year] .................................................. Signature of deponent Before me: .................................................. Signature and designation of person before whom deponent swears or affırms affıdavit *

Omit if not applicable Note: The form of the opening words and the jurat of this affidavit may be changed to conform to the form of affidavit used in a particular State or Territory – see rule 2.6.

530

Corporations – Court Rules and Related Legislation 2017

Schedule 1 – Forms Consent of liquidator/provisional liquidator

Form 8

Form 8 – Consent of liquidator/provisional liquidator rules 5.5 and 6.1

[Title] I, [name], of [address], an official liquidator, consent to be appointed by the Court and to act as the * liquidator/*provisional liquidator of [name of company]. I am not aware of any conflict of interest or duty that would make it improper for me to act as * liquidator/*provisional liquidator of the company. EITHER I am not aware of any relevant relationship mentioned in section 60(2) of the Corporations Act 2001 of the Commonwealth. OR I have, or have had within the preceding 24 months, the following relevant relationships mentioned in section 60(2) of the Corporations Act 2001 of the Commonwealth. [Set out all relevant relationships.] The hourly rates currently charged in respect of work done as *liquidator/*provisional liquidator by me, and by my partners and employees who may perform work in this administration, are set out below or in the Schedule which is attached to this Consent. I acknowledge that my appointment by the Court does not constitute an express or implied approval by the Court of these hourly rates. Note: The requirement to disclose hourly rates should not be taken to imply that remuneration on an hourly basis is the most desirable or appropriate arrangement in every case. The Corporations Act acknowledges that another method of calculating remuneration may be appropriate (see, for example, s. 473(2) and (3)). Date: .................................................. Signature of offıcial liquidator *

Omit if not applicable Schedule [description of hourly rate(s)]

WA

[Form 8 am Gov Gaz 138, 12 Aug 2008, pp 3545 and 3546, r 14, with effect from 13 Aug 2008]

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Form 9

Supreme Court (Corporations) (WA) Rules 2004 (WA)

Form 9 – Notice of application for winding-up order rule 5.6

IN THE [name of Court] No. .......... of [year] [Name of company] ABN or ACN: [ABN or ACN of company to which proceeding relates] 1 A proceeding for the winding-up of [name of company and, if applicable, the words “trading as” and any trading name or names of the company] was commenced by the plaintiff, [name of plaintiff], on [date of filing of originating process] and will be heard by .................................................. at [address of Court] at .......... *a.m./*p.m. on .......... . Copies of documents filed may be obtained from the plaintiff’s address for service. 2 The plaintiff’s address for service is [address of plaintiff’s legal practitioner or of plaintiff]. 3 Any person intending to appear at the hearing must file a notice of appearance, in accordance with the prescribed form, together with any affidavit on which the person intends to rely, and serve a copy of the notice and any affidavit on the plaintiff at the plaintiff’s address for service at least 3 days before the date fixed for the hearing. Date: Name of plaintiff or plaintiff’s legal practitioner: [name] * Omit if not applicable [Form 9 am Gov Gaz 165, 21 Sep 2012, p 4427, r 14, with effect from 22 Sep 2012; Gov Gaz 19, 13 Feb 2009, p 312, r 7, with effect from 14 Feb 2009]

532

Corporations – Court Rules and Related Legislation 2017

Schedule 1 – Forms Notice of application for winding-up order by substituted plaintiff

Form 10

Form 10 – Notice of application for winding-up order by substituted plaintiff rule 5.10

IN THE [name of Court] No. .......... of [year] [Name of company] ABN or ACN: [ABN or ACN of company to which proceeding relates] 1 [Name of substituted plaintiff], who was, by order of the [name of Court], substituted as a plaintiff, will apply to the Court at .......... *a.m./*p.m. on .......... at [address of Court] for an order that the above company be wound up. 2 The address for service of the substituted plaintiff is [address of substituted plaintiff’s legal practitioner or of substituted plaintiff]. 3 Any person intending to appear at the hearing must file a notice of appearance, in accordance with the prescribed form, together with any affidavit on which the person intends to rely, and serve a copy of the notice and any affidavit on the substituted plaintiff at its address for service at least 3 days before the date fixed for the hearing. Date: Name of substituted plaintiff or substituted plaintiff’s legal practitioner: [name] * Omit if not applicable

WA

[Form 10 am Gov Gaz 19, 13 Feb 2009, p 312, r 7, with effect from 14 Feb 2009]

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Form 11

Supreme Court (Corporations) (WA) Rules 2004 (WA)

Form 11 – Notice of winding-up order and of appointment of liquidator rule 5.11

IN 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] [Form 11 am Gov Gaz 19, 13 Feb 2009, p 312, r 7, with effect from 14 Feb 2009]

534

Corporations – Court Rules and Related Legislation 2017

Schedule 1 – Forms Notice of appointment of provisional liquidator

Form 12

Form 12 – Notice of appointment of provisional liquidator rule 6.2

IN 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], 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]

WA

[Form 12 am Gov Gaz 19, 13 Feb 2009, p 312, r 7, with effect from 14 Feb 2009]

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Form 13

Supreme Court (Corporations) (WA) Rules 2004 (WA)

Form 13 – Notice by creditor or contributory of objection to release of liquidator rule 7.6

[Title] [Name of creditor/contributory] of [address of creditor/contributory], a creditor of [name of company] for $[amount], or a contributory of [name of company] holding [number] shares in the company, objects to the grant of a release to [name of liquidator] of [address of liquidator], who is the liquidator of [name of company], on the following grounds – [set out the grounds upon which the objection is made] Date: .................................................. Signature of objector or objector’s legal practitioner Name of objector or objector’s legal practitioner: [name]. The objector’s address for service is [address of objector or objector’s legal practitioner].

536

Corporations – Court Rules and Related Legislation 2017

Schedule 1 – Forms Affidavit in support of application for order for payment of call

Form 14

Form 14 – Affidavit in support of application for order for payment of call rule 7.8

[Title] I, [name] of [address], liquidator, *say on oath/*affirm [or *make oath and say/*solemnly and sincerely declare and affirm]: 1 I am the liquidator of [name of company] (the company). 2 On [date] I made a call of $[amount] per share on all the contributories of the company [or specify the class of contributories on whom the call was made]. *Annexed/*Exhibited and marked A is a copy of the notice of the call. Each contributory whose name is shown in the Schedule marked B was duly served with notice of the call in the form annexed or exhibited and marked A. 3 Each contributory of the company whose name is set out in column 2 of the Schedule marked B has not paid, or caused to be paid, to me the sum specified opposite the contributory’s name in column 5 of the Schedule, which is due from that contributory under the call. 4 The amount set out opposite the name of each contributory in column 6 of the Schedule is an estimate of the amount due by that contributory in respect of the costs of applying for and giving effect to the order for payment of the call. The estimate of the amounts so due by the several contributories has been reached by apportioning the costs among the contributories who have not paid the call according to the liability of the respective contributories to contribute. 5 The amount set out opposite the name of each contributory in column 7 of the Schedule is the total of the amount due by that contributory in respect of the call as set out in column 5 and the amount due in respect of costs as set out in column 6. * Sworn/*affirmed at: [place of swearing or affırmation] on [date] OR * Sworn/*affirmed by the abovenamed deponent at: [place of swearing or affırmation] this .......... day of [month] [year]. .................................................. Signature of deponent

.................................................. Signature and designation of person before whom deponent swears or affırms affıdavit * Omit if not applicable Note: The form of the opening words and the jurat of this affidavit may be changed to conform to the form of affidavit used in a particular State or Territory – see rule 2.6.

Number on list of Name contributories

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Schedule B Unpaid Address Character in which included in amount of call the list

Proportion of Total amount payable costs of application

537

WA

Before me:

Form 15

Supreme Court (Corporations) (WA) Rules 2004 (WA)

Form 15 – Notice of application for leave to distribute a surplus rule 7.9

IN THE [name of Court and address] APPLICATION NO: IN THE MATTER OF [company name] ABN or ACN: [ABN or ACN of company to which proceeding relates] On .......... at .................................................. , the .................................................. will hear an application by the liquidator of [name of company] in Proceeding No. .......... of [year] for leave to distribute a surplus in respect of the liquidation of the company. Any person intending to appear at the hearing must file a notice of appearance, in accordance with the prescribed form, together with any affidavit on which the person intends to rely, and serve a copy of the notice and affidavit on the liquidator at the address shown below at least 3 days before the date fixed for the hearing. Name of liquidator: [name]. The liquidator’s address for service is [address]. .................................................. Signature of liquidator [Form 15 am Gov Gaz 19, 13 Feb 2009, p 312, r 7, with effect from 14 Feb 2009]

538

Corporations – Court Rules and Related Legislation 2017

Schedule 1 – Forms Notice of intention to apply for remuneration

Form 16

Form 16 – Notice of intention to apply for remuneration rules 9.1, 9.2, 9.3, 9.4 and 9.5

IN THE MATTER OF [company name] ABN or ACN: [ABN or ACN of company to which proceeding relates] TO: [name and address of person to whom notice is given] TAKE NOTICE that, not less than 21 days after this notice is served on you, I, [name and address], the * receiver/*administrator/*liquidator/*provisional liquidator/*special manager of the above company, intend to apply to the Court to determine my remuneration. If you object to my application, you must, within 21 days after being served with this notice, serve on me a notice of objection stating the grounds of objection to the remuneration claimed. Date: .................................................. Signature of receiver/*administrator/*liquidator/ * provisional liquidator/*special manager *

*

Omit if not applicable

WA

[Form 16 am Gov Gaz 19, 13 Feb 2009, p 312, r 7, with effect from 14 Feb 2009]

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Form 16A

Supreme Court (Corporations) (WA) Rules 2004 (WA)

Form 16A – Notice of intention to apply for review of remuneration rules 9.2A, 9.4A

IN THE MATTER OF [company name] ACN or ABN: [ACN or ABN of company to which proceeding relates] TO: [name and address of person to whom notice is given] TAKE NOTICE that, not less than 21 days after this notice is served on you, I, [name and address of proposed plaintiff or applicant], the *[*administrator/*liquidator of the above company,] intend to apply to the Court to review *the remuneration of/*my remuneration as the *administrator/*liquidator of the company. The amount of the remuneration that has been determined or fixed is [state the amount]. The remuneration was determined or fixed by [state who determined or fixed the remuneration] on [state the date when the remuneration was determined or fixed]. I intend to apply for an order to *confirm/*increase/*reduce the remuneration. [Set out the grounds upon which an order or orders will be sought. If an order to increase or reduce the remuneration is sought, set out the amount by which the remuneration is sought to be increased or reduced.] If you wish to appear at the hearing of the application, in order to raise any issues before the Court, you must, within 21 days after being served with this notice, serve on me a notice under rule *9.2A(4)/*9.4A(4) of the Supreme Court (Corporations) (WA) Rules 2004, stating your intention to appear at the hearing and setting out the issues that you seek to raise before the Court. Date: .................................................. Signature of proposed plaintiff or applicant *

Omit if not applicable

[Form 16A insrt Gov Gaz 138, 12 Aug 2008, p 3546, r 14, with effect from 13 Aug 2008]

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Schedule 1 – Forms Summons for examination

Form 17

Form 17 – Summons for examination rule 11.3

[Title] A. DETAILS OF SUMMONS TO: [name and address of person to be examined] You are summoned under *section 596A/*section 596B of the Corporations Act to: (a) attend before .................................................. at [address of Court] at .......... *a.m./*p.m. on ......................... , and from day to day until excused by the Court, to be examined on oath or affirmation about the examinable affairs of [name of corporation]; and * to produce at the examination the following books [specify books – include in a schedule if (b) necessary]. Date: .................................................. Principal Registrar

WA

B. NOTICE TO PERSON TO BE EXAMINED The Court may order that the questions put to you and the answers given by you at the examination are to be recorded in writing and signed by you. If you do not attend the examination in accordance with this summons, without reasonable cause, you may be arrested and imprisoned without further notice. This summons is issued at the request of [name] whose address for service is [address of person’s legal practitioner or person]. * Omit if not applicable

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Form 17A

Supreme Court (Corporations) (WA) Rules 2004 (WA)

Form 17A – Arrest warrant Corporations Act 2001 (Cth) s. 486B and Supreme Court (Corporations) (WA) Rules 2004 r. 11A.1

[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 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 IS SATISFIED THAT [name of person]: (a) is about to leave Australia in order to avoid: (i) paying money 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 (Cth) 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 to 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. THIS WARRANT ALSO requires and authorises you to seize any property or books of the company in the possession of [name of person] and to deliver them into the custody of the Registrar of the Court to be kept by that Registrar until the Court makes an order for their disposal. Note: Section 489A of the Corporations Act 2001 of the Commonwealth provides that if the Court issues a warrant under section 486B for a person to be arrested and brought before the Court, and the person is not in prison, then the person named in the warrant may be arrested by an officer of the police force of the State or Territory in which the person is found, or the Sheriff of that State or Territory or any of the Sheriff’s officers, or a member or special member of the Australian Federal Police. Date: *

.................................................. Signed Judge/Registrar *

Omit if not applicable

[Form 17A insrt Gov Gaz 138, 12 Aug 2008, pp 3547 and 3548, r 14, with effect from 13 Aug 2008]

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Schedule 1 – Forms Summons for appearance in relation to registration of transfer of interests

Form 18

Form 18 – Summons for appearance in relation to registration of transfer of interests rule 12.2

[Title] TO: [name and address] You are required to appear before the .................................................. at [address of Court] at .......... * a.m./*p.m. on .......... and show cause why the document(s) specified in the Schedule should not be *delivered up/*produced at the office of [name of company] at [address of company] within [period as ordered], as required by the attached notice. The address for service of the person applying for this summons is [address of person’s legal practitioner or of person]. Date: .................................................. Principal Registrar *

Omit if not applicable

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Schedule [description of document(s)]

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Form 19

Supreme Court (Corporations) (WA) Rules 2004 (WA)

Form 19 – Consent to act as designated person rule 15A.5

[Title] I, [name], of [address], an official liquidator, consent to be appointed by the Court and to act as the person designated by the Court under *article 19/*article 21 of the Model Law to *administer/*realise/*distribute the assets of [name of company]. I am not aware of any conflict of interest or duty that would make it improper for me to act as the person designated by the Court. The hourly rates currently charged in respect of work done as the person designated by the Court by me, and by my partners and employees who may perform work in this administration, are set out below or in the Schedule which is attached to this Consent. I acknowledge that my appointment by the Court does not constitute an express or implied approval by the Court of these hourly rates. Date: .................................................. Signature of official liquidator * Omit if not applicable Schedule [description of hourly rate(s)] [Form 19 am Gov Gaz 50, 1 Apr 2010, p 1279, r 4, with effect from 2 Apr 2010; insrt Gov Gaz 19, 13 Feb 2009, p 309, r 7, with effect from 14 Feb 2009]

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Schedule 1 – Forms Notice of filing of application for recognition of foreign proceeding

Form 20

Form 20 – Notice of filing of application for recognition of foreign proceeding rule 15A.6

IN THE [name of Court] No. .......... of [year] [Name of company] ABN or ACN: [ABN or ACN of company to which proceeding relates] TO all the creditors of [name of company]. TAKE NOTICE that: 1. An application under the Cross-Border Insolvency Act 2008 (Commonwealth) for recognition of a foreign proceeding in relation to [name of company] was commenced by the plaintiff, [name of plaintiff], on [date of filing of originating process] and will be heard by .................................................. at [address of Court] at .......... *a.m./*p.m. on .......... Copies of documents filed may be obtained from the plaintiff’s address for service. 2. The plaintiff’s address for service is [name and address of plaintiff’s legal practitioner or, if there is no legal practitioner, address of the plaintiff]. 3. Any person intending to appear at the hearing must file a notice of appearance, in accordance with the prescribed form, together with any affidavit on which the person intends to rely, and serve a copy of the notice and any affidavit on the plaintiff at the plaintiff’s address for service at least 3 days before the date fixed for the hearing. 4. If you are a foreign creditor you must file in the registry of the Court at the address mentioned in paragraph 1 an affidavit setting out the details of any claim, secured or unsecured, that you may have against the company above at least 3 days before the date fixed for the hearing. Date: Name of plaintiff or plaintiff’s legal practitioner: [name] * Omit if not applicable

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[Form 20 insrt Gov Gaz 19, 13 Feb 2009, pp 309 and 310, r 7, with effect from 14 Feb 2009]

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Form 21

Supreme Court (Corporations) (WA) Rules 2004 (WA)

Form 21 – Notice of making of order under the Cross-Border Insolvency Act 2008 (Commonwealth) rule 15A.7

IN THE [name of Court] No. .......... of [year] [Name of company] ABN or ACN: [ABN or ACN of company to which proceeding relates] TO all the creditors of [name of company]. TAKE NOTICE that: 1. On [date], the [name of Court] in Proceeding No. of [year], commenced by the plaintiff [name of plaintiff], made the following orders under the Cross-Border Insolvency Act 2008 (Commonwealth) in relation to [name of company]: [insert details of order]. 2. The plaintiff’s address for service is [name and address of plaintiff’s legal practitioner or, if there is no legal practitioner, address of the plaintiff]. 3. The name and address of the foreign representative is [insert name and address]. 4. The name and address of the person entrusted with distribution of the company’s assets is [insert name and address].* Date: Name of plaintiff or plaintiff’s legal practitioner: [name] * Omit if not applicable [Form 21 insrt Gov Gaz 19, 13 Feb 2009, p 310, r 7, with effect from 14 Feb 2009]

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Schedule 1 – Forms Notice of dismissal/withdrawal of application for recognition of foreign proceeding Form 22

Form 22 – Notice of dismissal or withdrawal of application for recognition of foreign proceeding rule 15A.7

IN THE [name of Court] No. .......... of [year] [Name of company] ABN or ACN: [ABN or ACN of company to which proceeding relates] TO all the creditors of [name of company]. TAKE NOTICE that the application under the Cross-Border Insolvency Act 2008 (Commonwealth) for recognition of a foreign proceeding in relation to [name of company] commenced by the plaintiff, [name of plaintiff], on [date of filing of originating process] was dismissed*/withdrawn* on [date of dismissal/withdrawal] Date: Name of person giving notice or of person’s legal practitioner [name] * Omit if not applicable

WA

[Form 22 insrt Gov Gaz 19, 13 Feb 2009, p 311, r 7, with effect from 14 Feb 2009]

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Form 23

Supreme Court (Corporations) (WA) Rules 2004 (WA)

Form 23 – Notice of filing of application to modify or terminate an order for recognition or other relief rule 15A.9

IN THE [name of Court] No. .......... of [year] [Name of company] ABN or ACN: [ABN or ACN of company to which proceeding relates] TO all the creditors of [name of company]. TAKE NOTICE that: * 1. An application under the Cross-Border Insolvency Act 2008 (Commonwealth) for an order * modifying/*terminating an order for recognition of a foreign proceeding in relation to [name of company] was filed by the applicant, [name of applicant], on [date of filing of interlocutory process] and will be heard by .................................................. at [address of Court] at .......... * am/*pm on .......... Copies of documents filed may be obtained from the applicant’s address for service. * 1. An application under the Cross-Border Insolvency Act 2008 (Commonwealth) for an order * modifying/*terminating relief granted under *article 19/*article 21 of the Model Law in relation to [name of company] was filed by the applicant, [name of applicant], on [date of filing of interlocutory process] and will be heard by .................................................. at [address of Court] at .......... *am/*pm on .......... Copies of documents filed may be obtained from the applicant’s address for service. 2. The applicant’s address for service is [name and address of applicant’s legal practitioner or of applicant]. 3. Any person intending to appear at the hearing must file a notice of appearance (if the person has not already done so), in accordance with the prescribed form, together with any affidavit on which the person intends to rely, and serve a copy of the notice (if applicable) and any affidavit on the applicant at the applicant’s address for service at least 3 days before the date fixed for the hearing. Date: Name of plaintiff or plaintiff’s legal practitioner: [name] * Omit if not applicable [Form 23 insrt Gov Gaz 19, 13 Feb 2009, pp 311 and 312, r 7, with effect from 14 Feb 2009] [Sch 1 am Gov Gaz 165, 21 Sep 2012; Gov Gaz 50, 1 Apr 2010; Gov Gaz 19, 13 Feb 2009; Gov Gaz 138, 12 Aug 2008; Gov Gaz 78, 13 Apr 2007]

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Schedule 2 – Matters outside the jurisdiction of a master Schedule 2

SCHEDULE 2 – MATTERS OUTSIDE THE JURISDICTION OF A MASTER [r 16.1]

Item 1. 2. 3. 4.

5.

6. 7. 8. 9. 10. 11. 12.

Provision Description of matter Matters under the ASIC Act s. 61 Reference by ASIC to the Court of a question of Corporations Act arising at a hearing of ASIC s. 70 Request by ASIC for the Court to inquire into non-compliance by a person with an investigation s. 201 Request by Takeovers Panel for the Court to inquire into non-compliance by a person before the Panel s. 219 Request by the Companies Auditors and Liquidators Disciplinary Board for the Court to inquire into non-compliance by a person before the Board Matters under the Corporations Act Application for order prohibiting a person from managing a corporation s. 206C, 206D and 206E Part 5.1 Relating to arrangements and reconstructions (s. 410–415A) s. 423 Supervising controller of property of a corporation s. 536 Supervising liquidator s. 598 Application for order against person concerned with corporation Chapter 6 Relating to acquisition of shares (s. 602–742) Part 9.4B Relating to civil consequences of contravening civil penalty provisions (s. 1317DA–1317S) Relating to powers of courts (s. 1318–1327) Part 9.5 except s. 1318, 1319, 1322 and 1325

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[Sch 2 am Gov Gaz 138, 12 Aug 2008, p 3536, r 15, with effect from 13 Aug 2008]

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NOTES TO THESE RULES Note 1 to these rules — see rule 2.2 (Form 2 Part C) C. APPLICATION FOR WINDING-UP ON GROUND OF INSOLVENCY 1. The plaintiff relies on failure by the defendant to comply with a statutory demand. A copy of the demand, marked A, is attached to this originating process. 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/*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/*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. * Omit if not applicable Note 2 to these rules — see rule 2.4 and subrule 5.4(2) (Affidavit in support) * AFFIDAVIT IN SUPPORT/*AFFIDAVIT IN SUPPORT OF APPLICATION FOR WINDING-UP IN INSOLVENCY 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/*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. 2. Annexed to this affidavit is a current and historical extract of the records maintained by the Australian Securities and Investments Commission with respect to the defendant. 3. [Where the defendant is registered or taken to be registered in another State or a Territory, state any facts — apart from the defendant’s principal place of business — which bear upon jurisdiction being exercised in Western Australia rather than in another State or Territory.] 4. The following facts are within my own personal knowledge save as otherwise stated. 5. The defendant was on [state date of statutory demand or other relevant date] indebted to the plaintiff in the sum of $ [amount] for [state concisely the consideration, for example, goods sold and delivered etc.] which sum was then due and payable. 6. The demand, a copy of which is attached to the originating process, was signed by or on behalf of the plaintiff. I served the demand [or the demand and the accompanying affidavit] as referred to in the originating process [or X.Y. has been instructed to make an affidavit of service of the demand [or the demand and the accompanying affidavit]]. 7. The matters stated in the originating process concerning the demand and failure of the defendant to comply with it are true and correct. 8. The sum demanded remains due and payable by the defendant to me [or the plaintiff]. Sworn, etc. * Omit if not applicable [Sch am Gov Gaz 119, 6 Jul 2004, p 2712, r 4, with effect from 6 Jul 2004]

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WA PRACTICE DIRECTIONS

WA

Corporations: Practice Direction 9.5 ................................................................................... [WAPD.10] Order 52A – Freezing orders & Order 52B – Search orders: Practice Direction 9.6 ........ [WAPD.20] Cross-Border Insolvency – Cooperation with foreign courts or foreign representatives: Practice Direction 9.11 ................................................................................................... [WAPD.30]

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[WAPD.10]

[WAPD.10] Practice Direction 9.5 9.5 Corporations 9.5.1 Disclosure by Insolvency Practitioners as to Fees to be Charged 1. The Insolvency Practitioners Association of Australia no longer publishes a Scale of Rates in respect of fees. 2. Where application is made to the Court for an order that a company be wound up or for an official liquidator to be appointed as a provisional liquidator of a company, an official liquidator must consent in writing to be appointed: see Corporations Act 2001 (Cth) (“the Act”), s 532(9). The consent must be in accordance with Form 8 to the Supreme Court (Corporations) (WA) Rules 2004: r 5.5(2); r 6.1(2). Form 8 requires disclosure of the hourly rates currently (as at the signing of the consent) charged in respect of work done as a liquidator or provisional liquidator (as the case may be) by the person signing the consent, and by that personʹs partners and employees who may perform work in the administration in question. 3. The provisions referred to in paragraph 2 above have no application, however, to appointments of persons as external administrators: otherwise than by the Court; or by the Court otherwise than as liquidator or as liquidator provisionally. Moreover, even in the case of appointments as liquidator or as liquidator provisionally, the provisions referred to in paragraph 2 above do not touch on changes in the hourly rates after the signing of the Form 8 consent. 4. Various provisions of the Act empower the Court, in certain circumstances, to determine or review the remuneration of insolvency practitioners when they are filling the office of various forms of external administrator: see s 425; s 449E; s 473(2), (3), (5), (6); s 504. 5. With the exception of Form 8, where it is applicable, the provisions referred to in paragraph 2 above do not indicate a standard of disclosure of fees to be charged which the Court might regard as appropriate in any situation in which it may be relevant for the Court to take into account whether an insolvency practitioner has followed a practice of making adequate disclosure of such fees. 6. The guidelines in paragraphs 7 and 8 below are intended to fill that gap. Those guidelines are not, however, intended to limit the judicial discretion available in any particular case, or to require that non‐observance of the guidelines be taken into account where that would not be relevant to the exercise of a judicial discretion. 7. All external administrators (including persons appointed as liquidators or as liquidators provisionally) should, in their first report to creditors: disclose the hourly rates of fees which are being charged by them and by any of their partners and employees who may work in the administration; and give their best estimate of the cost of the administration to completion or to a specified milestone identified in the report. 8. If, at any time after an external administrator has reported in accordance with paragraph 7, the hourly rates are to change, or the administrator has reason to believe that the estimate given to creditors is no longer reliable, he or she should report to creditors, disclosing the new hourly rates and giving a revised estimate. Note: These guidelines are not intended: • to prevent an external administrator from changing hourly rates or revising estimates if he or she is otherwise lawfully permitted to do so; or • to authorise an external administrator to change hourly rates or revise estimates if he or she is not otherwise lawfully permitted to do so. 9.5.2 Schemes of Arrangement 1. Concerns have arisen that orders for the convening of a meeting of members/creditors under s 411(1) of the Corporations Act 2001 (Cth) may give the impression of endorsement by the Court of the scheme of arrangement proposed. 2. As a result, when making an order under s 411(1) of the Corporations Act 2001 (Cth) the Court will require that the explanatory statement or a document accompanying the explanatory statement, prominently display a notice in the form attached at 9.5.2.1, or to the same effect. 9.5.2.1. Notice — Subsection 441(1) of the Corporations Act 2001 (Cth) IMPORTANT NOTICE ASSOCIATED WITH COURT ORDER UNDER SECTION 411(1) OF CORPORATIONS ACT 2001 (Cth) The fact that under s 411(1) of the Corporations Act 2001 (Cth) the Court has ordered that a meeting be convened and has approved the explanatory statement required to accompany the notices f the meeting does not mean that the Court: 552

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(a) has formed any view as to the merits of the proposed scheme or as to how members/creditors should vote (on this matter members/creditors must reach their own decision); or (b) has prepared, or is responsible for the content of, the explanatory statement.

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[WAPD.20]

Practice Direction 9.6

9.6 Order 52A – Freezing Orders & Order 52B – Search Orders 9.6.1 Freezing Orders (Mareva Orders) 1. This Practice Direction supplements O 52A of the Rules of the Supreme Court 1971 of the relating to freezing orders (also known as “Mareva orders” after Mareva Compania Naviera SA v International Bulkcarriers SA (The Mareva) [1975] 2 Lloyd’s Rep 509; [1980] 1 All ER 213, or “asset preservation orders”). 2. This Practice Direction addresses (among other things) the Court’s usual practice relating to the making of a freezing order and the usual terms of such an order. While a standard practice has benefits, this Practice Direction and the example form of order annexed to it at 9.6.1.1 do not, and cannot, limit the judicial discretion to make such order as is appropriate in the circumstances of the particular case. 3. Words and expressions in this Practice Direction that are defined in O 52A have the meanings given to them in that Order. 4. An example form of freezing order which can be granted without notice being given to the respondent (ex parte) is annexed to this Practice Direction at 9.6.1.1. The example form may be adapted to meet the circumstances of the particular case. It may be adapted for a freezing order granted with notice being given to all parties (inter partes) as indicated in the footnotes to the example form (the footnotes and references to footnotes should not form part of the order as made). The example form contains provisions aimed at achieving the permissible objectives of the order consistently with the proper protection of the respondent and third parties. 5. The purpose of a freezing order is to prevent frustration or abuse of the process of the Court, not to provide security in respect of a judgment or order. 6. A freezing order should be viewed as an extraordinary interim remedy because it can restrict the right to deal with assets eve before judgment, and is commonly granted without notice being given to the respondent. 7. The respondent is often the person said to be liable on a substantive cause of action of the applicant. However, the respondent may also be a third party, in the sense of a person who has possession, custody or control, or even ownership, of assets which he or she may be obliged ultimately to use to help satisfy a judgment against another person. Order 52A r 5(5) addresses the minimum requirements that must ordinarily be satisfied on an application for a freezing order against such a third party before the discretion is exercised. The third party will not necessarily be a party to the substantive proceeding, (see Cardile v LED Builders Pty Ltd (1999) 198 CLR 380) but will be a respondent to the application for the freezing or ancillary order. Where a freezing order against a third party seeks only to freeze the assets of another person in the third party’s possession, custody or control (but not ownership), the example form at 9.6.1.1 will require adaptation. In particular, the references to “your assets” and “in your name” should be changed to refer to the other person’s assets or name (e.g. “John Smith’s assets”, “in John Smith’s name”). 8. A freezing or ancillary order may be limited to assets in Australia or in a defined part of Australia, or may extend to assets anywhere in the world, and may cover all assets without limitation, assets of a particular class, or specific assets (such as the amounts standing to the credit of identified bank accounts). 9. The duration of a freezing order granted without notice being given to the respondent should be limited to a period termination on the return date of the motion, which should be as early as practicable (usually not more than a day or two) after the order is made, when the respondent will have the opportunity to be heard. The applicant will then bear the onus of satisfying the Court that the order should be continued or renewed. 10. A freezing order should reserve liberty for the respondent to apply on short notice. An application by the respondent to discharge or vary a freezing order will normally be treated by the Court as urgent. 11. The value of the assets covered by a freezing order should not exceed the likely maximum amount of the applicant’s claim, including interest and costs. Sometimes it may not be possible to satisfy this principle (for example, an employer may discover that an employee has been making fraudulent misappropriations, but does not know how much has been misappropriated at the time of the discovery and at the time of the approach to the Court). 12. The order should exclude dealings by the respondent with its assets for legitimate purposes, in particular: (a) payment of ordinary living expenses; (b) payment of reasonable legal expenses; 554

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(c) dealings and dispositions in the ordinary and proper course of the respondent’s business, including paying business expenses bona fide and properly incurred; and (d) dealings and dispositions in the discharge of good faith obligations and properly incurred under a contract entered into before the order was made. 13. Where a freezing order extends to assets outside Australia, the order should provide for the protection of persons outside Australia and third parties. Such provisions are included in the example form of freezing order. 14. The Court may make ancillary orders. The most common example of an ancillary order is an order for disclosure of assets. The annexed example form at 9.6.1.1 provides for such an order and for the privilege against self‐incrimination. 15. The rules of court confirm that certain restrictions expressed in The Siskina [1979] AC 210 do not apply in this jurisdiction. First, the Court may make a freezing order before a cause of action has accrued (a “prospective” cause of action). Secondly, the Court may make a free‐standing freezing order in aid of foreign proceedings in prescribed circumstances. Thirdly, where there are assets in Australia, service out of Australia is permitted under a new “long arm” service rule. 16. As a condition of the making of a freezing order, the Court will normally require appropriate undertakings by the applicant to the Court, including the usual undertaking as to damages. 17. If it is demonstrated that the applicant has or may have insufficient assets within the jurisdiction of the Court to provide substance for the usual undertaking as to damages, the applicant may be required to support the undertaking by providing security. There is provision for such security in the example form of freezing order at 9.6.1.1. 18. The order to be served should be endorsed with a notice in the form of the penal notice on the example form of freezing order attached to this Practice Direction.

20. The affidavits relied on in support of an application for a freezing or ancillary order should, if possible, address the following: (a) information about the judgment that has been obtained, or, if no judgment has been obtained, the following information about the cause of action: (i) the basis of the claim for substantive relief; (ii) the amount of the claim; and (iii) if the application is made without notice to the respondent, the applicant’s knowledge of any possible defence; (b) the nature and value of the respondent’s assets, so far as they are known to the applicant, within and outside Australia; (c) the matters referred to in rule 5 of the freezing orders rules of court (Order 52A); and (d) the identity of any person, other than the respondent, who, the applicant believes, may be affected by the order, and how that person may be affected by it. 9.6.1.1. Example form of Freezing Order without notice being given to the Respondent (ex parte) [Title of Proceeding] PENAL NOTICE TO: [name of person against whom the order is made] IF YOU: (A) REFUSE OR NEGLECT TO DO ANY ACT WITHIN THE TIME SPECIFIEDIN THE ORDER FOR THE DOING OF THE ACT; OR (B) DISOBEY THE ORDER BY DOING AN ACT WHICH THE ORDER REQUIRESYOU TO ABSTAIN FROM DOING, YOU WILL BE LIABLE TO IMPRISONMENT, SEQUESTRATION OF PROPERTY OR OTHER PUNISHMENT ©

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19. An applicant seeking a freezing order without notice being given to the respondent is under a duty to make full and frank disclosure of all material facts to the Court. This includes disclosure of possible defences known to the applicant and of any information which may cast doubt on the applicant’s ability to meet the usual undertaking as to damages from assets within Australia.

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ANY OTHER PERSON WHO KNOWS OF THIS ORDER AND DOES ANYTHING WHICH HELPS OR PERMITS YOU TO BREACH THE TERMS OF THIS ORDER MAY BE SIMILARLY PUNISHED. TO: [name of person against whom the order is made] This is a “freezing order” made against you on [insert date] by Justice [insert name of Judge] at a hearing without notice to you after the Court was given the undertakings set out in Schedule A to this order and after the Court read the affidavits listed in Schedule B to this order.1 THE COURT ORDERS: INTRODUCTION 1. (a) The application for this order is made returnable immediately. (b) The time for service of the application, supporting affidavits and originating process is abridged and service is to be effected by [insert time and date].2 2. Subject to the next paragraph, this order has effect up to and including [insert date] (“the Return Date”). On the Return Date at [insert time] am/pm there will be a further hearing in respect of this order before Justice [insert name of Judge]3 3. Anyone served with or notified of this order, including you, may apply to the Court at any time to vary or discharge this order or so much of it as affects the person served or notified. 4. In this order: (a) “applicant”, if there is more than one applicant, includes all the applicants; (b) “you”, where there is more than one of you, includes all of you and includes you if you are a corporation; (c) “third party” means a person other than you and the applicant; (d) “unencumbered value” means value free of mortgages, charges, liens or other encumbrances. 5. (a) If you are ordered to do something, you must do it by yourself or through directors, officers, partners, employees, agents or others acting on your behalf or on your instructions. (b) If you are ordered not to do something, you must not do it yourself or through directors, officers, partners, employees, agents or others acting on your behalf or on your instructions or with your encouragement or in any other way. FREEZING OF ASSETS [For order limited to assets in Australia] 6 (a) You must not remove from Australia or in any way dispose of, deal with or diminish the value of any of your assets in Australia (“Australian assets”) up to the unencumbered value of AUD$ (“the Relevant Amount”). (b) If the unencumbered value of your Australian assets exceeds the Relevant Amount, you may remove any of those assets from Australia or dispose of or deal with them or diminish their value, so long as the total unencumbered value of your Australian assets still exceeds the Relevant Amount. [If the Court makes a worldwide order, the following additional paragraph (c) also applies.] (c) If the unencumbered value of your Australian assets is less than the Relevant Amount, and you have assets outside Australia (“ex-Australian assets”): (i) You must not dispose of, deal with or diminish the value of any of your Australian assets and ex‐Australian assets up to the unencumbered value of your Australian and ex‐Australian assets of the Relevant Amount; and (ii) You may dispose of, deal with or diminish the value of any of your ex‐Australian assets, so long as the unencumbered value of your Australian assets and ex‐Australian assets still exceeds the Relevant Amount. [For either form of order] 7. For the purposes of this order, (1) your assets include: 556

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PROVISION OF INFORMATION4 8. Subject to paragraph 9, you must: (a) at or before the further hearing on the Return Date (or within such further time as the Court may allow) to the best of your ability inform the applicant in writing of all your assets in [Australia] [world wide], giving their value, location and details (including any mortgages, charges or other encumbrances to which they are subject) and the extent of your interest in the assets; (b) within [ ] working days after being served with this order, swear and serve on the applicant an affidavit setting out the above information. 9. (a) This paragraph (9) applies if you are not a corporation and you wish to object that compliance with paragraph 8 may tend to incriminate you or made you liable to a civil penalty; (b) This paragraph (9) also applies if you are a corporation and all of the persons who are able to comply with paragraph 8 on your behalf and with whom you have been able to communicate, wish to object that compliance may tend to incriminate them respectively or make them respectively liable to a civil penalty; (c) You must, at or before the further hearing on the Return Date (or within such further time as the Court may allow), notify the applicant in writing that you or all the persons referred to in (b) wish to take such objection and identify the extent of the objection; (d) If you give such notice, you need comply with paragraph 8 only to the extent, if any, that it is possible to do so without disclosure of the material in respect of which the objection is taken; and (e) If you give such notice, the Court may give directions as to the filing and service of affidavits setting out such matters as you or the persons referred to in (b) wish to place before the Court in support of the objection. EXCEPTIONS TO THIS ORDER 10. This order does not prohibit you from: (a) paying [up to $........ a week/day on] [your ordinary] living expenses; (b) paying [$........ on] [your reasonable] legal expenses; (c) dealing with or disposing of any of your assets in the ordinary and proper course of your business, including paying business expenses bona fide and properly incurred; and (d) in relation to matters not falling within (a), (b) or (c), dealing with or disposing of any of your assets in discharging obligations bona fide and properly incurred under a contract entered into before this order was made, provided that before doing so you give the applicant, if possible, at least two working days written notice of the particulars of the obligation. 11. You and the applicant may agree in writing that the exceptions in the preceding paragraph are to be varied. In that case the applicant or you must as soon as practicable file with the Court and serve on the other a minute of a proposed consent order recording the variation signed by or on behalf of the applicant and you, and the Court may order that the exceptions are varied accordingly. 12. (a) This order will cease to have effect if you: (i) pay the sum of $........ into Court; or ©

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(a) all your assets, whether or not they are in your name and whether they are solely or co‐owned; (b) any asset which you have the power, directly or indirectly, to dispose of or deal with as if it were your own (you are to be regarded as having such power if a third party holds or controls the asset in accordance with your direct or indirect instructions); and (c) the following assets in particular: (i) the property known as [title/address] or, if it has been sold, the net proceeds of the sale; (ii) the assets of your business [known as [name]] [carried on at [address]] or, if any or all of the assets have been sold, the net proceeds of the sale; and (iii) any money in account [numbered account number] [in the name of] at [name of bank and name and address of branch]. (2) the value of your assets is the value of the interest you have individually in your assets.

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(ii) pay that sum into a joint bank account in the name of your solicitor and the solicitor for the applicant as agreed in writing between them; or (iii) provide security in that sum by a method agreed in writing with the applicant to be held subject to the order of the Court. (b) Any such payment and any such security will not provide the applicant with any priority over your other creditors in the event of your insolvency. (c) If this order ceases to have effect pursuant (a), you must as soon as practicable file with the Court and serve on the applicant notice of that fact. COSTS 13. The costs of this application are reserved to the Judge hearing the application on the Return Date. PERSONS OTHER THAN THE APPLICANT AND RESPONDENT 14. Set off by banks This order does not prevent any bank from exercising any right of set off it has in respect of any facility which it gave you before it was notified of this order. 15. Bank withdrawals by the respondent No bank need inquire as to the application or proposed application of any money withdrawn by you if the withdrawal appears to e permitted by this order. [For world wide order] 16. Persons outside Australia (a) Except as provided in subparagraph (b) below, the terms of this order do not affect or concern anyone outside Australia. (b) The terms of this order will affect the following persons outside Australia: (i) you and your directors, officers, employees and agents (except banks and financial institutions); (ii) any person (including a bank or financial institution) who: (A) is subject to the jurisdiction of this Court; and (B) has been given written notice of this order, or has actual knowledge of the substance of the order and of its requirements; and (C) is able to prevent or impede acts or omissions outside Australia which constitute or assist in a disobedience breach of the terms of this order; and (iii) any other person (including a bank or financial institution), only to the extent that this order is declared enforceable by or is enforced by a court in a country or state that has jurisdiction over that person or over any of that person’s assets. [For world wide order] 17. Assets located outside Australia Nothing in this order shall, in respect of assets located outside Australia, prevent any third party from complying or acting in conformity with what it reasonably believes to be its bona fide and properly incurred legal obligations, whether contractual or pursuant to a court order or otherwise, under the law of the country or state in which those assets are situated or under the proper law of any contract between a third party and you, provided that in the case of any future order of a court of that country or state made on your or the third party’s application, reasonable written notice of the making of the application is given to the applicant. SCHEDULE A UNDERTAKINGS GIVEN TO THE COURT BY THE APPLICANT (1) The applicant undertakes to submit to such order (if any) as the Court may consider to be just for the payment of compensation (to be assessed by the Court or as it may direct) to any person (whether or not a party) affected by the operation of the order. (2) As soon as practicable, the applicant will file and serve upon the respondent copies of: (a) this order; (b) the application for this order for hearing on the Return Date; (c) the following material in so far as it was relied on by the applicant at the hearing when the order was made: 558

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(i) affidavits (or draft affidavits); (ii) exhibits capable of being copied; (iii) any written submission; and (iv) any other document that was provided to the Court. (d) a transcript, or, if none is available, a note, of any exclusively oral allegation of fact that was made and of any exclusively oral submission that was put, to the Court; (e) the originating process, or, if none was filed, any draft originating process produced to the Court. (3) As soon as practicable, the applicant will cause anyone notified of this order to be given a copy of it. (4) The applicant will pay the reasonable costs of anyone other than the respondent which have been incurred as a result of this order, including the costs of finding out whether that person holds any of the respondent’s assets. (5) If this order ceases to have effect5 the applicant will promptly take all reasonable steps to inform in writing anyone who has been notified of this order, or who he has reasonable grounds for supposing may act upon this order, that it has ceased to have effect. (6) The applicant will not, without leave of the Court, use any information obtained as a result of this order for the purpose of any civil or criminal proceedings, either in or outside Australia, other than this proceeding. (7) The applicant will not, without leave of the Court, seek to enforce this order in any country outside Australia or seek in any country outside Australia an order of a similar nature or an order conferring a charge or other security against the respondent or the respondent’s assets. [(8) The applicant will: (a) on or before [date] cause an irrevocable undertaking to pay in the sum of $ to be issued by a bank with a place of business within Australia, in respect of any order the court may make pursuant to undertaking (1) above; and (b) immediately upon issue of the irrevocable undertaking, cause a copy of it to be served on the respondent.]6 SCHEDULE B AFFIDAVITS RELIED ON Name of Deponent

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(1) (2) (3) NAME AND ADDRESS OF APPLICANT’S LEGAL REPRESENTATIVES The applicant’s legal representatives are: [Name, address, reference, fax and telephone numbers both in and out of offıce hours and email] 9.6.2 Search Orders (Anton Piller Orders) 1. This Practice Direction supplements O 52B of the Rules of the Supreme Court 1971 relating to search orders (also known as Anton Piller orders, after Anton Piller KG v Manufacturing Processes Ltd [1976] Ch 55). 2. This Practice Direction addresses (among other things) the Court’s usual practice relating to the making of a search order and the usual terms of such an order. While a standard practice has benefits, this Practice Direction and the example form of order annexed to it at 9.6.2.1 do not, and can not, limit the judicial discretion to make such order as is appropriate in the circumstances of the particular case. 3. Words and expressions in this Practice Direction that are defined in Order 52B have the meanings given to them in that Order. 4. Ordinarily, a search order is made without notice being given to the respondent (ex parte) and compels the respondent to permit persons specified in the order (“search party”) to enter premises and to search for, inspect, copy and remove the things described in the order. The order is designed to preserve important evidence pending the hearing and determination of the applicant’s claim in a proceeding brought or to be ©

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brought by the applicant against the respondent or against another person. The order is an extraordinary remedy in that it is intrusive, potentially disruptive, and made without notice being given to the respondent and prior to judgment. 5. An example form of search order made without notice being given to the respondent is annexed to this Practice Direction at 9.62.1 (the footnotes and references to footnotes in the example form should not form part of the order as made). The example form may be adapted to meet the circumstances of the particular case. It contains provisions which are aimed at achieving the permissible objectives of a search order, while minimising the potential for disruption or damage to the respondent and for abuse of the Court’s process. 6. The search party must include an independent solicitor who will supervise the search and a solicitor or solicitors representing the applicant. It may be necessary that it include other persons, such as an independent computer expert, and a person able to identify things being searched for if difficulties of identification may arise. Ordinarily, the search party should not include the applicant or the applicant’s directors, officers, employees or partners or any other person associated with the applicant (other than the applicant’s solicitor). 7. The order should be clear about the maximum number of persons permitted to be in the search party. The number of people in the search party should be as small as is reasonably practicable. The example form at Schedule A at 9.6.2.1 contemplates that they will be named in the order. This is desirable but if it is not possible the order should at least give a description of the class of person who will be there (e.g. “one solicitor employed by A, B and Co”). 8. The affidavits in support of an application for a search order should include the following information: (a) a description of the things or the categories of things, in relation to which the order is sought; (b) the address or location of any premises in relation to which the order is sought and whether they are private or business premises; (c) why the order is sought, including why there is a real possibility that the things to be searched for will be destroyed or otherwise made unavailable for use in evidence before the Court unless the order is made; (d) the prejudice, loss or damage likely to be suffered by the applicant if the order is not made; (e) the name, address, firm, and commercial litigation experience of an independent solicitor, who consents to being appointed to serve the order, supervise its execution, and do such other things as the Court considers appropriate; and (f) if the premises to be searched are or include residential premises, whether or not the applicant believes that the only occupant of the premises is likely to be: (i) a female; or (ii) a child under the age of 18; or (iii) any other person (“vulnerable person”) that a reasonable person would consider to be in a position of vulnerability because of that person’s age, mental capacity, infirmity or English language ability; or (iv) any combination of (i), (ii) and (iii), and any one or more of such persons. 9. If it is envisaged that specialised computer expertise may be required to search the respondent’s computers for documents, or if the respondent’s computers are to be imaged (i.e. hard drives are to be copied wholesale, thereby reproducing documents referred to in the order and other documents indiscriminately), special provision will need to be made, and an independent computer specialist will need to be appointed who should be required to give undertakings to the Court. 10. The applicant’s solicitor must undertake to the Court to pay the reasonable costs and disbursements of the independent solicitor and of any independent computer expert. 11. The independent solicitor is an important safeguard against abuse of the order. The independent solicitor must not be a member or employee of the applicant’s firm of solicitors. The independent solicitor should be a solicitor experienced in commercial litigation, preferably in the execution of search orders. The Law Society has been requested to maintain a list of solicitors who have indicated willingness to be appointed as an independent solicitor for the purpose of executing search orders, but it is not only persons on such a list who may be appointed. The responsibilities of the independent solicitor are important and ordinarily include the following: 560

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(a) serve the order, the application for it, the affidavits relied on in support of the application, and the originating process; (b) offer to explain, and, if the offer is accepted, explain the terms of the search order to the respondent; (c) explain to the respondent that he or she has the right to obtain legal advice; (d) supervise the carrying out of the order; (e) before removing things from the premises, make a list of them, allow the respondent a reasonable opportunity to check the correctness of the list, sign the list, and provide the parties with a copy of the list; (f) take custody of all things removed from the premises until further order of the Court; (g) if the independent solicitor considers it necessary to remove a computer from the premises for safekeeping or for the purpose o copying its contents electronically or printing out information in documentary form, remove the computer from the premises for that purpose, and return the computer to the premises within any time prescribed by the order together with a list of any documents that have been copied or printed out; (h) submit a written report to the Court within the time prescribed by the order as to the execution of the order; and (i) attend the hearing on the Return Date of the application, and have available to be brought to the Court all things that were removed from the premises. On the Return Date the independent solicitor may be required to release material in his or her custody which has been removed from the respondent’s premises or to provide information to the Court, and may raise any issue before the Court as to execution of the order. 12. Ordinarily, the applicant is not permitted, without the leave of the Court, to inspect things removed from the premises or copies of them, or to be given any information about them by members of the search party. 13. Ordinarily, a search order should be served between 9:00am and 2:00pm on a business day in order to permit the respondent to more readily obtain legal advice. However, there may be circumstances in which such a restriction is not appropriate.

15. If the premises are or include residential premises and the applicant is aware that when service of the order is effected the only occupant of the residential premises is likely to be any one or more of a female, a child under the age of 18, or a vulnerable person, the Court will give consideration to whether: (a) if the occupants are likely to include a female or child, the independent solicitor should be a woman or the search party should otherwise include a woman; and (b) if the occupants are likely to include a vulnerable person, the search party should include a person capable of addressing the relevant vulnerability. 16. Any period during which the respondent is to be restrained from informing any other person (other than for the purposes of obtaining legal advice) of the existence of the search order should be as short as possible and not extend beyond 4:30pm on the Return Date. 17. At the hearing between the parties of the application on the Return Date, the Court will consider the following issues: (a) what is to happen to any things removed from the premises or to any copies which have been made; (b) how any commercial confidentiality of the respondent is to be maintained; (c) any claim of privilege by the respondent; (d) any application by a party; and (e) any issue raised by the independent solicitor. 18. Appropriate undertakings to the Court will be required of the applicant, the applicant’s solicitor and the independent solicitor, as conditions of the making of the search order. The undertakings required of the applicant will normally include the Court’s usual undertaking as to damages. The applicant’s solicitor’s undertaking includes an undertaking not to disclose to the applicant any information that the solicitor has acquired during or as a result of execution of the search order, without the leave of the Court. Release from this undertaking in whole or in part may be sought on the Return Date. ©

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14. A search order must not be executed at the same time as the execution of a search warrant by the police or by a regulatory authority.

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19. If it is demonstrated that the applicant has or may have insufficient assets within the jurisdiction of the Court to provide substance for the usual undertaking as to damages, the applicant may be required to provide security for the due performance of that undertaking. The security may, for example, take the form of a bank’s irrevocable undertaking to pay or a payment into Court. The example form of search order at 9.6.2.1 contains provision for an irrevocable undertaking. 20. An applicant for a search order made without notice being given to the respondent is under a duty to the Court to make full an frank disclosure of all material facts to the Court. This includes disclosure of possible defences known to the applicant and of any financial information which may cast doubt on the applicant’s ability to meet the usual undertaking as to damages from assets within Australia. 21. The order to be served should be endorsed with a notice in the form of the Penal Notice on the example form of Search Order attached to this Practice Direction at 9.6.2.1. 22. A search order is subject to the Court’s adjudication of any claim of privilege against self‐incrimination. The privilege against self‐incrimination is available to individuals but not to corporations. The Court will not make an order reducing or limiting that privilege in circumstances where the legislature has not indicated that it may do so. 9.6.2.1. Example Form of Search Order [Title of Proceeding] PENAL NOTICE TO: [name of person against whom the order is made] IF YOU (BEING THE PERSON BOUND BY THIS ORDER): (A) REFUSE OR NEGLECT TO DO ANY ACT WITHIN THE TIME SPECIFIED IN THE ORDER FOR THE DOING OF THE ACT; OR (B) DISOBEY THE ORDER BY DOING AN ACT WHICH THE ORDER REQUIRES YOU TO ABSTAIN FROM DOING, YOU WILL BE LIABLE TO IMPRISONMENT, SEQUESTRATION OF PROPERTY OR OTHER PUNISHMENT. ANY OTHER PERSON WHO KNOWS OF THIS ORDER AND DOES ANYTHING WHICH HELPS OR PERMITS YOU TO BREACH THE TERMS OF THIS ORDER MAY BE IMILARLY PUNISHED. TO: [name of person against whom the order is made] This is a “search order” made against you on [insert date] by Justice [insert name of Judge] at a hearing without notice to you after the Court was given the undertakings set out in Schedule B to this order and after the Court read the affidavits listed in Schedule C to this order. THE COURT ORDERS: INTRODUCTION 1. (a) the application for this order is made returnable immediately. (b) the time for service of the application, supporting affidavits and originating process is abridged and service is to be effected by [insert time and date]. 2. Subject to the next paragraph, this order has effect up to and including [insert date] (“the Return Date”). On the Return Date at [insert time] am/pm there will be a further hearing in respect of this order before Justice [insert name of Judge]. 3. You may apply to the Court at any time to vary or discharge this order; including, if necessary, by telephone to the Judge referred to in the immediately preceding paragraph (phone No. ) or to the Duty Judge (phone No. ). 4. This order may be served only between [insert time] am/pm and [insert time] am/pm [on a business day].7 5. In this order: (a) “applicant” means the person who applied for this order, and if there is more than one applicant, includes all the applicants. (b) “independent computer expert” means the person (if any) identified as the independent computer expert in the search party referred to in Schedule A to this order. (c) “independent solicitor” means the person identified as the independent solicitor in the search party referred to in Schedule A to this order. 562

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(d) “listed thing” means any thing referred to in Schedule A to this order. (e) “premises” means the premises and any of the premises identified in Schedule A to this order, including any vehicles and vessels that are under the respondent’s control on or about the premises or that are otherwise identified in Schedule A. (f) “search party” means the persons identified or described as constituting the search party in Schedule A to this order. (g) “thing” includes a document. (h) “you”, where there is more than one of you, includes all of you and includes you if you are a corporation. (i) any requirement that something be done in your presence means: (i) in the presence of you or of one of the persons described in (6) below; or (ii) if there is more than one of you, in the presence of each of you, or, in relation to each of you, in the presence of one of the persons described in (6) below. 6. This order must be complied with by you by: (a) yourself; or (b) any director, officer, partner, employee or agent of yourself; or (c) any other person having responsible control of the premises. 7. This order must be served by, and be executed under the supervision of, the independent solicitor.

9. Having permitted members of the search party to enter the premises, you must: (a) permit them to leave and re‐enter the premises on the same day and the following day until the search and other activities referred to in this order are complete; (b) permit them to search for and inspect the listed things and to make or obtain a copy, photograph, film, sample, test or other record of the listed things; (c) disclose to them the whereabouts of all the listed things in the respondent’s possession, custody or power, whether at the premises or otherwise; (d) disclose to them the whereabouts of all computers, computer disks and electronic information storage devices or systems at the premises in which any documents among the listed tings are or may be stored, located or recorded and cause and permit those documents to be printed out; (e) do all things necessary to enable them to access the listed things, including opening or providing keys to locks and enabling them to access and operate computers and providing them with all necessary passwords; (f) permit the independent solicitor to remove from the premises into the independent solicitor’s custody: (i) the listed things or things which reasonably appear to the independent solicitor to be the listed things and any things the subject of dispute as to whether they are listed things; and (ii) the copies, photographs, films, samples, tests, other records and printed out documents referred to above; and (g) permit the independent computer expert (if there is one) to search any computer and make a copy or digital copy of any computer hard drive and permit the independent computer expert (if any) or the independent solicitor to remove any computer hard drive and computer from the premises as set out in paragraphs 20 – 21 below. RESTRICTIONS ON ENTRY, SEARCH AND REMOVAL 10. This order may not be executed at the same time as a search warrant (or similar process) is executed by the police or by a regulatory authority. 11. You are not required to permit anyone to enter the premises until: (a) the independent solicitor serves you with copies of this order and any affidavits referred to in Schedule C (confidential exhibits, if any, need not be served until further order of the Court); and ©

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ENTRY, SEARCH AND REMOVAL 8. Subject to paragraphs 10 to 20 below, upon service of this order you must permit members of the search party to enter the premises so that they can carry out the search and other activities referred to in this order.

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(b) you are given an opportunity to read this order and, if you so request, the independent solicitor explains the terms of this order to you. 12. Before permitting entry to the premises by anyone other than the independent solicitor, you, for a time (not exceeding two hours from the time of service or such longer period as the independent solicitor may permit): (a) may seek legal advice; (b) may ask the Court to vary or discharge this order; (c) (provided you are not a corporation) may gather together any things which you believe may tend to incriminate you or make you liable to a civil penalty and hand them to the independent solicitor in (if you wish) a sealed envelope or container; and (d) may gather together any documents that passed between you and your lawyers for the purpose of obtaining legal advice or that ar otherwise subject to legal professional privilege or client legal privilege, and hand them to the independent solicitor in (if you wish) a sealed envelope or container. 13. Subject to paragraph 22 below, the independent solicitor must not inspect or permit to be inspected by anyone, including the applicant and the applicant’s solicitors, any thing handed to the independent solicitor in accordance with subparagraphs 12(c) and (d) above and the independent solicitor must deliver it to the Court at or prior to the hearing on the Return Date. 14. During any period referred to in paragraph 12 above, you must; (a) inform and keep the independent solicitor informed of the steps being taken; (b) permit the independent solicitor to enter the premises but not to start the search; (c) not disturb or remove any listed things; and (d) comply with the terms of paragraphs 25 – 26 below. 15. Any thing the subject of a dispute as to whether it is a listed thing must promptly be handed by you to the independent solicitor for safekeeping pending resolution of the dispute or further order of the Court. 16. Before removing any listed things from the premises (other than things referred to in the immediately preceding paragraph), the independent solicitor must supply a list of them to you, give you a reasonable time to check the correctness of the list, and give you and the applicant’s solicitors a copy of the list signed by the independent solicitor. 17. The premises must not be searched, and things must not be removed from the premises, except in the presence of you or of a person who appears to the independent solicitor to be your director, officer, partner, employee, agent or other person acting on your behalf or on your instructions. 18. If the independent solicitor is satisfied that full compliance with the immediately preceding paragraph is not reasonably practicable, the independent solicitor may permit the search to proceed and the listed things to be removed without full compliance. 19. The applicant’s solicitors and the independent solicitor must not allow the applicant in person to inspect or have copies of an thing removed from the premises nor communicate to the applicant information about its contents or about anything observed at he premises until 4:30pm on the Return Date or other time fixed by further order of the Court. COMPUTERS 20. (a) If it is expected that a computer will be searched, the search party must include a computer expert who is independent of the applicant and of the applicant’s solicitors (“the independent computer expert”). (b) Any search of a computer must be carried out only by the independent computer expert. (c) The independent computer expert may make a copy or digital copy of the computer hard drive and remove that copy or digital cop from the premises. (d) The independent computer expert may search the computer or the copy or digital copy of the computer hard drive at the premises and/or away from the premises for the listed things and may copy the listed things electronically or in hard copy or both. (e) The independent computer expert must as soon as practicable and, in any event, prior to the hearing on the Return Date, deliver the copy or digital copy of the computer hard drive 564

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WA Practice Directions and all electronic and hard copies of the listed things to the independent solicitor, together with a report of what the independent computer expert has done including a list of such electronic and hard copies. (f) The independent solicitor must, at or prior to the hearing on the Return Date, deliver to the Court all things received from the independent computer expert and serve a copy of the latter’s report on the parties. (g) If no independent computer expert has been appointed, but the independent solicitor considers it necessary to remove a computer from the premises for safekeeping or for the purpose of copying its contents electronically and printing out information in documentary form, the independent solicitor may remove the computer from the premises in order for that purpose only to be achieved.

21. Unless you are a corporation, you are entitled to object to paragraphs 20(b) to (f) on the ground that they might tend to incriminate you or make you liable to a civil penalty. Upon communicating this to the independent solicitor those paragraphs become inoperative to the extent that you have objected to them. In that event, if the applicant’s solicitor communicates to the independent solicitor that the applicant proposes to contest the objection: (a) the independent computer expert shall remove the computer hard drive (or, if that is not practicable, the computer) from the premises and deliver it into the custody of the independent solicitor who shall deliver it to the Court at or prior t the Return Date. (b) on the Return Date or on another date, the applicant may apply to the Court for orders to similar effect as paragraphs 20(b) to (f) and if you object, the Court may adjudicate upon your objection.

PROVISION OF INFORMATION 23. Subject to paragraph 24 below, you must: (a) at or before the further hearing on the Return Date (or within such further time as the Court may allow) to the best of your ability inform the applicant in writing as to: (i) the location of the listed things; (ii) the name and address of everyone who has supplied you, or offered to supply you, with any listed thing; (iii) the name and address of every person to whom you have supplied, or offered to supply, any listed thing; and (iv) details of the dates and quantities of every such supply and offer. (b) within [ ] working days after being served with this order, make and serve on the applicant an affidavit setting out the above information. 24. (a) This paragraph (24) applies if you are not a corporation and you wish to object that compliance with paragraph 23 may tend to incriminate you or make you liable to a civil penalty. (b) This paragraph (24) also applies if you are a corporation and all of the persons who are able to comply with paragraph 23 on your behalf and with whom you have been able to communicate, wish to object that compliance may tend to incriminate them or make them liable to a civil penalty. (c) You must, at or before the further hearing on the Return Date (or within such further time as the Court may allow), notify the applicant in writing that you or all the persons referred to in (b) wish to take such objection and identify the extent of the objection. (d) If you give such notice, you need comply with paragraph 23 only to the extent, if any, that it is possible to do so without disclosure of the material in respect of which the objection is taken. ©

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INSPECTION 22. Prior to the Return Date, you or your solicitor or representative shall be entitled, in the presence of the independent solicitor, to inspect any thing removed from the premises and to: (a) make copies of the same; and (b) provide the independent solicitor with a signed list of things which are claimed to be privileged or confidential and which you claim ought not to be inspected by the applicant.

WA Practice Directions

[WAPD.20]

(e) If you give such notice, the Court may give directions as to the filing and service of affidavits setting out such matters as you or the persons referred to in (b) wish to place before the Court in support of the objection. PROHIBITED ACTS 25. Except for the sole purpose of obtaining legal advice, you must not, until 4:30pm on the Return Date, directly or indirectly inform any person of this proceeding or of the contents of this order, or tell any person that a proceeding has been or may be brought against you by the applicant. 26. Until 4:30pm on the Return Date you must not destroy, tamper with, cancel or part with possession, power, custody or control of the listed things otherwise than in accordance with the terms of this order or further order of the Court. COSTS 27. The costs of this application are reserved to the Judge hearing the application on the Return Date. SCHEDULE A Premises The premises located at [insert address or addresses] including any vehicle or vehicles under the respondent’s control on or about those premises. Listed Things 1. 2. 3. Search Party 1. The independent solicitor: [insert name and address] 2. The applicant’s solicitor or solicitors: (a) [insert name and address] [or description e.g. a partner or employed solicitor of A, B and Co]. (b) [insert name and address] [or description e.g. a partner or employed solicitor of A, B and Co]. (c) [insert name and address] [or description e.g. a partner or employed solicitor of A, B and Co]. 3. Other members of the search party: (a) [insert name and address] in the capacity of [e.g. an independent computer expert] (b) [insert name and address] in the capacity of [insert capacity] SCHEDULE B UNDERTAKINGS GIVEN TO THE COURT Undertakings given to the Court by the applicant (1) The applicant undertakes to submit to such order (if any) as the Court may consider to be just for the payment of compensation (to be assessed by the Court or as it may direct) to any person (whether or not a party) affected by the operation of the order. (2) The applicant will not, without leave of the Court, use any information, document or thing obtained as a result of the execution of this order for the purpose of any civil or criminal proceeding, either within or outside Australia, other than this proceeding. (3) The applicant will not inform any other person of the existence of this proceeding except for the purposes of this proceeding until after 4:30pm on the Return Date. (4) If the applicant has not already done so, as soon as practicable the applicant will file a notice of motion for hearing on the Return Date and an originating process [in the form of the draft produced to the Court]. [(5) The applicant will insure the things removed from the premises against loss or damage for an amount that reasonably appears to the applicant to be their full value.8] [(6) The applicant will:9 (a) on or before [insert date] cause a written irrevocable undertaking to pay in the sum of $[insert amount] to be issued from a bank with a place of business within Australia, in respect of any order the Court may make referred to in the undertaking as to damages contained in paragraph (1) above; and 566

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WA Practice Directions

(b) immediately upon issue of the irrevocable undertaking to pay, cause a copy of it to be served on the respondent.] Undertakings given to the Court by the applicant’s solicitor (1) The applicant’s solicitor will pay the reasonable costs and disbursements of the independent solicitor and of any independent computer expert. (2) The applicant’s solicitor will provide to the independent solicitor for service on the respondent copies of the following documents: (a) this order; (b) the application for this order for hearing on the Return Date; (c) the following material in so far as it was relied on by the applicant at the hearing when the order was made: (i) affidavits (or draft affidavits) (ii) exhibits capable of being copied (other than confidential exhibits); (iii) any written submission; and (iv) any other document that was provided to the Court. (d) a transcript, or, if none is available, a note, of any exclusively oral allegation of fact that was made and of any exclusively oral submission that was put, to the Court; and (e) the originating process, or, if none was filed, any draft originating process produced to the Court. (3) The applicantʹs solicitor will answer to the best of his or her ability any question as to whether a particular thing is a listed thing. (4) The applicant’s solicitor will use his or her best endeavours to act in conformity with the order and to ensure that the order is executed in a courteous and orderly manner and in a manner that minimises disruption to the respondent. (5) The applicant’s solicitor will not, without leave of the Court, use any information, document or thing obtained as a result of the execution of this order for the purpose of any civil or criminal proceeding, either within or outside Australia, other than this proceeding. (6) The applicant’s solicitor will not inform any other person of the existence of this proceeding except for the purposes of this proceeding until after 4:30pm on the Return Date.

Undertakings given to the Court by the independent solicitor (1) The independent solicitor will use his or her best endeavours to serve the respondent with this order and the other documents referred to in undertaking (2) of the above undertakings by the applicant’s solicitor or solicitors. (2) Before entering the premises, the independent solicitor will: (a) offer to explain the terms and effect of the search order to the person served with the order and, if the offer is accepted, do so; and (b) inform the respondent of his or her right to take legal advice. (3) Subject to undertaking (4) below, the independent solicitor will retain custody of all things removed from the premises by the independent solicitor pursuant to this order until delivery to the Court or further order of the Court. (4) At or before the hearing on the Return Date, the independent solicitor will provide a written report on the carrying out of the order to the Court and provide a copy to the applicant’s solicitors and to the respondent or the respondent’s solicitors. The report will attach a copy of any list made pursuant to the order and a copy of any report received from an independent computer expert. (5) The independent solicitor will use his or her best endeavours to act in conformity with the order and to ensure that the order is executed in a courteous and orderly manner and in a manner that minimises disruption to the respondent. (6) The independent solicitor will not, without leave of the Court, use any information, document or thing obtained as a result of the execution of this order for the purpose of any civil or criminal proceeding, either within or outside Australia, other than this proceeding. ©

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(7) The applicant’s solicitor will not disclose to the applicant any information that the solicitor acquires during or as a result of execution of the search order, without the leave of the Court.

WA Practice Directions

[WAPD.20]

(7) The independent solicitor will not inform any other person of the existence of this proceeding except for the purposes of this proceeding until after 4:30pm on the Return Date. Undertakings given to the Court by the independent computer expert (1) The independent computer expert will use his or her best endeavours to act in conformity with the order and to ensure that the order, so far as it concerns the independent computer expert, is executed in a courteous and orderly manner and in a manner that minimises disruption to the respondent. (2) The independent computer expert will not, without leave of the Court, use any information, document or thing obtained as a result of the execution of this order for the purpose of any civil or criminal proceeding, either within or outside Australia, other than this proceeding. (3) The independent computer expert will not inform any other person of the existence of this proceeding except for the purposes o this proceeding until after 4:30pm on the Return Date. SCHEDULE C AFFIDAVITS RELIED ON Name of Deponent (1) (2) (3) NAME AND ADDRESS OF APPLICANTʹS SOLICITORS

Date affidavit made

The Applicant’s solicitors are: [Insert name, address, reference, fax and telephone numbers both in and out of offıce hours]. 1 The words “without notice to you” and “and after the Court has read the affıdavits listed in Schedule B to this order” are appropriate only in the case of an order without notice being given to the respondent. 2 Paragraph 1 is appropriate only in the case of an order without notice being given to the respondent. 3 Paragraph 2 is appropriate only in the case of an order without notice being given to the respondent. 4 See Practice Direction 9.6.1, paragraph 14. 5 For example, if the respondent pays money into Court or provides security, as provided for in paragraph 12 of this Order. 6 See Practice Direction 9.6.1, paragraph 17. 7 Normally the order should be served between 9:00am and 2:00pm on a business day to enable the respondent more readily to obtain legal advice. 8 Depending on the nature of the things likely to be removed and their likely value, and the likely particular risks of their being lost or damaged, this undertaking or a more elaborate one may be required. 9 See Practice Direction 9.6.2, paragraph 19.

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WA Practice Directions Practice Direction 9.11

9.11 Cross-Border Insolvency – Cooperation with Foreign Courts or Foreign Representatives Background The CrossBorder Insolvency Act 2008 (Cth) (the Act) provides in s 6 that, subject to the Act, the Model Law on Cross‐Border Insolvency of the United Nations Commission on International Trade Law (UNCITRAL) (the Model Law), with the modifications set out in Pt 2 of the Act, has the force of law in Australia. The English text of the Model Law is set out in Sch 1 to the Act. Chapter IV of the Model Law, comprising Articles 25–27, provides for cooperation with foreign courts and foreign representatives in the cross‐border insolvency matters that are referred to in Article 1 of the Model Law. Articles 25 and 27 of the Model Law, as modified by s 11 of the Act, and as presently relevant, provide: Article 25 Cooperation and direct communication between [this Court] and foreign courts or foreign representatives 1. In matters referred to in Article 1, the court shall cooperate to the maximum extent possible with foreign courts or foreign representatives, either directly or through a registered liquidator (within the meaning of s 9 of the Corporations Act 2001). 2. The court is entitled to communicate directly with, or to request information or assistance directly from, foreign courts or foreign representatives. Article 27 Forms of cooperation Cooperation referred to in [article 25] may be implemented by any appropriate means, including: (a) Appointment of a person or body to act at the direction of the court; (b) Communication of information by any means considered appropriate by the court; (c) Coordination of the administration and supervision of the debtor’s assets and affairs; (d) Approval or implementation by courts of agreements concerning the coordination of proceedings; (e) Coordination of concurrent proceedings regarding the same debtor; (f) [The enacting State may wish to list additional forms or examples of cooperation]. [Section 18 of the Act provides that no additional forms or examples of cooperation are added.]

2. As experience and jurisprudence in this area develop, it may be possible for later versions of this Practice Direction to lay down certain parameters or guidelines. 3. Cooperation between the Court and a foreign court or foreign representative under Article 25 will generally occur within a framework or protocol that has previously been approved by the Court, and is known to the parties, in the particular proceeding. 4. Ordinarily it will be the parties who will draft the framework or protocol. In doing so, the parties should have regard to: (a) the Guidelines Applicable to Court‐to‐Court Communication in Cross‐Border Cases published by The American Law Institute and The International Insolvency Association (available at: www.ali.org/doc/Guidelines.pdf ); and (b) the Draft UNCITRAL Notes on cooperation, communication and coordination in cross‐border insolvency proceedings (available at: www.uncitral.org/uncitral/en/commission/working_groups/ 5Insolvency.html – click the link under the heading “35th Session, 17‐21 November 2008, Vienna” (last item)).

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Directions 1. The form or forms of cooperation appropriate to each particular case will depend on the circumstances of that case.

South Australia Corporations Rules 2003 (South Australia) (SA) ............................................................................ 573 Corporations Supplementary Rules 2015 (South Australia) (SA) .................................................. 609 SA Practice Directions .................................................................................................................... 643

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CORPORATIONS RULES 2003 (SOUTH AUSTRALIA) (SA) Division 1 – Preliminary 1.1 Citation............................................................................................................................................ 577 1.2 Commencement.............................................................................................................................. 577 1.3 Application of these Rules and other rules of the Court.................................................................577 1.4 Expressions used in the Corporations Act...................................................................................... 577 1.5 Definitions for these Rules.............................................................................................................. 578 1.6 References to rules and forms........................................................................................................578 1.7 Substantial compliance with forms..................................................................................................579 1.8 Court’s power to give directions......................................................................................................579 1.9 Calculation of time...........................................................................................................................579 1.10 Extension and abridgment of time.................................................................................................. 579 Division 2 – Proceedings generally 2.1 Title of documents in a proceeding — Form 1............................................................................... 579 2.2 Originating process and interlocutory process — Forms 2 and 3.................................................. 579 2.3 Fixing of hearing..............................................................................................................................580 2.4 Supporting affidavits........................................................................................................................ 580 2.4A Application for order setting aside statutory demand (Corporations Act s 459G).......................... 580 2.5 Affidavits made by creditors............................................................................................................ 580 2.6 Form of affidavits.............................................................................................................................581 2.7 Service of originating process or interlocutory process and supporting affidavit........................... 581 2.8 Notice of certain applications to be given to ASIC......................................................................... 581 2.9 Notice of appearance (s 465(c) of the Corporations Act) — Form 4............................................. 582 2.10 Intervention in proceeding by ASIC (s 1330 of the Corporations Act) — Form 5.......................... 582 2.11 Publication of notices [Repealed]....................................................................................................582 2.12 Proof of publication......................................................................................................................... 582 2.13 Leave to creditor, contributory or officer to be heard......................................................................582 2.14 Inquiry in relation to corporation’s debts etc................................................................................... 583 2.15 Meetings ordered by the Court....................................................................................................... 583 Division 3 – Compromises and arrangements in relation to Part 5.1 bodies 3.1 Application of Division 3.................................................................................................................. 583 3.2 Nomination of chairperson for meeting........................................................................................... 583 3.3 Order for meetings to identify proposed scheme............................................................................583 3.4 Notice of hearing (s 411(4), s 413(1) of the Corporations Act) — Form 6..................................... 584 3.5 Copy of order approving compromise or arrangement to be lodged with ASIC............................ 584

Division 5 – Winding up proceedings (including oppression proceedings where winding up is sought) 5.1 Application of Division 5.................................................................................................................. 584 5.2 Affidavit accompanying statutory demand (s 459E(3) of the Corporations Act) — Form 7........... 584 5.3 Application for leave to apply for winding up in insolvency (s 459P(2) of the Corporations Act).................................................................................................................................................. 585 5.4 Affidavit in support of application for winding up (s 459P, s 462, s 464 of the Corporations Act).................................................................................................................................................. 585 5.5 Consent of liquidator (s 532(9) of the Corporations Act) — Form 8.............................................. 585 5.6 Notice of application for winding up — Form 9.............................................................................. 585 5.7 Applicant to make copies of documents available..........................................................................585 5.8 Discontinuance of application for winding up..................................................................................586 5.9 Appearance before Registrar [or other Court officer]..................................................................... 586 5.10 Order substituting plaintiff in application for winding up (s 465B of the Corporations Act) — Form 10........................................................................................................................................... 586 ©

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Division 4 – Receivers and other controllers of corporation property (Part 5.2 of the Corporations Act) 4.1 Inquiry into conduct of controller (s 423 of the Corporations Act).................................................. 584

Corporations Rules 2003 (South Australia) (SA) 5.11

Notice of winding up order and appointment of liquidator — Form 11...........................................586

Division 6 – Provisional liquidators (Part 5.4B of the Corporations Act) 6.1 Appointment of provisional liquidator (s 472 of the Corporations Act) — Form 8..........................586 6.2 Notice of appointment of provisional liquidator — Form 12........................................................... 587 Division 7 – Liquidators 7.1 Resignation of liquidator (s 473(1) of the Corporations Act).......................................................... 587 7.2 Filling vacancy in office of liquidator (s 473(7), s 502 of the Corporations Act).............................587 7.3 Report to liquidator as to company’s affairs (s 475 of the Corporations Act)................................ 587 7.4 Liquidator to file certificate and copy of settled list of contributories (s 478 of the Corporations Act).............................................................................................................................588 7.5 Release of liquidator and deregistration of company (s 480(c) and (d) of the Corporations Act).................................................................................................................................................. 588 7.6 Objection to release of liquidator — Form 13.................................................................................589 7.7 Report on accounts of liquidator (s 481 of the Corporations Act).................................................. 589 7.8 Application for payment of call (s 483(3)(b) of the Corporations Act) — Form 14.........................589 7.9 Distribution of surplus by liquidator with special leave of the Court (s 488(2) of the Corporations Act) — Form 15......................................................................................................... 589 7.10 Powers delegated to liquidator by the Court (s 488 of the Corporations Act)................................590 7.11 Inquiry into conduct of liquidator (536 of the Corporations Act)..................................................... 590 Division 8 – Special managers (Part 5.4B of the Corporations Act) 8.1 Application for appointment of special manager (s 484 of the Corporations Act)..........................590 8.2 Security given by special manager (s 484 of the Corporations Act).............................................. 590 8.3 Special manager’s receipts and payments (s 484 of the Corporations Act).................................. 590 Division 9 – Remuneration of office-holders 9.1 Remuneration of receiver (s 425(1) of the Corporations Act) — Form 16..................................... 591 9.2 Determination by Court of Remuneration of Administrator (Corporations Act s 449E(1)(c) and (1A)(c)) – Form 16................................................................................................................... 592 9.2A Review of Remuneration of Administrator (Corporations Act subsection 449E(2))........................592 9.3 Remuneration of provisional liquidator (s 473(2) of the Corporations Act) — Form 16.................593 9.4 Determination by Court of Liquidator’s Remuneration (Corporations Act s 473(3)(b)(ii)).............. 594 9.4A Review of Remuneration of Liquidator (Corporations Act s 473(5) and (6) and s 504(1))............ 595 9.5 Remuneration of special manager (s 484(2) of the Corporations Act) — Form 16....................... 596 Division 10 – Winding up generally 10.1 Determination of value of debts or claims (s 554A(2) of the Corporations Act).............................597 10.2 Disclaimer of contract (s 568(1A) of the Corporations Act)............................................................ 597 10.3 Winding up Part 5.7 bodies (s 583, s 585 of the Corporations Act) and registered schemes (s 601ND of the Corporations Act)..................................................................................................597 Division 11 – Examinations and orders (Part 5.9, Divisions 1 and 2 of the Corporations Act) 11.1 Definition for Division 11..................................................................................................................597 11.2 Application for examination or investigation under s 411, s 423 or s 536(3) of the Corporations Act.............................................................................................................................. 597 11.3 .........................................................................................................................................................598 Application for examination summons (s 596A, s 596B of the Corporations Act) — Form 17 11.4 Service of examination summons................................................................................................... 598 11.5 Discharge of examination summons............................................................................................... 598 11.6 Filing of record of examination (s 597(13) of the Corporations Act).............................................. 599 11.7 Authentication of transcript of examination (s 597(14) of the Corporations Act)............................599 11.8 Inspection of record or transcript of examination or investigation under s 411, s 423 or s 536 of the Corporations Act................................................................................................................... 599 11.9 Entitlement to record or transcript of examination held in public................................................... 599 11.10 Default in relation to examination....................................................................................................599 11.11 Service of application for order in relation to breaches etc by person concerned with corporation (s 598 of the Corporations Act)....................................................................................600 Division 11.A – Warrants (Corporations Act s 486B and Part 5.4B Division 3 Subdivision B) 11A.1 Arrest of Person (Corporations Act s 486B) – Form 17A............................................................... 600

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Table of provisions Division 12 – Acquisition of shares (Chapter 6 of the Corporations Act) and Securities (Chapter 7 of the Corporations Act) 12.1 .........................................................................................................................................................600 Service on the ASIC in relation to proceedings under Chapter 6 or 7 of the Corporations Act 12.1A Reference to the Court of question of law arising in proceeding before Takeovers Panel (Corporations Act s 659A)............................................................................................................... 600 12.1B Notification to Court where proceeding is commenced before end of takeover bid period (Corporations Act s 659B)............................................................................................................... 600 12.2 Application for summons for appearance of person (s 1092(3) of the Corporations Act) — Form 18........................................................................................................................................... 601 12.3 Application for orders relating to refusal to register transfer or transmission of shares etc (s 1094 of the Corporations Act)..................................................................................................... 601 Division 13 – The futures industry (Chapter 8 of the Corporations Act) 13.1 Appeal against decision of futures exchange or futures association (s 1135 of the Corporations Act).............................................................................................................................601 13.2 Proceedings against futures organisation to establish claim against fidelity fund (s 1243 of the Corporations Act)...................................................................................................................... 601 Division 14 – Powers of Courts (Part 9.5 of the Corporations Act) 14.1 Appeal from act, omission or decision of administrator, receiver or liquidator, etc (s 554A, s 1321 of the Corporations Act)...................................................................................................... 601 Division 15 – Proceedings under the ASIC Act 15.1 Reference to Court of question of law arising at hearing of ASIC (s 61 of the ASIC Act).............602 15.2 Reference to Court of question of law arising at hearing of Corporations and Securities Panel (s 196 of the ASIC Act)......................................................................................................... 602 15.3 Application for inquiry (s 70, s 201, s 219 of the ASIC Act)........................................................... 602 Division 15A 15A.1 15A.2 15A.3 15A.4 15A.5 15A.6 15A.7 15A.8 15A.9

– Proceedings under the Cross-Border Insolvency Act 2008 Application of this Division and other rules of the Court................................................................ 602 Expressions used in the Cross-Border Insolvency Act................................................................... 602 Application for recognition............................................................................................................... 603 Application for provisional relief under article 19 of the Model Law...............................................603 Official liquidator’s consent to act................................................................................................... 603 Notice of filing of application for recognition................................................................................... 604 Notice of order for recognition, withdrawal etc............................................................................... 604 Relief after recognition.................................................................................................................... 604 Application to modify or terminate an order for recognition or other relief.....................................605

Division 16 – Powers of Masters 16.1 Powers of Masters.......................................................................................................................... 605 16.2 16.3 Division 17 – Proceedings under the Federal Courts (State Jurisdiction) Act 1999 17.1 Form for initiating proceeding..........................................................................................................605

SA

SCHEDULE 1 – FORMS [REPEALED]...................................................................................................... 607

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Corporations Rules 2003 (South Australia) (SA) Table of Amending Legislation Principal legislation

Number

Date of gazettal/ assent/registration 13 Mar 2003

Date of commencement

Corporations Rules 2003 (South Australia)

Gaz 21 of 2003

Date of commencement

Gaz 49 of 2006

Date of gazettal/ assent/registration 24 Aug 2006

Gaz 65 of 2007

13 Sep 2007

Rr 4–10: 1 Oct 2007

Gaz 20 of 2008

17 Apr 2008

Rr 4–16: 1 May 2008

Gaz 34 of 2008

19 Jun 2008

Rr 4–6: 1 Jul 2008

Gaz 67 of 2008

27 Nov 2008

Rr 4–9: 1 Dec 2008

Gaz 43 of 2010

1 Jul 2010

R 4: 1 Jul 2010

Gaz 53 of 2012

26 Jul 2012

Rr 4–15: 29 Jul 2012

Gaz 46 of 2015

30 Jul 2015

Rr 4–6: 1 Sep 2015

This legislation has been amended as follows: Amending legislation Number Corporations Rules 2003 (South Australia) Amendment No 1 Corporations Rules 2003 (South Australia) Amendment No 2 Corporations Rules 2003 (South Australia) Amendment No 3 Corporations Rules 2003 (South Australia) Amendment No 4 Corporations Rules 2003 (South Australia) Amendment No 5 Corporations Rules 2003 (South Australia) Amendment No 6 Corporations Rules 2003 (South Australia) (Amendment No 7) Corporations Rules 2003 (South Australia) (Amendment No 8)

576

1 Apr 2003

Rr 3 and 4: 4 Sep 2006

Corporations – Court Rules and Related Legislation 2017

Division 1 – Preliminary r 1.4

DIVISION 1 – PRELIMINARY 1.1 Citation These Rules may be cited as the Corporations Rules 2003 (South Australia). 1.2 Commencement (1) The Corporations Law Rules 2000 (South Australia) are repealed as from 31 March 2003. (2) These Rules commence on 1 April 2003. 1.3 Application of these Rules and other rules of the Court (1) Unless the Court otherwise orders: (a) these Rules apply to a proceeding in the Court under the Corporations Act, or the ASIC Act, that is commenced on or after the commencement of these Rules; and (b) Division 15A applies to a proceeding in the Court under the Cross-Border Insolvency Act. [Subr (1) subst Gov Gaz 67, 27 Nov 2008, p 5265, r 4, with effect from 1 Dec 2008]

(2) The other rules of the Court apply, to the extent that they are relevant and not inconsistent with these Rules: (a) to a proceeding in the Court under the Corporations Act, or the ASIC Act, that is commenced on or after the commencement of these rules; and (b) to a proceeding in the Court under the Cross-Border Insolvency Act that is commenced on or after the commencement of Division 15A. [Subr (2) subst Gov Gaz 67, 27 Nov 2008, p 5265, r 4, with effect from 1 Dec 2008]

(3) Unless the Court otherwise orders, the rules applying to a proceeding in the Court under the Corporations Law, or the ASIC Law, as in force immediately before the commencement of these Rules, continue to apply to a proceeding under the Corporations Law, or the ASIC Law, that was commenced before the commencement of these Rules. [R 1.3 am Gov Gaz 67, 27 Nov 2008]

1.4 Expressions used in the Corporations Act Unless the contrary intention appears, an expression used in these Rules and in the Corporations Act has the same meaning in these Rules as it has in the Corporations Act. Note: Expressions used in these Rules (including the notes to these Rules) that are defined in the Corporations Act include: ABN (short for Australian Business Number) — see section 9 [Def insrt Gov Gaz 65, 13 Sep 2007, p 3690, r 4, with effect from 1 Oct 2007] ACN (short for ‘Australian Company Number’) — see section 9 ARBN (short for ‘Australian Registered Body Number’) — see section 9 ASIC — see section 9 [Def insrt Gov Gaz 20, 17 Apr 2008, p 1319, r 4, with effect from 1 May 2008] body — see section 9

SA

body corporate — see section 9 books — see section 9 Commission [Repealed] [Def rep Gov Gaz 20, 17 Apr 2008, p 1319, r 4, with effect from 1 May 2008] company — see section 9 corporation — see section 57A daily newspaper — see section 9 foreign company—see section 9 [Def insrt Gov Gaz 53, 26 Jul 2012, p 3216, r 4, with effect from 29 Jul 2012] foreign country [Repealed] [Def rep Gov Gaz 53, 26 Jul 2012, p 3216, r 4, with effect from 29 Jul 2012] ©

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r 1.4

Corporations Rules 2003 (South Australia) (SA)

futures broker [Repealed] [Def rep Gov Gaz 53, 26 Jul 2012, p 3216, r 4, with effect from 29 Jul 2012] Gazette [Repealed] [Def rep Gov Gaz 53, 26 Jul 2012, p 3216, r 4, with effect from 29 Jul 2012] officer, in relation to a body corporate [Repealed] [Def rep Gov Gaz 53, 26 Jul 2012, p 3216, r 4, with effect from 29 Jul 2012] official liquidator — see section 9 Part 5.1 body — see section 9 Part 5.7 body — see section 9 register — see section 9 registered liquidator — see section 9 registered office — see section 9 statutory demand — see section 9. [R 1.4 am Gov Gaz 53, 26 Jul 2012; Gov Gaz 20, 17 Apr 2008; Gov Gaz 65, 13 Sep 2007]

1.5 Definitions for these Rules 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. Corporations Act means the Corporations Act 2001. Corporations Regulations means the Corporations Regulations 2001. Cross-Border Insolvency Act means the Cross-Border Insolvency Act 2008 (Cth) including, unless the contrary intention appears, the Model Law. [Def insrt Gov Gaz 67, 27 Nov 2008, p 5265, r 5, with effect from 1 Dec 2008]

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. [Def am Gov Gaz 67, 27 Nov 2008, p 5265, r 5, with effect from 1 Dec 2008]

interlocutory process means an interlocutory process in accordance with Form 3. Model Law means the Model Law on Cross-Border 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. [Def insrt Gov Gaz 67, 27 Nov 2008, p 5265, r 5, with effect from 1 Dec 2008]

originating process means an originating process in accordance with Form 2. plaintiff means a person claiming relief (except interlocutory relief) under the Corporations Act, the ASIC Act, or the Cross-Border Insolvency Act, whether in the originating process or not. [Def am Gov Gaz 67, 27 Nov 2008, p 5265, r 5, with effect from 1 Dec 2008]

respondent means a person against whom interlocutory relief is claimed in a proceeding. [R 1.5 am Gov Gaz 67, 27 Nov 2008]

1.6 References to rules and forms In these Rules, unless the contrary intention appears: (a) a reference to a rule is a reference to a rule in these Rules; and (b) a reference to a form followed by a number is a reference to the form so numbered in Schedule 1 to the Corporations Supplementary Rules 2015. [Para (b) am Gov Gaz 46, 30 Jul 2015, p 3624, r 4, with effect from 1 Sep 2015] [R 1.6 am Gov Gaz 46, 30 Jul 2015]

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Division 2 – Proceedings generally r 2.2 1.7 Substantial compliance with forms (1) It is sufficient compliance with these Rules in relation to a document that is required to be in accordance with a form in Schedule 1 of the Corporations Supplementary Rules 2015 if the document is substantially in accordance with the form required or has only such variations as the nature of the case requires. [Subr (1) am Gov Gaz 46, 30 Jul 2015, p 3624, r 5, with effect from 1 Sep 2015]

(2) Without limiting subrule (1), the Registrar must not reject a document for filing only because a term used to describe a party in the document differs from the term used in these Rules. [R 1.7 am Gov Gaz 46, 30 Jul 2015]

1.8 Court’s power to give directions The Court may give directions in relation to the practice and procedure to be followed in a proceeding if it is satisfied, in the circumstances of the proceeding, that: (a) the provisions of the Corporations Act, the ASIC Act, or the rules of this Court do not adequately provide for the practice and procedure to be followed in the proceeding; or (b) a difficulty arises, or doubt exists, in relation to the practice and procedure to be followed in the proceeding. 1.9 Calculation of time (1) If, for any purpose, these Rules: (a) prohibit, permit or require an act or thing to be done within, by, or before the end of; or (b) otherwise prescribe, allow or provide for; a period of time before or after a particular day, act or event, the period is to be calculated without counting that day, or the day of the act or event, as the case may be. (2) Without limiting subrule (1), in calculating how many days a particular day, act or event is before or after another day, act or event, only the first day, or the day of the first act or event, is to be counted. (3) If the last day of any period prescribed or allowed by these Rules for an act or thing to be done falls on a day that is not a business day in the place where the act or thing is to be or may be done, the act or thing may be done on the first business day in the place after that day. (4) In calculating a period of time for the purposes of these Rules, the period beginning on 25 December in a year and ending at the end of 1 January in the next year is not to be counted. 1.10 Extension and abridgment of time Unless the Corporations Act, the ASIC Act, or these Rules otherwise provide, the Rules of this Court that provide for the extension or abridgment of a period of time fixed for the doing of any act or thing in relation to a proceeding apply to a proceeding to which these Rules apply.

DIVISION 2 – PROCEEDINGS GENERALLY 2.1 Title of documents in a proceeding — Form 1 The title of a document filed in a proceeding must be in accordance with Form 1.

(1) Unless these Rules otherwise provide, a person must make an application required or permitted by the Corporations Act to be made to the Court: (a) if the application is not made in a proceeding already commenced in the Court — by filing an originating process; and (b) in any other case — by filing an interlocutory process. (2) Unless the Court otherwise directs, a person may make an application to the Court in relation to a proceeding in respect of which final relief has been granted by filing an interlocutory process in that proceeding. (3) An originating process must: (a) be in accordance with Form 2; and (b) state: ©

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2.2 Originating process and interlocutory process — Forms 2 and 3

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Corporations Rules 2003 (South Australia) (SA) (i)

each section of the Corporations Act or the ASIC Act, or each regulation of the Corporations Regulations, under which the proceeding is brought; and (ii) the relief sought. (4) An interlocutory process must: (a) be in accordance with Form 3; and (b) state: (i) if appropriate, each section of the Corporations Act or the ASIC Act, or each regulation of the Corporations Regulations, or each rule of Court under which the application is made; and (ii) the relief sought. [Subr (4) insrt Gov Gaz 65, 13 Sep 2007, p 3690, r 5, with effect from 1 Oct 2007] Note: In an application for winding up in insolvency on the ground that the company has failed to comply with a statutory demand, the applicant should consider completing Part C of Form 2 as shown in Schedule 1. [R 2.2 am Gov Gaz 65, 13 Sep 2007, p 3690, r 5, with effect from 1 Oct 2007]

2.3 Fixing of hearing On receiving an originating process or interlocutory process, the Registrar: (a) must fix a time, date and place for hearing and endorse those details on the originating process or interlocutory process; and (b) may seal a sufficient number of copies for service and proof of service. 2.4 Supporting affidavits (1) Unless the Court otherwise directs, an originating process, or interlocutory process, must be supported by an affidavit stating the facts in support of the process. (2) Subject to Rule 2.4A an affidavit in support of an originating process must annex a record of a search of the records maintained by ASIC, in relation to the company that is the subject of the application to which the originating process relates, carried out no earlier than 7 days before the originating process is filed. [Subr (1) am Gov Gaz 20, 17 Apr 2008, p 1327, r 15, with effect from 1 May 2008] [R 2.4 am Gov Gaz 20, 17 Apr 2008]

2.4A Application for order setting aside statutory demand (Corporations Act s 459G) (1) This Rule applies, and subrule 2.4(2) does not apply, to an application by a company under section 459G of the Corporations Act for an order setting aside a statutory demand served on the company. (2) The plaintiff may file with the originating process seeking the order a copy of the statutory demand and a copy of any affidavit that accompanied the statutory demand. (3) The plaintiff must: (a) no earlier than 7 days before the originating process is filed, and no later than the day before the hearing of the application, carry out a search of the records maintained by ASIC in relation to the plaintiff; and (b) either: (i) annex the record of the search to the affidavit in support of the originating process; or (ii) file the record of the search before or tender it on the hearing of the application. [Subr (3) am Gov Gaz 20, 17 Apr 2008, p 1327, r 15, with effect from 1 May 2008] [R 2.4A am Gov Gaz 20, 17 Apr 2008]

2.5 Affidavits made by creditors Subject to Rule 5.4, an affidavit that is to be made by a creditor may be made: (a) if the creditor is a corporation — by a director, secretary, or other principal officer of the corporation, or by a person employed by the corporation who is authorised to make the affidavit on its behalf; or (b) if the creditor is a company to which a liquidator, provisional liquidator, receiver, administrator or controller has been appointed — by that person; or 580

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Division 2 – Proceedings generally r 2.8 (c) in any other case — by the creditor or a person authorised by the creditor to make the affidavit on behalf of the creditor. 2.6 Form of affidavits An affidavit must be in a form that complies with: (a) the rules of the Court; or (b) the rules of the Supreme Court of the State (if any) or Territory (if any) where the affidavit was sworn or affirmed; or (c) the rules of the Federal Court of Australia. 2.7 Service of originating process or interlocutory process and supporting affidavit (1) As soon as practicable after filing an originating process and, in any case, at least 5 days before the date fixed for hearing, the plaintiff must serve a copy of the originating process and any supporting affidavit on: (a) each defendant (if any) to the proceeding; and (b) if the corporation to which the proceeding relates is not a party to the proceeding — the corporation. (2) As soon as practicable after filing an interlocutory process and, in any case, at least 3 days before the date fixed for hearing, the applicant must serve a copy of the interlocutory process and any supporting affidavit on: (a) each respondent (if any) to the application in the interlocutory process; and (b) if the corporation to which the application in the interlocutory process relates is not a party to the interlocutory application — the corporation. [Subr (2) am Gov Gaz 65, 13 Sep 2007, p 3690, r 6, with effect from 1 Oct 2007] [R 2.7 am Gov Gaz 65, 13 Sep 2007]

2.8 Notice of certain applications to be given to ASIC (1) This Rule has effect in addition to the requirements of the Corporations Act that, in relation to a proceeding, particular documents are to be served on ASIC or notice of particular matters is to be given to ASIC. [Subr (1) am Gov Gaz 20, 17 Apr 2008, p 1327, r 15, with effect from 1 May 2008]

(2) This Rule does not apply to a person making an application if the person is ASIC or a person authorised by ASIC. [Subr (2) am Gov Gaz 20, 17 Apr 2008, p 1327, r 15, with effect from 1 May 2008]

Column 1 Provision Section 480 Subsection 482(1) Subsection 509(6) Subsection 536(1) Subsection 601AH(2) Subsection 601CC(8) Subsection 601CL(9) Chapter 6, 6A, 6B, 6C, 6D or 7 Subsections 1317S(2), (4) and (5) ©

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Column 2 Description of application For the release of a liquidator of a company and the deregistration of the company For the stay or termination of a winding up For the deregistration of a company For an enquiry into the conduct of a liquidator To reinstate the registration of a company To restore the name of an Australian body to the register To restore the name of a foreign company to the register Any application under these Chapters For relief from liability for contravention of a civil penalty provision

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(3) Unless the Court otherwise orders, if a person makes an application under a provision of the Corporations Act mentioned in column 2 of the following table, the person must serve on ASIC, a reasonable time before the hearing of the application, a copy of the originating process, or interlocutory process, and supporting affidavit in respect of the application.

r 2.8

Corporations Rules 2003 (South Australia) (SA)

[Subr (3) am Gov Gaz 34, 19 Jun 2008, p 2352, r 4, with effect from 1 Jul 2008; Gov Gaz 20, 17 Apr 2008, p 1327, r 15, with effect from 1 May 2008] [R 2.8 am Gov Gaz 34, 19 Jun 2008; Gov Gaz 20, 17 Apr 2008, p 1327, r 16, with effect from 1 May 2008]

2.9 Notice of appearance (s 465(c) of the Corporations Act) — Form 4 (1) A person who intends to appear before the Court at the hearing of an application must, before appearing: (a) file: (i) a notice of appearance in accordance with Form 4; and (ii) if appropriate — an affidavit stating any facts on which the person intends to rely; and (b) serve on the plaintiff a copy of the notice of appearance and any affidavit not later than: (i) if the person is named in an originating process — 3 days before the date fixed for hearing; or (ii) if the person is named in an interlocutory process — 1 day before the date fixed for hearing. (2) If the person intends to appear before the Court to oppose an application for winding up, the person may include in the notice of appearance the notice of the grounds on which the person opposes the application required by section 465C of the Corporations Act. (3) The period prescribed for filing and serving the notice and affidavit required by section 465C of the Corporations Act is the period mentioned in subparagraph (1)(b)(i). Note: Under section 465C of the Corporations Act, a person may not, without the leave of the Court, oppose an application for winding up unless, within the period prescribed by the rules (see subrule (3) of this rule), the person has filed, and served on the plaintiff, notice of the grounds on which the person opposes the application and an affidavit verifying the matters stated in the notice.

2.10 Intervention in proceeding by ASIC (s 1330 of the Corporations Act) — Form 5 (1) If ASIC intends to intervene in a proceeding, ASIC must file a notice of intervention in accordance with Form 5. [Subr (1) am Gov Gaz 20, 17 Apr 2008, p 1327, r 15, with effect from 1 May 2008]

(2) Not later than 3 days before the date fixed for the hearing at which ASIC intends to appear in the proceeding, ASIC must serve a copy of the notice, and any affidavit on which it intends to rely, on the plaintiff and on any other party to the proceeding. [Subr (2) am Gov Gaz 20, 17 Apr 2008, p 1327, r 15, with effect from 1 May 2008] [R 2.10 am Gov Gaz 20, 17 Apr 2008, p 1327, r 16, with effect from 1 May 2008]

2.11 Publication of notices [Repealed] [R 2.11 rep Gov Gaz 53, 26 Jul 2012, p 3216, r 5, with effect from 29 Jul 2012]

2.12 Proof of publication (1) This Rule applies in relation to any matter published in connection with a proceeding. (2) Unless these Rules otherwise provide, or the Court otherwise orders, the person responsible for the publication of the matter, or the person’s legal practitioner, must file: (a) an affidavit made by the person, or the person’s legal practitioner, that states the date of publication and to which is annexed or exhibited a copy of the published matter; or (b) a memorandum signed by the person, or the person’s legal practitioner, that states the date of publication and refers to and annexes a copy of the published matter. (3) The affidavit or memorandum is prima facie evidence that the publication took place on the date and otherwise as stated in the affidavit or memorandum. 2.13 Leave to creditor, contributory or officer to be heard (1) The Court may grant leave to any person who is, or who claims to be: (a) a creditor, contributory or officer of a corporation; or (b) an officer of a creditor, or contributory, of a corporation; to be heard in a proceeding without becoming a party to the proceeding. 582

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Division 3 – Compromises and arrangements in relation to Part 5.1 bodies r 3.3 (2) If the Court considers that the attendance of a person to whom leave has been granted under subrule (1) has resulted in additional costs for any party, or the corporation, which should be borne by the person to whom leave was granted, the Court may: (a) direct that the person pay the costs; and (b) order that the person not be heard further in the proceeding until the costs are paid or secured to the Court’s satisfaction. (3) The Court may order that a person who is, or who claims to be, a creditor, contributory or officer of a corporation be added as a defendant to the proceeding. (4) The Court may grant leave to a person under subrule (1), or order that a person be added as a defendant to a proceeding under subrule (3): (a) on application by the person or a party to the proceeding; or (b) on the Court’s own initiative. (5) The Court may: (a) appoint a creditor or contributory to represent all or any class of the creditors or contributories on any question, or in relation to any proceeding, before the Court, at the expense of the corporation; and (b) remove any person so appointed. 2.14 Inquiry in relation to corporation’s debts etc The Court may direct an inquiry in relation to the debts, claims or liabilities, or a class of debts, claims or liabilities, of or affecting a corporation to which a proceeding relates. 2.15 Meetings ordered by the Court Subject to the Corporations Act, these Rules and any direction of the Court to the contrary, regulations 5.6.11 to 5.6.36A of the Corporations Regulations apply to meetings ordered by the Court. [R 2.15 am Gov Gaz 20, 17 Apr 2008, p 1319, r 5, with effect from 1 May 2008]

DIVISION 3 – COMPROMISES AND ARRANGEMENTS IN RELATION TO PART 5.1 BODIES 3.1 Application of Division 3 This Division applies if an application is made to the Court for approval of a compromise or arrangement between a Part 5.1 body and its creditors or members, or any class of its creditors or members. Before the hearing of an application under subsection 411(1), (1A) or (1B) of the Corporations Act, the plaintiff must file an affidavit stating: (a) the names of the persons who have been nominated to be the chairperson and alternate chairperson of the meeting; and (b) that each person nominated: (i) is willing to act as chairperson; and (ii) has had no previous relationship or dealing with the body, or any other person interested in the proposed compromise or arrangement, except as disclosed in the affidavit; and (iii) has no interest or obligation that may give rise to a conflict of interest or duty if the person were to act as chairperson of the meeting, except as disclosed in the affidavit; and (c) the name of the person (if any) proposed to be appointed to administer the proposed compromise or arrangement; and (d) that the person does not fall within paragraphs 411(7)(a) to (f) of the Corporations Act, except as disclosed in the affidavit. 3.3 Order for meetings to identify proposed scheme (1) An order under subsection 411(1) or (1A) of the Corporations Act ordering a meeting or meetings in relation to a proposed compromise or arrangement must set out in a schedule, or otherwise identify, a copy of the proposed compromise or arrangement. ©

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3.2 Nomination of chairperson for meeting

r 3.3

Corporations Rules 2003 (South Australia) (SA)

(2) Unless the Court otherwise orders, a meeting of members ordered under section 411 of the Corporations Act must be convened, held and conducted in accordance with: (a) the provisions of Part 2G.2 of the Corporations Act that apply to the members of a company; and (b) the provisions of the plaintiff’s constitution that apply in relation to meetings of members and are not inconsistent with Part 2G.2 of the Corporations Act. (3) Unless the Court otherwise orders, a meeting of a class of holders of convertible securities ordered under section 411 of the Corporations Act must be convened, held and conducted as if: (a) the holders were a separate class of members; and (b) the meeting was a meeting of members convened, held and conducted under subrule (2); but in accordance with, and subject to, the applicable provisions of the instrument under which the securities were issued. 3.4 Notice of hearing (s 411(4), s 413(1) of the Corporations Act) — Form 6 (1) This Rule applies to: (a) an application, under subsection 411(4) of the Corporations Act, for an order approving a proposed compromise or arrangement in relation to a Part 5.1 body; and (b) an application, under subsection 413(1) of the Corporations Act, for an order in relation to the reconstruction of a Part 5.1 body, or Part 5.1 bodies, or the amalgamation of 2 or more Part 5.1 bodies. (2) Unless the Court otherwise orders, the plaintiff must publish a notice of the hearing of the application. (3) The notice must be: (a) in accordance with Form 6; and (b) published at least 5 days before the date fixed for the hearing of the application. [Subr (3) am Gov Gaz 53, 26 Jul 2012, p 3216, r 6, with effect from 29 Jul 2012] [R 3.4 am Gov Gaz 53, 26 Jul 2012]

3.5 Copy of order approving compromise or arrangement to be lodged with ASIC If the Court makes an order under subsection 411(1), (1A) or (4), or 413(1) of the Corporations Act, the plaintiff must, as soon as practicable after the order is made: (a) have the order sealed [or authenticated]; and (b) lodge an office copy of the order with ASIC; and [Para (b) am Gov Gaz 20, 17 Apr 2008, p 1327, r 15, with effect from 1 May 2008]

(c) serve an office copy of the order on any person appointed to administer the compromise or arrangement. [R 3.5 am Gov Gaz 20, 17 Apr 2008, p 1327, r 16, with effect from 1 May 2008]

DIVISION 4 – RECEIVERS AND OTHER CONTROLLERS OF CORPORATION PROPERTY (PART 5.2 OF THE CORPORATIONS ACT) 4.1 Inquiry into conduct of controller (s 423 of the Corporations Act) A complaint to the Court under paragraph 423(1)(b) of the Corporations Act about an act or omission of a receiver, or a controller appointed by the Court, must be made by an originating process seeking an inquiry in relation to the complaint.

DIVISION 5 – WINDING UP PROCEEDINGS (INCLUDING OPPRESSION PROCEEDINGS WHERE WINDING UP IS SOUGHT) 5.1 Application of Division 5 This Division applies to the following applications for the winding up of a company: (a) an application under section 246AA of the Corporations Act in a case of oppression or injustice; (b) an application under Part 5.4 or Part 5.4A of the Corporations Act. 5.2 Affidavit accompanying statutory demand (s 459E(3) of the Corporations Act) — Form 7 For the purposes of subsection 459E(3) of the Corporations Act, the affidavit accompanying a statutory demand relating to a debt, or debts, owed by a company must: (a) be in accordance with Form 7 and state the matters mentioned in that Form; and 584

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Div 5 – Winding up proceedings r 5.7 (b) be made by the creditor or by a person with the authority of the creditor or creditors; and (c) not state a proceeding number, or refer to a Court proceeding, in any heading or title to the affidavit. 5.3 Application for leave to apply for winding up in insolvency (s 459P(2) of the Corporations Act) An application for leave to apply to the Court for an order that a company be wound up in insolvency may be made at the same time as the application for an order that the company be wound up in insolvency is made. 5.4 Affidavit in support of application for winding up (s 459P, s 462, s 464 of the Corporations Act) (1) The affidavit in support of an originating process seeking an order that company be wound up must be made by the plaintiff or by a person with the authority of the plaintiff or plaintiffs. (2) If the application is made in reliance on a failure by the company to comply with a statutory demand, the affidavit must: (a) verify service of the demand on the company; and (b) verify the failure of the company to comply with the demand; and (c) state whether and, if so, to what extent the debt, or each of the debts, to which the demand relates is still due and payable by the company at the date when the affidavit is made. (3) If the application is made in reliance on the ground mentioned in paragraph 461(1)(a) of the Corporations Act, the affidavit must: (a) state whether the company is able to pay all its debts as and when they become due and payable; and (b) refer to the company’s most recent balance sheet and profit and loss statement as an annexure or exhibit to the affidavit, or explain their absence. (4) The affidavit must be made within 7 days before the originating process is filed. 5.5 Consent of liquidator (s 532(9) of the Corporations Act) — Form 8 (1) In this Rule: liquidator does not include a provisional liquidator. (2) For the purposes of subsection 532(9) of the Corporations Act, the consent of an official liquidator to act as liquidator of a company must be in accordance with Form 8. (3) In an application for an order that a company be wound up, the plaintiff must: (a) before the hearing of the application, file the consent mentioned in subrule (2) of an official liquidator who would be entitled to be appointed as liquidator of the company; and (b) serve a copy of the consent on the company at least 1 day before the hearing. 5.6 Notice of application for winding up — Form 9 (1) Unless the Court otherwise orders, the plaintiff must publish a notice of the application for an order that a company be wound up. SA

(2) The notice must be: (a) in accordance with Form 9; and (b) published: (i) at least 3 days after the originating process is served on the company; and (ii) at least 7 days before the date fixed for hearing of the application. [Subr (2) am Gov Gaz 53, 26 Jul 2012, p 3216, r 7, with effect from 29 Jul 2012] [R 5.6 am Gov Gaz 53, 26 Jul 2012]

5.7 Applicant to make copies of documents available A copy of any document filed in a proceeding to which this Division applies must be available at the plaintiff’s address for service for inspection by a creditor, contributory or officer of the company, or an officer of a creditor or contributory of the company.

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Corporations Rules 2003 (South Australia) (SA)

5.8 Discontinuance of application for winding up An application for an order that a company be wound up may not be discontinued except with the leave of the Court. 5.9 Appearance before Registrar [or other Court officer] After filing an originating process seeking an order that a company be wound up, the plaintiff must, if required: (a) appear before the Registrar [or other Court officer] on a date to be appointed by the Registrar [or other Court officer]; and (b) satisfy the Registrar [or other Court officer] that the plaintiff has complied with the Corporations Act and these Rules in relation to applications for a winding up order. 5.10 Order substituting plaintiff in application for winding up (s 465B of the Corporations Act) — Form 10 (1) If the Court makes an order under section 465B of the Corporations Act, the Court may also order that the substituted plaintiff or plaintiffs publish a notice stating that the substituted plaintiff or plaintiffs intend to apply for an order that the company be wound up. (2) The notice must be: (a) in accordance with Form 10; and (b) published: (i) at least 7 days before the date fixed for the hearing of applications; or (ii) as otherwise directed by the Court. [Subr (2) am Gov Gaz 53, 26 Jul 2012, p 3216, r 8, with effect from 29 Jul 2012] [R 5.10 am Gov Gaz 53, 26 Jul 2012]

5.11 Notice of winding up order and appointment of liquidator — Form 11 (1) This Rule applies if the Court orders that a company be wound up and an official liquidator be appointed as liquidator of the company. (2) Not later than the day after the order is made, the plaintiff must inform the liquidator of the appointment. (3) As soon as practicable after being informed of the appointment, the liquidator must publish a notice of the winding up order and the liquidator’s appointment. (4) The notice must be in accordance with Form 11. [Subr (4) subst Gov Gaz 53, 26 Jul 2012, p 3216, r 9, with effect from 29 Jul 2012]

(5) In this Rule: liquidator does not include a provisional liquidator. [R 5.11 am Gov Gaz 53, 26 Jul 2012]

DIVISION 6 – PROVISIONAL LIQUIDATORS (PART 5.4B OF THE CORPORATIONS ACT) 6.1 Appointment of provisional liquidator (s 472 of the Corporations Act) — Form 8 (1) An application by a company, a creditor or contributory of the company, or the Commission, under subsection 472(2) of the Corporations Act, for an official liquidator to be appointed as a provisional liquidator of the company must be accompanied by the written consent of the official liquidator. (2) The consent must be in accordance with Form 8. (3) If: (a) an order is made appointing a provisional liquidator; (b) the order provides that the provisional liquidator may take into the provisional liquidator’s custody part only of the property of the company; the order must include a short description of the part of the property of the company that the provisional liquidator may take into custody. (4) The Court may require the plaintiff to give an undertaking as to damages. 586

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Division 7 – Liquidators r 7.3 6.2 Notice of appointment of provisional liquidator — Form 12 (1) This Rule applies if the Court orders that an official liquidator be appointed as a provisional liquidator of a company. (2) Not later than the day after the order is made, the plaintiff must: (a) except if the plaintiff is ASIC — lodge an office copy of the order with ASIC; and (b) serve an office copy of the order on the company (except if the plaintiff is the company) and on any other person as directed by the Court; and (c) give to the provisional liquidator an office copy of the order and a written statement that the order has been served as required by paragraph (b). [Subr (2) am Gov Gaz 20, 17 Apr 2008, p 1327, r 15, with effect from 1 May 2008]

(3) As soon as practicable after the order is made, the provisional liquidator must publish a notice of the provisional liquidator’s appointment. (4) The notice must be in accordance with Form 12. [Subr (4) subst Gov Gaz 53, 26 Jul 2012, p 3216, r 10, with effect from 29 Jul 2012] [R 6.2 am Gov Gaz 53, 26 Jul 2012; Gov Gaz 20, 17 Apr 2008]

DIVISION 7 – LIQUIDATORS 7.1 Resignation of liquidator (s 473(1) of the Corporations Act) (1) A liquidator appointed by the Court who wishes to resign office must file with the Registrar, and lodge with ASIC, a memorandum of resignation. [Subr (1) am Gov Gaz 20, 17 Apr 2008, p 1327, r 15, with effect from 1 May 2008]

(2) The resignation takes effect on the filing and lodging of the memorandum. [R 7.1 am Gov Gaz 20, 17 Apr 2008]

7.2 Filling vacancy in office of liquidator (s 473(7), s 502 of the Corporations Act) (1) If, for any reason, there is no liquidator acting in a winding up, the Court may: (a) in the case of a winding up by the Court — appoint another official liquidator whose written consent in accordance with Form 8 has been filed; and (b) in the case of a voluntary winding up — appoint another registered liquidator whose written consent in accordance with Form 8 has been filed. (2) The Court may make the appointment: (a) in any case — on application by ASIC, a creditor or a contributory; or (b) in the case of a winding up by the Court — on its own initiative. [Subr (2) am Gov Gaz 20, 17 Apr 2008, p 1327, r 15, with effect from 1 May 2008] [R 7.2 am Gov Gaz 20, 17 Apr 2008]

(1) If a person is required under section 475 of the Corporations Act to submit and verify a report as to the affairs of a company, the liquidator must give to the person the appropriate forms and instructions for the preparation of the report. (2) Except by order of the Court, no person is to be allowed out of the property of a company any costs or expenses incurred in relation to the preparation of the report that have not been: (a) sanctioned by the liquidator before being incurred; or (b) taxed or assessed. (3) The liquidator must report to the Court any default in complying with the requirements of section 475 of the Corporations Act. (4) In this Rule: liquidator includes a provisional liquidator.

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7.3 Report to liquidator as to company’s affairs (s 475 of the Corporations Act)

r 7.4

Corporations Rules 2003 (South Australia) (SA)

7.4 Liquidator to file certificate and copy of settled list of contributories (s 478 of the Corporations Act) If, in a winding up by the Court, a liquidator has settled and certified a list, or supplementary list, of contributories, the liquidator must, within 14 days after doing so, file the certificate and a copy of the list. 7.5 Release of liquidator and deregistration of company (s 480(c) and (d) of the Corporations Act) (1) This Rule applies to an application by the liquidator of a company: (a) for an order that the liquidator be released; or (b) for an order that the liquidator be released and that ASIC deregister the company. [Subr (1) am Gov Gaz 20, 17 Apr 2008, p 1327, r 15, with effect from 1 May 2008]

(2) The interlocutory process seeking the order must include: (a) a notice stating that any objection to the release of the liquidator must be made by filing and serving a notice of objection, in the prescribed form, within 21 days after the date of service of the interlocutory process; and (b) a statement setting out the terms of subsection 481(3) of the Corporations Act. Note: Subsection 481(3) of the Corporations Act provides that an order of the Court releasing a liquidator discharges the liquidator from all liability in respect of any act done or default made by the liquidator in the administration of the affairs of the company, or otherwise in relation to the liquidator’s conduct as liquidator, but any such order may be revoked on proof that it was obtained by fraud or by suppression or by concealment of any material fact.

(3) The supporting affidavit must include details of the following matters: (a) whether the whole of the company’s property has been realised or whether so much of the company’s property has been realised as, in the liquidator’s opinion, can be realised without needlessly protracting the winding up; (b) any calls made on contributories in the course of the winding up; (c) any dividends paid in the course of the winding up; (d) whether the committee of inspection (if any) has passed a resolution approving the liquidator’s release; (e) whether ASIC has appointed an auditor to report on an account or statement of the position in the winding up under subsection 539(2) of the Corporations Act; (f) whether the Court has ordered a report on the accounts of the liquidator to be prepared; (g) whether any objection to the release of the liquidator has been received by the liquidator from: (i) an auditor appointed by ASIC or by the Court; or (ii) any creditor, contributory or other interested person; (h) whether any report has been submitted by the liquidator to ASIC under section 533 of the Corporations Act; (i) whether the liquidator considers it necessary to report on the affairs of the company or any of its officers; (j) any property disclaimed in the course of the winding up; (k) any remuneration paid or payable to the liquidator and how such remuneration was determined; (l) any costs, charges or expenses payable by the liquidator if the Court grants the liquidator’s release; (m) if the application is made under paragraph 480(c) of the Corporations Act — the facts and circumstances by reason of which it is submitted that the company should not be deregistered. [Subr (3) am Gov Gaz 20, 17 Apr 2008, p 1327, r 15, with effect from 1 May 2008]

(4) The liquidator must include in the supporting affidavit the statements set out in paragraphs (a) and (b) of this subrule, including, if appropriate, the words in brackets: (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 [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 [except as disclosed in this affidavit]’. 588

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Division 7 – Liquidators r 7.9 (5) The liquidator must file with, or annex to, the supporting affidavit: (a) a statement of the financial position of the company at the date when the interlocutory process seeking release was filed; and (b) a summary of the liquidator’s receipts and payments in winding up the company. (6) Unless the Court otherwise orders, the liquidator must serve by prepaid post, on each creditor who has proved a debt in the course of the winding up, and on each contributory, a copy of the interlocutory process accompanied by: (a) a copy of the summary of the liquidator’s receipts and payments in winding up the company; and (b) a copy of the statement of the financial position of the company at the date when the interlocutory process seeking release was filed. [R 7.5 am Gov Gaz 20, 17 Apr 2008]

7.6 Objection to release of liquidator — Form 13 (1) A creditor or contributory of a company who wishes to object to the release of the liquidator of the company must, within 21 days after the date of service of the interlocutory process seeking release: (a) file: (i) a notice of objection in accordance with Form 13; and (ii) if appropriate, an affidavit stating any facts relied on; and (b) serve a copy of the notice and the affidavit (if any) on the liquidator. (2) If the liquidator is served with a notice of objection by a creditor or contributory, the liquidator must, within 3 days after being served, serve on the creditor or contributory a copy of the affidavit supporting the interlocutory process. 7.7 Report on accounts of liquidator (s 481 of the Corporations Act) (1) If the Court orders that a report on the accounts of a liquidator be prepared under subsection 481(1) of the Corporations Act, the liquidator must give to the auditor appointed to prepare the report all information, books and vouchers required to prepare the report. (2) On completing the report, the auditor must: (a) file a copy of the report in a sealed envelope that is marked with the title and number of the proceeding and the words ‘Auditor’s report under subsection 481(1) of the Corporations Act 2001’; and (b) serve a copy of the report on the liquidator; and (c) lodge a copy of the report with ASIC. [Subr (2) am Gov Gaz 20, 17 Apr 2008, p 1327, r 15, with effect from 1 May 2008]

(3) Except with the leave of the Court, a report is not available for inspection by any person except the liquidator or ASIC. [Subr (3) am Gov Gaz 20, 17 Apr 2008, p 1327, r 15, with effect from 1 May 2008] [R 7.7 am Gov Gaz 20, 17 Apr 2008]

The affidavit in support of an application by the liquidator of a company, under paragraph 483(3)(b) of the Corporations Act, for an order for the payment of a call must be in accordance with Form 14. 7.9 Distribution of surplus by liquidator with special leave of the Court (s 488(2) of the Corporations Act) — Form 15 (1) The affidavit in support of an application for special leave to distribute a surplus must state how the liquidator intends to distribute the surplus including the name and address of each person to whom the liquidator intends to distribute any part of the surplus. (2) At least 14 days before the date fixed for hearing of the application, the liquidator must publish a notice of the application. (3) The notice must be in accordance with Form 15. [Subr (3) subst Gov Gaz 53, 26 Jul 2012, p 3216, r 11, with effect from 29 Jul 2012] [R 7.9 am Gov Gaz 53, 26 Jul 2012] ©

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7.8 Application for payment of call (s 483(3)(b) of the Corporations Act) — Form 14

r 7.9

Corporations Rules 2003 (South Australia) (SA)

7.10 Powers delegated to liquidator by the Court (s 488 of the Corporations Act) Subject to the Corporations Act, the Corporations Regulations, these Rules, and any order of the Court, the powers and duties conferred or imposed on the Court by Part 5.4B of the Corporations Act in respect of the matters mentioned in subsection 488(1) of the Corporations Act may be exercised or performed by a liquidator appointed by the Court as an officer of the Court and subject to the control of the Court. 7.11 Inquiry into conduct of liquidator (536 of the Corporations Act) (1) A complaint to the Court under paragraph 536(1)(b) of the Corporations Act must be made: (a) in the case of a winding up by the Court — by an interlocutory process seeking an inquiry; and (b) in the case of a voluntary winding up — by an originating process seeking an inquiry. (2) A report to the Court by ASIC under subsection 536(2) of the Corporations Act must be made: (a) in the case of a winding up by the Court — by filing: (i) an interlocutory process seeking orders under the subsection; and (ii) a written report in a sealed envelope that is marked with the title and number of the proceeding; and (b) in the case of a voluntary winding up — by filing: (i) an originating process seeking orders under the subsection; and (ii) a written report in a sealed envelope that is marked with the title of the proceeding and provision for its number. [Subr (2) am Gov Gaz 20, 17 Apr 2008, p 1327, r 15, with effect from 1 May 2008]

(3) The contents of a report filed under subrule (2) need not, at the time of filing, be verified by an affidavit. (4) Except with the leave of the Court, a report made under subsection 536(2) of the Corporations Act is not available for inspection by any person except the liquidator or ASIC. [Subr (4) am Gov Gaz 20, 17 Apr 2008, p 1327, r 15, with effect from 1 May 2008]

(5) In this Rule: liquidator includes a provisional liquidator. [R 7.11 am Gov Gaz 20, 17 Apr 2008]

DIVISION 8 – SPECIAL MANAGERS (PART 5.4B OF THE CORPORATIONS ACT) 8.1 Application for appointment of special manager (s 484 of the Corporations Act) (1) An application by a liquidator for the appointment of a special manager in relation to a company must state the powers which, in the liquidator’s opinion, should be entrusted by the Court to the special manager. (2) The supporting affidavit must state: (a) the circumstances making it proper that a special manager be appointed; and (b) details of the remuneration proposed to be paid to the special manager; and (c) whether any committee of inspection in the winding up, or a meeting of creditors, has approved the appointment of a special manager. 8.2 Security given by special manager (s 484 of the Corporations Act) (1) The Court may, from time to time, direct that the amount of security given by a special manager be varied. (2) Unless the Court otherwise directs, the costs of furnishing the security given by a special manager in respect of a particular winding up: (a) are the personal expenses of the special manager; and (b) must not be charged against the property of the company as an expense incurred in the winding up. 8.3 Special manager’s receipts and payments (s 484 of the Corporations Act) (1) A special manager must give to the liquidator: (a) an account of the special manager’s receipts and payments; and (b) a statutory declaration verifying the account. 590

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Division 9 – Remuneration of office-holders r 9.1 (2) If the liquidator approves the account, the liquidator must include the total amounts of the special manager’s receipts and payments in the liquidator’s accounts.

DIVISION 9 – REMUNERATION OF OFFICE-HOLDERS 9.1 Remuneration of receiver (s 425(1) of the Corporations Act) — Form 16 (1) This Rule applies to an application by a receiver of property of a corporation for an order under subsection 425(1) of the Corporations Act fixing the receiver’s remuneration. Note 1: Under paragraph 425(2)(b) of the Corporations Act, the Court may exercise its power to make an order fixing the remuneration of a receiver appointed under an instrument even if the receiver has died, or has ceased to act, before the making of the order or the application for the order. Note 2: The amendment to section 425 of the Corporations Act made by the Corporations Amendment (Insolvency) Act 2007 applies in relation to a receiver appointed on or after 31 December 2007 – See Corporations Act s 1480(5).

(2) At least 21 days before filing an originating process, or interlocutory process, seeking the order, the receiver must serve a notice in accordance with Form 16 of the receiver’s intention to apply for the order, and a copy of any affidavit on which the receiver intends to rely, on the following persons: (a) the person who appointed the receiver; (b) any creditor holding security over all or any of the same property of the corporation (except if the creditor is the person who appointed the receiver); (c) any administrator, liquidator or provisional liquidator of the corporation; (d) any administrator of a deed of company arrangement executed by the corporation; (e) if there is no person of the kind mentioned in paragraph (c) or (d): (i) each of the 5 largest (measured by amount of debt) unsecured creditors of the corporation; and (ii) each member of the corporation whose shareholding represents at least 10 per cent of the issued capital of the corporation. (3) Within 21 days after the last service of the documents mentioned in subrule (2), any creditor or contributory, or any person mentioned in paragraph (2)(c), (d) or (e), may give to the receiver a notice of objection to the remuneration claimed, stating the grounds of objection. (4) If the receiver does not receive a notice of objection within the period mentioned in subrule (3): (a) the receiver may file an affidavit, made after the end of that period, in support of the originating process, or interlocutory process, seeking the order stating: (i) the date, or dates, when the notice and affidavit required to be served under subrule (2) were served; and (ii) that the receiver has not received any notice of objection to the remuneration claimed within the period mentioned in subrule (3); and (b) the receiver may endorse the originating process, or interlocutory process, with a request that the application be dealt with in the absence of the public and without any attendance by, or on behalf of, the receiver; and (c) the application may be so dealt with. (5) If the receiver receives a notice of objection within the period mentioned in subrule (3), the receiver must serve a copy of the originating process, or interlocutory process, seeking the order on each creditor or contributory, or other person, who has given a notice of objection. (6) An affidavit in support of the originating process, or interlocutory process, seeking the order must: (a) include evidence of the matters mentioned in subsection 425(8) of the Corporations Act; and (b) state the nature of the work performed or likely to be performed by the receiver; and (c) state the amount of remuneration claimed; and (d) include a summary of the receipts taken and payments made by the receiver; and (e) state particulars of any objection of which the receiver has received notice; and (f) if the receivership is continuing – give details of any matters delaying the completion of the receivership. [Subr (6) subst Gov Gaz 20, 17 Apr 2008, p 1319, r 7, with effect from 1 May 2008] [R 9.1 am Gov Gaz 20, 17 Apr 2008] ©

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[Subr (1) am Gov Gaz 20, 17 Apr 2008, p 1319, r 6, with effect from 1 May 2008]

r 9.1

Corporations Rules 2003 (South Australia) (SA)

9.2 Determination by Court of Remuneration of Administrator (Corporations Act s 449E(1)(c) and (1A)(c)) – Form 16 (1) This rule applies to an application by the administrator of a company under administration, or of a deed of company arrangement, for an order under paragraph 449E(1)(c) or (1A)(c) of the Corporations Act determining the administrator’s remuneration. (2) At least 21 days before filing an originating process, or interlocutory process, seeking the order, the administrator must serve a notice in accordance with Form 16 of the administrator’s intention to apply for the order, and a copy of any affidavit on which the administrator intends to rely, on the following persons: (a) each creditor who was present, in person or by proxy at any meeting of creditors; (b) each member of any committee of creditors or committee or inspection; (c) if there is no committee of creditors or committee of inspection, and no meeting of creditors has been convened and held, each of the 5 largest (measured by amount of debt) creditors of the company; (d) each member of the company whose shareholding represents at least 10% of the issue capital of the company. [Subr (2) am Gov Gaz 34, 19 Jun 2008, p 2352, r 5, with effect from 1 Jul 2008]

(3) Within 21 days after the last service of the documents mentioned in subrule (2), any creditor or contributory may give to the administrator a notice of objection to the remuneration claimed, stating the grounds of objection. (4) If the administrator does not receive a notice of objection within the period mentioned in subrule (3); (a) the administrator may file an affidavit, made after the end of that period, in support of the originating process, or interlocutory process, seeking the order stating: (i) the date, or dates, when the notice and affidavit required to be served under subrule (2) were served; and (ii) that the administrator has not received any notice of objection to the remuneration claimed within the period mentioned in subrule (3); and (b) the administrator may endorse the originating process, or interlocutory process, with a request that the application be dealt with in the absence of the public and without any attendance by, or on behalf of, the administrator; and (c) the application may be so dealt with. (5) If the administrator receives a notice of objection within the period mentioned in subrule (3), the administrator must serve a copy of the originating process, or interlocutory process, seeking the order on each creditor or contributory who has given notice of objection. (6) An (a) (b) (c) (d) (e) (f)

affidavit in support of the originating process, or interlocutory process, seeking the order must: include evidence of the matters mentioned in subsection 449E(4) of the Corporations Act; and state the nature of the work performed or likely to be performed by the administrator; and state the amount of remuneration claimed; and include a summary of the receipts taken and payments made by the administrator; and state particulars of any objection of which the administrator has received notice; and if the administration is continuing – give details of any matters delaying the completion of the administration.

[R 9.2 am Gov Gaz 34, 19 Jun 2008; subst Gov Gaz 20, 17 Apr 2008, p 1319, r 8, with effect from 1 May 2008]

9.2A Review of Remuneration of Administrator (Corporations Act subsection 449E(2)) (1) This rule applies to an application for review of the amount of the remuneration of an administrator under subsection 449E(2) of the Corporations Act. Note: The amendment to section 449E of the Corporations Act made by the Corporations Amendment (Insolvency) Act 2007 applies in relation to an administrator appointed on or after 31 December 2008 – see Corporations Act s 1480(6)

(2) The application may be made only after the remuneration has been determined under paragraph 449E(1)(a) or (b) or paragraph 449E(1A)(a) or (b) of the Corporations Act. (3) At least 21 days before filing the originating process or the interlocutory process applying for a review, 592

Corporations – Court Rules and Related Legislation 2017

Division 9 – Remuneration of office-holders r 9.3 the plaintiff or applicant must serve a notice, in accordance with Form 16A, of intention to apply for the review and a copy of any affidavit on which the plaintiff or applicant intends to rely (other than an affidavit required by subrule (9)), on the following persons: (a) if there is a committee of creditors or a committee of inspection – each member of the committee; (b) if the remuneration of the administrator was determined by the creditors – each creditor who was present, in person or by proxy at the meeting of creditors at which the remuneration was determined; (c) each member of the company whose shareholding represents at least 10% of the issued capita of the company. (4) Within 21 days after the last service of the documents mentioned in subrule (3), any person on whom the notice has been served may serve on the plaintiff or applicant a notice: (a) stating the person’s intention to appear at the hearing of the application for review; and (b) setting out the issues that the person seeks to raise before the Court. (5) A person mentioned in subrule (3) is entitled to be heard on the application for review, but only (unless the Court otherwise orders) if the person has served on the plaintiff or applicant a notice in accordance with subrule (4). (6) If the plaintiff or applicant is served with a notice in accordance with subrule (4), the plaintiff or applicant must serve a copy of the originating process or interlocutory process applying for the review on each person who has served such a notice. (7) The administrator must file an affidavit stating the following matters: (a) the matters mentioned in subsection 449E(4) of the Corporations Act; (b) the nature of the work performed or likely to be performed by the administrator; (c) the amount of remuneration claimed by the administrator if that amount is different from the amount of remuneration that has been determined; (d) a summary of the receipts taken and payments made by the administrator; (e) particulars of any objection to the remuneration as determined, of which the administrator has received notice; (f) if the administration is continuing – details of any matters delaying the completion of the administration. (8) The affidavit mentioned in subrule (7) must annex a copy of the report that the administrator was required to prepare before remuneration was determined. (9) The plaintiff or applicant must: (a) file an affidavit stating whether any notice or notices under subrule (4) has or have been served; and (b) annex or exhibit to the affidavit a copy of any such notice.” [R 9.2A insrt Gov Gaz 20, 17 Apr 2008, p 1321, r 8, with effect from 1 May 2008]

(1) This Rule applies to an application by a provisional liquidator of a company for an order under subsection 473(2) of the Corporations Act determining the provisional liquidator’s remuneration. (2) The application must be made by interlocutory process in the winding up proceeding. (3) At least 21 days before filing the interlocutory process seeking the order, the provisional liquidator must serve a notice in accordance with Form 16 of the provisional liquidator’s intention to apply for the order, and a copy of any affidavit on which the provisional liquidator intends to rely, on the following persons: (a) any liquidator (except the provisional liquidator) of the company; (b) each member of any committee of inspection or, if there is no committee of inspection, each of the 5 largest (measured by amount of debt) creditors of the company; (c) each member of the company whose shareholding represents at least 10 per cent of the issued capital of the company. (4) Within 21 days after the last service of the documents mentioned in subrule (3), the liquidator, or any creditor or contributory, may give to the provisional liquidator a notice of objection to the remuneration claimed, stating the grounds of objection. ©

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9.3 Remuneration of provisional liquidator (s 473(2) of the Corporations Act) — Form 16

r 9.3

Corporations Rules 2003 (South Australia) (SA)

(5) If the provisional liquidator does not receive a notice of objection within the period mentioned in subrule (4): (a) the provisional 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 provisional liquidator has not received any notice of objection to the remuneration claimed within the period mentioned in subrule (4); and (b) the provisional liquidator may endorse the interlocutory process with a request that the application be dealt with in the absence of the public and without any attendance by, or on behalf of, the provisional liquidator; and (c) the application may be so dealt with. (6) If the provisional liquidator receives a notice of objection within the period mentioned in subrule (4), the provisional liquidator must serve a copy of the interlocutory process seeking the order: (a) on each creditor or contributory who has given a notice of objection; and (b) on the liquidator (if any). (7) An (a) (b) (c) (d) (e)

affidavit in support of the interlocutory process seeking the order must: state the nature of the work performed or likely to be performed by the provisional liquidator; and state the amount of remuneration claimed; and include a summary of the receipts taken and payments made by the provisional liquidator; and state particulars of any objection of which the provisional liquidator has received notice; and if the winding up proceeding has not been determined — give details of: (i) any reasons known to the provisional liquidator why the winding up proceeding has not been determined; and (ii) any reasons why the provisional liquidator’s remuneration should be determined before the determination of the winding up proceeding.

[Subr (7) am Gov Gaz 20, 17 Apr 2008, p 1322, r 9, with effect from 1 May 2008]

(8) The affidavit must also provide evidence of the matters mentioned in subsection 473(10) of the Corporations Act: (a) to the extent that they may be relevant to a provisional liquidator; and (b) as if references in that subsection to “liquidator” were references to “provisional liquidator”. [Subr (8) am Gov Gaz 34, 19 Jun 2008, p 2352, r 6, with effect from 1 Jul 2008; insrt Gov Gaz 20, 17 Apr 2008, p 1322, r 9, with effect from 1 May 2008] [R 9.3 am Gov Gaz 34, 19 Jun 2008; Gov Gaz 20, 17 Apr 2008]

9.4 Determination by Court of Liquidator’s Remuneration (Corporations Act s 473(3)(b)(ii)) (1) This Rule applies to an application by a liquidator of a company for an order under subparagraph 473(3)(b)(ii) of the Corporations Act determining the liquidator’s remuneration. Note: The amendment to section 473 of the Corporations Act made by the Corporations Amendment (Insolvency) Act 2007 applies in relation to a liquidator appointed on or after 31 December 2007 – see Corporations Act s 1480(7) [Subr (1) am Gov Gaz 20, 17 Apr 2008, p 1322, r 10, with effect from 1 May 2008]

(2) The application: (a) must be made by interlocutory process in the winding up proceeding; and (b) must not be made until after the end of 28 days after the date of the meeting of creditors mentioned in subsection 473(4) of the Corporations Act. (3) At least 21 days before filing the interlocutory process seeking the order, the liquidator must serve a notice in accordance with Form 16 of the liquidator’s intention to apply for the order, and a copy of any affidavit on which the liquidator intends to rely, on the following persons: (a) each creditor who was present, in person or by proxy, at any meeting of creditors at which the remuneration of the liquidator was considered; (b) each member of any committee of inspection; 594

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Division 9 – Remuneration of office-holders r 9.4A (c) if there is no committee of inspection, and no meeting of creditors has been convened and held – each of the 5 largest (measured by amount of debt) creditors of the company; (d) each member of the company whose shareholding represents at least 10 per cent of the issued capital of the company [Subr (3) am Gov Gaz 20, 17 Apr 2008, p 1322, r 10, with effect from 1 May 2008]

(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 (b) the liquidator may endorse the interlocutory process with a request that the application be dealt with in the absence of the public and without any attendance by, or on behalf of, the liquidator; and (c) the application may be so dealt with. (6) If the liquidator receives a notice of objection within the period mentioned in subrule (4), the liquidator must serve a copy of the interlocutory process seeking the order on each creditor or contributory who has given a notice of objection. (7) An (a) (b) (c) (d) (e) (f)

affidavit in support of the interlocutory process seeking the order must: include evidence of the matters mentioned in subsection 473(10) of the Corporations Act; and state the nature of the work performed or likely to be performed by the liquidator; and state the amount of remuneration claimed; and include a summary of the receipts taken and payments made by the liquidator; and state particulars of any objection of which the liquidator has received notice; and if the winding up is continuing – give details of any matters delaying the completion of the winding up.

[Subr (7) subst Gov Gaz 20, 17 Apr 2008, p 1322, r 10, with effect from 1 May 2008] [R 9.4 am Gov Gaz 20, 17 Apr 2008, p 1322, r 10, with effect from 1 May 2008]

9.4A Review of Remuneration of Liquidator (Corporations Act s 473(5) and (6) and s 504(1)) (1) This rule applies to an application for review of the amount of the remuneration of a liquidator under subsection 473(5) or (6) or 504(1) of the Corporations Act. Note: The amendment to section 504 of the Corporations Act made by the Corporations Amendment (Insolvency) Act 2007 applies in relation to a liquidator appointed on or after 31 December 2007 – see Corporations Act s 1480(7).

(3) At least 21 days before filing the originating process or interlocutory process applying for a review, the plaintiff or applicant must serve a notice, in accordance with Form 16A, of intention to apply for the review and a copy of any affidavit on which the plaintiff or applicant intends to rely (other than an affidavit required by subrule (9)), on the following persons: (a) if there is a committee of inspection – each member of the committee; (b) if the remuneration of the liquidator was determined or fixed by the creditors – each creditor who was present, in person or by proxy, at the meeting of creditors at which the remuneration was determined or fixed; (c) each member of the company whose shareholding represents at least 10% of the issued capital of the company. (4) Within 21 days after the last service of the documents mentioned in subrule (3), any person on whom the notice has been served may serve on the plaintiff or applicant a notice; ©

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(2) The application may only be made after remuneration has been determined under paragraph 473(3)(a) or subparagraph 473(3)(b)(i), or fixed under subsections 495(1) or 499(3), of the Corporations Act.

r 9.4A

Corporations Rules 2003 (South Australia) (SA)

(a) stating the person’s intention to appear at the hearing of the application for review; and (b) setting out the issues that the person seeks to raise before the Court. (5) A person mentioned in subrule (3) is entitled to be heard on the application for review, but only (unless the Court otherwise orders) if the person has served on the plaintiff or applicant a notice in accordance with subrule (4). (6) If the plaintiff or applicant is served with a notice in accordance with subrule (4), the plaintiff or applicant must serve a copy of the originating process or interlocutory process applying for the review on each person who has served such a notice. (7) The liquidator must file an affidavit stating the following matters: (a) for an application under subsections 473(5) or (6) of the Corporations Act – the matters mentioned in subsection 473(10) of the Corporations Act; (b) for an application under subsection 504(1) of the Corporations Act – the matters mentioned in subsection 504(2) of the Corporations Act; (c) the nature of the work performed or likely to be performed by the liquidator; (d) the amount of remuneration claimed by the liquidator if that amount is different from the amount of remuneration that has been determined or fixed. (e) a summary of the receipts taken and payments made by the liquidator; (f) particulars of any objection to the remuneration as determined or fixed of which the liquidator has received notice; (g) if the winding up is continuing – details of any matters delaying the completion of the winding up. (8) The affidavit under subrule (7) must annex a copy of the report that the liquidator was required to prepare before remuneration was determined or fixed. Note: For the requirement to prepare a report, see subsections 473(11), 473(12), 495(5), 499(6) and 499(7) of Corporations Act.

(9) The plaintiff or applicant must: (a) file an affidavit stating whether any notice or notices under subrule (4) has or have been served; and (b) annex or exhibit to the affidavit a copy of any such notice. [R 9.4A insrt Gov Gaz 20, 17 Apr 2008, p 1323, r 10, with effect from 1 May 2008]

9.5 Remuneration of special manager (s 484(2) of the Corporations Act) — Form 16 (1) This Rule applies to an application by a special manager of the property or business of a company for an order under subsection 484(2) of the Corporations Act fixing the special manager’s remuneration. (2) The application must be made by interlocutory process in the winding up proceeding. (3) At least 21 days before filing the interlocutory process seeking the order, the special manager must serve a notice in accordance with Form 16 of the special manager’s intention to apply for the order, and a copy of any affidavit on which the special manager intends to rely, on the following persons: (a) the liquidator of the company; (b) each member of any committee of inspection or, if there is no committee of inspection, each of the 5 largest (measured by amount of debt) creditors of the company; (c) each member of the company whose shareholding represents at least 10 per cent of the issued capital of the company. (4) Within 21 days after the last service of the documents mentioned in subrule (3), the liquidator, or any creditor or contributory, may give to the special manager a notice of objection to the remuneration claimed, stating the grounds of objection. (5) If the special manager does not receive a notice of objection within the period mentioned in subrule (4): (a) the special manager 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 596

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that the special manager has not received any notice of objection to the remuneration claimed within the period mentioned in subrule (4); and (b) the special manager may endorse the interlocutory process with a request that the application be dealt with in the absence of the public and without any attendance by, or on behalf of, the special manager; and (c) the application may be so dealt with. (6) If the special manager receives a notice of objection within the period mentioned in subrule (4), the special manager must serve a copy of the interlocutory process seeking the order: (a) on each creditor or contributory who has given a notice of objection; and (b) on the liquidator. (7) The affidavit in support of the interlocutory process seeking the order must: (a) state the nature of the work performed or likely to be performed by the special manager; and (b) state the amount of remuneration claimed; and (c) include a summary of the receipts taken and payments made by the special manager; and (d) state particulars of any objection of which the special manager has received notice; and (e) if the special management is continuing — give details of any matters delaying the completion of the special management. [Subr (7) am Gov Gaz 20, 17 Apr 2008, p 1324, r 10, with effect from 1 May 2008] [R 9.5 am Gov Gaz 20, 17 Apr 2008]

DIVISION 10 – WINDING UP GENERALLY 10.1 Determination of value of debts or claims (s 554A(2) of the Corporations Act) A reference to the Court by a liquidator of a company under paragraph 554A(2)(b) of the Corporations Act must be made: (a) in the case of a winding up by the Court — by filing an interlocutory process seeking an order estimating, or determining a method for working out, the value of the debt or claim; and (b) in the case of a voluntary winding up — by filing an originating process seeking an order estimating, or determining a method for working out, the value of the debt or claim. 10.2 Disclaimer of contract (s 568(1A) of the Corporations Act) (1) The affidavit in support of an application by a liquidator, under section 568(1A) of the Corporations Act, for leave to disclaim a contract in relation to a company must: (a) specify the persons interested, and their interests, under the contract; and (b) state the facts on which it is submitted that the contract should be disclaimed. (2) The liquidator must serve the affidavit on each party to the contract (except the company) and on any person interested in the contract. 10.3 Winding up Part 5.7 bodies (s 583, s 585 of the Corporations Act) and registered schemes (s 601ND of the Corporations Act) These Rules apply, with any necessary adaptations, and in the same way as they apply to a company, in relation to the winding up of a Part 5.7 body or a registered scheme. SA

DIVISION 11 – EXAMINATIONS AND ORDERS (PART 5.9, DIVISIONS 1 AND 2 OF THE CORPORATIONS ACT) 11.1 Definition for Division 11 In this Division: examination summons means a summons under section 596A or 596B of the Corporations Act for the examination of a person about a corporation’s examinable affairs. 11.2 Application for examination or investigation under s 411, s 423 or s 536(3) of the Corporations Act (1) An application for an order for the examination or investigation of a person under section 411 or 423 or subsection 536(3) of the Corporations Act may be made by: (a) ASIC; or ©

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(b) a person authorised by ASIC; or (c) a creditor or contributory; or (d) any other person aggrieved by the conduct of: (i) a person appointed to administer a compromise or arrangement; or (ii) a controller; or (iii) a liquidator or provisional liquidator. [Subr (1) am Gov Gaz 20, 17 Apr 2008, p 1327, r 15, with effect from 1 May 2008]

(2) The application may be made ex parte. (3) The provisions of this Division that apply to an examination under Division 1 of Part 5.9 of the Corporations Act apply, with any necessary adaptations, to an examination or an investigation under section 411 or 423 or subsection 536(3) of the Corporations Act. [R 11.2 am Gov Gaz 20, 17 Apr 2008]

11.3 Application for examination summons (s 596A, s 596B of the Corporations Act) — Form 17 (1) An application for the issue of an examination summons must be made by filing an interlocutory process or an originating process, as the case requires. (2) The application may be made without notice to any person. (3) The originating process, or interlocutory process, seeking the issue of the examination summons must be: (a) supported by an affidavit stating the facts in support of the process; and (b) accompanied by a draft examination summons. (4) The originating process, or interlocutory process, and supporting affidavit must be filed in a sealed envelope marked, as appropriate: (a) ‘Application and supporting affidavit for issue of summons for examination under section 596A of the Corporations Act 2001’; or (b) ‘Application and supporting affidavit for issue of summons for examination under section 596B of the Corporations Act 2001’. (5) If the application is not made by the liquidator, the liquidator must be given notice of the application and, if required by the liquidator, served with a copy of the originating process, or interlocutory process, and the supporting affidavit. (6) If the application is not made by ASIC, ASIC must be given notice of the application and, if required by ASIC, served with a copy of the originating process, or interlocutory process, and the supporting affidavit. [Subr (6) am Gov Gaz 20, 17 Apr 2008, p 1327, r 15, with effect from 1 May 2008]

(7) Unless the Court otherwise orders, an affidavit in support of an application for an examination summons is not available for inspection by any person. (8) An examination summons is to be in accordance with Form 17. [R 11.3 am Gov Gaz 20, 17 Apr 2008]

11.4 Service of examination summons An examination summons issued by the Court must be personally served, or served in any other manner as the Court may direct, on the person who is to be examined at least 8 days before the date fixed for the examination. 11.5 Discharge of examination summons (1) This Rule applies if a person is served with an examination summons. (2) Within 3 days after the person is served with the examination summons, the person may apply to the Court for an order discharging the summons by filing: (a) an interlocutory process seeking an order discharging the summons; and (b) an affidavit stating the facts in support of the interlocutory process. (3) As soon as practicable after filing the interlocutory process seeking the order and the supporting 598

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Div 11 – Examinations and orders r 11.10 affidavit, the person must serve a copy of the interlocutory process and the supporting affidavit on: (a) the person who applied for the examination; and (b) unless that person is ASIC or a person authorised by ASIC — ASIC. [Subr (3) am Gov Gaz 20, 17 Apr 2008, p 1327, r 15, with effect from 1 May 2008] [R 11.5 am Gov Gaz 20, 17 Apr 2008]

11.6 Filing of record of examination (s 597(13) of the Corporations Act) If the Court makes an order in relation to an examination under subsection 597(13) of the Corporations Act, the Court may give directions for the filing of the written record of the examination. 11.7 Authentication of transcript of examination (s 597(14) of the Corporations Act) For the purposes of subsection 597(14) of the Corporations Act, a transcript of an examination may be authenticated: (a) by the person, or persons, who prepared the record of examination, or under whose supervision the record was prepared, certifying in writing signed by the person or persons, that the record is a true transcript of the record of examination; or (b) by any person present at the examination, or any part of the examination, signing the person’s name at the bottom of each page of the written record that records a part of the examination at which the person was present. 11.8 Inspection of record or transcript of examination or investigation under s 411, s 423 or s 536 of the Corporations Act (1) A written record or transcript of an examination or investigation under section 411, 423 or 536 is not available for inspection by any person except: (a) with the consent of the liquidator (if any) or ASIC; or (b) by leave of the Court. [Subr (1) am Gov Gaz 20, 17 Apr 2008, p 1327, r 15, with effect from 1 May 2008]

(2) This Rule does not apply to the liquidator, ASIC or any person authorised by ASIC. [Subr (2) am Gov Gaz 20, 17 Apr 2008, p 1327, r 15, with effect from 1 May 2008] [R 11.8 am Gov Gaz 20, 17 Apr 2008]

11.9 Entitlement to record or transcript of examination held in public (1) This Rule applies if: (a) an examination under section 597 of the Corporations Act is held wholly or partly in public; and (b) a written record or transcript of the examination is filed in the Court. (2) The person examined may apply to the Registrar [or other Court officer], within 3 years after the date of completion of the examination, for a copy of the record or transcript of the part of the examination of the person held in public. (3) On receiving an application from a person under subrule (2), and any applicable fee, the Registrar [or other Court officer] must give a copy of the record or transcript to the person. (1) This Rule applies if a person is summoned or ordered by the Court to attend for examination, and: (a) without reasonable cause, the person: (i) fails to attend at the time and place appointed; or (ii) fails to attend from day to day until the conclusion of the examination; or (iii) refuses or fails to take an oath or make an affirmation; or (iv) refuses or fails to answer a question that the Court directs the person to answer; or (v) refuses or fails to produce books that the summons requires the person to produce; or (vi) fails to comply with a requirement by the Court to sign a written record of the examination; or (b) before the day fixed for the examination, the person who applied for the summons or order satisfies the Court that there is reason to believe that the person summoned or ordered to attend for examination has absconded or is about to abscond. ©

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(2) The Court may: (a) issue a warrant for the arrest of the person summoned or ordered to attend for examination; and (b) make any other orders that the Court thinks just or necessary. 11.11 Service of application for order in relation to breaches etc by person concerned with corporation (s 598 of the Corporations Act) (1) This Rule applies to a person applying for an order under section 598 of the Corporations Act. (2) In addition to complying with rules 2.7 and 2.8, the person must serve a copy of the originating process, or interlocutory process, as the case requires, and the supporting affidavit on any liquidator or provisional liquidator (except if the person is the liquidator or provisional liquidator) of the corporation or body. Note: Under Rule 2.7, a plaintiff must serve a copy of the originating process, and any supporting affidavit, on a defendant to the proceeding and, if necessary, on the corporation to which the proceeding relates; and an applicant must serve a copy of an interlocutory process, and any supporting affidavit, on a respondent to the proceeding and, if necessary, on the corporation to which the proceeding relates. In certain cases, these documents may also be required to be served on ASIC — see Rule 2.8. [Subr (2) am Gov Gaz 20, 17 Apr 2008, p 1327, r 15, with effect from 1 May 2008] [R 11.11 am Gov Gaz 20, 17 Apr 2008]

DIVISION 11.A – WARRANTS (CORPORATIONS ACT SECTION 486B AND PART 5.4B DIVISION 3 SUBDIVISION B) [Div 11.A insrt Gov Gaz 20, 17 Apr 2008, p 1324, r 11, with effect from 1 May 2008]

11A.1 Arrest of Person (Corporations Act s 486B) – Form 17A (1) An application for the issue of a warrant under subsection 486B(1) of the Corporations Act for the arrest of a person must state the grounds for the issue of the warrant. (2) The application must be accompanied by an affidavit stating the facts in support of the application. (3) The warrant must be in accordance with Form 17A. (4) If a person is arrested under the warrant, the person who carried out the arrest must immediately give notice of the arrest to the Registrar. Note: Sections 489A to 489E of the Corporations Act, inserted by the Corporations Amendment (Insolvency) Act 2007, apply in relation to a warrant issued on or after 31 December 2007 – See Corporations Act s 1481(3). [R 11A.1 insrt Gov Gaz 20, 17 Apr 2008, p 1324, r 11, with effect from 1 May 2008]

DIVISION 12 – ACQUISITION OF SHARES (CHAPTER 6 OF THE CORPORATIONS ACT) AND SECURITIES (CHAPTER 7 OF THE CORPORATIONS ACT) 12.1 Service on the ASIC in relation to proceedings under Chapter 6 or 7 of the Corporations Act If ASIC is not a party to an application made under Chapter 6, 6A, 6B, 6C, 6D or 7 of the Corporations Act, the plaintiff must serve a copy of the originating process and the supporting affidavit on ASIC as soon as practicable after filing the originating process. [R 12.1 am Gov Gaz 20, 17 Apr 2008, p 1327, rr 15 and 16, with effect from 1 May 2008]

12.1A Reference to the Court of question of law arising in proceeding before Takeovers Panel (Corporations Act s 659A) Order 50 applies, with any necessary adaptations, to a reference of a question of law arising in a proceeding before the Takeovers Panel to the Court under section 659A of the Corporations Act. [R 12.1A insrt Gov Gaz 65, 13 Sep 2007, p 3690, r 7, with effect from 1 Oct 2007]

12.1B Notification to Court where proceeding is commenced before end of takeover bid period (Corporations Act s 659B) (1) This rule applies to a party to a proceeding who suspects or becomes aware that: (a) the proceeding was commenced in relation to a takeover bid, or proposed takeover bid, before the end of the bid period; and (b) the proceeding falls within the definition of court proceedings in relation to a takeover bid or proposed takeover bid in subsection 659B(4) of the Corporations Act. 600

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Division 14 – Powers of Courts (Part 9.5 of the Corporations Act) r 14.1 (2) The party identified in subrule (1) must, immediately on suspecting or becoming aware of the matters mentioned in subrule (1), notify any other party to the proceeding and the Court of that suspicion or knowledge. (3) The party must comply with subrule (2), unless any other party to the proceeding has given a notice under this rule to the party. [R 12.1B insrt Gov Gaz 65, 13 Sep 2007, p 3690, r 7, with effect from 1 Oct 2007]

12.2 Application for summons for appearance of person (s 1092(3) of the Corporations Act) — Form 18 (1) An application for the issue of a summons under subsection 1092(3) of the Corporations Act must be made by filing an originating process or an interlocutory process. (2) The application may be made ex parte. (3) The originating process, or interlocutory process, seeking the issue of the summons must be: (a) supported by an affidavit stating the facts in support of the process; and (b) accompanied by a draft summons. (4) Unless the Court otherwise orders, a summons issued under this Rule is to be in accordance with Form 18. 12.3 Application for orders relating to refusal to register transfer or transmission of shares etc (s 1094 of the Corporations Act) As soon as practicable after filing an originating process seeking an order under section 1094 of the Corporations Act, the plaintiff must serve a copy of the originating process and the supporting affidavit on: (a) the company; and (b) any person against whom an order is sought.

DIVISION 13 – THE FUTURES INDUSTRY (CHAPTER 8 OF THE CORPORATIONS ACT) 13.1 Appeal against decision of futures exchange or futures association (s 1135 of the Corporations Act) For the purposes of subsection 1135(1) of the Corporations Act, a written notice of appeal against a decision of a futures exchange or futures association must: (a) be in the form of an originating process; and (b) state whether the whole, or part only, of the decision is complained of and, if part only, identify that part; and (c) state concisely the grounds of appeal. 13.2 Proceedings against futures organisation to establish claim against fidelity fund (s 1243 of the Corporations Act) A person who has been given leave by the Court, under subsection 1243(3) of the Corporations Act, to bring a proceeding to establish a claim against the fidelity fund of a futures organisation may bring the claim in the proceeding in which the leave was granted. 14.1 Appeal from act, omission or decision of administrator, receiver or liquidator, etc (s 554A, s 1321 of the Corporations Act) (1) All appeals to the Court authorised by the Corporations Act must be commenced by an originating process, or interlocutory process, stating: (a) the act, omission or decision complained of; and (b) in the case of an appeal against a decision — whether the whole or part only and, if part only, which part of the decision is complained of; and (c) the grounds on which the complaint is based. (2) Unless the Corporations Act or the Corporations Regulations otherwise provide, the originating process, or interlocutory process, must be filed within: (a) 21 days after the date of the act, omission or decision appealed against; or ©

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(3) The Court may extend the time for filing the originating process, or interlocutory process, either before or after the time for filing expires and whether or not the application for extension is made before the time expires. (4) As soon as practicable after filing the originating process, or interlocutory process, and, in any case, at least 5 days before the date fixed for hearing, the person instituting the appeal must serve a copy of the originating process, or interlocutory process, and any supporting affidavit, on each person directly affected by the appeal. (5) As soon as practicable after being served with a copy of the originating process, or interlocutory process, and any supporting affidavit, a person whose act, omission or decision is being appealed against must file an affidavit: (a) stating the basis on which the act, omission or decision was done or made; and (b) annexing or exhibiting a copy of all relevant documents that have not been put in evidence by the person instituting the appeal.

DIVISION 15 – PROCEEDINGS UNDER THE ASIC ACT 15.1 Reference to Court of question of law arising at hearing of ASIC (s 61 of the ASIC Act) Rule 294 of the Supreme Court Civil Rules 2006 applies, with any necessary adaptations, to a reference of a question of law arising at a hearing by ASIC to the Court under section 61 of the ASIC Act. [R 15.1 am Gov Gaz 20, 17 Apr 2008, p 1327, rr 15 and 16, with effect from 1 May 2008; Gov Gaz 49, 24 Aug 2006, p 2896, r 3, with effect from 4 Sep 2006]

15.2 Reference to Court of question of law arising at hearing of Corporations and Securities Panel (s 196 of the ASIC Act) Rule 294 of the Supreme Court Civil Rules 2006 applies, with any necessary adaptations, to a reference of a question of law arising at a hearing by the Corporations and Securities Panel to the Court under section 196 of the ASIC Act. [R 15.2 am Gov Gaz 49, 24 Aug 2006, p 2896, r 3, with effect from 4 Sep 2006]

15.3 Application for inquiry (s 70, s 201, s 219 of the ASIC Act) An application for an inquiry under subsection 70(3), 201(3) or 219(7) of the ASIC Act must be made by filing an originating process seeking an inquiry and orders under the relevant subsection.

DIVISION 15A – PROCEEDINGS UNDER THE CROSS-BORDER INSOLVENCY ACT 2008 [Div 15A insrt Gov Gaz 67, 27 Nov 2008, p 5266, r 6, with effect from 1 Dec 2008]

15A.1 Application of this Division and other rules of the Court Unless the Court otherwise orders: (a) this Division applies to a proceeding in the Court, under the Cross-Border Insolvency Act, involving a debtor other than an individual; and (b) the rules in the other Divisions of these Rules, and the other rules of the Court, apply to a proceeding in the Court under the Cross-Border Insolvency Act if they are relevant and not inconsistent with this Division. Note: See rule 1.5 for definitions of Cross-Border Insolvency Act and Model Law. [R 15A.1 insrt Gov Gaz 67, 27 Nov 2008, p 5266, r 6, with effect from 1 Dec 2008]

15A.2 Expressions used in the Cross-Border Insolvency Act (1) Unless the contrary intention appears, an expression that is used in this Division and in the Cross-Border Insolvency Act, whether or not a particular meaning is given to the expression by the Cross-Border Insolvency Act, has the same meaning in this Division as it has in the Cross-Border Insolvency Act. Note: The following expressions used in this Division (including in the notes to this Division) are defined in the Model Law as having the following meanings: establishment means any place of operations where the debtor carries out a non-transitory economic activity with human means and goods or services. 602

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Division 15A – Proceedings under the Cross-Border Insolvency Act 2008 r 15A.5 foreign court means a judicial or other authority competent to control or supervise a foreign proceeding. foreign main proceeding means a foreign proceeding taking place in the State where the debtor has the centre of its main interests. foreign non-main proceeding means a foreign proceeding, other than a foreign main proceeding, taking place in a State where the debtor has an establishment within the meaning of subparagraph (f) of the present article. foreign proceeding means a collective judicial or administrative proceeding in a foreign State, including an interim proceeding, pursuant to a law relating to insolvency in which proceeding the assets and affairs of the debtor are subject to control or supervision by a foreign court, for the purpose of reorganization or liquidation. foreign representative means a person or body, including one appointed on an interim basis, authorized in a foreign proceeding to administer the reorganization or the liquidation of the debtor’s assets or affairs or to act as a representative of the foreign proceeding.

(2) This Division is to be interpreted in a manner which gives effect to the Cross-Border Insolvency Act. [R 15A.2 insrt Gov Gaz 67, 27 Nov 2008, p 5266, r 6, with effect from 1 Dec 2008]

15A.3 Application for recognition (1) An application by a foreign representative for recognition of a foreign proceeding under article 15 of the Model Law must be made by filing an originating process in accordance with Form 2. (2) The originating process must: (a) be accompanied by the statements referred to in article 15 of the Model Law and in section 13 of the Cross-Border Insolvency Act; and (b) name the foreign representative as the plaintiff and the debtor as the defendant; and (c) be accompanied by an affidavit verifying the matters mentioned in paragraphs 2 and 3 of article 15 of the Model Law and in section 13 of the Cross-Border Insolvency Act. (3) When filing the originating process, the foreign representative must file, but need not serve, an interlocutory process seeking directions as to service, and the Court may give any directions about service, and make any incidental orders, which it thinks just. (4) The plaintiff must serve a copy of the originating process and the other documents mentioned in subrule (2): (a) unless the Court otherwise orders, in accordance with subrule 2.7(1); and (b) on any other persons the Court may direct at the hearing of the interlocutory process. (5) A person who intends to appear before the Court at the hearing of an application for recognition must file and serve the documents mentioned in rule 2.9. [R 15A.3 insrt Gov Gaz 67, 27 Nov 2008, p 5266, r 6, with effect from 1 Dec 2008]

15A.4 Application for provisional relief under article 19 of the Model Law (1) Any application by the plaintiff for provisional relief under article 19 of the Model Law must be made by filing an interlocutory process in accordance with Form 3. (2) Unless the Court otherwise orders, the interlocutory process and any supporting affidavit must be served in accordance with subrule 2.7(2). 15A.5 Official liquidator’s consent to act If any application is made for an order: (a) under Article 19 or 21 of the Model Law to entrust the administration or realisation of all or part of the debtor’s assets to a person designated by the Court (other than the foreign representative); or (b) under Article 21 to entrust the distribution of all or part of the debtor’s assets to a person designated by the Court (other than the foreign representative); then, unless the Court otherwise orders, the person must: (c) be an official liquidator; and (d) have filed a Consent to Act, in accordance with Form 19, which specifies an address for service for a person within South Australia. [R 15A.5 subst Gov Gaz 43, 1 Jul 2010, p 3327, r 4, with effect from 1 Jul 2010; insrt Gov Gaz 67, 27 Nov 2008, p 5267, r 6, with effect from 1 Dec 2008] ©

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15A.6 Notice of filing of application for recognition (1) Unless the Court otherwise orders, the plaintiff in a proceeding mentioned in rule 15A.3 must: (a) send a notice of the filing of the application in accordance with Form 20 to each person whose claim to be a creditor of the defendant is known to the plaintiff; and (b) publish a notice of the filing of the application for recognition of a foreign proceeding in accordance with Form 20, in a daily newspaper circulating generally in the State or Territory where the defendant has its principal, or last known, place of business. [Subr (1) am Gov Gaz 53, 26 Jul 2012, p 3216, r 12(1), with effect from 29 Jul 2012]

(2) The Court may direct the plaintiff to publish a notice in accordance with Form 20 in a daily newspaper circulating generally in any State or Territory not described in subrule (1)(b). [Subr (2) am Gov Gaz 53, 26 Jul 2012, p 3216, r 12(2), with effect from 29 Jul 2012] [R 15A.6 am Gov Gaz 53, 26 Jul 2012; insrt Gov Gaz 67, 27 Nov 2008, p 5267, r 6, with effect from 1 Dec 2008]

15A.7 Notice of order for recognition, withdrawal etc (1) If the Court makes an order for recognition of a foreign proceeding under article 17 of the Model Law, or makes any order under article 19 or 21 of the Model Law, the plaintiff must, as soon as practicable after the order is made, do all of the following: (a) have the order entered; (b) serve a copy of the entered order on the defendant; (c) send a notice of the making of the order in accordance with Form 21 to each person whose claim to be a creditor of the defendant is known to the plaintiff; (d) publish a notice of the making of the order in accordance with Form 21, in a daily newspaper circulating generally in the State or Territory where the defendant has its principal, or last known, place of business. [Subr (1) am Gov Gaz 53, 26 Jul 2012, p 3217, r 13(1), with effect from 29 Jul 2012]

(2) The Court may direct the plaintiff to publish the notice in accordance with Form 21 in a daily newspaper circulating generally in any State or Territory not described in subrule (1)(d). [Subr (2) am Gov Gaz 53, 26 Jul 2012, p 3217, r 13(2), with effect from 29 Jul 2012]

(3) If the application for recognition is withdrawn or dismissed, the plaintiff must, as soon as practicable, do all of the following: (a) for a dismissal, have the order of dismissal entered; (b) serve a copy of the entered order of dismissal or notice of the withdrawal, on the defendant; (c) send a notice of the dismissal or withdrawal in accordance with Form 22 to each person whose claim to be a creditor of the defendant is known to the plaintiff; (d) publish a notice of the dismissal or withdrawal in accordance with Form 22, in a daily newspaper circulating generally in the State or Territory where the defendant has its principal, or last known, place of business. [Subr (3) am Gov Gaz 53, 26 Jul 2012, p 3217, r 13(3), with effect from 29 Jul 2012]

(4) The Court may direct the plaintiff to publish the notice in accordance with Form 22 in a daily newspaper circulating generally in any State or Territory not described in subrule (3)(d). [Subr (4) am Gov Gaz 53, 26 Jul 2012, p 3217, r 13(4), with effect from 29 Jul 2012] [R 15A.7 am Gov Gaz 53, 26 Jul 2012; insrt Gov Gaz 67, 27 Nov 2008, p 5267, r 6, with effect from 1 Dec 2008]

15A.8 Relief after recognition (1) If the Court has made an order for recognition of a foreign proceeding, any application by the plaintiff for relief under paragraph 1 of article 21 of the Model Law must be made by filing an interlocutory process, and any supporting affidavit, in accordance with Form 3. (2) Unless the Court otherwise orders, an interlocutory process under subrule (1) and any supporting affidavit must be served, in accordance with subrule 2.7(2), but on the following persons: (a) the defendant; (b) any person that the Court directed be served with the originating process by which the application for recognition was made; 604

Corporations – Court Rules and Related Legislation 2017

Division 17 – Proceedings under the Federal Courts (State Jurisdiction) Act 1999 r 17.1 (c) any other person that the Court directs. (3) A person who intends to appear before the Court at the hearing of an application under subrule (1) must file and serve the documents mentioned in rule 2.9. [R 15A.8 insrt Gov Gaz 67, 27 Nov 2008, p 5268, r 6, with effect from 1 Dec 2008]

15A.9 Application to modify or terminate an order for recognition or other relief (1) This rule applies to: (a) an application under paragraph 4 of article 17 of the Model Law for an order modifying or terminating an order for recognition of a foreign proceeding; and (b) an application under paragraph 3 of article 22 of the Model Law for an order modifying or terminating relief granted under article 19 or 21 of the Model Law. (2) An application mentioned in subrule (1) must be made by filing an interlocutory process in accordance with Form 3. (3) An interlocutory process for an application under subrule (1) and any supporting affidavit must be served on: (a) for an application under paragraph (1)(a) — the defendant and other persons who were served with, or filed a notice of appearance in relation to, the application for recognition; and (b) for an application under paragraph (1)(b) — the defendant and other persons who were served with, or filed a notice of appearance in relation to, the application for relief under article 19 or 21. (4) Unless the Court otherwise orders, a plaintiff who applies for an order under subrule (1) must: (a) send a notice of the filing of the application in accordance with Form 23 to each person whose claim to be a creditor of the defendant is known to the plaintiff; and (b) publish a notice of the filing of the application in accordance with Form 23, in a daily newspaper circulating generally in the State or Territory where the defendant has its principal, or last known, place of business. [Subr (4) am Gov Gaz 53, 26 Jul 2012, p 3217, r 14(1), with effect from 29 Jul 2012]

(5) The Court may direct the applicant to publish the notice in accordance with Form 23 in a daily newspaper circulating generally in any State or Territory not described in subrule (4)(b). [Subr (5) am Gov Gaz 53, 26 Jul 2012, p 3217, r 14(2), with effect from 29 Jul 2012]

(6) A person who intends to appear before the Court at the hearing of an application under subrule (1) must file and serve the documents mentioned in rule 2.9. [R 15A.9 am Gov Gaz 53, 26 Jul 2012; insrt Gov Gaz 67, 27 Nov 2008, p 5268, r 6, with effect from 1 Dec 2008]

DIVISION 16 – POWERS OF MASTERS 16.1 Powers of Masters A Master may hear and determine any summons brought under these rules, subject to the limitations contained in Rule 15 of the Supreme Court Civil Rules 2006. 16.2 An applicant may, at the time of issuing an originating process or an interlocutory process, or a respondent may, at the time of filing an appearance, file an application, requesting that the matter be heard by a Judge, if it is an application under the following sections of the Corporations Act: 411, 716, 741, 1323, 1324 or 1325. 16.3 Any application brought pursuant to Rule 16.2 hereof shall be dealt with before the substantive application is heard. A Judge before whom such an application is brought may direct that it, or any issue relating to it, be heard by a Master.

DIVISION 17 – PROCEEDINGS UNDER THE FEDERAL COURTS (STATE JURISDICTION) ACT 1999 17.1 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 an originating process. ©

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605

SA

[R 16.1 am Gov Gaz 49, 24 Aug 2006, p 2896, r 4, with effect from 4 Sep 2006]

r 17.1

Corporations Rules 2003 (South Australia) (SA)

(2) If: (a) in a proceeding, the Federal Court of Australia has made an order for the winding up of a company; and (b) the order is an ineffective judgment within the meaning of the Federal Courts (State Jurisdiction) Act 1999; an application under the Federal Courts (State Jurisdiction) Act 1999 in relation to the winding up of the company may be made by filing an interlocutory process. (3) An interlocutory process under subrule (2) must state the proceeding number of the Federal Court proceeding.

606

Corporations – Court Rules and Related Legislation 2017

Schedule 1 – Forms [Repealed] Schedule 1

SCHEDULE 1 – FORMS [REPEALED]

SA

[Sch 1 rep Gov Gaz 46, 30 Jul 2015, p 3624, r 6, with effect from 1 Sep 2015; am Gov Gaz 53, 26 Jul 2012; Gov Gaz 67, 27 Nov 2008; Gov Gaz 20, 17 Apr 2008; Gov Gaz 65, 13 Sep 2007]

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CORPORATIONS SUPPLEMENTARY RULES 2015 (SOUTH AUSTRALIA) (SA) Division 1 – Preliminary 1.1 Citation............................................................................................................................................ 612 1.2 Commencement.............................................................................................................................. 612 1.3 Objects............................................................................................................................................ 612 1.4 Interpretation................................................................................................................................... 612 1.5 Approved forms............................................................................................................................... 612 Division 2 – Proceedings generally..................................................................................................................... 612 Division 3 – Compromises and arrangements in relation to Part 5.1 bodies.......................................................612 Division 4 – Receivers and other controllers of corporation property (Part 5.2 of the Corporations Act).................................................................................................................................................. 612 Division 5 – Winding up proceedings (including oppression proceedings where winding up is sought) 5.1 Method of fixing costs..................................................................................................................... 612 5.2 Costs fixed at time of order.............................................................................................................612 5.3 Variation in costs............................................................................................................................. 613 5.4 Lump sum adjudication................................................................................................................... 613 5.5 Percentage increase....................................................................................................................... 613 5.6 Discretion.........................................................................................................................................613 5.7 Application to set aside................................................................................................................... 613 Division 6 – Provisional liquidators (Part 5.4B of the Corporations Act)..............................................................613 Division 7 – Liquidators 7.1 Application for release.....................................................................................................................613 7.2 Application to fix remuneration........................................................................................................613 Division 8 – Special managers (Part 5.4B of the Corporations Act)....................................................................614 Division 9 – Remuneration of office-holders........................................................................................................ 614 Division 10 – Winding up generally..................................................................................................................... 614 Division 11 – Examinations and orders (Part 5.9, Divisions 1 and 2 of the Corporations Act)............................614 Division 11A – Warrants (Corporations Act s 486B and Part 5.4B Division 3 Subdivision B)............................. 614 Division 12 – Acquisition of shares (Chapter 6 of the Corporations Act) and securities (Chapter 7 of the Corporations Act)..................................................................................................................................... 614 Division 13 – The futures industry (Chapter 8 of the Corporations Act)..............................................................614 Division 14 – Powers of courts (Part 9.5 of the Corporations Act)...................................................................... 614 Division 15 – Proceedings under the ASIC Act................................................................................................... 614 Division 15A – [proceedings under the Cross-Border Insolvency Act]................................................................ 614 Division 16 – Powers of masters......................................................................................................................... 614

SA

Division 17 – Proceedings under the Federal Courts (State Jurisdiction) Act 1999............................................614

SCHEDULE 1 – FORMS Form Form Form Form Form Form Form Form Form Form Form ©

1 2 3 4 5 6 7 8 9 10 11

Document title................................................................................................................................. 615 Originating process......................................................................................................................... 616 Interlocutory process....................................................................................................................... 618 Notice of appearance...................................................................................................................... 619 Notice of intervention by ASIC........................................................................................................ 620 Notice of hearing to approve compromise or arrangement............................................................ 621 Affidavit accompanying statutory demand...................................................................................... 622 Consent of liquidator/provisional liquidator..................................................................................... 623 Notice of application for winding up order...................................................................................... 624 Notice of application for winding up order by substituted plaintiff.................................................. 625 Notice of winding up order and of appointment of liquidator..........................................................626

2017 THOMSON REUTERS

609

Corporations Supplementary Rules 2015 (South Australia) (SA) Form Form Form Form Form Form Form Form Form Form Form Form Form Form Form

610

12 13 14 15 16 16A 17 17A 18 19 20 21 22 23 24

Notice of appointment of provisional liquidator............................................................................... 627 Notice by creditor or contributory of objection to release of liquidator........................................... 628 Affidavit in support of application for order for payment of call...................................................... 629 Notice of application for leave to distribute a surplus.....................................................................630 Notice of intention to apply for remuneration..................................................................................631 Notice of Intention to Apply For Review of Remuneration..............................................................632 Summons for public examination.................................................................................................... 633 Arrest Warrant................................................................................................................................. 634 Summons for appearance in relation to registration of transfer of interests.................................. 635 Consent to act as designated person............................................................................................. 636 Notice of filing of application for recognition of foreign proceeding................................................637 Notice of making of order under the Cross-Border Insolvency Act 2008....................................... 638 Notice of dismissal or withdrawal of application for recognition of foreign proceeding..................639 Notice of filing of application to modify or terminate an order for recognition or other relief.........640 Schedule of costs of the plaintiff for adjudication pursuant to the order of judge.......................... 641

Corporations – Court Rules and Related Legislation 2017

Table of Amending Legislation Table of Amending Legislation Principal legislation

Number

Corporations Supplementary Rules 2015 (South Australia)

Gaz 46 of 2015

Date of gazettal/ assent/registration 30 Jul 2015

Date of commencement 1 Sep 2015

Date of gazettal/ assent/registration

Date of commencement

There have been no further amendments to this legislation. Number

SA

Amending legislation

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611

r 1.1

Corporations Supplementary Rules 2015 (South Australia) (SA)

DIVISION 1 – PRELIMINARY 1.1 Citation (1) These Supplementary Rules may be cited as the Corporations Supplementary Rules 2015. (2) These Supplementary Rules supplement the Corporations Rules 2003. (3) These Supplementary Rules follow the Division headings of the Corporations Rules 2003. 1.2 Commencement These Supplementary Rules come into effect on 1 September 2015 or the date of their gazettal, whichever is later. 1.3 Objects The objects of these Supplementary Rules are to— (a) regulate corporations proceedings in the Court; (b) supplement the Rules; (c) prescribe approved forms. 1.4 Interpretation Unless the contrary intention appears, a term defined in the Corporations Rules 2003 has the meaning defined by those Rules. 1.5 Approved forms The forms contained in the Schedule to these Supplementary Rules are approved forms for the purposes shown.

DIVISION 2 – PROCEEDINGS GENERALLY [no supplementary rule]

DIVISION 3 – COMPROMISES AND ARRANGEMENTS IN RELATION TO PART 5.1 BODIES [no supplementary rule]

DIVISION 4 – RECEIVERS AND OTHER CONTROLLERS OF CORPORATION PROPERTY (PART 5.2 OF THE CORPORATIONS ACT) [no supplementary rule]

DIVISION 5 – WINDING UP PROCEEDINGS (INCLUDING OPPRESSION PROCEEDINGS WHERE WINDING UP IS SOUGHT) 5.1 Method of fixing costs When an order for the winding up of a company is made by the Court, the plaintiff or a supporting creditor may apply to have the amount of its costs and disbursements fixed— (a) by the Judge or Master making the winding up order at the time the order is made; or (b) by a lump sum adjudication in the manner set out in subrule 5.4; or (c) in the ordinary way under Part 3 of Chapter 12 of the Supreme Court Civil Rules 2006. 5.2 Costs fixed at time of order Under subrule 5.1(a), the total of the costs and disbursements will be fixed at the following amounts without the need to present any details of the costs or disbursements to the Court when the application was made on or after 1 October 2014— (a) Plaintiff’s costs when the plaintiff is not the company being wound up and that company was trading in South Australia—$5,445 plus the filing fee; (b) Plaintiff’s costs when the plaintiff is not the company being wound up and that company was not trading in South Australia— $5,860 plus the filing fee (allowance for advertising); 612

Corporations – Court Rules and Related Legislation 2017

Division 7 – Liquidators

r 7.2

(c) Supporting creditor awarded costs— $1,390 (when one set of costs is awarded to more than one supporting creditor there is to be no increase in this item); (d) Supporting creditor is substituted as plaintiff— any amount fixed under paragraph (c) plus $1,665. 5.3 Variation in costs Where the work done in obtaining a winding up order varies significantly from that generally described in subrule 5.2, the party seeking a costs order may request the Court on the making of the winding up order to allow a lump sum either more or less than those set out in subrule 5.2 to reflect the work actually done in obtaining the order. 5.4 Lump sum adjudication To obtain an adjudication for a lump sum under subrule 5.1(b), the party should lodge a bill in the Registry in form 24. 5.5 Percentage increase When any percentage increase is allowed on or after 1 July 2015 on Schedule 2 to the Supreme Court Civil Supplementary Rules 2014— that percentage increase is to be added to the lump sum amounts in this Division (not including filing fees) when orders for winding up are made on or after the date on which the increase takes effect. 5.6 Discretion When a party seeks that costs be fixed under paragraph (a) or (b) of subrule 5.1— the Court retains a discretion to require that the costs be fixed under paragraph (c). 5.7 Application to set aside When the costs have been fixed under paragraph (a) or (b) of subrule 5.1— a liquidator or other interested party may apply to have the order or allocatur set aside on the ground that the costs fixed are excessive and to have the costs fixed under paragraph (c).

DIVISION 6 – PROVISIONAL LIQUIDATORS (PART 5.4B OF THE CORPORATIONS ACT) [no supplementary rule]

DIVISION 7 – LIQUIDATORS 7.1 Application for release On an (a) (b) (c)

application for release of a liquidator the particulars provided are to show— the means by which the liquidator’s, and any provisional liquidator’s, remuneration has been fixed; the amount and date of each payment of remuneration to the liquidator; and the amount and date of each payment of costs to lawyers and other agents made by the liquidator and whether the amounts of such costs have been fixed by the Court.

(1) When a provisional liquidator or a liquidator seeks to have his or her remuneration fixed by the Court pursuant to section 473 of the Corporations Act— (a) the appropriate originating process is to be issued and lodged with the Court; (b) an affidavit is to be filed— (i) detailing the work for which the remuneration is sought and the means by which the remuneration sought has been calculated; (ii) when the application is made by a liquidator pursuant to section 473(3) — it is to state why remuneration cannot be fixed by a Committee of Inspection or a meeting of creditors. (2) An application for remuneration will usually be considered without the attendance of the liquidator. If the liquidator is required to be heard on the application, a date and time for the hearing will be fixed.

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SA

7.2 Application to fix remuneration

r 7.2

Corporations Supplementary Rules 2015 (South Australia) (SA)

DIVISION 8 – SPECIAL MANAGERS (PART 5.4B OF THE CORPORATIONS ACT) [no supplementary rule]

DIVISION 9 – REMUNERATION OF OFFICE-HOLDERS [no supplementary rule]

DIVISION 10 – WINDING UP GENERALLY [no supplementary rule]

DIVISION 11 – EXAMINATIONS AND ORDERS (PART 5.9, DIVISIONS 1 AND 2 OF THE CORPORATIONS ACT) [no supplementary rule]

DIVISION 11A – WARRANTS (CORPORATIONS ACT S 486B AND PART 5.4B DIVISION 3 SUBDIVISION B) [no supplementary rule]

DIVISION 12 – ACQUISITION OF SHARES (CHAPTER 6 OF THE CORPORATIONS ACT) AND SECURITIES (CHAPTER 7 OF THE CORPORATIONS ACT) [no supplementary rule]

DIVISION 13 – THE FUTURES INDUSTRY (CHAPTER 8 OF THE CORPORATIONS ACT) [no supplementary rule]

DIVISION 14 – POWERS OF COURTS (PART 9.5 OF THE CORPORATIONS ACT) [no supplementary rule]

DIVISION 15 – PROCEEDINGS UNDER THE ASIC ACT [no supplementary rule]

DIVISION 15A – [PROCEEDINGS UNDER THE CROSS-BORDER INSOLVENCY ACT] [no supplementary rule]

DIVISION 16 – POWERS OF MASTERS [no supplementary rule]

DIVISION 17 – PROCEEDINGS UNDER THE FEDERAL COURTS (STATE JURISDICTION) ACT 1999 [no supplementary rule]

614

Corporations – Court Rules and Related Legislation 2017

Schedule 1 – Forms Document title

Form 1

SCHEDULE 1 – FORMS Form 1 – Document title Rule 2.1

SA

IN THE [name of Court] No. of [year] DIVISION: [insert if appropriate] REGISTRY: [insert if appropriate] IN THE MATTER OF [full name of corporation to which the proceeding relates and, if applicable, the words “(in liquidation)”, “(receiver appointed)”, “(receiver and manager appointed)”, “(controller acting)”, or “(under administration)”] ABN or ACN or ARBN: [insert ABN or ACN or ARBN] AB (and Others) Plaintiff(s) [list, in a schedule, any further plaintiffs] CD (and Others) Defendant(s) [list, in a schedule, any further defendants]

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615

Form 2

Corporations Supplementary Rules 2015 (South Australia) (SA)

Form 2 – Originating process Rules 2.2 and 15A.3

[Title] A. DETAILS OF APPLICATION This application is made under *section/*regulation [number] of the *Corporations Act/*ASIC Act/*CrossBorder Insolvency Act/*Corporations Regulations. [State briefly the nature of the proceeding, eg application for winding-up on ground of insolvency; or complaint about a receiver.] On the facts stated in the supporting affidavit(s), the plaintiff claims: 1 2 etc AND Date: .................................................. Signature of plaintiff or plaintiff’s legal practitioner B. NOTICE TO DEFENDANT(S) TO: [name and address of each defendant (if any)] This application will be heard by .................................................. at [address of Court] at .......... *am/*pm on .......... If you or your legal practitioner do not appear before the Court at that time, the application may be dealt with, and an order made, in your absence. As soon after that time as the business of the Court will allow, any of the following may happen: (a) the application may be heard and final relief given; (b) directions may be given for the future conduct of the proceeding; (c) any interlocutory application may be heard. Before appearing before the Court, you must file a notice of appearance, in the prescribed form, in the Registry and serve a copy of it on the plaintiff. Note: Unless the Court otherwise orders, a defendant that is a corporation must be represented at a hearing by a legal practitioner. It may be represented at a hearing by a director of the corporation only if the Court grants leave. C. APPLICATION FOR WINDING UP ON GROUND OF INSOLVENCY [Complete this section if this originating process is seeking an order that a company be wound up in insolvency on the ground that the company has failed to comply with a statutory demand (see section 459Q of the Corporations Act)] [Set out particulars of service of the statutory demand on the company and of the failure to comply with the demand] [Attach to this originating process a copy of the statutory demand and, if the demand has been varied by an order made under subsection 459H(4) of the Corporations Act because of a dispute or offsetting claim, a copy of the order made under that subsection.] [The affidavit in support of this originating process must: (a) verify service of the demand on the company; and (b) verify the failure of the company to comply with the demand; and (c) state whether and, if so, to what extent the debt, or each of the debts, to which the demand relates is still due and payable at the date when the affidavit is made.] D. FILING Date of filing: [date of filing to be entered by Registrar [or other Court offıcer]] ..................................................

616

Corporations – Court Rules and Related Legislation 2017

Schedule 1 – Forms Originating process

Form 2 Registrar [or other Court offıcer]

SA

This originating process is filed by [name] for the plaintiff. E. SERVICE The plaintiff’s address for service is [address of plaintiff’s legal practitioner or of plaintiff]. * It is not intended to serve a copy of this originating process on any person. OR * It is intended to serve a copy of this originating process on each defendant and on any person listed below: [name of defendant and any other person on whom a copy of the originating process is to be served] [Complete the following section if the time for service has been abridged] The time by which a copy of this originating process is to be served has been abridged by order made by [name of Judge or other Court offıcer] on [date] to [time and date]. * Omit if not applicable

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617

Form 3

Corporations Supplementary Rules 2015 (South Australia) (SA)

Form 3 – Interlocutory process Rules 2.2, 15A.4, 15A.8 and 15A.9

[Title] A. DETAILS OF APPLICATION This application is made under *section/*regulation [number] of the *Corporations Act/*ASIC Act/*CrossBorder Insolvency Act/*Corporations Regulations. On the facts stated in the supporting affidavit(s), the applicant, [name], applies for the following relief: 1 2 etc AND Date: .................................................. Signature of applicant making this application or applicant’s legal practitioner This application will be heard by .................................................. at [address of Court] at .......... *am/*pm on .......... B. NOTICE TO RESPONDENT(S) (IF ANY) TO: [name and address of each respondent to this interlocutory process (if any). If applicable, also state the respondent’s address for service.] If you or your legal practitioner do not appear before the Court at the time shown above, the application may be dealt with, and an order made, in your absence. Before appearing before the Court, you must, except if you have already done so or you are the plaintiff in this proceeding, file a notice of appearance, in the prescribed form, in the Registry and serve a copy of it on the plaintiff in the originating process.

618

Corporations – Court Rules and Related Legislation 2017

Schedule 1 – Forms Notice of appearance

Form 4

Form 4 – Notice of appearance Rule 2.9

[Title] A. DETAILS OF PERSON INTENDING TO APPEAR Notice is given that [state full name and address], [briefly state your interest in the proceeding, eg a creditor for $ (amount), or a contributory, of the corporation] intends to appear before the Court at the hearing of the application to be heard at [name of Court and address] on [date] and, if applicable, to * oppose/*support the application. Note: Unless the Court otherwise orders, a defendant or respondent that is a corporation must be represented at a hearing by a legal practitioner. It may be represented at a hearing by a director of the corporation only if the Court grants leave. B. GROUNDS OF OPPOSITION TO WINDING UP [Complete this section only if you are opposing an application to wind up a company] The grounds on which I oppose the application for winding up are: 1 2 etc C. SERVICE [This section must be completed] The address for service of the person giving this notice is [address of person’s legal practitioner or of person]. .................................................. Signature of person giving notice or of person’s legal practitioner Omit if not applicable

SA

*

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619

Form 5

Corporations Supplementary Rules 2015 (South Australia) (SA)

Form 5 – Notice of intervention by ASIC Rule 2.10

[Title] The Australian Securities and Investments Commission, whose address for service is [address], intervenes in this proceeding. Date: .................................................. Signed on behalf of ASIC Name of signatory: [name]. Capacity of signatory: [capacity].

620

Corporations – Court Rules and Related Legislation 2017

Schedule 1 – Forms Notice of hearing to approve compromise or arrangement

Form 6

Form 6 – Notice of hearing to approve compromise or arrangement Rule 3.4

SA

TO all the creditors and members of [name of company]. TAKE NOTICE that at .......... *am/*pm on .......... , the ......................... at [address of Court] will hear an application by [name of plaintiff] seeking the approval of a compromise or arrangement between the above-named company and its *members/*creditors as proposed by a resolution passed by the meeting of the * members/*creditors of the company held on [date]. [Complete this section if applicable] The proposed compromise or arrangement as passed by the meeting was amended from the form of compromise or arrangement previously sent to you in the following respects: [Set out the details of any amendment made at the meeting] If you wish to oppose the approval of the compromise or arrangement, you must file and serve on the plaintiff a notice of appearance, in the prescribed form, together with any affidavit on which you wish to rely at the hearing. The notice of appearance and affidavit must be served on the plaintiff at its address for service at least 1 day before the date fixed for the hearing of the application. [This section must be completed] The address for service of the plaintiff is [address of plaintiff’s legal practitioner or of plaintiff]. Name of person giving notice or of person’s legal practitioner [name] * Omit if not applicable

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621

Form 7

Corporations Supplementary Rules 2015 (South Australia) (SA)

Form 7 – Affidavit accompanying statutory demand Rule 5.2

[Name of creditor(s)] Creditor(s) [Name of debtor company] Debtor company I, [name] of [address and occupation], *say on oath/*affirm [or *make oath and say/*solemnly and sincerely declare and affirm]: 1 I am [state deponent’s relationship to the creditor(s), eg, ‘the creditor’, ‘(name), one of the creditors’, ‘a director of the creditor’, ‘a director of (name), one of the creditors’] named in the statutory demand, which this affidavit accompanies, relating to the *debt/*debts owed by [name of debtor company]. 2 [If the deponent is not the creditor, state the facts entitling the deponent to make the affıdavit, eg ‘I am authorised by the creditor(s) to make this affıdavit on its/their behalf’]. 3 [State the source of the deponent’s knowledge of the matters stated in the affıdavit in relation to the debt or each of the debts, eg ‘I am the person who, on behalf of the creditor(s), had the dealings with the debtor company that gave rise to the debt’, ‘I have inspected the business records of the creditor in relation to the debtor company’s account with the creditor’]. * The debt of $[amount]/*The total $[amount] of the debts mentioned in the statutory demand is 4 due and payable by the debtor company. 5 I believe that there is no genuine dispute about the existence or amount of the *debt/*any of the debts. * Sworn/*affirmed at: [place of swearing or affırmation] on [date] OR * Sworn/*affirmed by the above-named deponent at: [place of swearing or affırmation] this .......... day of [month] [year] .................................................. Signature of deponent Before me: .................................................. Signature and designation of person before whom deponent swears or affırms affıdavit * Omit if not applicable

622

Corporations – Court Rules and Related Legislation 2017

Schedule 1 – Forms Consent of liquidator/provisional liquidator

Form 8

Form 8 – Consent of liquidator/provisional liquidator Rules 5.5, 6.1

[Title] I, [name], of [address], an official liquidator, consent to be appointed by the Court and to act as the * liquidator/*provisional liquidator of [name of company]. I am not aware of any conflict of interest or duty that would make it improper for me to act as * liquidator/*provisional liquidator of the company. EITHER I am not aware of any relevant relationship mentioned in subsection 60(2) of the Corporations Act 2001. OR I have, or have had within the preceding 24 months, the following relevant relationships mentioned in subsection 60(2) of the Corporations Act 2001: [Set out all relevant relationships] Date: .................................................. Signature of official liquidator Omit if not applicable

SA

*

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623

Form 9

Corporations Supplementary Rules 2015 (South Australia) (SA)

Form 9 – Notice of application for winding up order Rule 5.6

IN THE [name of Court] No. .......... of [year] [Name of company] ABN or ACN: [ABN or ACN of company to which proceeding relates] 1 A proceeding for the winding up of [name of company and, if applicable, the words ‘trading as’ and any trading name or names of the company] was commenced by the plaintiff, [name of plaintiff], on [date of filing of originating process] and will be heard by .................................................. at [address of Court] at .......... *am/*pm on .......... Copies of documents filed may be obtained from the plaintiff’s address for service. 2 The plaintiff’s address for service is [address of plaintiff’s legal practitioner or of plaintiff]. 3 Any person intending to appear at the hearing must file a notice of appearance, in accordance with the prescribed form, together with any affidavit on which the person intends to rely, and serve a copy of the notice and any affidavit on the plaintiff at the plaintiff’s address for service at least 3 days before the date fixed for the hearing. Date: Name of plaintiff or plaintiff’s legal practitioner: [name] * Omit if not applicable

624

Corporations – Court Rules and Related Legislation 2017

Schedule 1 – Forms Notice of application for winding up order by substituted plaintiff

Form 10

Form 10 – Notice of application for winding up order by substituted plaintiff Rule 5.10

SA

IN THE [name of Court] No. .......... of [year] [Name of company] ABN or ACN: [ABN or ACN of company to which proceeding relates] 1 [Name of substituted plaintiff], who was, by order of the [name of Court], substituted as a plaintiff, will apply to the Court at .......... *am/*pm on .......... at [address of Court] for an order that the above company be wound up. 2 The address for service of the substituted plaintiff is [address of substituted plaintiff’s legal practitioner or of substituted plaintiff]. 3 Any person intending to appear at the hearing must file a notice of appearance, in accordance with the prescribed form, together with any affidavit on which the person intends to rely, and serve a copy of the notice and any affidavit on the substituted plaintiff at its address for service at least 3 days before the date fixed for the hearing. Date: .................................................. Signature of person giving notice or of person’s legal practitioner * Omit if not applicable

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625

Form 11

Corporations Supplementary Rules 2015 (South Australia) (SA)

Form 11 – Notice of winding up order and of appointment of liquidator Rule 5.11

IN 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]

626

Corporations – Court Rules and Related Legislation 2017

Schedule 1 – Forms Notice of appointment of provisional liquidator

Form 12

Form 12 – Notice of appointment of provisional liquidator Rule 6.2

SA

IN 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], 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]

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Form 13

Corporations Supplementary Rules 2015 (South Australia) (SA)

Form 13 – Notice by creditor or contributory of objection to release of liquidator Rule 7.6

[Title] [Name of creditor/contributory] of [address of creditor/contributory], a creditor of [name of company] for $ [amount], or a contributory of [name of company] holding [number] shares in the company, objects to the grant of a release to [name of liquidator] of [address of liquidator], who is the liquidator of [name of company], on the following grounds: [set out the grounds upon which the objection is made] Date: .................................................. Signature of objector or objector’s legal practitioner Name of objector or objector’s legal practitioner: [name]. The objector’s address for service is [address of objector or objector’s legal practitioner].

628

Corporations – Court Rules and Related Legislation 2017

Schedule 1 – Forms Affidavit in support of application for order for payment of call

Form 14

Form 14 – Affidavit in support of application for order for payment of call Rule 7.8

[Title] I, [name] of [address], liquidator, *say on oath/*affirm [or *make oath and say/*solemnly and sincerely declare and affırm]: 1 I am the liquidator of [name of company] (the company). 2 On [date] I made a call of $ [amount] per share on all the contributories of the company [or specify the class of contributories on whom the call was made]. *Annexed/*Exhibited and marked A is a copy of the notice of the call. Each contributory whose name is shown in the Schedule marked B was duly served with notice of the call in the form annexed or exhibited and marked A. 3 Each contributory of the company whose name is set out in column 2 of the Schedule marked B has not paid, or caused to be paid, to me the sum specified opposite the contributory’s name in column 5 of the Schedule, which is due from that contributory under the call. 4 The amount set out opposite the name of each contributory in column 6 of the Schedule is an estimate of the amount due by that contributory in respect of the costs of applying for and giving effect to the order for payment of the call. The estimate of the amounts so due by the several contributories has been reached by apportioning the costs among the contributories who have not paid the call according to the liability of the respective contributories to contribute. 5 The amount set out opposite the name of each contributory in column 7 of the Schedule is the total of the amount due by that contributory in respect of the call as set out in column 5 and the amount due in respect of costs as set out in column 6. * Sworn/*affirmed at: [place of swearing or affırmation] on [date] OR * Sworn/*affirmed by the above-named deponent at: [place of swearing or affırmation] this .......... day of [month] [year] .................................................. Signature of deponent Before me: .................................................. Signature and designation of person before whom deponent swears or affırms affıdavit * Omit if not applicable

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Address

ScheduleB Charac- Unpaid ter in amount which of call included in the list

Proportion of costs of application

Total amount payable

SA

Number on list of Name contributories

629

Form 15

Corporations Supplementary Rules 2015 (South Australia) (SA)

Form 15 – Notice of application for leave to distribute a surplus Rule 7.9

IN THE [name of Court and address] APPLICATION NO: .......... IN THE MATTER OF [company name] ABN or ACN: [ABN or ACN of company to which proceeding relates] On .......... at .......... , the .................................................. will hear an application by the liquidator of [name of company] in Proceeding No. .......... of [year] for leave to distribute a surplus in respect of the liquidation of the company. Any person intending to appear at the hearing must file a notice of appearance, in accordance with the prescribed form, together with any affidavit on which the person intends to rely, and serve a copy of the notice and affidavit on the liquidator at the address shown below at least 3 days before the date fixed for the hearing. Name of liquidator: [name]. The liquidator’s address for service is [address]. .................................................. Signature of liquidator

630

Corporations – Court Rules and Related Legislation 2017

Schedule 1 – Forms Notice of intention to apply for remuneration

Form 16

Form 16 – Notice of intention to apply for remuneration Rules 9.1, 9.2, 9.3, 9.4, 9.5

IN THE MATTER OF [company name] ABN or ACN: [ABN or ACN of company to which proceeding relates] TO: [name and address of person to whom notice is given] TAKE NOTICE that, not less than 21 days after this notice is served on you, I, [name and address], the * receiver/*administrator/*liquidator/*provisional liquidator/*special manager of the above company, intend to apply to the Court to determine my remuneration. If you object to my application, you must, within 21 days after being served with this notice, serve on me a notice of objection stating the grounds of objection to the remuneration claimed. Date: .................................................. *

Omit if not applicable

SA

*

Signature of *receiver/*administrator/ liquidator/*provisional liquidator/*special manager

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631

Form 16A

Corporations Supplementary Rules 2015 (South Australia) (SA)

Form 16A – Notice of Intention to Apply For Review of Remuneration Rules 9.2A, 9.4A

IN THE MATTER OF [company name] ACN or ABN: [ACN or ABN of company to which proceeding relates] TO: [name and address of person to whom notice is given] TAKE NOTICE that, not less than 21 days after this notice is served on you, I, [name and address of proposed plaintiff or applicant], *[the *administrator/*liquidator of the above company,] intend to apply to the Court to review *the remuneration of/*my remuneration as the *administrator/*liquidator of the above company. The amount of the remuneration that has been determined or fixed is [state the amount]. The remuneration was determined or fixed by [state who determined or fixed the remuneration] on [state the date when the remuneration was determined or fixed]. I intend to apply for an order to*confirm/*increase/*reduce the remuneration. [Set out the grounds upon which an order or orders will be sought. If an order to increase or reduce the remuneration is sought, set out the amount by which the remuneration is sought to be increased or reduced.] If you wish to appear at the hearing of the application, in order to raise any issues before the Court, you must, within 21 days after being served with this notice, serve on me a notice under subrule *9.2A(4)/ * 9.4A(4) of the Corporations Rules 2003 (South Australia), stating your intention to appear at the hearing and setting out the issues that you seek to raise before the Court. Date: .................................................. Signature of proposed plaintiff or applicant * Omit if not applicable

632

Corporations – Court Rules and Related Legislation 2017

Schedule 1 – Forms Summons for public examination

Form 17

Form 17 – Summons for public examination Rule 11.3

[Title] A. DETAILS OF SUMMONS TO: [name and address of person to be examined] You are summoned under *section 596A/*section 596B of the Corporations Act to: (a) attend before .................................................. at [address of Court] at .......... *am/*pm on .......... , and from day to day until excused by the Court, to be examined on oath or affirmation about the examinable affairs of [name of corporation]; and (b) *to produce at the examination the following books [specify books — include in a schedule if necessary]. Date: ..................................................

SA

Registrar [or other Court offıcer] B. NOTICE TO PERSON TO BE EXAMINED The Court may order that the questions put to you and the answers given by you at the examination are to be recorded in writing and signed by you. If you do not attend the examination in accordance with this summons, without reasonable cause, you may be arrested and imprisoned without further notice. * Omit if not applicable

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633

Form 17A

Corporations Supplementary Rules 2015 (South Australia) (SA)

Form 17A – Arrest Warrant (Corporations Act 2001 (Cth) (Cth), section 486B and Corporations Rules 2003 (South Australia), rule 11A.01)

[Title] TO: The Sheriff and the Sheriff’s Officers, 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 found. 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 IS SATISFIED THAT [name of person] (i) is about to leave [*name of jurisdiction/ *Australia], in order to avoid: (A) paying money payable to the Company;* or (B) being examined about the Company’s affairs;* or (C) complying with an order of the Court, or some other obligation, under Chapter 5 of the Corporations Act 2001 (Cth) in connection with the winding up;* or (ii) has concealed or removed property of the Company in order to prevent or delay the taking of the property in the liquidator’s custody or control;* or (iii) 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 to bring*him/ * her before the Court at 1 Gouger Street, Adelaide in the State of South Australia and to keep*him/*her there pending the making of a further order by the Court. THIS WARRANT ALSO requires and authorises you, and all other persons to whom this warrant is addressed, to seize any property or books of the company in the possession of [name of person] and to deliver them into the custody of the Registrar to be kept by the Registrar until the Court makes an order for their disposal. Note: Section 489A of the Corporations Act 2001 provides that if the Court issues a section 486B warrant for a person to be arrested and brought before the Court, and the person is not in prison, then the person named in the warrant may be arrested by an officer of the police force of the State or Territory in which the person is found, the Sheriff of that State or Territory or any of the Sheriff’s officers, or a member or special member of the Australian Federal Police. Dated: [signed, Registrar] Registrar * Omit if not applicable

634

Corporations – Court Rules and Related Legislation 2017

Schedule 1 – Forms Summons for appearance in relation to registration of transfer of interests

Form 18

Form 18 – Summons for appearance in relation to registration of transfer of interests Rule 12.2

[Title] TO: [name and address] You are required to appear before the .................................................. at [address of Court] at .......... *am/*pm on .......... and show cause why the document(s) specified in the Schedule should not be *delivered up/*produced at the office of [name of company] at [address of company] within [period as ordered], as required by the attached notice. The address for service of the person applying for this summons is [address of person’s legal practitioner or of person]. Date: .................................................. Registrar [or other Court offıcer] *

Omit if not applicable

Schedule

SA

[description of document(s)]

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Form 19

Corporations Supplementary Rules 2015 (South Australia) (SA)

Form 19 – Consent to act as designated person Rule 15A.5

[Title] I, [name], of [address], an official liquidator, consent to be appointed by the Court and to act as the person designated by the Court under *article 19/*article 21 of the Model Law to distribute the assets of [name of company]. I am not aware of any conflict of interest or duty that would make it improper for me to act as the person designated by the Court. Date: .................................................. Signature of offıcial liquidator * Omit if not applicable

636

Corporations – Court Rules and Related Legislation 2017

Schedule 1 – Forms Notice of filing of application for recognition of foreign proceeding

Form 20

Form 20 – Notice of filing of application for recognition of foreign proceeding Rule 15A.6

SA

IN THE [name of Court] No. .......... of [year] [Name of company] ABN or ACN: [ABN or ACN of company to which proceeding relates] TO all the creditors of [name of company]. TAKE NOTICE that: 1. An application under the Cross-Border Insolvency Act 2008 for recognition of a foreign proceeding in relation to [name of company] was commenced by the plaintiff, [name of plaintiff], on [date of filing of originating process] and will be heard by .................................................. at [address of Court] at .......... *am/*pm on .......... . Copies of documents filed may be obtained from the plaintiff’s address for service. 2. The plaintiff’s address for service is [name and address of plaintiff’s legal practitioner or, if there is no legal practitioner, address of the plaintiff]. 3. Any person intending to appear at the hearing must file a notice of appearance, in accordance with the prescribed form, together with any affidavit on which the person intends to rely, and serve a copy of the notice and any affidavit on the plaintiff at the plaintiff’s address for service at least 3 days before the date fixed for the hearing. 4. If you are a foreign creditor you must file in the registry of the Court at the address mentioned in paragraph 1 an affidavit setting out the details of any claim, secured or unsecured, which you may have against the company above at least 3 days before the date fixed for the hearing. Date: Name of plaintiff or plaintiff’s legal practitioner: [name] * Omit if not applicable

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Form 21

Corporations Supplementary Rules 2015 (South Australia) (SA)

Form 21 – Notice of making of order under the Cross-Border Insolvency Act 2008 Rule 15A.7

IN THE [name of Court] No. .......... of [year] [Name of company] ABN or ACN: [ABN or ACN of company to which proceeding relates] TO all the creditors of [name of company]. TAKE NOTICE that: 1. On [date], the [name of Court] in Proceeding No. .......... of [year], commenced by the plaintiff [name of plaintiff], made the following orders under the Cross-Border Insolvency Act 2008 in relation to [name of company]: [insert details of order]. 2. The plaintiff’s address for service is [name and address of plaintiff’s legal practitioner or, if there is no legal practitioner, address of the plaintiff]. 3. The name and address of the foreign representative is [insert name and address]. 4. The name and address of the person entrusted with distribution of the company’s assets is [insert name and address].* Date: Name of plaintiff or plaintiff’s legal practitioner: [name] * Omit if not applicable

638

Corporations – Court Rules and Related Legislation 2017

Schedule 1 – Forms Notice of dismissal/withdrawal of application for recognition of foreign proceeding Form 22

Form 22 – Notice of dismissal or withdrawal of application for recognition of foreign proceeding Rule 15A.7

SA

IN THE [name of Court] No. .......... of [year] [Name of company] ABN or ACN: [ABN or ACN of company to which proceeding relates] TO all the creditors of [name of company]. TAKE NOTICE that the application under the Cross-Border Insolvency Act 2008 for recognition of a foreign proceeding in relation to [name of company] commenced by the plaintiff, [name of plaintiff], on [date of filing of originating process] was dismissed*/withdrawn* on [date of dismissal/withdrawal] Date: Name of person giving notice or of person’s legal practitioner [name] * Omit if not applicable

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639

Form 23

Corporations Supplementary Rules 2015 (South Australia) (SA)

Form 23 – Notice of filing of application to modify or terminate an order for recognition or other relief Rule 15A.9

IN THE [name of Court] No. .......... of [year] [Name of company] ABN or ACN: [ABN or ACN of company to which proceeding relates] TO all the creditors of [name of company]. TAKE NOTICE that: * 1. An application under the Cross-Border Insolvency Act 2008 for an order * modifying/*terminating an order for recognition of a foreign proceeding in relation to [name of company] was filed by the applicant, [name of applicant], on [date of filing of interlocutory process] and will be heard by .................................................. at [address of Court] at .......... * am/*pm on .......... . Copies of documents filed may be obtained from the applicant’s address for service. * 1. An application under the Cross-Border Insolvency Act 2008 for an order * modifying/*terminating relief granted under *article 19/*article 21 of the Model Law in relation to [name of company] was filed by the applicant, [name of applicant], on [date of filing of interlocutory process] and will be heard by .................................................. at [address of Court] at .......... *am/*pm on .......... . Copies of documents filed may be obtained from the applicant’s address for service. 2. The applicant’s address for service is [name and address of applicant’s legal practitioner or of applicant]. 3. Any person intending to appear at the hearing must file a notice of appearance (if the person has not already done so), in accordance with the prescribed form, together with any affidavit on which the person intends to rely, and serve a copy of the notice (if applicable) and any affidavit on the applicant at the applicant’s address for service at least 3 days before the date fixed for the hearing. Date: Name of applicant or applicant’s legal practitioner: [name] * Omit if not applicable

640

Corporations – Court Rules and Related Legislation 2017

Schedule 1 – Forms Schedule of costs of the plaintiff for adjudication pursuant to the order of judge Form 24

Form 24 – Schedule of costs of the plaintiff for adjudication pursuant to the order of judge Supplementary Rule 5.4

SA

SCHEDULE OF COSTS OF THE PLAINTIFF FOR ADJUDICATION PURSUANT TO THE ORDER OF JUDGE ......................... MADE ON .......... 20 .......... . [Front Sheet in Accordance with Form 1] Lump sum costs and disbursements claimed pursuant to Supplementary rule 5.1(b) “$ Y” Add adjudication Fee Allowed at ======= Allocatur The bill of costs of the plaintiff (or as the case may be) has been adjudicated pursuant to the order made herein on .......... 20 .......... and has been allowed at .................................................. $ .......... . Date .......... 20 .......... . Registrar THIS SCHEDULE OF COSTS is lodged by ......................... lawyers for the ......................... whose address for service is .................................................. , Phone

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641

SA PRACTICE DIRECTIONS

SA

EXAMPLE EDITOR’S NOTE The Supreme Court has advised that “all practice directions made before 1 October 2014 are superseded by the Supreme Court Civil Supplementary Rules 2014”: www.courts.sa.gov.au. The Supreme Court Civil Rules 2006 and the Supreme Court Civil Supplementary Rules 2014 can be found at: www.courts.sa.gov.au.

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643

Tasmania Supreme Court (Corporations) Rules 2008 (Tas) ........................................................................... 647 Tas Practice Directions ................................................................................................................... 653

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645

SUPREME COURT (CORPORATIONS) RULES 2008 (TAS) 1 2 3 4 5 6

Short title......................................................................................................................................... 649 Commencement.............................................................................................................................. 649 Interpretation................................................................................................................................... 649 Rules adopted................................................................................................................................. 649 Form for initiating proceeding..........................................................................................................649 Legislation rescinded.......................................................................................................................650

Tas

SCHEDULE 1 – LEGISLATION RESCINDED.......................................................................................... 651

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647

Supreme Court (Corporations) Rules 2008 (Tas) Table of Amending Legislation Principal legislation

Number

Supreme Court (Corporations) Rules 2008

125 of 2008

Date of gazettal/ assent/registration

22 Oct 2008

There have been no further amendments to this legislation. Date of gazettal/ Amending legislation Number assent/registration

648

Date of commencement

Date of commencement

Corporations – Court Rules and Related Legislation 2017

Supreme Court (Corporations) Rules 2008 (Tas)

r5

Editor’s note: From 22 October 2008 the Federal Court (Corporations Rules 2000 (Cth) have been adopted as the Corporations Rules for the Tasmanian Supreme Court with the modifications set out in r 4 of these rules and requirements as to originating process set out in r 5. The Federal Court (Corporations Rules 2000 (Cth) are reproduced at p. 1. 1 Short title These Rules of Court may be cited as the Supreme Court (Corporations) Rules 2008. 2 Commencement These Rules of Court take effect on the day on which their making is notified in the Gazette. 3 Interpretation In these Rules of Court – Commonwealth Rules means the Federal Court (Corporations) Rules 2000 made and in force for the time being under the Federal Court of Australia Act 1976 of the Commonwealth; Court means the Supreme Court of Tasmania. 4 Rules adopted The Commonwealth Rules are adopted as Rules of Court with the following modifications: (a) a reference to “Court” in the Commonwealth Rules is to be read as a reference to the Supreme Court of Tasmania; (b) all words in rule 2.6 are omitted and substituted by the following words: “An affidavit must be in a form that complies with – (i) the rules of the Court; or (ii) the rules of the Supreme Court of the State (if any) or Territory (if any) where the affidavit was sworn or affirmed; or (iii) the rules of the Federal Court of Australia.”; (c) the reference to Order 50 in rule 12.1A of the Commonwealth Rules is to be read as a reference to Division 3 of Part 27 of the Supreme Court Rules 2000; (d) the reference to Order 50 in rule 15.1 of the Commonwealth Rules is to be read as a reference to Division 3 of Part 27 of the Supreme Court Rules 2000; (e) Division 16 of and Schedule 2 to the Commonwealth Rules do not apply; (f) all words in the Note in Form 2 of Schedule 1 to the Commonwealth Rules are omitted and substituted by the following words: “Note A defendant that is a corporation may be represented only by a legal practitioner.”; (g) all words in the Note in Form 3 of Schedule 1 to the Commonwealth Rules are omitted and substituted by the following words: “Note A respondent that is a corporation may be represented only by a legal practitioner.”; (h) all words in the Note in Form 4 of Schedule 1 to the Commonwealth Rules are omitted and substituted by the following words: “Note A defendant or respondent that is a corporation may be represented only by a legal practitioner.” 5 Form for initiating proceeding

(2) If – (a) in a proceeding, the Federal Court of Australia has made an order for the winding-up of a company; and (b) the order is an ineffective judgment within the meaning of the Federal Courts (State Jurisdiction) Act 1999 – an application under the Federal Courts (State Jurisdiction) Act 1999 in relation to the winding-up of the company may be made by filing an interlocutory process. (3) An interlocutory process filed under subrule (2) must state the proceeding number of the Federal Court proceeding. ©

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Tas

(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.

r6

Supreme Court (Corporations) Rules 2008 (Tas)

6 Legislation rescinded The legislation specified in Schedule 1 is rescinded.

650

Corporations – Court Rules and Related Legislation 2017

Schedule 1 – Legislation rescinded Schedule 1

SCHEDULE 1 – LEGISLATION RESCINDED Rule 6

Tas

Supreme Court (Corporations) Rules 2000 (No. 20 of 2000) Rules of the Supreme Court (Corporations Law) Amendment Rules 2000 (No. 82 of 2000) Rules of the Supreme Court (Corporations Law) Amendment Rules 2001 (No. 44 of 2001) Rules of the Supreme Court (Corporations Law) Amendment Rules (No. 2) 2001 (No. 69 of 2001) Rules of the Supreme Court (Corporations Law) Amendment Rules 2004 (No. 55 of 2004) Supreme Court (Corporations) Amendment Rules 2004 (No. 119 of 2004) Supreme Court (Corporations) Amendment Rules 2005 (No. 72 of 2005)

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TAS PRACTICE DIRECTIONS

Tas

Guidelines – Disclosure by insolvency practitioners of fees to be charged: Practice Direction 13 of 2005 ...................................................................................................... [TASPD.10] Examinations under Corporations Act 2001, ss 596A and 596B: Practice Direction 15 of 2005 ...............................................................................................................................[TASPD.20] Freezing orders (“Mareva orders” or “asset preservation orders”): Practice Direction 3 of 2012 ...............................................................................................................................[TASPD.30] Search Orders (also known as “Anton Piller Orders”): Practice Direction 4 of 2006 ........ [TASPD.40] Cross-border insolvency – Cooperation with foreign courts or foreign representatives: Practice Direction 2 of 2009 .......................................................................................... [TASPD.50] Schemes of arrangement, s 411 Corporations Act 2001 (Cth): Practice Direction 1 of 2010 ...............................................................................................................................[TASPD.60] Expert opinion evidence –- Expert evidence code of conduct: Practice Direction 1 of 2016 ........................................................................................................................................[TASPD.70] Citation of judgments: Practice Direction 3 of 2014 ........................................................... [TASPD.80] Corporations Act 2001 – Proceedings: Circular 4 of 2015 ................................................ [TASPD.90]

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Tas Practice Directions [TASPD.10]

[TASPD.10]

Practice Direction 13 of 2005

1 February 2005 The following Practice Direction is published by direction of the Chief Justice, the Honourable Mr Justice Underwood AO. This Practice Direction replaces 7/2004. GUIDELINES – DISCLOSURE BY INSOLVENCY PRACTITIONERS OF FEES TO BE CHARGED 1. The Insolvency Practitioners Association of Australia no longer publishes a Scale of Rates in respect of fees. 2. Where application is made to the Court for an order that a company be wound up or for an official liquidator to be appointed as a provisional liquidator of a company, an official liquidator must consent in writing to be appointed: see Corporations Act 2001 (Cth) (“the Act”), subsection 532(9); Supreme Court (Corporations) Rules 2000 (“the Rules”), subrule 43(1). The consent must be in accordance with Form 8 to the Rules: subrules 36(2); 43(2). Form 8 requires disclosure of the hourly rates currently (as at the signing of the consent) charged in respect of work done as a liquidator or provisional liquidator (as the case may be) by the person signing the consent, and by that person’s partners and employees who may perform work in the administration in question. 3. The provisions referred to in 2 above have no application, however, to appointments of persons as external administrators: • otherwise than by the Court; or • by the Court otherwise than as liquidator or as liquidator provisionally. Moreover, even in the case of appointments as liquidator or as liquidator provisionally, the provisions referred to in 2 above do not touch on changes in the hourly rates after the signing of the Form 8 consent. 4. Various provisions of the Act empower the Court, in certain circumstances, to determine or review the remuneration of insolvency practitioners when they are filling the office of various forms of external administrator: see sections 425; 449E; 473(2), (3), (5), (6); 504. 5. With the exception of Form 8, where it is applicable, the provisions referred to in 2 above do not indicate a standard of disclosure of fees to be charged which the Court might regard as appropriate in any situation in which it may be relevant for the Court to take into account whether an insolvency practitioner has followed a practice of making adequate disclosure of such fees. 6. The guidelines in 7 and 8 below are intended to fill that gap. Those guidelines are not, however, intended to limit the judicial discretion available in any particular case, or to require that non-observance of the guidelines be taken into account where that would not be relevant to the exercise of a judicial discretion. 7. All external administrators (including persons appointed as liquidators or as liquidators provisionally) should, in their first report to creditors: • disclose the hourly rates of fees which are being charged by them and by any of their partners and employees who may work in the administration; and • give their best estimate of the cost of the administration to completion or to a specified milestone identified in the report. 8. If, at any time after an external administrator has reported in accordance with 7, the hourly rates are to change, or the administrator has reason to believe that the estimate given to creditors is no longer reliable, he or she should report to creditors, disclosing the new hourly rates and giving a revised estimate. Note:

654

These guidelines are not intended: • to prevent an external administrator from changing hourly rates or revising estimates if he or she is otherwise lawfully permitted to do so; or • to authorise an external administrator to change hourly rates or revise estimates if he or she is not otherwise lawfully permitted to do so.

Corporations – Court Rules and Related Legislation 2017

[TASPD.20] [TASPD.20]

Tas Practice Directions Practice Direction 15 of 2005

21 April 2005 The following Practice Direction is published by direction of the Chief Justice, the Honourable Justice Underwood AO.

Tas

EXAMINATIONS UNDER CORPORATIONS ACT 2001, ss 596A AND 596B The Corporations Act 2001, ss 596A and 596B, empower the Court to summon persons for examination about the affairs of a corporation. In future, on applications for the issue of a summons under either of these provisions, subject to being satisfied that the issue of a summons is appropriate, the Court will ordinarily make an order under s 597(15) for an examination to be conducted before the Magistrates Court of Tasmania. An order for a summons returnable before a judge of this Court will ordinarily only be made if the Court is satisfied that there are circumstances that make it inappropriate for an examination to be conducted before a magistrate, and more appropriate for an examination to be conducted before a judge.

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655

Tas Practice Directions [TASPD.30]

[TASPD.30]

Practice Direction 3 of 2012

22 June 2012 The following Practice Direction is published by direction of the Chief Justice, the Honourable Justice Crawford. FREEZING ORDERS (ALSO KNOWN AS “MAREVA ORDERS” or “ASSET PRESERVATION ORDERS”) 1. This Practice Direction supplements Part 36 Division 1A relating to Freezing orders (also known as (also known as “Mareva orders” after Mareva Compania Naviera SA v International Bulkcarriers SA (The Mareva) [1975] 2 Lloyd’s Rep 509, or “asset preservation orders”). 2. This Practice Direction addresses (among other things) the Court’s usual practice relating to the making of a freezing order and the usual terms of such an order. While a standard practice has benefits, this Practice Direction and the example form of order annexed to it do not, and cannot, limit the judicial discretion to make such order as is appropriate in the circumstances of the particular case. 3. Words and expressions in this Practice Direction that are defined in Part 36 Division 1A have the meanings given to them in that Part. 4. An example form of ex parte freezing order is annexed to this Practice Direction. The example form may be adapted to meet the circumstances of the particular case. It may be adapted for an inter partes freezing order as indicated in the footnotes to the example form (the footnotes and references to footnotes should not form part of the order as made). The example form contains provisions aimed at achieving the permissible objectives of the order consistently with the proper protection of the respondent and third parties. 5. The purpose of a freezing order is to prevent frustration or abuse of the process of the Court, not to provide security in respect of a judgment or order. 6. A freezing order should be viewed as an extraordinary interim remedy because it can restrict the right to deal with assets even before judgment, and is commonly granted ex parte. 7. The respondent is often the person said to be liable on a substantive cause of action of the applicant. However, the respondent may also be a third party, in the sense of a person who has possession, custody or control, or even ownership, of assets which he or she may be obliged ultimately to disgorge to help satisfy a judgment against another person. Subrule 5(5) addresses the minimum requirements that must ordinarily be satisfied on an application for a freezing order against such a third party before the discretion is enlivened. The third party will not necessarily be a party to the substantive proceeding, (see Cardile v LED Builders Pty Ltd (1999) 198 CLR 380) but will be a respondent to the application for the freezing or ancillary order. Where a freezing order against a third party seeks only to freeze the assets of another person in the third party’s possession, custody or control (but not ownership), the example form will require adaptation. In particular, the references to “your assets” and “in your name” should be changed to refer to the other person’s assets or name (e.g. “John Smith’s assets”, “in John Smith’s name”). 8. A freezing or ancillary order may be limited to assets in Australia or in a defined part of Australia, or may extend to assets anywhere in the world, and may cover all assets without limitation, assets of a particular class, or specific assets (such as the amounts standing to the credit of identified bank accounts). 9. The duration of an ex parte freezing order should be limited to a period terminating on the return date of the application, which should be as early as practicable (usually not more than a day or two) after the order is made, when the respondent will have the opportunity to be heard. The applicant will then bear the onus of satisfying the Court that the order should be continued or renewed. 10. A freezing order should reserve liberty for the respondent to apply on short notice. An application by the respondent to discharge or vary a freezing order will normally be treated by the Court as urgent. 11. The value of the assets covered by a freezing order should not exceed the likely maximum amount of the applicant’s claim, including interest and costs. Sometimes it may not be possible to satisfy this principle (for example, an employer may discover that an employee has been making fraudulent misappropriations, but does not know how much has been misappropriated at the time of the discovery and at the time of the approach to the Court). 656

Corporations – Court Rules and Related Legislation 2017

[TASPD.30]

Tas Practice Directions

12. The order should exclude dealings by the respondent with its assets for legitimate purposes, in particular: (a) payment of ordinary living expenses; (b) payment of reasonable legal expenses; (c) dealings and dispositions in the ordinary and proper course of the respondent’s business, including paying business expenses bona fide and properly incurred; and (d) dealings and dispositions in the discharge of obligations bona fide and properly incurred under a contract entered into before the order was made. 13. Where a freezing order extends to assets outside Australia, the order should provide for the protection of persons outside Australia and third parties. Such provisions are included in the example form of freezing order. 14. The Court may make ancillary orders. The most common example of an ancillary order is an order for disclosure of assets. The annexed example form provides for such an order and for the privilege against self-incrimination. 15. The rules of court confirm that certain restrictions expressed in The Siskina [1979] AC 210 do not apply in this jurisdiction. First, the Court may make a freezing order before a cause of action has accrued (a “prospective” cause of action). Secondly, the Court may make a free-standing freezing order in aid of foreign proceedings in prescribed circumstances. Thirdly, where there are assets in Australia, service out of Australia is permitted under a new ‘long arm’ service rule. 16. As a condition of the making of a freezing order, the Court will normally require appropriate undertakings by the applicant to the Court, including the usual undertaking as to damages. 17. If it is demonstrated that the applicant has or may have insufficient assets within the jurisdiction of the Court to provide substance for the usual undertaking as to damages, the applicant may be required to support the undertaking by providing security. There is provision for such security in the example form of freezing order. 18. The order to be served should be endorsed with a notice which meets the requirements of Rule 883. 19. An applicant for an ex parte freezing order is under a duty to make full and frank disclosure of all material facts to the Court. This includes disclosure of possible defences known to the applicant and of any information which may cast doubt on the applicant’s ability to meet the usual undertaking as to damages from assets within Australia. 20. The affidavits relied on in support of an application for a freezing or ancillary order should, if possible, address the following: (a) information about the judgment that has been obtained, or, if no judgment has been obtained, the following information about the cause of action: (i) the basis of the claim for substantive relief; (ii) the amount of the claim; and (iii) if the application is made without notice to the respondent, the applicant’s knowledge of any possible defence; (b) the nature and value of the respondent’s assets, so far as they are known to the applicant, within and outside Australia; (c) the matters referred to in Rule 937E; and (d) the identity of any person, other than the respondent, who, the applicant believes, may be affected by the order, and how that person may be affected by it.

PENAL NOTICE TO: [name of person against whom the order is made] IF YOU: (A) REFUSE OR NEGLECT TO DO ANY ACT WITHIN THE TIME SPECIFIEDIN THIS ORDER FOR THE DOING OF THE ACT; OR (B) DISOBEY THE ORDER BY DOING AN ACT WHICH THE ORDER REQUIRESYOU TO ABSTAIN FROM DOING, ©

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Example form of ex parte Freezing Order [Title of Proceeding]

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YOU WILL BE LIABLE TO IMPRISONMENT, SEQUESTRATION OF PROPERTY OR OTHER PUNISHMENT. ANY OTHER PERSON WHO KNOWS OF THIS ORDER AND DOES ANYTHING WHICH HELPS OR PERMITS YOU TO BREACH THE TERMS OF THIS ORDER MAY BE SIMILARLY PUNISHED. TO: [name of person against whom the order is made] This is a “freezing order” made against you on [insert date] by Justice [insert name of Judge] at a hearing without notice to you after the Court was given the undertakings set out in Schedule A to this order and after the Court read the affidavits listed in Schedule B to this order.1 THE COURT ORDERS: INTRODUCTION 1. (a) The application for this order is made returnable immediately. (b) The time for service of the application, supporting affidavits and originating process is abridged and service is to be effected by [insert time and date].2 2. Subject to the next paragraph, this order has effect up to and including [insert date] (“the Return Date”). On the Return Date at [insert time] am/pm there will be a further hearing in respect of this order before Justice [insert name of Judge].3 3. Anyone served with or notified of this order, including you, may apply to the Court at any time to vary or discharge this order or so much of it as affects the person served or notified. 4. In this order: (a) “applicant”, if there is more than one applicant, includes all the applicants; (b) “you”, where there is more than one of you, includes all of you and includes you if you are a corporation; (c) “third party” means a person other than you and the applicant; (d) “unencumbered value” means value free of mortgages, charges, liens or other encumbrances. 5. (a) If you are ordered to do something, you must do it by yourself or through directors, officers, partners, employees, agents or others acting on your behalf or on your instructions. (b) If you are ordered not to do something, you must not do it yourself or through directors, officers, partners, employees, agents or others acting on your behalf or on your instructions or with your encouragement or in any other way. FREEZING OF ASSETS [For order limited to assets in Australia] 6. (a) You must not remove from Australia or in any way dispose of, deal with or diminish the value of any of your assets in Australia (“Australian assets”) up to the unencumbered value of AUD$ (“the Relevant Amount”). (b) If the unencumbered value of your Australian assets exceeds the Relevant Amount, you may remove any of those assets from Australia or dispose of or deal with them or diminish their value, so long as the total unencumbered value of your Australian assets still exceeds the Relevant Amount. [If the Court makes a worldwide order, the following additional paragraph (c) also applies.] (c) If the unencumbered value of your Australian assets is less than the Relevant Amount, and you have assets outside Australia (“ex-Australian assets”): (i) You must not dispose of, deal with or diminish the value of any of your Australian assets and ex-Australian assets up to the unencumbered value of your Australian and ex-Australian assets of the Relevant Amount; and (ii) You may dispose of, deal with or diminish the value of any of your ex-Australian assets, so long as the unencumbered value of your Australian assets and ex-Australian assets still exceeds the Relevant Amount. [For either form of order] 7. For the purposes of this order, (1) your assets include: 658

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Tas Practice Directions (a) all your assets, whether or not they are in your name and whether they are solely or co-owned; (b) any asset which you have the power, directly or indirectly, to dispose of or deal with as if it were your own (you are to be regarded as having such power if a third party holds or controls the asset in accordance with your direct or indirect instructions); and (c) the following assets in particular: (i) the property known as [title/address] or, if it has been sold, the net proceeds of the sale; (ii) the assets of your business [known as [name]] [carried on at [address]] or, if any or all of the assets have been sold, the net proceeds of the sale; and (iii) any money in account [numbered account number] [in the name of] at [name of bank and name and address of branch]. (2) the value of your assets is the value of the interest you have individually in your assets.

PROVISION OF INFORMATION4 8. Subject to paragraph 9, you must: (a) at or before the further hearing on the Return Date (or within such further time as the Court may allow) to the best of your ability inform the applicant in writing of all your assets in [Australia] [world wide], giving their value, location and details (including any mortgages, charges or other encumbrances to which they are subject) and the extent of your interest in the assets; (b) within [ ] working days after being served with this order, swear and serve on the applicant an affidavit setting out the above information. 9. (a) This paragraph (9) applies if you are not a corporation and you wish to object that compliance with paragraph 8 may tend to incriminate you or make you liable to a civil penalty; (b) This paragraph (9) also applies if you are a corporation and all of the persons who are able to comply with paragraph 8 on your behalf and with whom you have been able to communicate, wish to object that compliance may tend to incriminate them respectively or make them respectively liable to a civil penalty; (c) You must, at or before the further hearing on the return date (or within such further time as the Court may allow), notify the applicant in writing that you or all the persons referred to in (b) wish to take such objection and identify the extent of the objection; (d) If you give such notice, you need comply with paragraph 8 only to the extent, if any, that it is possible to do so without disclosure of the material in respect of which the objection is taken; and (e) If you give such notice, the Court may give directions as to the filing and service of affidavits setting out such matters as you or the persons referred to in (b) wish to place before the Court in support of the objection. EXCEPTIONS TO THIS ORDER 10. This order does not prohibit you from: (a) paying [up to $........ a week/day on] [your ordinary] living expenses; (b) paying [$........ on] [your reasonable] legal expenses;

(d) in relation to matters not falling within (a), (b) or (c), dealing with or disposing of any of your assets in discharging obligations bona fide and properly incurred under a contract entered into before this order was made, provided that before doing so you give the applicant, if possible, at least two working days written notice of the particulars of the obligation. ©

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(c) dealing with or disposing of any of your assets in the ordinary and proper course of your business, including paying business expenses bona fide and properly incurred; and

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11. You and the applicant may agree in writing that the exceptions in the preceding paragraph are to be varied. In that case the applicant or you must as soon as practicable file with the Court and serve on the other a minute of a proposed consent order recording the variation signed by or on behalf of the applicant and you, and the Court may order that the exceptions are varied accordingly. 12. (a) This order will cease to have effect if you: (i) pay the sum of $........ into Court; or (ii) pay that sum into a joint bank account in the name of your solicitor and the solicitor for the applicant as agreed in writing between them; or (iii) provide security in that sum by a method agreed in writing with the applicant to be held subject to the order of the Court. (b) Any such payment and any such security will not provide the applicant with any priority over your other creditors in the event of your insolvency. (c) If this order ceases to have effect pursuant (a), you must as soon as practicable file with the Court and serve on the applicant notice of that fact. COSTS 13. The costs of this application are reserved to the judge hearing the application on the Return Date. PERSONS OTHER THAN THE APPLICANT AND RESPONDENT 14. Set off by banks This order does not prevent any bank from exercising any right of set off it has in respect of any facility which it gave you before it was notified of this order. 15. Bank withdrawals by the respondent No bank need inquire as to the application or proposed application of any money withdrawn by you if the withdrawal appears to be permitted by this order. [For world wide order] 16. Persons outside Australia (a) Except as provided in subparagraph (b) below, the terms of this order do not affect or concern anyone outside Australia. (b) The terms of this order will affect the following persons outside Australia: (i) you and your directors, officers, employees and agents (except banks and financial institutions); (ii) any person (including a bank or financial institution) who: (A) is subject to the jurisdiction of this Court; and (B) has been given written notice of this order, or has actual knowledge of the substance of the order and of its requirements; and (C) is able to prevent or impede acts or omissions outside Australia which constitute or assist in a disobedience of the terms of this order; and (iii) any other person (including a bank of financial institution), only to the extent that this order is declared enforceable by or is enforced by a court in a country or state that has jurisdiction over that person or over any of that person’s assets. [For world wide order] 17. Assets located outside Australia Nothing in this order shall, in respect of assets located outside Australia, prevent any third party from complying or acting in conformity with what it reasonably believes to be its bona fide and properly incurred legal obligations, whether contractual or pursuant to a court order or otherwise, under the law of the country or state in which those assets are situated or under the proper law of any contract between a third party and you, provided that in the case of any future order of a court of that country or state made on your or the third party’s application, reasonable written notice of the making of the application is given to the applicant. SCHEDULE A UNDERTAKINGS GIVEN TO THE COURT BY THE APPLICANT 660

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(1) The applicant undertakes to submit to such order (if any) as the Court may consider to be just for the payment of compensation (to be assessed by the Court or as it may direct) to any person (whether or not a party) affected by the operation of the order. (2) As soon as practicable, the applicant will file and serve upon the respondent copies of: (a) this order; (b) the application for this order for hearing on the return date; (c) the following material in so far as it was relied on by the applicant at the hearing when the order was made: (i) affidavits (or draft affidavits); (ii) exhibits capable of being copied; (iii) any written submission; and (iv) any other document that was provided to the Court. (d) a transcript, or, if none is available, a note, of any exclusively oral allegation of fact that was made and of any exclusively oral submission that was put, to the Court; (e) the originating process, or, if none was filed, any draft originating process produced to the Court. (3) As soon as practicable, the applicant will cause anyone notified of this order to be given a copy of it. (4) The applicant will pay the reasonable costs of anyone other than the respondent which have been incurred as a result of this order, including the costs of finding out whether that person holds any of the respondent’s assets. (5) If this order ceases to have effect5 the applicant will promptly take all reasonable steps to inform in writing anyone to who has been notified of this order, or who he has reasonable grounds for supposing may act upon this order, that it has ceased to have effect. (6) The applicant will not, without leave of the Court, use any information obtained as a result of this order for the purpose of any civil or criminal proceedings, either in or outside Australia, other than this proceeding. (7) The applicant will not, without leave of the Court, seek to enforce this order in any country outside Australia or seek in any country outside Australia an order of a similar nature or an order conferring a charge or other security against the respondent or the respondent’s assets. [(8) The applicant will: (a) on or before [date] cause an irrevocable undertaking to pay in the sum of $ to be issued by a bank with a place of business within Australia, in respect of any order the court may make pursuant to undertaking (1) above; and (b) immediately upon issue of the irrevocable undertaking, cause a copy of it to be served on the respondent.]6 SCHEDULE B7 AFFIDAVITS RELIED ON Name of DeponentDate affidavit made (1) (2) (3) NAME AND ADDRESS OF APPLICANT’S LEGAL REPRESENTATIVES The applicant’s legal representatives are:

1 The words “without notice to you” and “and after the Court has read the affıdavits listed in Schedule B to this order” are appropriate only in the case of an ex parte order. 2 Paragraph 1 is appropriate only in the case of an ex parte order. 3 Paragraph 2 is appropriate only in the case of an ex parte order. 4 See Practice Direction paragraph 14. 5 For example, if the respondent pays money into Court or provides security, as provided for in paragraph 12 of this Order. ©

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[Name, address, reference, fax and telephone numbers both in and out of offıce hours and email]

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6 See Practice Direction paragraph 17. 7 Schedule B is appropriate only in the case of an ex parte order.

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SEARCH ORDERS (ALSO KNOWN AS “ANTON PILLER ORDERS”) 1. This Practice Note supplements Part 36 Division 1B relating to search orders (also known as Anton Piller orders, after Anton Piller KG v Manufacturing Processes Ltd [1976] Ch 55). 2. This Practice Note addresses (among other things) the Court’s usual practice relating to the making of a search order and the usual terms of such an order. While a standard practice has benefits, this Practice Note and the example form of order annexed to it do not, and can not, limit the judicial discretion to make such order as is appropriate in the circumstances of the particular case. 3. Words and expressions in this Practice Note that are defined in Part 36 Division 1B have the meanings given to them in that Order. 4. Ordinarily, a search order is made ex parte and compels the respondent to permit persons specified in the order (“search party”) to enter premises and to search for, inspect, copy and remove the things described in the order. The order is designed to preserve important evidence pending the hearing and determination of the applicant’s claim in a proceeding brought or to be brought by the applicant against the respondent or against another person. The order is an extraordinary remedy in that it is intrusive, potentially disruptive, and made ex parte and prior to judgment. 5. An example form of ex parte search order is annexed to this Practice Note (the footnotes and references to footnotes in the example form should not form part of the order as made). The example form may be adapted to meet the circumstances of the particular case. It contains provisions which are aimed at achieving the permissible objectives of a search order, while minimising the potential for disruption or damage to the respondent and for abuse of the Court’s process. 6. The search party must include an independent solicitor who will supervise the search and a solicitor or solicitors representing the applicant. It may be necessary that it include other persons, such as an independent computer expert, and a person able to identify things being searched for if difficulties of identification may arise. Ordinarily, the search party should not include the applicant or the applicant’s directors, officers, employees or partners or any other person associated with the applicant (other than the applicant’s solicitor). 7. The order should be clear about the maximum number of persons permitted to be in the search party. The number of people in the search party should be as small as is reasonably practicable. The example form contemplates that they will be named in the order. This is desirable but if it is not possible the order should at least give a description of the class of person who will be there (e.g. “one solicitor employed by A, B and Co”). 8. The affidavits in support of an application for a search order should include the following information: (a) a description of the things or the categories of things, in relation to which the order is sought; (b) the address or location of any premises in relation to which the order is sought and whether they are private or business premises; (c) why the order is sought, including why there is a real possibility that the things to be searched for will be destroyed or otherwise made unavailable for use in evidence before the court unless the order is made; (d) the prejudice, loss or damage likely to be suffered by the applicant if the order is not made; (e) the name, address, firm, and commercial litigation experience of an independent solicitor, who consents to being appointed to serve the order, supervise its execution, and do such other things as the Court considers appropriate; and (f) if the premises to be searched are or include residential premises, whether or not the applicant believes that the only occupant of the premises is likely to be: (i) a female; or (ii) a child under the age of 18; or ©

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19 July 2006 The following Practice Direction is published by direction of the Chief Justice, the Honourable Justice Underwood AO.

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9.

10. 11.

12.

13.

14. 15.

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(iii) any other person (“vulnerable person”) that a reasonable person would consider to be in a position of vulnerability because of that person’s age, mental capacity, infirmity or English language ability; or (iv) any combination of (i), (ii) and (iii), and any one or more of such persons. If it is envisaged that specialised computer expertise may be required to search the respondent’s computers for documents, or if the respondent’s computers are to be imaged (i.e. hard drives are to be copied wholesale, thereby reproducing documents referred to in the order and other documents indiscriminately), special provision will need to be made, and an independent computer specialist will need to be appointed who should be required to give undertakings to the Court. The applicant’s solicitor must undertake to the Court to pay the reasonable costs and disbursements of the independent solicitor and of any independent computer expert. The independent solicitor is an important safeguard against abuse of the order. The independent solicitor must not be a member or employee of the applicant’s firm of solicitors. The independent solicitor should be a solicitor experienced in commercial litigation, preferably in the execution of search orders. The Law Society/Institute has been requested to maintain a list of solicitors who have indicated willingness to be appointed as an independent solicitor for the purpose of executing search orders, but it is not only persons on such a list who may be appointed. The responsibilities of the independent solicitor are important and ordinarily include the following: (a) serve the order, the application for it, the affidavits relied on in support of the application, and the originating process; (b) offer to explain, and, if the offer is accepted, explain the terms of the search order to the respondent; (c) explain to the respondent that he or she has the right to obtain legal advice; (d) supervise the carrying out of the order; (e) before removing things from the premises, make a list of them, allow the respondent a reasonable opportunity to check the correctness of the list, sign the list, and provide the parties with a copy of the list; (f) take custody of all things removed from the premises until further order of the Court; (g) if the independent solicitor considers it necessary to remove a computer from the premises for safekeeping or for the purpose of copying its contents electronically or printing out information in documentary form, remove the computer from the premises for that purpose, and return the computer to the premises within any time prescribed by the order together with a list of any documents that have been copied or printed out; (h) submit a written report to the Court within the time prescribed by the order as to the execution of the order; and (i) attend the hearing on the return date of the application, and have available to be brought to the Court all things that were removed from the premises. On the return date the independent solicitor may be required to release material in his or her custody which has been removed from the respondent’s premises or to provide information to the Court, and may raise any issue before the Court as to execution of the order. Ordinarily, the applicant is not permitted, without the leave of the Court, to inspect things removed from the premises or copies of them, or to be given any information about them by members of the search party. Ordinarily, a search order should be served between 9:00am and 2:00pm on a business day in order to permit the respondent more readily to obtain legal advice. However, there may be circumstances in which such a restriction is not appropriate. A search order must not be executed at the same time as the execution of a search warrant by the police or by a regulatory authority. If the premises are or include residential premises and the applicant is aware that when service of the order is effected the only occupant of the residential premises is likely to be any one or more of a female, a child under the age of 18, or a vulnerable person, the Court will give consideration to whether: Corporations – Court Rules and Related Legislation 2017

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17.

18.

19.

20.

21. 22.

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(a) if the occupants are likely to include a female or child, the independent solicitor should be a woman or the search party should otherwise include a woman; and (b) if the occupants are likely to include a vulnerable person, the search party should include a person capable of addressing the relevant vulnerability. Any period during which the respondent is to be restrained from informing any other person (other than for the purposes of obtaining legal advice) of the existence of the search order should be as short as possible and not extend beyond 4:30pm on the Return Date. At the inter partes hearing of the application on the return date, the Court will consider the following issues: (a) what is to happen to any things removed from the premises or to any copies which have been made; (b) how any commercial confidentiality of the respondent is to be maintained; (c) any claim of privilege by the respondent; (d) any application by a party; and (e) any issue raised by the independent solicitor. Appropriate undertakings to the Court will be required of the applicant, the applicant’s solicitor and the independent solicitor, as conditions of the making of the search order. The undertakings required of the applicant will normally include the Court’s usual undertaking as to damages. The applicant’s solicitor’s undertaking includes an undertaking not to disclose to the applicant any information that the solicitor has acquired during or as a result of execution of the search order, without the leave of the Court. Release from this undertaking in whole or in part may be sought on the return date. If it is demonstrated that the applicant has or may have insufficient assets within the jurisdiction of the Court to provide substance for the usual undertaking as to damages, the applicant may be required to provide security for the due performance of that undertaking. The security may, for example, take the form of a bank’s irrevocable undertaking to pay or a payment into Court. The example form of search order contains provision for an irrevocable undertaking. An applicant ex parte for a search order is under a duty to the Court to make full and frank disclosure of all material facts to the Court. This includes disclosure of possible defences known to the applicant and of any financial information which may cast doubt on the applicant’s ability to meet the usual undertaking as to damages from assets within Australia. The order to be served should be endorsed with a notice which meets the requirements of Rule 883. A search order is subject to the Court’s adjudication of any claim of privilege against self-incrimination. The privilege against self-incrimination is available to individuals but not to corporations. The Court will not make an order reducing or limiting that privilege in circumstances where the legislature has not indicated that it may do so.

PENAL NOTICE TO: [name of person against whom the order is made] IF YOU (BEING THE PERSON BOUND BY THIS ORDER): (A) REFUSE OR NEGLECT TO DO ANY ACT WITHIN THE TIME SPECIFIEDIN THE ORDER FOR THE DOING OF THE ACT; OR (B) DISOBEY THE ORDER BY DOING AN ACT WHICH THE ORDER REQUIRESYOU TO ABSTAIN FROM DOING, YOU WILL BE LIABLE TO IMPRISONMENT, SEQUESTRATION OF PROPERTY OR OTHER PUNISHMENT. ANY OTHER PERSON WHO KNOWS OF THIS ORDER AND DOES ANYTHING WHICH HELPS OR PERMITS YOU TO BREACH THE TERMS OF THIS ORDER MAY BE SIMILARLY PUNISHED. TO: [name of person against whom the order is made] This is a “search order” made against you on [insert date] by Justice [insert name of Judge] at a hearing without notice to you after the Court was given the undertakings set out in Schedule B to this order and after the Court read the affidavits listed in Schedule C to this order. ©

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Example Form of Search Order [Title of Proceeding]

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THE COURT ORDERS: INTRODUCTION 1. (a) the application for this order is made returnable immediately. (b) the time for service of the application, supporting affidavits and originating process is abridged and service is to be effected by [insert time and date]. 2. Subject to the next paragraph, this order has effect up to and including [insert date] (“the Return Date”). On the Return Date at [insert time] am/pm there will be a further hearing in respect of this order before the Justice [insert name of Judge]. 3. You may apply to the Court at any time to vary or discharge this order; including, if necessary, by telephone to the judge referred to in the immediately preceding paragraph (phone No. ) or to the Duty Judge (phone No. ). 4. This order may be served only between [insert time] am/pm and [insert time] am/pm [on a business day].1 5. In this order: (a) “applicant” means the person who applied for this order, and if there is more than one applicant, includes all the applicants. (b) “independent computer expert” means the person (if any) identified as the independent computer expert in the search party referred to in Schedule A to this order. (c) “independent solicitor” means the person identified as the independent solicitor in the search party referred to in Schedule A to this order. (d) “listed thing” means any thing referred to in Schedule A to this order. (e) “premises” means the premises and any of the premises identified in Schedule A to this order, including any vehicles and vessels that are under the respondent’s control on or about the premises or that are otherwise identified in Schedule A. (f) “search party” means the persons identified or described as constituting the search party in Schedule A to this order. (g) “thing” includes a document. (h) “you”, where there is more than one of you, includes all of you and includes you if you are a corporation. (i) any requirement that something be done in your presence means: (A) in the presence of you or of one of the persons described in (6) below; or (B) if there is more than one of you, in the presence of each of you, or, in relation to each of you, in the presence of one of the persons described in (6) below. 6. This order must be complied with by you by: (a) yourself; or (b) any director, officer, partner, employee or agent of yourself; or (c) any other person having responsible control of the premises. 7. This order must be served by, and be executed under the supervision of, the independent solicitor. ENTRY, SEARCH AND REMOVAL 8. Subject to paragraphs 10 to 20 below, upon service of this order you must permit members of the search party to enter the premises so that they can carry out the search and other activities referred to in this order. 9. Having permitted members of the search party to enter the premises, you must: (a) permit them to leave and re-enter the premises on the same and the following day until the search and other activities referred to in this order are complete; (b) permit them to search for and inspect the listed things and to make or obtain a copy, photograph, film, sample, test or other record of the listed things; (c) disclose to them the whereabouts of all the listed things in the respondent’s possession, custody or power, whether at the premises or otherwise; (d) disclose to them the whereabouts of all computers, computer disks and electronic information storage devices or systems at the premises in which any documents among the listed things are or may be stored, located or recorded and cause and permit those documents to be printed out; 666

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RESTRICTIONS ON ENTRY, SEARCH AND REMOVAL 10. This order may not be executed at the same time as a search warrant (or similar process) is executed by the police or by a regulatory authority. 11. You are not required to permit anyone to enter the premises until: (a) the independent solicitor serves you with copies of this order and any affidavits referred to in Schedule C (confidential exhibits, if any, need not be served until further order of the Court); and (b) you are given an opportunity to read this order and, if you so request, the independent solicitor explains the terms of this order to you. 12. Before permitting entry to the premises by anyone other than the independent solicitor, you, for a time (not exceeding two hours from the time of service or such longer period as the independent solicitor may permit): (a) may seek legal advice; (b) may ask the Court to vary or discharge this order; (c) (provided you are not a corporation) may gather together any things which you believe may tend to incriminate you or make you liable to a civil penalty and hand them to the independent solicitor in (if you wish) a sealed envelope or container; and (d) may gather together any documents that passed between you and your lawyers for the purpose of obtaining legal advice or that are otherwise subject to legal professional privilege or client legal privilege, and hand them to the independent solicitor in (if you wish) a sealed envelope or container. 13. Subject to paragraph 22 below, the independent solicitor must not inspect or permit to be inspected by anyone, including the applicant and the applicant’s solicitors, any thing handed to the independent solicitor in accordance with subparagraphs 12(c) and (d) above and the independent solicitor must deliver it to the Court at or prior to the hearing on the Return Date. 14. During any period referred to in para 12 above, you must: (a) inform and keep the independent solicitor informed of the steps being taken; (b) permit the independent solicitor to enter the premises but not to start the search; (c) not disturb or remove any listed things; and (d) comply with the terms of paragraphs 25 and 26 below. 15. Any thing the subject of a dispute as to whether it is a listed thing must promptly be handed by you to the independent solicitor for safekeeping pending resolution of the dispute or further order of the Court. 16. Before removing any listed things from the premises (other than things referred to in the immediately preceding paragraph), the independent solicitor must supply a list of them to you, give you a reasonable time to check the correctness of the list, and give you and the applicant’s solicitors a copy of the list signed by the independent solicitor. ©

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(e) do all things necessary to enable them to access the listed things, including opening or providing keys to locks and enabling them to access and operate computers and providing them with all necessary passwords; (f) permit the independent solicitor to remove from the premises into the independent solicitor’s custody: (i) the listed things or things which reasonably appear to the independent solicitor to be the listed things and any things the subject of dispute as to whether they are listed things; and (ii) the copies, photographs, films, samples, tests, other records and printed out documents referred to above; and (g) permit the independent computer expert (if there is one) to search any computer and make a copy or digital copy of any computer hard drive and permit the independent computer expert (if any) or the independent solicitor to remove any computer hard drive and computer from the premises as set out in paragraphs 20 and 21 below.

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17. The premises must not be searched, and things must not be removed from the premises, except in the presence of you or of a person who appears to the independent solicitor to be your director, officer, partner, employee, agent or other person acting on your behalf or on your instructions. 18. If the independent solicitor is satisfied that full compliance with the immediately preceding paragraph is not reasonably practicable, the independent solicitor may permit the search to proceed and the listed things to be removed without full compliance. 19. The applicant’s solicitors and the independent solicitor must not allow the applicant in person to inspect or have copies of any thing removed from the premises nor communicate to the applicant information about its contents or about anything observed at the premises until 4:30pm on the return date or other time fixed by further order of the Court. COMPUTERS 20. (a) If it is expected that a computer will be searched, the search party must include a computer expert who is independent of the applicant and of the applicant’s solicitors (“the independent computer expert”). (b) Any search of a computer must be carried out only by the independent computer expert. (c) The independent computer expert may make a copy or digital copy of the computer hard drive and remove that copy or digital copy from the premises. (d) The independent computer expert may search the computer or the copy or digital copy of the computer hard drive at the premises and/or away from the premises for listed things and may copy the listed things electronically or in hard copy or both. (e) The independent computer expert must as soon as practicable and, in any event, prior to the hearing on the return date, deliver the copy or digital copy of the computer hard drive and all electronic and hard copies of listed things to the independent solicitor, together with a report of what the independent computer expert has done including a list of such electronic and hard copies. (f) The independent solicitor must, at or prior to the hearing on the return date, deliver to the Court all things received from the independent computer expert and serve a copy of the latter’s report on the parties. (g) If no independent computer expert has been appointed, but the independent solicitor considers it necessary to remove a computer from the premises for safekeeping or for the purpose of copying its contents electronically and printing out information in documentary form, the independent solicitor may remove the computer from the premises for that purpose and cause that purpose to be achieved. 21. (a) Unless you are a corporation, you are entitled to object to paragraphs 20(b) to (f) on the ground that they might tend to incriminate you or make you liable to a civil penalty. (b) You are also entitled to object to paragraphs 20(b) to (f) on the ground that the computer contains material that is otherwise privileged. (c) Upon communicating any objection under para (a) or (b) to the independent solicitor, paragraphs 20(b) to (f) become inoperative to the extent that you have objected to them. In that event, if the applicant’s solicitor communicates to the independent solicitor that the applicant proposes to contest the objection: (i) the independent computer expert shall remove the computer hard drive (or, if that is not practicable, the computer) from the premises and deliver it into the custody of the independent solicitor who shall deliver it to the Court at or prior to the Return Date. (ii) on the Return Date or on another date, the applicant may apply to the Court for orders to similar effect as paragraphs 20(b) to (f) and if you object, the Court may adjudicate upon your objection. INSPECTION 22. Prior to the Return Date, you or your solicitor or representative shall be entitled, in the presence of the independent solicitor, to inspect any thing removed from the premises and to: (a) make copies of the same; and 668

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Tas Practice Directions (b) provide the independent solicitor with a signed list of things which are claimed to be privileged or confidential and which you claim ought not to be inspected by the applicant.

PROVISION OF INFORMATION 23. Subject to paragraph 24 below, you must: (a) at or before the further hearing on the Return Date (or within such further time as the Court may allow) to the best of your ability inform the applicant in writing as to: (i) the location of the listed things; (ii) the name and address of everyone who has supplied you, or offered to supply you, with any listed thing; (iii) the name and address of every person to whom you have supplied, or offered to supply, any listed thing; and (iv) details of the dates and quantities of every such supply and offer. (b) within [ ] working days after being served with this order, make and serve on the applicant an affidavit setting out the above information. 24. (a) This paragraph (24) applies if you are not a corporation and you wish to object that compliance with paragraph 23 may tend to incriminate you or make you liable to a civil penalty. (b) This paragraph (24) also applies if you are a corporation and all of the persons who are able to comply with paragraph 23 on your behalf and with whom you have been able to communicate, wish to object that compliance may tend to incriminate them or make them liable to a civil penalty. (c) You must, at or before the further hearing on the Return Date (or within such further time as the Court may allow), notify the applicant in writing that you or all the persons referred to in (b) wish to take such objection and identify the extent of the objection. (d) If you give such notice, you need comply with paragraph 23 only to the extent, if any, that it is possible to do so without disclosure of the material in respect of which the objection is taken. (e) If you give such notice, the Court may give directions as to the filing and service of affidavits setting out such matters as you or the persons referred to in (b) wish to place before the Court in support of the objection. PROHIBITED ACTS 25. Except for the sole purpose of obtaining legal advice, you must not, until 4:30pm on the Return Date, directly or indirectly inform any person of this proceeding or of the contents of this order, or tell any person that a proceeding has been or may be brought against you by the applicant. 26. Until 4:30pm on the Return Date you must not destroy, tamper with, cancel or part with possession, power, custody or control of the listed things otherwise than in accordance with the terms of this order or further order of the Court. COSTS 27. The costs of this application are reserved to the Judge hearing the application on the Return Date. SCHEDULE A Premises The premises located at [insert address or addresses] including any vehicle or vehicles under the respondent’s control on or about those premises. Listed Things 1 2 Tas

3 Search Party 1. The independent solicitor: [insert name and address] 2. The applicant’s solicitor or solicitors: (a) [insert name and address] [or description e.g. a partner or employed solicitor of A, B and Co]. ©

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(b) [insert name and address] [or description e.g. a partner or employed solicitor of A, B and Co]. (c) [insert name and address] [or description e.g. a partner or employed solicitor of A, B and Co]. 3. Other members of the search party: (a) [insert name and address] in the capacity of [e.g. an independent computer expert] (b) [insert name and address] in the capacity of [insert capacity] SCHEDULE B UNDERTAKINGS GIVEN TO THE COURT Undertakings given to the Court by the applicant (1) The applicant undertakes to submit to such order (if any) as the Court may consider to be just for the payment of compensation (to be assessed by the Court or as it may direct) to any person (whether or not a party) affected by the operation of the order. (2) The applicant will not, without leave of the Court, use any information, document or thing obtained as a result of the execution of this order for the purpose of any civil or criminal proceeding, either within or outside Australia, other than this proceeding. (3) The applicant will not inform any other person of the existence of this proceeding except for the purposes of this proceeding until after 4:30pm on the Return Date. (4) If the applicant has not already done so, as soon as practicable the applicant will file a notice of motion for hearing on the Return Date and an originating process [in the form of the draft produced to the Court]. [(5) The applicant will insure the things removed from the premises against loss or damage for an amount that reasonably appears to the applicant to be their full value.2] [(6) The applicant will3: (a) on or before [insert date] cause a written irrevocable undertaking to pay in the sum of $[insert amount] to be issued from a bank with a place of business within Australia, in respect of any order the Court may make referred to in the undertaking as to damages contained in paragraph (1) above; and (b) immediately upon issue of the irrevocable undertaking to pay, cause a copy of it to be served on the respondent.] Undertakings given to the Court by the applicant’s solicitor (1) The applicant’s solicitor will pay the reasonable costs and disbursements of the independent solicitor and of any independent computer expert. (2) The applicant’s solicitor will provide to the independent solicitor for service on the respondent copies of the following documents: (a) this order; (b) the application for this order for hearing on the Return Date; (c) the following material in so far as it was relied on by the applicant at the hearing when the order was made: (i) affidavits (or draft affidavits) (ii) exhibits capable of being copied (other than confidential exhibits); (iii) any written submission; and (iv) any other document that was provided to the Court. (d) a transcript, or, if none is available, a note, of any exclusively oral allegation of fact that was made and of any exclusively oral submission that was put, to the Court; and (e) the originating process, or, if none was filed, any draft originating process produced to the Court. (3) The applicant’s solicitor will answer to the best of his or her ability any question as to whether a particular thing is a listed thing. (4) The applicant’s solicitor will use his or her best endeavours to act in conformity with the order and to ensure that the order is executed in a courteous and orderly manner and in a manner that minimises disruption to the respondent. 670

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(5) The applicant’s solicitor will not, without leave of the Court, use any information, document or thing obtained as a result of the execution of this order for the purpose of any civil or criminal proceeding, either within or outside Australia, other than this proceeding. (6) The applicant’s solicitor will not inform any other person of the existence of this proceeding except for the purposes of this proceeding until after 4:30pm on the Return Date. (7) The applicant’s solicitor will not disclose to the applicant any information that the solicitor acquires during or as a result of execution of the search order, without the leave of the Court. (8) The applicant’s solicitor will use best endeavours to follow all directions of the independent solicitor. Undertakings given to the Court by the independent solicitor (1) The independent solicitor will use his or her best endeavours to serve the respondent with this order and the other documents referred to in undertaking (2) of the above undertakings by the applicant’s solicitor or solicitors. (2) Before entering the premises, the independent solicitor will: (a) offer to explain the terms and effect of the search order to the person served with the order and, if the offer is accepted, do so; and (b) inform the respondent of his or her right to take legal advice. (3) Subject to undertaking (4) below, the independent solicitor will retain custody of all things removed from the premises by the independent solicitor pursuant to this order until delivery to the Court or further order of the Court. (4) At or before the hearing on the Return Date, the independent solicitor will provide a written report on the carrying out of the order to the Court and provide a copy to the applicant’s solicitors and to the respondent or the respondent’s solicitors. The report will attach a copy of any list made pursuant to the order and a copy of any report received from an independent computer expert. (5) The independent solicitor will use best endeavours to ensure that members of the search party act in conformity with the order and that the order is executed in a courteous and orderly manner and in a manner that minimises disruption to the respondent, and will give such reasonable directions to other members of the search party as are necessary or convenient for the execution of the order. (6) The independent solicitor will not, without leave of the Court, use any information, document or thing obtained as a result of the execution of this order for the purpose of any civil or criminal proceeding, either within or outside Australia, other than this proceeding. (7) The independent solicitor will not inform any other person of the existence of this proceeding except for the purposes of this proceeding until after 4:30pm on the Return Date. Undertakings given to the Court by the independent computer expert (1) The independent computer expert will use his or her best endeavours to act in conformity with the order and to ensure that the order, so far as it concerns the independent computer expert, is executed in a courteous and orderly manner and in a manner that minimises disruption to the respondent. (2) The independent computer expert will not, without leave of the Court, use any information, document or thing obtained as a result of the execution of this order for the purpose of any civil or criminal proceeding, either within or outside Australia, other than this proceeding. (3) The independent computer expert will not inform any other person of the existence of this proceeding except for the purposes of this proceeding until after 4:30pm on the Return Date. (4) The independent computer expert will use best endeavours to follow all directions of the independent solicitor.

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SCHEDULE C AFFIDAVITS RELIED ON Name of DeponentDate affidavit made (1) (2) (3) NAME AND ADDRESS OF APPLICANT’S SOLICITORS ©

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The Applicant’s solicitors are: [Insert name, address, reference, fax and telephone numbers both in and out offıce hours]. 1 Normally the order should be served between 9:00 am and 2:00 pm on a business day to enable the respondent more readily to obtain legal advice. 2 Depending on the nature of the things likely to be removed and their likely value, and the likely particular risks of their being lost or damaged, this undertaking or a more elaborate one may be required. 3 See Practice Note paragraph 19.

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Tas Practice Directions Practice Direction 2 of 2009

27 February 2009 The following Practice Direction is published by direction of the Chief Justice, the Honourable Justice Crawford. Cross-Border Insolvency – Cooperation with Foreign Courts or Foreign Representatives The Cross-Border Insolvency Act 2008 (Cth) (the Act) provides in s 6 that, subject to the Act, the Model Law on Cross-Border Insolvency of the United Nations Commission on International Trade Law (UNCITRAL) (the Model Law), with the modifications set out in Pt 2 of the Act, has the force of law in Australia. The English text of the Model Law is set out in Schedule 1 of the Act. Chapter IV of the Model Law, comprising Articles 25–27, provides for cooperation with foreign courts and foreign representatives in the cross-border insolvency matters that are referred to in Article 1 of the Model Law. Articles 25 and 27 of the Model Law, as modified by s 11 of the Act, and as presently relevant, provide: Article 25 Cooperation and direct communication between the Supreme Court of Tasmania and foreign courts or foreign representatives 1. In matters referred to in article 1, the court shall cooperate to the maximum extent possible with foreign courts or foreign representatives, either directly or through a registered liquidator (within the meaning of Section 9 of the Corporations Act 2001). 2. The court is entitled to communicate directly with, or to request information or assistance directly from, foreign courts or foreign representatives. Article 27 Forms of cooperation Cooperation referred to in Article 25 may be implemented by any appropriate means, including: (a) Appointment of a person or body to act at the direction of the court; (b) Communication of information by any means considered appropriate by the court; (c) Coordination of the administration and supervision of the debtor’s assets and affairs; (d) Approval or implementation by courts of agreements concerning the coordination of proceedings; (e) Coordination of concurrent proceedings regarding the same debtor. The form or forms of cooperation appropriate to each particular case will depend on the circumstances of that case. As experience and jurisprudence in this area develop, it may be possible for later versions of this Practice Note to lay down certain parameters or guidelines.

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Cooperation between the Court and a foreign court or foreign representative under Article 25 will generally occur within a framework or protocol that has previously been approved by the Court, and is known to the parties, in the particular proceeding. Ordinarily it will be the parties who will draft the framework or protocol. In doing so, the parties should have regard to: • the Guidelines Applicable to Court-to-Court Communication in Cross-Border Cases published by The American Law Institute and The International Insolvency Association (available at http:// www.ali.org/doc/Guidelines.pdf); and • the Draft UNCITRAL Notes on cooperation, communication and coordination in cross-border insolvency proceedings (available at http://www.uncitral.org/uncitral/en/commission/working_ groups/5Insolvency.html, by clicking the link under the heading “35th Session, 17-21 November 2008, Vienna” (last item).

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Practice Direction 1 of 2010

30 August 2010 The following Practice Direction is published by direction of the Chief Justice, the Honourable Justice Crawford. This Practice Direction is equivalent to directions in the Federal Court and in other jurisdictions. SCHEMES OF ARRANGEMENT SECTION 411 CORPORATIONS ACT 2001 (Cwth) When making an order under subsection 411(1) of the Corporations Act 2001 (Cth) the Court will require that the explanatory statement or a document accompanying the explanatory statement, prominently displays a notice in the following form or to the following effect: IMPORTANT NOTICE ASSOCIATED WITH COURT ORDER UNDER SUBSECTION 411(1) OF CORPORATIONS ACT 2001 (Cth) The fact that under subsection 411(1) of the Corporations Act 2001 (Cth) the Court has ordered that a meeting be convened and has approved the explanatory statement required to accompany the notices of the meeting does not mean that the Court: (a) has formed any view as to the merits of the proposed scheme or as to how members/creditors should vote (on this matter members/creditors must reach their own decision); or (b) has prepared, or is responsible for the content of, the explanatory statement.

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Tas Practice Directions Practice Direction 1 of 2016

5 January 2016 The following Practice Direction is published by direction of the Chief Justice, the Honourable Justice Alan Blow OAM. Expert opinion evidence – Expert evidence code of conduct On 6 January 2016 amendments to rules 514, 515 and 516 Supreme Court Rules 2000 will commence. The amended rules refer to an Expert Witness Code of Conduct which has been developed by the Harmonisation of Rules Committee, a committee established by the Council of Chief Justices. The Council of Chief Justices has approved the Code for adoption as a uniform code. The Code contains requirements similar, but not identical, to those previously imposed by the rules. The amended rules require every expert witness to comply with the Code unless the Court or a judge orders or directs otherwise. The Expert Witness Code of Conduct is attached. Expert witness code of conduct Application of Code 1 This Code of Conduct applies to any expert witness engaged or appointed: (a) to provide an expert’s report for use as evidence in proceedings or proposed proceedings; or (b) to give opinion evidence in proceedings or proposed proceedings.

Content of Report 3 Every report prepared by an expert witness for use in Court shall clearly state the opinion or opinions of the expert and shall state, specify or provide – (a) the name and address of the expert; (b) an acknowledgment that the expert has read this code and agrees to be bound by it; (c) the qualifications of the expert to prepare the report; (d) the assumptions and material facts on which each opinion expressed in the report is based (a letter of instruction may be annexed); (e) the reasons for and any literature or other materials utilised in support of each such opinion; (f) (if applicable) that a particular question, issue or matter falls outside the expert’s field of expertise; (g) any examinations, tests or other investigations on which the expert has relied, identifying the person who carried them out and that person’s qualifications; (h) the extent to which any opinion which the expert has expressed involves the acceptance of another person’s opinion, the identification of that other person and the opinion expressed by that other person; (i) a declaration that the expert has made all the inquiries which the expert believes are desirable and appropriate (save for any matters identified explicitly in the report), and that no matters of significance which the expert regards as relevant have, to the knowledge of the expert, been withheld from the Court; (j) any qualification of an opinion expressed in the report without which the report is or may be incomplete or inaccurate; (k) whether any opinion expressed in the report is not a concluded opinion because of insufficient research or insufficient data or for any other reason; and (l) where the report is lengthy or complex, a brief summary of the report at the beginning of the report. Supplementary Report Following Change of Opinion ©

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General Duties to the Court 2 An expert witness is not an advocate for a party and has a paramount duty, overriding any duty to the party to the proceedings or other person retaining the expert witness, to assist the Court impartially on matters relevant to the area of expertise of the witness.

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[TASPD.70]

4 Where an expert witness has provided to a party (or that party’s legal representative) a report for use in Court, and the expert thereafter changes his or her opinion on a material matter, the expert shall forthwith provide to the party (or that party’s legal representative) a supplementary report which shall state, specify or provide the information referred to in paragraphs (a), (d), (e), (g), (h), (i), (j), (k) and (1) of clause 3 of this code and, if applicable, paragraph (f) of that clause. 5 In any subsequent report (whether prepared in accordance with clause 4 or not) the expert may refer to material contained in the earlier report without repeating it. Duty to Comply with the Court’s Directions 6 If directed to do so by t he Court, an expert witness shall – (a) confer with any other expert witness; (b) provide the Court with a joint report specifying (as the case requires) matters agreed and matters not agreed and the reasons for the experts not agreeing; and (c) abide in a timely way by any direction of the Court. Conferences of Experts 7 Each expert witness shall – (a) exercise his or her independent judgment in relation to every conference in which the expert participates pursuant to a direction of the Court and in relation to each report thereafter provided, and shall not act on any instruction or request to withhold or avoid agreement; and (b) endeavour to reach agreement with the other expert witness (or witnesses) on any issue in dispute between them, or failing agreement, endeavour to identify and clarify the basis of disagreement on the issues which are in dispute.

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Tas Practice Directions Practice Direction 3 of 2014

21 February 2014 The following Practice Direction is published by direction of the Chief Justice, the Honourable Justice A M Blow OAM. This Practice Direction replaces Practice Direction 4/2009. Citation of judgments 1 This Practice Direction concerns the citation of judgments in lists of authorities and written or oral submissions. Purpose 2 The purpose of the Practice Direction is: (a) to ensure that the Court is provided with or referred to the most authoritative and functional versions of the relevant authorities; and (b) to encourage parties to limit their citation of authority to those judgments which will assist the Court materially in resolving the real matters in dispute. Citation 3 When citing a judgment to the Court: (a) A citation of the judgment from a set of authorised reports is to be preferred. The authorised reports are listed in clause 6 below. If a party does not have access to the authorised report of a case, the citation in the authorised reports should be found and provided to the Court. If a reference is provided to the medium neutral AustLII citation, the citation for the authorised reports should also be provided, as follows: Jackson v Building Appeal Board [2010] TASSC 29; (2010) 20 Tas R 1. (b) If no authorised report is available, a citation of the judgment from another set of accredited reports is to be preferred. (c) If no such reports are readily available, an unreported version of the judgment may be cited. (d) The medium neutral citation of a judgment (if any) should be provided. (e) The particular passages in the judgment which are relied upon should be identified. If a judgment has been published in an authorised report with consecutively numbered paragraphs, it should be referred to by paragraph numbers rather than page numbers. (This applies to the Commonwealth Law Reports from 1998 onwards, and the Tasmanian Reports from 1999 onwards.) Otherwise page numbers should be used. (f) Reference should also be made to any subsequent judgment which has doubted, or not followed, the cited judgment in a relevant respect.

Authorised Reports 6 A set of authorised reports is one which has been approved, by a relevant court, to publish the authoritative version of its judgments. For judgments of Australian courts, the authorised reports are currently: • Commonwealth Law Reports (High Court of Australia) • Tasmanian Reports (Supreme Court of Tasmania) • Australian Capital Territory Law Reports (Supreme Court of the ACT) • Federal Court Reports (Federal Court of Australia) • New South Wales Law Reports (Supreme Court of NSW) ©

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Selectivity 4 In selecting the authorities to be cited to the Court, parties are encouraged: (a) to limit their citation to the authorities which are necessary to establish the principles or propositions which are relied upon; (b) to avoid citing authorities which merely rephrase, illustrate or apply those principles or propositions in a way which does not assist the Court materially in resolving the real matters in dispute. 5 An unreported judgment should not usually be cited unless it contains a statement of legal principle, or a material application of principle, which is not found in reported authority.

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[TASPD.80]

• Northern Territory Law Reports (Supreme Court of NT) • Queensland Reports (Supreme Court of Queensland) • South Australian State Reports (Supreme Court of SA) • Victorian Reports (Supreme Court of Victoria) • Western Australian Reports (Supreme Court of WA). 7 Citations for authorised reports of judgments can be obtained from LawCite (AustLII), Case Base (Lexis Nexis), and Jade BarNet. Accredited Reports 8 A set of accredited reports is any set of published reports or notes of judgments which is accepted by the Court as providing a reliable record of the relevant judgment. Tasmanian unreported judgments: 9 For judgments delivered prior to 2000, the numbering system used by AustLII may not correspond with the systems used by this Court when the judgment was delivered. For example, a judgment which was handed down in December 1997 as number 158/1997 was given the medium neutral citation [1997] TASSC 161 when made available on AustLII. 10 To assist in citing judgments in electronic form, unreported judgments of this Court, whether at first instance or appellate level in the Full Court or Court of Criminal Appeal, should be cited in the following form: Smith v Brown [1997] TASSC 161 11 If the medium neutral reference is not the same as the Court’s original reference, the Court’s original reference should be included. For example: Smith v Brown [1997] TASSC 161 (Judgment No 158/1997) 12 If a judgment has consecutively numbered paragraphs, it should be referred to by paragraph numbers rather than page numbers. The use of square brackets enclosing the paragraph number is a convenient method of distinguishing references to paragraphs from page references. The citation of a specific paragraph may be in the following form: Smith v Brown [1997] TASSC 161 at [15] Full Court and Court of Criminal Appeal judgments: 13 From 1 January 2010, these judgments have been published using citations which identify the relevant court. For example, Full Court: Smith v Jones [2010] TASFC 1 Court of Criminal Appeal: State of Tasmania v Smith [2010] TASCCA 1

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Tas Practice Directions Practice Direction 4 of 2015

7 May 2015 Corporations Act 2001 – Proceedings Practitioners are advised that proceedings under the Corporations Act 2001 will be listed for hearing on the first return date, not for directions or mention. Proceedings under the Corporations Act 2001 are commenced by “originating process” pursuant to rule 2.2(1)(a) of the Federal Court (Corporations) Rules 2000. The Federal Court (Corporations) Rules 2000 are incorporated into the Supreme Court (Corporations) Rules 2008 by operation of rule 4. Rule 2.3 of the Federal Court (Corporations) Rules 2000 requires that such originating process must be endorsed with a date for “hearing”. Adjournment of the hearing on the first return will not be granted as a matter of course. For example, on a winding-up in insolvency application based on a defendant company’s failure to comply with a statutory demand the company is presumed to be insolvent and a court will not readily grant an adjournment allowing the company to continue to trade unless it is established by evidence that there are good prospects of recovery and the future solvency of the company is demonstrated. See Commonwealth of Australia v Maclean Bay Pty Ltd [2013] FCA 86. A party seeking directions or orders prior to the hearing may apply by letter to the Registrar submitted in sufficient time to enable the application for directions to be heard before the return of the originating process. Note : Practice Direction 1/2015 (Case Management) does not apply to proceedings under the Corporations Act 2001 to which the Supreme Court (Corporations) Rules 2008 apply. J A CONNOLLY

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REGISTRAR

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Australian Capital Territory Court Procedures Rules 2006 (ACT) [Extracts] ............................................................................. 683 ACT Practice Directions .................................................................................................................. 753

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COURT PROCEDURES RULES 2006 (ACT) – (EXTRACTS) Part 3.4 – Corporations Act and ASIC Act 3270 Rules for proceedings under Corporations Act or ASIC Act........................................................... 687

SCHEDULE 5 – JURISDICTION OF REGISTRAR Part 5.2 – Jurisdiction related to Corporations Act exercisable by registrar of Supreme Court..... 688 Part 5.3 – Jurisdiction related to ASIC Act exercisable by registrar of Supreme Court................. 694 SCHEDULE 6 – CORPORATIONS RULES Part 6.1 – Corporations Rules–preliminary 1.1 1.2 1.3 1.4 1.5 1.6 1.7 1.8 1.9 1.10

Name of rules.................................................................................................................................. 695 Application of sch 6 and provisions of these rules......................................................................... 695 Terms used in Corporations Act...................................................................................................... 695 Definitions—sch 6........................................................................................................................... 696 References to rules......................................................................................................................... 696 Substantial compliance with forms..................................................................................................696 Court’s power to give directions......................................................................................................696 Calculation of time...........................................................................................................................696 Extending and shortening of time................................................................................................... 697

Part 6.2 – Proceedings generally 2.1 2.2 2.3 2.4 2.4A 2.5 2.6 2.7 2.8 2.9 2.10 2.11 2.12 2.13 2.14 2.15

Title of documents in a proceeding.................................................................................................697 Originating process and interlocutory process................................................................................697 Setting of hearing............................................................................................................................ 697 Supporting affidavits........................................................................................................................ 697 Application for order setting aside statutory demand (Corporations Act, s 459G)......................... 698 Affidavits made by creditors............................................................................................................ 698 Form of affidavits.............................................................................................................................698 Service of originating process or interlocutory process and supporting affidavit........................... 698 Notice of certain applications to be given to ASIC......................................................................... 699 Notice of appearance (Corporations Act, s 465C).......................................................................... 699 Intervention in proceeding by ASIC (Corporations Act, s 1330)..................................................... 700 Publication of notices [Repealed]....................................................................................................700 Proof of publication......................................................................................................................... 700 Leave to creditor, contributory or officer to be heard......................................................................700 Inquiry in relation to corporation’s debts etc................................................................................... 700 Meetings ordered by the court........................................................................................................ 700

Part 6.3 – Compromises and arrangements in relation to Part 5.1 bodies 3.1 3.2 3.3 3.4 3.5

Application—pt 1.3.......................................................................................................................... 701 Nomination of chairperson for meeting........................................................................................... 701 Order for meetings to identify proposed scheme............................................................................701 Notice of hearing (Corporations Act, s 411(4) and s 413(1))..........................................................701 Copy of order approving compromise or arrangement to be lodged with ASIC............................ 702

Part 6.4 – Receivers and other controllers of corporation property (Corporations Act, pt 5.2) 4.1

Inquiry into conduct of controller (Corporations Act, s 423)........................................................... 702

Part 6.5 – Winding-up proceedings (including oppression proceedings where winding-up is sought) 5.1 5.2 5.3 5.4 5.5 5.6 5.7 5.8 ©

Application—pt 6.5.......................................................................................................................... 702 Affidavit accompanying statutory demand (Corporations Act, s 459E(3))...................................... 702 Application for leave to apply for winding-up in insolvency (Corporations Act, s 459P(2))............702 Affidavit in support of application for winding-up (Corporations Act, s 459P, s 462, s 464).......... 702 Consent of liquidator (Corporations Act, s 532(9))......................................................................... 703 Notice of application for winding-up................................................................................................ 703 Applicant to make copies of documents available..........................................................................703 Discontinuance of application for winding-up..................................................................................703 2017 THOMSON REUTERS

683

Court Procedures Rules 2006 (ACT) – (Extracts) 5.9 5.10 5.11

Appearance before registrar........................................................................................................... 703 Order substituting plaintiff in application for winding-up (Corporations Act, s 465B)..................... 703 Notice of winding-up order and appointment of liquidator.............................................................. 703

Part 6.6 – Provisional liquidators (Corporations Act, pt 5.4B) 6.1 6.2

Appointment of provisional liquidator (Corporations Act, s 472).....................................................704 Notice of appointment of provisional liquidator............................................................................... 704

Part 6.7 – Liquidators 7.1 7.2 7.3 7.4 7.5 7.6 7.7 7.8 7.9 7.10 7.11

Resignation of liquidator (Corporations Act, s 473(1))....................................................................704 Filling vacancy in office of liquidator (Corporations Act, s 473(7), s 502)...................................... 704 Report to liquidator as to company’s affairs (Corporations Act, s 475).......................................... 705 .........................................................................................................................................................705 Liquidator to file certificate and copy of settled list of contributories (Corporations Act, s 478) Release of liquidator and deregistration of company (Corporations Act, s 480(c) and (d))...........705 Objection to release of liquidator.................................................................................................... 706 Report on accounts of liquidator (Corporations Act, s 481)............................................................706 Application for payment of call (Corporations Act, s 483(3)(b))......................................................707 Distribution of surplus by liquidator with special leave of the court (Corporations Act, s 488(2)).......................................................................................................................................... 707 Powers delegated to liquidator by the court (Corporations Act, s 488)..........................................707 Inquiry into conduct of liquidator (Corporations Act, s 536(1) and (2)).......................................... 707

Part 6.8 – Special managers (Corporations Act, pt 5.4B) 8.1 8.2 8.3

Application for appointment of special manager (Corporations Act, s 484)................................... 708 Security given by special manager (Corporations Act, s 484)........................................................708 Special manager’s receipts and payments (Corporations Act, s 484)............................................708

Part 6.9 – Remuneration of office-holders 9.1 9.2 9.2A 9.3 9.4 9.4A 9.5

Remuneration of receiver (Corporations Act, s 425(1)).................................................................. 708 Determination by court of remuneration of administrator (Corporations Act, s 449E(1)(c) and (1A)(c))............................................................................................................................................ 709 Review of remuneration of administrator (Corporations Act, s 449E(2))........................................710 Remuneration of provisional liquidator (Corporations Act, s 473(2)).............................................. 711 Determination by court of liquidator’s remuneration (Corporations Act, s 473(3)(b)(ii)).................712 Review of remuneration of liquidator (Corporations Act, s 473(5) and (6) and s 504(1))..............713 Remuneration of special manager (Corporations Act, s 484(2)).................................................... 714

Part 6.10 – Winding-up generally 10.1 10.2 10.3

Determination of value of debts or claims (Corporations Act, s 554A(2))...................................... 715 Disclaimer of contract (Corporations Act, s 568(1A))..................................................................... 715 Winding-up Part 5.7 bodies (Corporations Act s 583, s 585) and registered schemes (Corporations Act, s 601ND)........................................................................................................... 715

Part 6.11 – Examinations and orders (Corporations Act, pt 5.9, div 1 and div 2) 11.1 11.2 11.3 11.4 11.5 11.6 11.7 11.8 11.9 11.10 11.11

Meaning of examination summons in pt 6.11................................................................................. 715 Application for examination or investigation under Corporations Act, s 411(9)(b), s 423 or s 536(3)........................................................................................................................................... 715 Application for examination summons (Corporations Act, s 596A, s 596B)...................................716 Service of examination summons................................................................................................... 716 Discharge of examination summons............................................................................................... 716 Filing of record of examination (Corporations Act, s 597(13))........................................................716 Authentication of transcript of examination (Corporations Act, s 597(14))..................................... 716 Inspection of record or transcript of examination or investigation under Corporations Act, s 411, s 423 or s 536...................................................................................................................... 717 Entitlement to record or transcript of examination held in public................................................... 717 Default in relation to examination....................................................................................................717 Service of application for order in relation to breaches etc by person concerned with corporation (Corporations Act, s 598)............................................................................................. 717

Part 6.11A – Warrants (Corporations Act, s 486B and pt 5.4B, div 3, subdiv B) 11A.1

684

Arrest of person (Corporations Act, s 486B)...................................................................................718

Corporations – Court Rules and Related Legislation 2017

Table of provisions

12.1 12.1A 12.1B 12.2 12.3

Service on ASIC in relation to proceedings under Corporations Act, ch 6, 6A, 6B, 6C, 6D or 7.......................................................................................................................................................718 Reference to court of question of law arising in proceeding before Takeovers Panel (Corporations Act, s 659A).............................................................................................................. 718 Notification to court if proceeding started before end of takeover bid period (Corporations Act, s 659B).....................................................................................................................................718 Application for summons for appearance of person (Corporations Act, s 1071D(4)).................... 718 Application for orders relating to refusal to register transfer or transmission of securities (Corporations Act, s 1071F)............................................................................................................ 719

Part 6.13 – Part 6.14 – Powers of courts (Corporations Act, pt 9.5) 14.1

Appeal from act, omission or decision of administrator, receiver or liquidator etc (Corporations Act, s 554A, s 1321).................................................................................................719

Part 6.15 – Proceedings under ASIC Act 15.1 15.2 15.3

Reference to court of question of law arising at hearing of ASIC (ASIC Act, s 61).......................719 Application for inquiry (ASIC Act, s 70, s 201, s 219).................................................................... 719

Part 6.15A – Proceedings under the Cross-Border Insolvency Act 15A.1 15A.2 15A.3 15A.4 15A.5 15A.6 15A.7 15A.8 15A.9

Application—pt 6.15A and other rules.............................................................................................720 Terms used in Cross-Border Insolvency Act................................................................................... 720 Application for recognition............................................................................................................... 720 Application for provisional relief under Model Law, art 19..............................................................721 Official liquidator’s consent to act................................................................................................... 721 Notice of filing application for recognition....................................................................................... 721 Notice of order for recognition, withdrawal etc............................................................................... 721 Relief after recognition.................................................................................................................... 722 Application to modify or terminate order for recognition or other relief.......................................... 722

Part 6.16 – ...................................................................................................................................... 723 Approved Forms – .......................................................................................................................... 723

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ACT

Part 6.12 – Takeovers, acquisitions of shares and other matters (Corporations Act, chs 6, 6A, 6B, 6C, 6D and 7) and securities (Corporations Act, ch 7)

Court Procedures Rules 2006 (ACT) – (Extracts) Table of Amending Legislation Principal legislation

Number

Court Procedures Rules 2006 29 of 2006

686

Date assent/ gazettal/ registration 16 Jun 2006

Date of commencement

1 Jul 2006

Corporations – Court Rules and Related Legislation 2017

Part 3.4 – Corporations Act and ASIC Act Amending legislation: The extracts of these Rules have been amended up to and including Court Procedures Amendment Rules 2015 (No 2), SL 22 of 2015, date of commencement 1 July 2015.

Part 3.4 – Corporations Act and ASIC Act 3270 Rules for proceedings under Corporations Act or ASIC Act The rules in schedule 6 apply to a proceeding in the Supreme Court under the Corporations Act or the ASIC Act, and are intended to apply in harmony with similar rules in the Federal Court and other Australian courts.

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687

ACT

r 3270

Court Procedures Rules 2006 (ACT) – (Extracts)

SCHEDULE 5 – JURISDICTION OF REGISTRAR (see r 6250)

Part 5.2 – Jurisdiction related to Corporations Act exercisable by registrar of Supreme Court column 1 item

column 2 provision of Corporations Act

column 3 rule in sch 6

column 4 description (for information only)

1 2

1.8 2.13

3

2.14

power to give directions power to grant leave to creditor, contributory or officer to be heard in proceeding or be added as a defendant, etc power to direct an inquiry in relation to a corporation’s debts, etc power to declare that conditions prescribed by division 3 of part 2E.1 have been satisfied power to order inspection of books and to authorise use and copying of information power to order meeting of members of registered scheme power to extend period for lodgment of notice in relation to charge power to give leave to enforce charge power to rectify register of charges power to appoint body corporate as trustee for debenture holders power to make an order for meeting of debenture holders to direct trustee power to give directions or determine any questions of application of trustee for debenture holders power to make an order in relation to borrowing corporations power to order security for debentures to be enforceable power to make order in relation to administration of compromise or arrangement etc

4

section 227

5 6

sections 247A and 247B section 252E

7

section 266(4)

8 9 10

section 267(3) section 274 section 283AE(2)(a)

11

section 283EC

12

section 283HA

13

section 283HB(1)

14

section 283HB(1)(c)

15

section 411

16

section 418A

17

section 419

18 19

section 419A section 420B

688

3.3 3.4 3.5

power to make declaration about validity of controller’s appointment and in relation to control of property power to make order relieving person who incurs liability in belief that properly appointed as a receiver power to relieve controller from liability power to authorise managing controller to dispose of property despite prior charge

Corporations – Court Rules and Related Legislation 2017

Schedule 5 – Jurisdiction of registrar Schedule 5 column 3 rule in sch 6

20

column 2 provision of Corporations Act section 420C

21 22

section 423 section 424

4.1

23 24 25 26 27

section section section section section

9.1

28

section 440B

29

section 440C

30

section 440D

31

section 440F

32

section 440G(7)

33

section 440J

34

section 441D

35

section 441H

36

section 442C

37

section 443B(8)

38

section 444B(2)

39

section 444C(2)

40

section 444E(3)

41

section 444F

42

section 445B

©

425 429(3) 434B 438D 439A(6)

2017 THOMSON REUTERS

column 4 description (for information only)

ACT

column 1 item

power to authorise receiver to carry on corporation’s business during the winding-up power to inquire into conduct of controller power to give directions in relation to controller’s functions and powers power to fix amount of remuneration of a receiver power to extend time for report power to remove redundant controller power to direct administrator to give a report power to extend the convening period fixed by subsection 439A(5) power to grant leave to enforce a charge if an administrator has been appointed power to grant leave to take possession of property power to grant leave to begin or proceed with a proceeding in a court against a company that is in administration, or in relation to any of its property power to grant leave to begin or proceed with enforcement process in relation to the property of a company power to authorise a court officer to take action or to make a payment that would be prohibited power to grant leave to take enforcement action under a guarantee power to limit powers of chargee in relation to charged property power to limit powers of receiver etc in relation to property used by company power to grant leave to administrator to dispose of encumbered property power to grant relief of administrator from personal liability for rent power to extend time for execution of deed of company arrangement power to grant leave to act inconsistently with deed of company arrangement power to grant leave to person bound by deed of company arrangement to begin or proceed with enforcement process in relation to property of company power to order secured creditor or owner or lessor of property not to take certain actions power to make an order cancelling a variation of a deed of company arrangement 689

Court Procedures Rules 2006 (ACT) – (Extracts) column 1 item 43

column 2 provision of Corporations Act section 445D

44

section 445G

45

section 447A

46

section 447B

47

section 447C

48 49

section 447D section 447E

50

section 449B

51

sections 449C and 449D

52

56

section 449E(1)(c) and (1A)(c) section 449E(2) sections 459F, 459H, 459J, 459L, 459M and 459N sections 459A, 459B (except in relation to applications under part 2F.1), 459C, 459D, 459P, 459R, 459S, 459T, 461, 462, 464, 465B, 465C, 466, 467, 467A and 467B (except in relation to applications under part 2F.1) section 468

57

section 468A

58

section 470(2)(b)

53 54

55

690

Schedule 5

column 3 rule in sch 6

column 4 description (for information only)

9.2

power to make order terminating a deed of company arrangement power to avoid or validate deed of company arrangement power to make order to bring administration to an end power to make order to protect interests of company’s creditors during an administration power to declare whether administrator is validly appointed power to give directions to administrator power to make order about supervision of administrator of company or deed of company arrangement power to make order about removal and appointment of administrator power to make order in relation to vacancy in office of administrator of company or in office of administrator of deed of company arrangement power to determine administrator’s remuneration

9.2A

power to review administrator’s remuneration power to make order in relation to statutory demands

pt 6.5

power to make orders in relation to winding-up applications

power in relation to validation of disposition of property power in relation to authorisation of transfer of shares power to direct service of copy of order on another person

Corporations – Court Rules and Related Legislation 2017

Schedule 5 – Jurisdiction of registrar Schedule 5 column 3 rule in sch 6

59

column 2 provision of Corporations Act section 471B

60

section 472

5.5 6.1

61 62

section 473(1) section 473(2)

7.1 9.3

63 64

9.4 9.4A

65 66

sections 473(3) sections 473(5) and (6) section 473(7) section 473(8)

67 68

section 474(2) section 475(8)

69

section 479

70

section 480

7.5

71

section 481

7.7

72

section 482

73

section 483(1)

74 75 76

section 483(2) section 483(3) section 483(4)

77

section 484

78

section 486

79 80

section 488(2) section 490

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7.2

7.3

7.8

8.1 8.2 8.3

7.9

column 4 description (for information only)

ACT

column 1 item

power to give leave to begin or proceed with proceeding or enforcement process power to appoint official liquidator (provisionally or otherwise) power to remove liquidator power to determine provisional liquidator’s remuneration power to determine liquidator’s remuneration power to review liquidator’s remuneration power to fill vacancy in office of official liquidator power to declare what may be done by liquidator, if more than 1 liquidator is appointed by the court power to order that property vest in liquidator power to grant leave for payment of costs and expenses incurred in preparing report under section 475 power to give directions in matters arising in winding-up power to release liquidator and deregister company power to order preparation of report on accounts of liquidator power to make an order— (a) to stay the winding up of a company either indefinitely or for a limited time; or (b) to terminate the winding up of a company on a day specified in the order power to require payment of money or transfer of property power to order payment of money power to order payment of a call power to order payment of amount due into a bank named in the order power to appoint special manager

power to make order for inspection of books by creditors or contributories power to grant leave to distribute a surplus power to grant leave to company to wind up voluntarily

691

Court Procedures Rules 2006 (ACT) – (Extracts) column 1 item 81

column 2 provision of Corporations Act section 495(4)

82

section 496(3)

83

section 497(3)

84

section 500

85 86 87

section 502 section 503 section 504

88

section 507(6)

89 90

section 507(9) section 507(10)

91

section 509(6)

92

section 510(3)

93

section 511(1)(a)

94

section 511(1)(b)

95

section 532(2)

96

section 536

97

section 542(3)(a)

98

section 543(1)

99

section 544(2)

100

section 545

101

section 551

692

column 3 rule in sch 6

7.2 9.4A

7.11 11.2 11.8

Schedule 5

column 4 description (for information only) power to make order in relation to conduct of meeting in course of members’ voluntary winding-up power to order that list of creditors be sent to creditors in members’ voluntary winding-up power to order that list of creditors be sent to creditors in creditors’ voluntary winding-up power to make order about execution and civil proceedings power to appoint liquidator power to remove liquidator power to review liquidator’s renumeration in voluntary winding-up power to sanction resolution to accept shares as consideration for sale of property of company power to give directions necessary for arbitration power to approve liquidator’s exercise of powers in creditors’ voluntary winding-up power to order ASIC to deregister company on specified day power to settle dispute about value of security or lien or amount of debt or set-off power to decide question in winding-up of company power to make order in relation to an application to the court to exercise powers which might be exercised if a company were being wound up by the court power to grant leave for person to be appointed as liquidator power to make order in relation to supervision of liquidators power to give directions in relation to destruction of books of company power to make order about the investment of surplus funds power to order account of funds in hands of liquidator, audit or payment of money by liquidator power to direct liquidator to incur particular expense power to give leave for member of committee of inspection to accept extra benefit etc

Corporations – Court Rules and Related Legislation 2017

Schedule 5 – Jurisdiction of registrar Schedule 5 column 3 rule in sch 6

102

column 2 provision of Corporations Act section 552

103

section 554A

14.1

104

section 554G

105

section 564

106

sections 568, 568B, 568E and 568F sections 583 and 585 sections 596A, 596B, 596F, 597, 597A and 597B

107 108

109 110

sections 600A to 600D section 601AH(2)

111

section 601AH(3)

112

section 601BJ(2)

113

section 601CC(9)

114

section 601CL(10)

115

section 1071D(4)

116

section 1071F

117

section 1071H(6)

118

section 1274

119

section 1303

120

section 1319

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10.2 10.3 11.3 11.6 11.7 11.9

column 4 description (for information only)

ACT

column 1 item

power to give direction or permission if no committee of inspection is appointed power to estimate or determine value of debts and claims of uncertain value in liquidation power to grant leave to secured creditor to amend valuation of security in proof of debt power to make order in favour of creditors who give company indemnity for costs of litigation power to make order in relation to disclaimer of onerous property power in relation to winding up Part 5.7 bodies power to make order in relation to examinations

power to make order in relation to creditor’s resolutions power to order reinstatement of registration of company power to— (a) validate anything done between deregistration of a company and its reinstatement; and (b) make any other order the court considers appropriate

12.2

power to approve modification in constituent documents of registered company power to order restoration of name of registered Australian body to the Register power to order restoration of name of registered foreign company to the Register power to make order in relation to a person summoned power to make an order in relation to a company’s refusal to register a share transfer power to make an order to remedy default in issuing certificate etc power to make order if failure to give, amend etc document power to order that books be available for inspection power to give directions in relation to meetings

693

Court Procedures Rules 2006 (ACT) – (Extracts) column 1 item 121

column 2 provision of Corporations Act section 1321

122 123

section 1322 section 1325D

124

section 1335

Schedule 5

column 3 rule in sch 6

column 4 description (for information only)

14.1

power to make order in appeal from decision of administrator, receiver or liquidator power to make order in relation to irregularities power to make order where contravention of a provision of chapter 6 due to inadvertence power to make order about costs

[Pt 5.2 renum Act 14 of 2001, s 59, Reprint 10, with effect from 1 Jul 2008; am SL 25 of 2008, rr 20–28, with effect from 1 Jul 2008; SL 37 of 2007, r 10, with effect from 1 Jan 2008; SL 16 of 2007, rr 30 and 31, with effect from 1 Jul 2007]

Part 5.3 – Jurisdiction related to ASIC Act exercisable by registrar of Supreme Court column 1 item 1

column 2 provision of the ASIC Act section 79(4)

column 3 rule

column 4 description (for information only) power to extend period to give notice of intention to have statements made at examination admitted

[Sch 5 am SL 25 of 2008; SL 37 of 2007; SL 16 of 2007]

694

Corporations – Court Rules and Related Legislation 2017

Schedule 6 – Corporations Rules Schedule 6

r 1.4

(see r 3270)

Part 6.1 – Corporations Rules–preliminary 1.1 Name of rules The rules in this schedule are the Corporations Rules. 1.2 Note:

These rules do not include a r 1.2. The rule number has been kept to ensure that provision numbers in these rules are consistent with the uniform corporations rules.

1.3 Application of sch 6 and provisions of these rules (1) Unless the Supreme Court otherwise orders— (a) this schedule applies to a proceeding in the court under the Corporations Act, or the ASIC Act, that is started on or after 12 November 2003; and (b) part 6.15A applies to a proceeding in the court under the Cross-Border Insolvency Act. [Subr (1) subst SL 50 of 2008, r 11, with effect from 1 Jan 2009]

(2) The other provisions of these rules apply, as far as they are relevant and not inconsistent with this schedule— (a) to a proceeding in the Supreme Court under the Corporations Act, or the ASIC Act, that is started on or after 12 November 2003; and (b) to a proceeding in the court under the Cross-Border Insolvency Act that is started on or after the commencement of part 6.15A. [Subr (2) subst SL 50 of 2008, r 11, with effect from 1 Jan 2009]

(3) Unless the Supreme Court otherwise orders, the rules applying to a proceeding in the court under the Corporations Act, or the ASIC Act, that were in force immediately before 12 November 2003, continue to apply to a proceeding under the Corporations Act, or the ASIC Act, that was started before that date. Note: Because of the definition of this Act in the Corporations Act, s 9, a reference to the Corporations Act includes a reference to the Corporations Regulations. [R 1.3 am SL 50 of 2008]

1.4 Terms used in Corporations Act A term used in the Corporations Act has the same meaning in this schedule. Note: Terms used in this schedule (including the notes to those rules) that are defined in the Corporations Act include the following: • ABN (short for ‘Australian Business Number’) (see s 9) • ACN (short for ‘Australian Company Number’) (see s 9) • ARBN (short for ‘Australian Registered Body Number’) (see s 9) • ASIC (see s 9) • body (see s 9) • body corporate (see s 9) • books (see s 9) • company (see s 9) • corporation (see s 57A) • daily newspaper (see s 9) • foreign company (see s 9) • official liquidator (see s 9) • Part 5.1 body (see s 9) • Part 5.7 body (see s 9) • register (see s 9) • registered liquidator (see s 9) • registered office (see s 9) ©

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ACT

SCHEDULE 6 – CORPORATIONS RULES

r 1.4

Court Procedures Rules 2006 (ACT) – (Extracts)

Schedule 6

• statutory demand (see s 9). [R 1.4 am SL 43 of 2012, r 48, with effect from 1 Jan 2013; SL 25 of 2008, r 29, with effect from 1 Jul 2008; SL 37 of 2007, r 11, with effect from 1 Jan 2008]

1.5 Definitions—sch 6 In this schedule: applicant means a person claiming interlocutory relief in a proceeding. ASIC Act means the Australian Securities and Investments Commission Act 2001 (Cth). commission [Repealed] [Def rep SL 25 of 2008, r 30, with effect from 1 Jul 2008]

Corporations Regulations means the Corporations Regulations 2001 (Cth). Cross-Border Insolvency Act means the Cross–Border Insolvency Act 2008 (Cth) including, unless the contrary intention appears, the Model Law. [Def insrt SL 50 of 2008, r 12, with effect from 1 Jan 2009]

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. [Def subst SL 50 of 2008, r 13, with effect from 1 Jan 2009]

interlocutory process means an interlocutory process in a proceeding. Model Law means the Model Law on Cross-Border Insolvency of the United Nations Commission on International Trade Law, the English text of which is set out in the Cross-Border Insolvency Act, schedule 1, with the modifications set out in that Act, part 2. [Def insrt SL 50 of 2008, r 14, with effect from 1 Jan 2009]

originating process means an originating process in a proceeding. plaintiff means a person claiming relief (except interlocutory relief) under the Corporations Act, the ASIC Act or the Cross-Border Insolvency Act, whether in the originating process or not. [Def subst SL 50 of 2008, r 15, with effect from 1 Jan 2009]

respondent means a person against whom interlocutory relief is claimed in a proceeding. [R 1.5 am SL 25 of 2008; SL 50 of 2008]

1.6 References to rules A reference in this schedule to a rule is a reference to a rule in this schedule. 1.7 Substantial compliance with forms (1) It is sufficient compliance with this schedule in relation to a document that is required to be in accordance with an approved form if the document is substantially in accordance with the form or has only such variations as the nature of the case requires. (2) Without limiting subrule (1), the registrar must not reject a document for filing only because a term used to describe a party in the document differs from the term used in this schedule. 1.8 Court’s power to give directions The court may give directions in relation to the practice and procedure to be followed in a proceeding if satisfied, in the circumstances of the proceeding, that— (a) the provisions of the Corporations Act, the ASIC Act, or the rules of the court do not adequately provide for the practice and procedure to be followed in the proceeding; or (b) a difficulty arises, or doubt exists, in relation to the practice and procedure to be followed in the proceeding. 1.9 Calculation of time (1) If, for any purpose, this schedule— (a) prohibits, permits or requires anything to be done within, by, or before the end of; or 696

Corporations – Court Rules and Related Legislation 2017

Schedule 6 – Corporations Rules r 2.4

(b) otherwise prescribes, allows or provides for; a period of time before or after a particular day, act or event, the period is to be calculated without counting that day, or the day of the act or event. (2) Without limiting subrule (1), in calculating how many days a particular day, act or event is before or after another day, act or event, only the first day, or the day of the first act or event, is to be counted. (3) If the last day of a period prescribed or allowed by these rules for anything to be done falls on a day that is not a business day where it is to be or may be done, it is to be or may be done on the first business day at the place after that day. (4) In calculating a period of time for these rules, the period beginning on 25 December in a year and ending at the end of 1 January in the next year is not to be counted. 1.10 Extending and shortening of time Unless the Corporations Act, the ASIC Act or this schedule otherwise provides, the rules of the court that provide for the extending or shortening of a period of time fixed for doing anything in relation to a proceeding apply to a proceeding to which this schedule applies.

Part 6.2 – Proceedings generally 2.1 Title of documents in a proceeding A document for use in a proceeding, and for which there is an approved form, must be headed in the way set out in the form. 2.2 Originating process and interlocutory process (1) Unless this schedule otherwise provides, a person must make an application required or permitted by the Corporations Act to be made to the court— (a) if the application is not made in a proceeding already started in the court—by filing an originating process; and (b) in any other case, and whether interlocutory relief or final relief is claimed—by filing an interlocutory process. Note: See • approved form 2 (Originating process) AF2008-143. • approved form 3 (Interlocutory process) AF2008-144.

(2) Unless the court otherwise directs, a person may make an application to the court in relation to a proceeding in relation to which final relief has been granted by filing an interlocutory process in the proceeding. (3) An originating process must state— (a) each section of the Corporations Act or the ASIC Act, or each regulation of the Corporations Regulations, under which the proceeding is brought; and (b) the relief sought. (4) An interlocutory process must state— (a) if appropriate, each section of the Corporations Act or the ASIC Act, or each regulation of the Corporations Regulations, or each rule of court under which the application is made; and (b) the relief sought. [Subr (4) am SL 16 of 2007, r 33, with effect from 1 Jul 2007] [R 2.2 am SL 16 of 2007]

2.3 Setting of hearing On receiving an originating process or interlocutory process, the registrar— (a) must set a time, date and place for hearing and endorse those details on the originating process or interlocutory process; and (b) may seal a sufficient number of copies for service and proof of service. 2.4 Supporting affidavits (1) Unless the court otherwise directs, an originating or interlocutory process must be supported by an affidavit stating the facts in support of the process. ©

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ACT

Schedule 6

r 2.4

Court Procedures Rules 2006 (ACT) – (Extracts)

Schedule 6

(2) An affidavit in support of an originating process must annex a record of a search of the records maintained by ASIC, in relation to the company that is the subject of the application to which the originating process relates, carried out no earlier than 7 days before the originating process is filed. [Subr (2) am SL 25 of 2008, r 57, with effect from 1 Jul 2008]

(3) This rule does not apply to an application by a company under the Corporations Act, section 459G for an order setting aside a statutory demand served on the company. [R 2.4 am SL 25 of 2008]

2.4A Application for order setting aside statutory demand (Corporations Act, s 459G) (1) This rule applies to an application by a company under the Corporations Act, section 459G for an order setting aside a statutory demand served on the company. (2) The plaintiff may file a copy of the statutory demand, and a copy of any affidavit that accompanied the statutory demand, with the originating process seeking the order. (3) The plaintiff must— (a) carry out a search of the records maintained by ASIC in relation to the plaintiff not earlier than 7 days before the originating process is filed, and not later than the day before the hearing of the application; and (b) either— (i) annex the record of the search to the affidavit in support of the originating process; or (ii) file the record of the search before, or tender it on, the hearing of the application. [Subr (3) am SL 25 of 2008, r 57, with effect from 1 Jul 2008] [R 2.4A am SL 25 of 2008]

2.5 Affidavits made by creditors Subject to rule 5.4 (Affidavit in support of application for winding-up), an affidavit that is to be made by a creditor may be made— (a) if the creditor is a corporation—by a director, secretary, or other principal officer of the corporation, or by a person employed by the corporation who is authorised to make the affidavit on its behalf; or (b) if the creditor is a company to which a liquidator, provisional liquidator, receiver, administrator or controller has been appointed—by that person; or (c) in any other case—by the creditor or a person authorised by the creditor to make the affidavit on behalf of the creditor. 2.6 Form of affidavits An affidavit must be in a form that complies with— (a) the rules of the court; or (b) the rules of the Supreme Court of the State or Territory (if any) where the affidavit was sworn or affirmed. 2.7 Service of originating process or interlocutory process and supporting affidavit (1) As soon as practicable after filing an originating process and, in any case, at least 5 days before the date set for hearing, the plaintiff must serve a copy of the originating process and any supporting affidavit on— (a) each defendant (if any) to the proceeding; and (b) if the corporation to which the proceeding relates is not a party to the proceeding—the corporation. (2) As soon as practicable after filing an interlocutory process and, in any case, at least 3 days before the date set for hearing, the applicant must serve a copy of the interlocutory process and any supporting affidavit on— (a) each respondent (if any) to the application in the interlocutory process; and (b) if the corporation to which the application in the interlocutory process relates is not a party to the application in the interlocutory process—the corporation. [Subr (2) am SL 16 of 2007, r 34, with effect from 1 Jul 2007] [R 2.7 am SL 16 of 2007] 698

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(1) This rule has effect in addition to the requirements of the Corporations Act that, in relation to a proceeding, particular documents are to be served on ASIC or notice of particular matters is to be given to ASIC. (2) This rule does not apply to a person making an application if the person is ASIC or a person authorised by ASIC. (3) Unless the court otherwise orders, if a person makes an application under a provision of the Corporations Act mentioned in table 2.8, column 2, the person must serve on ASIC, a reasonable time before the hearing of the application, a copy of the originating or interlocutory process and supporting affidavit in relation to the application. Table 2.8 Applications of which notice must be given to ASIC column 1 item 1

column 2 provision section 480

2 3 4 5 6 7 8

section 482(1) section 509(6) section 536(1) section 601AH(2) section 601CC(8) section 601CL(9) chapter 6, 6A, 6B, 7 section 1317S(2) and (4)

9

column 3 description of application for the release of a liquidator of a company and the deregistration of the company for the stay or termination of a winding-up for the deregistration of a company for an inquiry into the conduct of a liquidator to reinstate the registration of a company to restore the name of an Australian body to the register to restore the name of a foreign company to the register 6C, 6D or any application under these chapters for relief from liability for contravention of a civil penalty provision

[R 2.8 am SL 25 of 2008, rr 31, 32 and 57, with effect from 1 Jul 2008]

2.9 Notice of appearance (Corporations Act, s 465C) (1) A person who intends to appear before the court at the hearing of an application must, before appearing— (a) file the following: (i) a notice of appearance; Note: See approved form 4 (Notice of Appearance) AF2007-134.

(b)

(ii) if appropriate, an affidavit stating any facts on which the person intends to rely; and serve on the plaintiff a copy of the notice of appearance and any affidavit not later than— (i) if the person is named in an originating process—3 days before the date set for hearing; or (ii) if the person is named in an interlocutory process—1 day before the date set for hearing.

(2) If the person intends to appear before the court to oppose an application for winding up, the person may include in the notice of appearance the notice of the grounds on which the person opposes the application required by the Corporations Act, section 465C. (3) The period prescribed for filing and serving the notice and affidavit required by the Corporations Act, section 465C is the period mentioned in subrule (1)(b)(i). Note: Under the Corporations Act, s 465C, a person may not, without the leave of the court, oppose an application for winding-up unless, within the period prescribed by these rules (see r (3)), the person has filed, and served on the plaintiff, notice of the grounds on which the person opposes the application and an affidavit verifying the matters stated in the notice.

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2.10 Intervention in proceeding by ASIC (Corporations Act, s 1330) (1) If ASIC intends to intervene in a proceeding, ASIC must file a notice of intervention. Note: See approved form 5 (Notice of intervention by ASIC) AF2008-66. (2) Not later than 3 days before the date set for the hearing at which ASIC intends to appear in the proceeding, ASIC must serve a copy of the notice, and any affidavit on which it intends to rely, on the plaintiff and on any other party to the proceeding. [R 2.10 am SL 25 of 2008, rr 33 and 57, with effect from 1 Jul 2008]

2.11 Publication of notices [Repealed] [R 2.11 rep SL 43 of 2012, r 49, with effect from 1 Jan 2013]

2.12 Proof of publication (1) This rule applies in relation to any matter published in relation to a proceeding. (2) Unless this schedule otherwise provides, or the court otherwise orders, the person responsible for the publication of the matter, or the person’s legal practitioner, must file— (a) an affidavit made by the person, or the person’s legal practitioner, that states the date of publication and to which is annexed or exhibited a copy of the published matter; or (b) a memorandum signed by the person, or the person’s legal practitioner, that states the date of publication and refers to and annexes a copy of the published matter. (3) The affidavit or memorandum is prima facie evidence that the publication took place on the date and otherwise as stated in the affidavit or memorandum. 2.13 Leave to creditor, contributory or officer to be heard (1) The court may grant leave to any person who is, or claims to be— (a) a creditor, contributory or officer of a corporation; or (b) an officer of a creditor, or contributory, of a corporation; or (c) any other interested person; to be heard in a proceeding without becoming a party to the proceeding. (2) If the court considers that the attendance of a person to whom leave has been granted under subrule (1) has resulted in additional costs for any party, or the corporation, and that the costs should be borne by the person to whom leave was granted, the court may— (a) direct that the person pay the costs; and (b) order that the person not be heard further in the proceeding until the costs are paid or secured to the court’s satisfaction. (3) The court may order that a person who is, or claims to be, a creditor, contributory or officer of a corporation be added as a defendant to the proceeding. (4) The court may grant leave to a person under subrule (1), or order that a person be added as a defendant to a proceeding under subrule (3)— (a) on application by the person or a party to the proceeding; or (b) on the court’s own initiative. (5) The court may— (a) appoint a creditor or contributory to represent all or any class of the creditors or contributories on any question, or in relation to any proceeding, before the court, at the expense of the corporation; and (b) remove any person so appointed. 2.14 Inquiry in relation to corporation’s debts etc The court may direct an inquiry in relation to the debts, claims or liabilities, or a class of debts, claims or liabilities, of or affecting a corporation to which a proceeding relates. 2.15 Meetings ordered by the court Subject to the Corporations Act, this schedule and any direction of the court to the contrary, the Corporations Regulations, regulations 5.6.11 to 5.6.36A apply to meetings ordered by the court. [R 2.15 am SL 25 of 2008, r 34, with effect from 1 Jul 2008] 700

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Part 6.3 – Compromises and arrangements in relation to Part 5.1 bodies 3.1 Application—pt 1.3 This part applies if an application is made to the court for approval of a compromise or arrangement between a Part 5.1 body and its creditors or members, or any class of its creditors or members. 3.2 Nomination of chairperson for meeting Before the hearing of an application under the Corporations Act, section 411(1), (1A) or (1B), the plaintiff must file an affidavit stating— (a) the names of the people who have been nominated to be the chairperson and alternate chairperson of the meeting; and (b) that each person nominated— (i) is willing to act as chairperson; and (ii) has had no previous relationship or dealing with the body, or any other person interested in the proposed compromise or arrangement, except as disclosed in the affidavit; and (iii) has no interest or obligation that may give rise to a conflict of interest or duty if the person were to act as chairperson of the meeting, except as disclosed in the affidavit; and (c) the name of the person (if any) proposed to be appointed to administer the proposed compromise or arrangement; and (d) that the person does not fall within the Corporations Act, section 411(7)(a) to (f), except as disclosed in the affidavit. 3.3 Order for meetings to identify proposed scheme (1) An order under the Corporations Act, section 411(1) or (1A) ordering a meeting or meetings in relation to a proposed compromise or arrangement must set out in a schedule, or otherwise identify, a copy of the proposed compromise or arrangement. (2) Unless the court otherwise orders, a meeting of members ordered under the Corporations Act, section 411 must be convened, held and conducted in accordance with— (a) the provisions of the Corporations Act, part 2G.2 that apply to the members of a company; and (b) the provisions of the plaintiff’s constitution that apply in relation to meetings of members and are not inconsistent with the Corporations Act, part 2G.2. (3) Unless the court otherwise orders, a meeting of a class of holders of convertible securities ordered under the Corporations Act, section 411 must be convened, held and conducted as if— (a) the holders were a separate class of members; and (b) the meeting were a meeting of members convened, held and conducted under subrule (2). (4) However, subrule (3) only applies to a meeting of a class of holders of convertible securities to the extent that the subrule is not inconsistent with the applicable provisions of the instrument under which the securities were issued. 3.4 Notice of hearing (Corporations Act, s 411(4) and s 413(1)) (1) This rule applies to— (a) an application, under the Corporations Act, section 411(4), for an order approving a proposed compromise or arrangement in relation to a Part 5.1 body; and (b) an application, under the Corporations Act, section 413(1), for an order in relation to the reconstruction of a Part 5.1 body, or Part 5.1 bodies, or the amalgamation of 2 or more Part 5.1 bodies. (2) Unless the court otherwise orders, the plaintiff must publish a notice of the hearing of the application. Note: See approved form 6 (Notice of hearing to approve compromise or arrangement) AF2006-431. (3) The notice must be published at least 5 days before the date set for the hearing of the application. [Subr (3) am SL 43 of 2012, r 50, with effect from 1 Jan 2013] [R 3.4 am SL 43 of 2012] ©

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3.5 Copy of order approving compromise or arrangement to be lodged with ASIC If the court makes an order under the Corporations Act, section 411(1), (1A) or (4) or section 413(1), the plaintiff must, as soon as practicable after the order is made— (a) have the order sealed; and (b) lodge an office copy of the order with ASIC; and (c) serve an office copy of the order on anyone appointed to administer the compromise or arrangement. [R 3.5 am SL 25 of 2008, rr 35 and 57, with effect from 1 Jul 2008]

Part 6.4 – Receivers and other controllers of corporation property (Corporations Act, pt 5.2) 4.1 Inquiry into conduct of controller (Corporations Act, s 423) A complaint to the court under the Corporations Act, section 423(1)(b) about an act or omission of a receiver, or a controller appointed by the court, must be made by an originating process seeking an inquiry in relation to the complaint.

Part 6.5 – Winding-up proceedings (including oppression proceedings where winding-up is sought) 5.1 Application—pt 6.5 This part applies to the following applications for the winding-up of a company: (a) an application for an order under the Corporations Act, part 2F.1; (b) an application under the Corporations Act, part 5.4 or part 5.4A. 5.2 Affidavit accompanying statutory demand (Corporations Act, s 459E(3)) For the Corporations Act, section 459E(3), the affidavit accompanying a statutory demand relating to a debt, or debts, owed by a company must— (a) be made by the creditor or by a person with the authority of the creditor or creditors; and (b) not state a proceeding number, or refer to a court proceeding, in any heading or title to the affidavit. Note: See approved form 7 (Affidavit accompanying statutory demand) AF2006-432. 5.3 Application for leave to apply for winding-up in insolvency (Corporations Act, s 459P(2)) An application for leave to apply to the court for an order that a company be wound up in insolvency may be made at the same time as the application for an order that the company be wound up in insolvency is made. 5.4 Affidavit in support of application for winding-up (Corporations Act, s 459P, s 462, s 464) (1) The affidavit in support of an originating process seeking an order that a company be wound up must be made by the plaintiff or by a person with the authority of the plaintiff or plaintiffs. (2) If the application is made in reliance on a failure by the company to comply with a statutory demand, the affidavit must— (a) verify service of the demand on the company; and (b) verify the failure of the company to comply with the demand; and (c) state whether and, if so, to what extent the debt, or each of the debts, to which the demand relates is still due and payable by the company at the date when the affidavit is made. (3) If the application is made in reliance on the ground mentioned in the Corporations Act, section 461(1)(a), the affidavit must— (a) state whether the company is able to pay all its debts as and when they become due and payable; and (b) refer to the company’s most recent balance sheet and profit and loss statement as an annexure or exhibit to the affidavit, or explain their absence. (4) The affidavit must be made within 7 days before the originating process is filed.

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r 5.11

(1) For the Corporations Act, section 532(9), an official liquidator must consent to act as liquidator of a company. Note: See approved form 8 (Consent of liquidator/provisional liquidator) AF2008-67. (2) In an application for an order that a company be wound up, the plaintiff must— (a) before the hearing of the application, file the consent mentioned in subrule (1) of an official liquidator who would be entitled to be appointed as liquidator of the company; and (b) serve a copy of the consent on the company at least 1 day before the hearing. (3) In this rule: liquidator does not include a provisional liquidator. 5.6 Notice of application for winding-up (1) Unless the court otherwise orders, the plaintiff must publish a notice of the application for an order that a company be wound up. Note: See approved form 9 (Notice of application for winding-up order) AF2012-199. (2) The notice must be published— (a) at least 3 days after the originating process is served on the company; and (b) at least 7 days before the date set for hearing of the application. [Subr (2) am SL 43 of 2012, r 51, with effect from 1 Jan 2013] [R 5.6 am SL 43 of 2012]

5.7 Applicant to make copies of documents available A copy of any document filed in a proceeding to which this part applies must be available at the plaintiff’s address for service for inspection by a creditor, contributory or officer of the company, or an officer of a creditor or contributory of the company. 5.8 Discontinuance of application for winding-up An application for an order that a company be wound up may not be discontinued except with the leave of the court. 5.9 Appearance before registrar After filing an originating process seeking an order that a company be wound up, the plaintiff must, if required— (a) appear before the registrar on a date to be appointed by the registrar; and (b) satisfy the registrar that the plaintiff has complied with the Corporations Act and these rules in relation to applications for a winding-up order. 5.10 Order substituting plaintiff in application for winding-up (Corporations Act, s 465B) (1) If the court makes an order under the Corporations Act, section 465B, the court may also order that the substituted plaintiff or plaintiffs publish a notice stating that the substituted plaintiff or plaintiffs intend to apply for an order that the company be wound up. Note: See approved form 10 (Notice of application for winding-up order by substituted plaintiff) AF2007-138. (2) The notice must be published— (a) at least 7 days before the date set for the hearing of the application; or (b) as otherwise directed by the court. [Subr (2) am SL 43 of 2012, r 52, with effect from 1 Jan 2013] [R 5.10 am SL 43 of 2012]

5.11 Notice of winding-up order and appointment of liquidator (1) This rule applies if the court orders that a company be wound up and an official liquidator be appointed as liquidator of the company. (2) Not later than the day after the order is made, the plaintiff must inform the liquidator of the appointment. ©

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(3) As soon as practicable after being informed of the appointment, the liquidator must publish a notice of the winding-up order and the liquidator’s appointment. Note: See approved form 11 (Notice of winding-up order and of appointment of liquidator) AF2007-139. (4) [Repealed] [Subr (4) rep SL 43 of 2012, r 53, with effect from 1 Jan 2013]

(5) In this rule: liquidator does not include a provisional liquidator. [R 5.11 am SL 43 of 2012]

Part 6.6 – Provisional liquidators (Corporations Act, pt 5.4B) 6.1 Appointment of provisional liquidator (Corporations Act, s 472) (1) An application for an official liquidator to be appointed, under the Corporations Act, section 472(2), as a provisional liquidator of a company must be accompanied by the written consent of the official liquidator. Note: See approved form 8 (Consent of liquidator/provisional liquidator) AF2008-67. (2) If— (a) an order is made appointing a provisional liquidator; and (b) the order provides that the provisional liquidator may take into the provisional liquidator’s custody part only of the company’s property; the order must include a short description of the part of the company’s property that the provisional liquidator may take into custody. (3) The court may require the plaintiff to give an undertaking as to damages. 6.2 Notice of appointment of provisional liquidator (1) This rule applies if the court orders that an official liquidator be appointed as a provisional liquidator of a company. (2) Not later than the day after the order is made, the plaintiff must— (a) except if the plaintiff is ASIC—lodge an office copy of the order with ASIC; and (b) serve an office copy of the order on the company (except if the plaintiff is the company) and on anyone else as directed by the court; and (c) give to the provisional liquidator an office copy of the order and a written statement that the order has been served as required by paragraph (b). [Subr (2) am SL 25 of 2008, r 57, with effect from 1 Jul 2008]

(3) As soon as practicable after the order is made, the provisional liquidator must publish a notice of the provisional liquidator’s appointment. Note: See approved form 12 (Notice of appointment of provisional liquidator) AF2007-140. (4) [Repealed] [Subr (4) rep SL 43 of 2012, r 54, with effect from 1 Jan 2013] [R 6.2 am SL 43 of 2012; SL 25 of 2008]

Part 6.7 – Liquidators 7.1 Resignation of liquidator (Corporations Act, s 473(1)) (1) A liquidator appointed by the court who wishes to resign office must file with the registrar, and give to ASIC, a memorandum of resignation. [Subr (1) am SL 25 of 2008, r 57, with effect from 1 Jul 2008]

(2) The resignation takes effect on the filing and giving of the memorandum. [R 7.1 am SL 25 of 2008]

7.2 Filling vacancy in office of liquidator (Corporations Act, s 473(7), s 502) (1) If, for any reason, there is no liquidator acting in a winding-up, the court may— (a) for a winding-up by the court—appoint another official liquidator whose written consent has been filed; and 704

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for a voluntary winding-up—appoint another registered liquidator whose written consent has been filed. ACT

(b)

r 7.5

(2) The court may make the appointment— (a) in any case—on application by ASIC, a creditor or a contributory; or (b) for a winding-up by the court—on its own initiative. [Subr (2) am SL 25 of 2008, r 57, with effect from 1 Jul 2008] [R 7.2 am SL 25 of 2008]

7.3 Report to liquidator as to company’s affairs (Corporations Act, s 475) (1) If a person is required under the Corporations Act, section 475 to submit and verify a report as to the affairs of a company, the liquidator must give to the person the appropriate forms and instructions for the preparation of the report. (2) Except by order of the court, no person is to be allowed out of the property of a company any costs or expenses incurred in relation to the preparation of the report that have not been— (a) sanctioned by the liquidator before being incurred; or (b) assessed. (3) The liquidator must report to the court any default in complying with the requirements of the Corporations Act, section 475. (4) In this rule: liquidator includes a provisional liquidator. 7.4 Liquidator to file certificate and copy of settled list of contributories (Corporations Act, s 478) If, in a winding-up by the court, a liquidator has settled and certified a list, or supplementary list, of contributories, the liquidator must, not later than 14 days after doing so, file the certificate and a copy of the list. 7.5 Release of liquidator and deregistration of company (Corporations Act, s 480(c) and (d)) (1) This rule applies to an application by the liquidator of a company— (a) for an order that the liquidator be released; or (b) for an order that the liquidator be released and that ASIC deregister the company. [Subr (1) am SL 25 of 2008, r 57, with effect from 1 Jul 2008]

(2) The interlocutory process seeking the order must include— (a) a notice stating that any objection to the release of the liquidator must be made by filing and serving a notice of objection not later than 21 days after the date of service of the interlocutory process; and (b) a statement setting out the terms of the Corporations Act, section 481(3). Note: The Corporations Act, s 481(3) provides that an order of the court releasing a liquidator discharges the liquidator from all liability in relation to any act done or default made by the liquidator in the administration of the affairs of the company, or otherwise in relation to the liquidator’s conduct as liquidator, but any such order may be revoked on proof that it was obtained by fraud or by suppression or by concealment of any material fact.

(3) The supporting affidavit must include details of the following matters: (a) whether the whole of the company’s property has been realised or whether so much of the company’s property has been realised as, in the liquidator’s opinion, can be realised without needlessly protracting the winding-up; (b) any calls made on contributories in the course of the winding-up; (c) any dividends paid in the course of the winding-up; (d) whether the committee of inspection (if any) has passed a resolution approving the liquidator’s release; (e) whether ASIC has appointed an auditor to report on an account or statement of the position in the winding-up under the Corporations Act, section 539(2); (f) whether the court has ordered a report on the accounts of the liquidator to be prepared; ©

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whether any objection to the release of the liquidator has been received by the liquidator from— (i) an auditor appointed by ASIC or by the court; or (ii) any creditor, contributory or other interested person; whether any report has been submitted by the liquidator to ASIC under the Corporations Act, section 533; whether the liquidator considers it necessary to report on the affairs of the company or any of its officers; any property disclaimed in the course of the winding-up; any remuneration paid or payable to the liquidator and how such remuneration was determined; any costs, charges or expenses payable by the liquidator if the court grants the liquidator’s release; if the application is made under the Corporations Act, section 480(c)—the facts and circumstances because of which it is submitted that the company should not be deregistered.

[Subr (3) am SL 25 of 2008, r 57, with effect from 1 Jul 2008]

(4) The liquidator must include in the supporting affidavit the following statements, including, if appropriate, the words in brackets: (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 [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 [except as disclosed in this affidavit]’. (5) The liquidator must file with, or annex to, the supporting affidavit— (a) a statement of the financial position of the company at the date when the interlocutory process seeking release was filed; and (b) a summary of the liquidator’s receipts and payments in winding up the company. (6) Unless the court otherwise orders, the liquidator must serve by prepaid post, on each creditor who has proved a debt in the course of the winding-up, and on each contributory, a copy of the interlocutory process accompanied by— (a) a copy of the summary of the liquidator’s receipts and payments in winding up the company; and (b) a copy of the statement of the financial position of the company at the date when the interlocutory process seeking release was filed. [R 7.5 am SL 25 of 2008]

7.6 Objection to release of liquidator (1) A creditor or contributory of a company who wishes to object to the release of the liquidator of the company must, within 21 days after the date of service of the interlocutory process seeking release— (a) file— (i) a notice of objection; and Note: See approved form 13 (Notice by creditor or contributory of objection to release of liquidator) AF2007-141.

(b)

(ii) if appropriate, an affidavit stating any facts relied on; and serve a copy of the notice and the affidavit (if any) on the liquidator.

(2) If the liquidator is served with a notice of objection by a creditor or contributory, the liquidator must, not later than 3 days after being served, serve on the creditor or contributory a copy of the affidavit supporting the interlocutory process. 7.7 Report on accounts of liquidator (Corporations Act, s 481) (1) If the court orders that a report on the accounts of a liquidator be prepared under the Corporations Act, section 481(1), the liquidator must give to the auditor appointed to prepare the report all information, books and vouchers required to prepare the report. (2) On completing the report, the auditor must— 706

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(a) file a copy of the report in a sealed envelope that is marked with the title and number of the proceeding and the words ‘Auditor’s report under section 481(1) of the Corporations Act 2001’; and (b) serve a copy of the report on the liquidator; and (c) give a copy of the report to ASIC. [Subr (2) am SL 25 of 2008, r 57, with effect from 1 Jul 2008]

(3) Except with the leave of the court, a report is not available for inspection by any person except the liquidator or ASIC. [Subr (3) am SL 25 of 2008, r 57, with effect from 1 Jul 2008] [R 7.7 am SL 25 of 2008]

7.8 Application for payment of call (Corporations Act, s 483(3)(b)) The affidavit in support of an application by the liquidator of a company, under the Corporations Act, section 483(3)(b), for an order for the payment of a call must, if a form is approved under the Court Procedures Act 2004, section 8 for this rule, be in accordance with the approved form. Note: See approved form 14 (Affidavit in support of application for order for payment of call) AF2007-142. 7.9 Distribution of surplus by liquidator with special leave of the court (Corporations Act, s 488(2)) (1) The affidavit in support of an application for special leave to distribute a surplus must state how the liquidator intends to distribute the surplus including the name and address of each person to whom the liquidator intends to distribute any part of the surplus. (2) At least 14 days before the date set for the hearing of the application, the liquidator must publish a notice of the application. Note: See approved form 15 (Notice of application for leave to distribute a surplus) AF2007-143. (3) [Repealed] [Subr (3) rep SL 43 of 2012, r 55, with effect from 1 Jan 2013] [R 7.9 am SL 43 of 2012]

7.10 Powers delegated to liquidator by the court (Corporations Act, s 488) Subject to the Corporations Act, this schedule and any order of the court, the powers and duties given to the court by the Corporations Act, part 5.4B in relation to the matters mentioned in the Corporations Act, section 488(1) may be exercised by a liquidator appointed by the court as an officer of the court and subject to the control of the court. 7.11 Inquiry into conduct of liquidator (Corporations Act, s 536(1) and (2)) (1) A complaint to the court under the Corporations Act, section 536(1)(b) must be made— (a) for a winding-up by the court—by an interlocutory process seeking an inquiry; and (b) for a voluntary winding-up—by an originating process seeking an inquiry. (2) A report to the court by ASIC under the Corporations Act, section 536(2) must be made— (a) for a winding-up by the court—by filing— (i) an interlocutory process seeking orders under the subsection; and (ii) a written report in a sealed envelope that is marked with the title and number of the proceeding; and (b) for a voluntary winding-up—by filing— (i) an originating process seeking orders under the subsection; and (ii) a written report in a sealed envelope that is marked with the title of the proceeding and provision for its number. [Subr (2) am SL 25 of 2008, r 57, with effect from 1 Jul 2008]

(3) The contents of a report filed under subrule (2) need not, at the time of filing, be verified by an affidavit. ©

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(4) Except with the leave of the court, a report made under the Corporations Act, section 536(2) is not available for inspection by anyone except the liquidator or ASIC. [Subr (4) am SL 25 of 2008, r 57, with effect from 1 Jul 2008]

(5) In this rule: liquidator includes a provisional liquidator. [R 7.11 am SL 25 of 2008]

Part 6.8 – Special managers (Corporations Act, pt 5.4B) 8.1 Application for appointment of special manager (Corporations Act, s 484) (1) An application by a liquidator for the appointment of a special manager in relation to a company must state the powers that, in the liquidator’s opinion, should be entrusted by the court to the special manager. (2) The supporting affidavit must state— (a) the circumstances making it proper that a special manager be appointed; and (b) details of the remuneration proposed to be paid to the special manager; and (c) whether any committee of inspection in the winding-up, or a meeting of creditors, has approved the appointment of a special manager. 8.2 Security given by special manager (Corporations Act, s 484) (1) The court may, from time to time, direct that the amount of security given by a special manager be varied. (2) Unless the court otherwise directs, the costs of providing the security given by a special manager in relation to a particular winding-up— (a) are the personal expenses of the special manager; and (b) must not be charged against the property of the company as an expense incurred in the winding-up. 8.3 Special manager’s receipts and payments (Corporations Act, s 484) (1) A special manager must give to the liquidator— (a) an account of the special manager’s receipts and payments; and (b) a statutory declaration verifying the account. (2) If the liquidator approves the account, the liquidator must include the total amounts of the special manager’s receipts and payments in the liquidator’s accounts.

Part 6.9 – Remuneration of office-holders 9.1 Remuneration of receiver (Corporations Act, s 425(1)) (1) This rule applies to an application by a receiver of property of a corporation for an order under the Corporations Act, section 425(1) fixing the receiver’s remuneration. Note 1: Under the Corporations Act, s 425(2)(b), the court may exercise its power to make an order fixing the remuneration of a receiver appointed under an instrument even if the receiver has died, or has ceased to act, before the making of the order or the application for the order.

Note 2: The amendment to the Corporations Act, s 425 made by the Corporations Amendment (Insolvency) Act 2007 (Cth) applies in relation to a receiver appointed on or after 31 December 2007—see Corporations Act, s 1480(5). [Subr (1) am SL 25 of 2008, r 36, with effect from 1 Jul 2008]

(2) At least 21 days before filing an originating or interlocutory process seeking the order, the receiver must serve a notice of the receiver’s intention to apply for the order, and a copy of any affidavit on which the receiver intends to rely, on the following: Note: See approved form 16 (Notice of intention to apply for remuneration) AF2007-144. (a) the person who appointed the receiver; (b) any creditor holding security over all or any of the same property of the corporation (except if the creditor is the person who appointed the receiver); (c) any administrator, liquidator or provisional liquidator of the corporation; (d) any administrator of a deed of company arrangement executed by the corporation; 708

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(e) if there is no-one of the kind mentioned in paragraph (c) or (d)— (i) each of the 5 largest (measured by amount of debt) unsecured creditors of the corporation; and (ii) each member of the corporation whose shareholding represents at least 10% of the issued capital of the corporation. (3) Within 21 days after the last service of the documents mentioned in subrule (2), any creditor or contributory, or anyone mentioned in subrule (2)(c), (d) or (e), may give to the receiver a notice of objection to the remuneration claimed, stating the grounds of objection. (4) If the receiver does not receive a notice of objection within the period mentioned in subrule (3)— (a) the receiver may file an affidavit, made after the end of that period, in support of the originating or interlocutory process seeking the order stating— (i) the date, or dates, when the notice and affidavit required to be served under subrule (2) were served; and (ii) that the receiver has not received any notice of objection to the remuneration claimed within the period mentioned in subrule (3); and (b) the receiver may endorse the originating or interlocutory process with a request that the application be dealt with in the absence of the public and without any attendance by, or on behalf of, the receiver; and (c) the application may be so dealt with. (5) If the receiver receives a notice of objection within the period mentioned in subrule (3), the receiver must serve a copy of the originating or interlocutory process seeking the order on each creditor or contributory, or other person, who has given a notice of objection. (6) An (a) (b) (c) (d) (e) (f)

affidavit in support of the originating process, or interlocutory process, seeking the order must— include evidence of the matters mentioned in the Corporations Act, section 425(8); and state the nature of the work performed or likely to be performed by the receiver; and state the amount of remuneration claimed; and include a summary of the receipts taken and payments made by the receiver; and state particulars of any objection of which the receiver has received notice; and if the receivership is continuing—give details of any matters delaying the completion of the receivership.

[Subr (6) subst SL 25 of 2008, r 37, with effect from 1 Jul 2008] [R 9.1 am SL 25 of 2008]

9.2 Determination by court of remuneration of administrator (Corporations Act, s 449E(1)(c) and (1A)(c)) (1) This rule applies to an application by the administrator of a company under administration, or of a deed of company arrangement, for an order under the Corporations Act, section 449E(1)(c) or (1A)(c) determining the administrator’s remuneration. (2) At least 21 days before filing an originating process, or interlocutory process, seeking the order, the administrator must serve a notice of the administrator’s intention to apply for the order, and a copy of any affidavit on which the administrator intends to rely, on the following people: (a) each creditor who was present, in person or by proxy at any meeting of creditors; (b) each member of any committee of creditors or committee of inspection; (c) if there is no committee of creditors or committee of inspection, and no meeting of creditors has been convened and held, each of the 5 largest (measured by amount of debt) creditors of the company; (d) each member of the company whose shareholding represents at least 10% of the issued capital of the company. Note: See approved form 16 (Notice of intention to apply for remuneration) AF2007-144. (3) Within 21 days after the last service of the documents mentioned in subrule (2), any creditor or contributory may give to the administrator a notice of objection to the remuneration claimed, stating the grounds of objection. ©

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(4) If the administrator does not receive a notice of objection within the period mentioned in subrule (3)— (a) the administrator may file an affidavit, made after the end of the period, in support of the originating process or interlocutory process, seeking the order stating— (i) the date, or dates, when the notice and affidavit required to be served under subrule (2) were served; and (ii) that the administrator has not received any notice of objection to the remuneration claimed within the period mentioned in subrule (3); and (b) the administrator may endorse the originating process, or interlocutory process, with a request that the application be dealt with in the absence of the public and without any attendance by, or on behalf of, the administrator; and (c) the application may be so dealt with. (5) If the administrator receives a notice of objection within the period mentioned in subrule (3), the administrator must serve a copy of the originating process, or interlocutory process, seeking the order on each creditor or contributory who has given a notice of objection. (6) An (a) (b) (c) (d) (e) (f)

affidavit in support of the originating process, or interlocutory process, seeking the order must— include evidence of the matters mentioned in the Corporations Act, section 449E(4); and state the nature of the work performed or likely to be performed by the administrator; and state the amount of remuneration claimed; and include a summary of the receipts taken and payments made by the administrator; and state particulars of any objection of which the administrator has received notice; and if the administration is continuing—give details of any matters delaying the completion of the administration.

[R 9.2 subst SL 25 of 2008, r 38, with effect from 1 Jul 2008]

9.2A Review of remuneration of administrator (Corporations Act, s 449E(2)) (1) This rule applies to an application for review of the amount of the remuneration of an administrator under the Corporations Act, section 449E(2). Note: The amendment to the Corporations Act, section 449E made by the Corporations Amendment (Insolvency) Act 2007 (Cth) applies in relation to an administrator appointed on or after 31 December 2007—see Corporations Act, s 1480(6).

(2) The application may be made only after the remuneration has been determined under the Corporations Act, section 449E(1)(a) or (b) or (1A)(a) or (b). (3) At least 21 days before filing the originating process or the interlocutory process applying for a review, the plaintiff or applicant must serve a notice of intention to apply for the review and a copy of any affidavit on which the plaintiff or applicant intends to rely (other than an affidavit required by subrule (9)), on the following people: (a) if there is a committee of creditors or a committee of inspection—each member of the committee; (b) if the remuneration of the administrator was determined by the creditors—each creditor who was present, in person or by proxy, at the meeting of creditors at which the remuneration was determined; (c) each member of the company whose shareholding represents at least 10% of the issued capital of the company. Note: See approved form 16A (Notice of intention to apply for review of remuneration) AF2008-68. (4) Within 21 days after the last service of the documents mentioned in subrule (3), any person on whom the notice has been served may serve on the plaintiff or applicant a notice— (a) stating the person’s intention to appear at the hearing of the application for review; and (b) setting out the issues that the person seeks to raise before the court. (5) A person mentioned in subrule (3) is entitled to be heard on the application for review, but only (unless the court otherwise orders) if the person has served on the plaintiff or applicant a notice in accordance with subrule (4). (6) If the plaintiff or applicant is served with a notice in accordance with subrule (4), the plaintiff or 710

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(7) The administrator must file an affidavit stating the following matters: (a) the matters mentioned in the Corporations Act, section 449E(4); (b) the nature of the work performed or likely to be performed by the administrator; (c) the amount of remuneration claimed by the administrator if that amount is different from the amount of remuneration that has been determined; (d) a summary of the receipts taken and payments made by the administrator; (e) particulars of any objection to the remuneration as determined, of which the administrator has received notice; (f) if the administration is continuing—details of any matters delaying the completion of the administration. (8) The affidavit mentioned in subrule (7) must annex a copy of the report that the administrator was required to prepare before remuneration was determined. (9) The plaintiff or applicant must— (a) file an affidavit stating whether any notice or notices under subrule (4) has or have been served; and (b) annex or exhibit to the affidavit a copy of the notice or notices. [R 9.2A insrt SL 25 of 2008, r 38, with effect from 1 Jul 2008]

9.3 Remuneration of provisional liquidator (Corporations Act, s 473(2)) (1) This rule applies to an application by a provisional liquidator of a company for an order under the Corporations Act, section 473(2) determining the provisional liquidator’s remuneration. (2) The application must be made by interlocutory process in the winding-up proceeding. (3) At least 21 days before filing the interlocutory process seeking the order, the provisional liquidator must serve a notice of the provisional liquidator’s intention to apply for the order, and a copy of any affidavit on which the provisional liquidator intends to rely, on the following: Note: See approved form 16 (Notice of intention to apply for remuneration) AF2007-144. (a) any liquidator (except the provisional liquidator) of the company; (b) each member of any committee of inspection or, if there is no committee of inspection, each of the 5 largest (measured by amount of debt) creditors of the company; (c) each member of the company whose shareholding represents at least 10% of the issued capital of the company. [Subr (3) am SL 25 of 2008, r 39, with effect from 1 Jul 2008]

(4) Within 21 days after the last service of the documents mentioned in subrule (3), the liquidator, or any creditor or contributory, may give to the provisional liquidator a notice of objection to the remuneration claimed, stating the grounds of objection. (5) If the provisional liquidator does not receive a notice of objection within the period mentioned in subrule (4)— (a) the provisional 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 (i) that the provisional liquidator has not received any notice of objection to the remuneration claimed within the period mentioned in subrule (4); and (b) the provisional liquidator may endorse the interlocutory process with a request that the application be dealt with in the absence of the public and without any attendance by, or on behalf of, the provisional liquidator; and (c) the application may be so dealt with. (6) If the provisional liquidator receives a notice of objection within the period mentioned in subrule (4), the provisional liquidator must serve a copy of the interlocutory process seeking the order— ©

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(a) on each creditor or contributory who has given a notice of objection; and (b) on the liquidator (if any). (7) An (a) (b) (c) (d) (e)

affidavit in support of the interlocutory process seeking the order must— state the nature of the work performed or likely to be performed by the provisional liquidator; and state the amount of remuneration claimed; and include a summary of the receipts taken and payments made by the provisional liquidator; and state particulars of any objection of which the provisional liquidator has received notice; and if the winding-up proceeding has not been completed—give details of— (i) any reasons known to the provisional liquidator why the winding-up proceeding has not been completed; and (ii) any reasons why the provisional liquidator’s remuneration should be determined before the completion of the winding-up proceeding.

[Subr (7) am SL 25 of 2008, rr 40 and 41, with effect from 1 Jul 2008]

(8) The affidavit must also provide evidence of the matters mentioned in the Corporations Act, section 473(10)— (a) to the extent that they may be relevant to a provisional liquidator; and (b) as if a reference in that subsection to liquidator were a reference to provisional liquidator. [Subr (8) insrt SL 25 of 2008, r 42, with effect from 1 Jul 2008] [R 9.3 am SL 25 of 2008]

9.4 Determination by court of liquidator’s remuneration (Corporations Act, s 473(3)(b)(ii)) (1) This rule applies to an application by a liquidator of a company for an order under the Corporations Act, section 473(3)(b)(ii) determining the liquidator’s remuneration. Note: The amendment to the Corporations Act, s 473 made by the Corporations Amendment (Insolvency) Act 2007 (Cth) applies in relation to a liquidator appointed on or after 31 December 2007—see the Corporations Act, s 1480(7). [Subr (1) am SL 25 of 2008, rr 44 and 45, with effect from 1 Jul 2008]

(2) The application— (a) must be made by interlocutory process in the winding-up proceeding; and (b) must not be made until after the date of the meeting of creditors mentioned in the Corporations Act, section 473(4). (3) At least 21 days before filing the interlocutory process seeking the order, the liquidator must serve a notice of the liquidator’s intention to apply for the order, and a copy of any affidavit on which the liquidator intends to rely, on the following: Note: See approved form 16 (Notice of intention to apply for remuneration) AF2007-144. (a) each creditor who was present, in person or by proxy, at any meeting of creditors at which the remuneration of the liquidator was considered; (b) each member of any committee of inspection; (c) if there is no committee of inspection, and no meeting of creditors has been convened and held—each of the 5 largest (measured by amount of debt) creditors of the company; (d) each member of the company whose shareholding represents at least 10% of the issued capital of the company. [Subr (3) am SL 25 of 2008, rr 46–48, with effect from 1 Jul 2008]

(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 712

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the liquidator may endorse the interlocutory process with a request that the application be dealt with in the absence of the public and without any attendance by, or on behalf of, the liquidator; and (c) the application may be so dealt with.

(6) If the liquidator receives a notice of objection within the period mentioned in subrule (4), the liquidator must serve a copy of the interlocutory process seeking the order on each creditor or contributory who has given a notice of objection. (7) An (a) (b) (c) (d) (e) (f)

affidavit in support of the interlocutory process seeking the order must— include evidence of the matters mentioned in the Corporations Act, section 473(10); and state the nature of the work performed or likely to be performed by the liquidator; and state the amount of remuneration claimed; and include a summary of the receipts taken and payments made by the liquidator; and state particulars of any objection of which the liquidator has received notice; and if the winding up is continuing—give details of any matters delaying the completion of the winding up.

[Subr (7) subst SL 25 of 2008, r 49, with effect from 1 Jul 2008] [R 9.4 am SL 25 of 2008, r 43, with effect from 1 Jul 2008]

9.4A Review of remuneration of liquidator (Corporations Act, s 473(5) and (6) and s 504(1)) (1) This rule applies to an application for review of the amount of the remuneration of a liquidator under the Corporations Act, section 473(5) or (6) or section 504(1). Note: The amendment to the Corporations Act, s 504 made by the Corporations Amendment (Insolvency) Act 2007 (Cth) applies in relation to a liquidator appointed on or after 31 December 2007—see the Corporations Act, s 1480(7).

(2) The application may only be made after remuneration has been determined under the Corporations Act, section 473(3)(a) or (b)(i), or fixed under section 495(1) or section 499(3). (3) At least 21 days before filing the originating process or interlocutory process applying for a review, the plaintiff or applicant must serve a notice of intention to apply for the review and a copy of any affidavit on which the plaintiff or applicant intends to rely (other than an affidavit required by subrule (9)), on the following people: (a) if there is a committee of inspection—each member of the committee; (b) if the remuneration of the liquidator was determined or fixed by the creditors—each creditor who was present, in person or by proxy, at the meeting of creditors at which the remuneration was determined or fixed; (c) each member of the company whose shareholding represents at least 10% of the issued capital of the company. Note: See approved form 16A (Notice of intention to apply for review of remuneration) AF2008–68. (4) Within 21 days after the last service of the documents mentioned in subrule (3), any person on whom the notice has been served may serve on the plaintiff or applicant a notice— (a) stating the person’s intention to appear at the hearing of the application for review; and (b) setting out the issues that the person seeks to raise before the court. (5) A person mentioned subrule (3) is entitled to be heard on the application for review, but only (unless the court otherwise orders) if the person has served on the plaintiff or applicant a notice in accordance with subrule (4). (6) If the plaintiff or applicant is served with a notice in accordance with subrule (4), the plaintiff or applicant must serve a copy of the originating process or interlocutory process applying for the review on each person who has served the notice. (7) The liquidator must file an affidavit stating the following matters: (a) for an application under the Corporations Act, section 473(5) or (6)—the matters mentioned in the Corporations Act, section 473(10); (b) for an application under the Corporations Act, section 504(1)—the matters mentioned in the Corporations Act, section 504(2); (c) the nature of the work performed or likely to be performed by the liquidator; ©

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(d)

the amount of remuneration claimed by the liquidator if that amount is different from the amount of remuneration that has been determined or fixed; (e) a summary of the receipts taken and payments made by the liquidator; (f) particulars of any objection to the remuneration as determined or fixed of which the liquidator has received notice; (g) if the winding up is continuing—details of any matters delaying the completion of the winding up.

(8) The affidavit under subrule (7) must annex a copy of the report that the liquidator was required to prepare before remuneration was determined or fixed. Note: For the requirement to prepare a report, see the Corporations Act, s 473(11) and (12), s 495(5), s 499(6) and (7). (9) The plaintiff or applicant must— (a) file an affidavit stating whether any notice or notices under subrule (4) has or have been served; and (b) annex or exhibit to the affidavit a copy of the notice or notices. [R 9.4A insrt SL 25 of 2008, r 50, with effect from 1 Jul 2008]

9.5 Remuneration of special manager (Corporations Act, s 484(2)) (1) This rule applies to an application by a special manager of the property or business of a company for an order under the Corporations Act, section 484(2) fixing the special manager’s remuneration. (2) The application must be made by interlocutory process in the winding-up proceeding. (3) At least 21 days before filing the interlocutory process seeking the order, the special manager must serve a notice of the special manager’s intention to apply for the order, and a copy of any affidavit on which the special manager intends to rely, on the following: Note: See approved form 16 (Notice of intention to apply for remuneration) AF2007-144. (a) the liquidator of the company; (b) each member of any committee of creditors or committee of inspection or, if there is no committee of creditors or committee of inspection, each of the 5 largest (measured by amount of debt) creditors of the company; (c) each member of the company whose shareholding represents at least 10% of the issued capital of the company. [Subr (3) am SL 25 of 2008, r 51, with effect from 1 Jul 2008]

(4) Within 21 days after the last service of the documents mentioned in subrule (3), the liquidator, or any creditor or contributory, may give to the special manager a notice of objection to the remuneration claimed, stating the grounds of objection. (5) If the special manager does not receive a notice of objection within the period mentioned in subrule (4)— (a) the special manager 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 special manager has not received any notice of objection to the remuneration claimed within the period mentioned in subrule (4); and (b) the special manager may endorse the interlocutory process with a request that the application be dealt with in the absence of the public and without any attendance by, or on behalf of, the special manager; and (c) the application may be so dealt with. (6) If the special manager receives a notice of objection within the period mentioned in subrule (4), the special manager must serve a copy of the interlocutory process seeking the order— (a) on each creditor or contributory who has given a notice of objection; and (b) on the liquidator. (7) The affidavit in support of the interlocutory process seeking the order must— (a) state the nature of the work performed or likely to be performed by the special manager; and 714

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state the amount of remuneration claimed; and include a summary of the receipts taken and payments made by the special manager; and state particulars of any objection of which the special manager has received notice; and if the special management is continuing—give details of any matters delaying the completion of the special management.

[Subr (7) am SL 25 of 2008, rr 52 and 53, with effect from 1 Jul 2008] [R 9.5 am SL 25 of 2008]

Part 6.10 – Winding-up generally 10.1 Determination of value of debts or claims (Corporations Act, s 554A(2)) A reference to the court by a liquidator of a company under the Corporations Act, section 554A(2)(b) must be made— (a) for a winding-up by the court—by filing an interlocutory process seeking an order estimating, or determining a method for working out, the value of the debt or claim; and (b) for a voluntary winding-up—by filing an originating process seeking an order estimating, or determining a method for working out, the value of the debt or claim. 10.2 Disclaimer of contract (Corporations Act, s 568(1A)) (1) The affidavit in support of an application by a liquidator, under the Corporations Act, section 568(1A), for leave to disclaim a contract in relation to a company must— (a) state the people interested, and their interests, under the contract; and (b) state the facts on which it is submitted that the contract should be disclaimed. (2) The liquidator must serve the affidavit on each party to the contract (except the company) and on anyone interested in the contract. 10.3 Winding-up Part 5.7 bodies (Corporations Act s 583, s 585) and registered schemes (Corporations Act, s 601ND) These rules apply, with any necessary changes, and in the same way as they apply to a company, in relation to the winding-up of a Part 5.7 body or a registered scheme.

Part 6.11 – Examinations and orders (Corporations Act, pt 5.9, div 1 and div 2) 11.1 Meaning of examination summons in pt 6.11 In this part: examination summons means a summons under the Corporations Act, section 596A or section 596B for the examination of a person about a corporation’s examinable affairs. 11.2 Application for examination or investigation under Corporations Act, s 411(9)(b), s 423 or s 536(3) (1) An application for an order for the examination or investigation of a person under the Corporations Act, section 411(9)(b), section 423 or section 536(3) may be made by— (a) ASIC; or (b) a person authorised by ASIC; or (c) a creditor or contributory; or (d) anyone else aggrieved by the conduct of— (i) a person appointed to administer a compromise or arrangement; or (ii) a controller; or (iii) a liquidator or provisional liquidator. [Subr (1) am SL 25 of 2008, r 57, with effect from 1 Jul 2008]

(2) The application may be made without notice to anyone. (3) The provisions of this part that apply to an examination under the Corporations Act, part 5.9, division 1 ©

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apply, with any necessary changes, to an examination or an investigation under the Corporations Act, section 411(9)(b), section 423 or section 536(3). [R 11.2 am SL 25 of 2008]

11.3 Application for examination summons (Corporations Act, s 596A, s 596B) (1) An application for the issue of an examination summons must be made by filing an interlocutory or originating process. (2) The application may be made without notice to anyone. (3) The originating or interlocutory process seeking the issue of the examination summons must be— (a) supported by an affidavit stating the facts in support of the process; and (b) accompanied by a draft examination summons. Note: See approved form 17 (Summons for examination) AF2007-145. (4) The originating or interlocutory process and supporting affidavit must be filed in a sealed envelope marked, as appropriate— (a) ‘Application and supporting affidavit for issue of summons for examination under section 596A of the Corporations Act 2001’; or (b) ‘Application and supporting affidavit for issue of summons for examination under section 596B of the Corporations Act 2001’. (5) If the application is not made by the liquidator, the liquidator must be given notice of the application and, if required by the liquidator, served with a copy of the originating or interlocutory process and the supporting affidavit. (6) If the application is not made by ASIC, ASIC must be given notice of the application and, if required by ASIC, served with a copy of the originating or interlocutory process and the supporting affidavit. [Subr (6) am SL 25 of 2008, r 57, with effect from 1 Jul 2008]

(7) Unless the court otherwise orders, an affidavit in support of an application for an examination summons is not available for inspection by anyone. [R 11.3 am SL 25 of 2008]

11.4 Service of examination summons An examination summons issued by the court must be personally served, or served in any way that as the court may direct, on the person who is to be examined at least 8 days before the date set for the examination. 11.5 Discharge of examination summons (1) This rule applies if a person is served with an examination summons. (2) Not later than 3 days after the person is served with the examination summons, the person may apply to the court for an order discharging the summons by filing— (a) an interlocutory process seeking an order discharging the summons; and (b) an affidavit stating the facts in support of the interlocutory process. (3) As soon as practicable after filing the interlocutory process seeking the order and the supporting affidavit, the person must serve a copy of the interlocutory process and the supporting affidavit on— (a) the person who applied for the examination; and (b) unless that person is ASIC or a person authorised by ASIC, ASIC. [Subr (3) am SL 25 of 2008, r 57, with effect from 1 Jul 2008] [R 11.5 am SL 25 of 2008]

11.6 Filing of record of examination (Corporations Act, s 597(13)) If the court makes an order in relation to an examination under the Corporations Act, section 597(13), the court may give directions for the filing of the written record of the examination. 11.7 Authentication of transcript of examination (Corporations Act, s 597(14)) For the Corporations Act, section 597(14), a transcript of an examination may be authenticated— (a) by the person, or people, who prepared the record of examination, or under whose supervision the record was prepared, certifying in writing signed by the person or people, that the record is a true transcript of the record of examination; or 716

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r 11.11

by anyone present at the examination, or any part of the examination, signing the person’s name at the bottom of each page of the written record that records a part of the examination at which the person was present.

11.8 Inspection of record or transcript of examination or investigation under Corporations Act, s 411, s 423 or s 536 (1) A written record or transcript of an examination or investigation under the Corporations Act, section 411, section 423 or section 536 is not available for inspection by anyone except— (a) with the consent of the liquidator (if any) or ASIC; or (b) by leave of the court. (2) This rule does not apply to the liquidator, ASIC or anyone authorised by ASIC. [R 11.8 am SL 25 of 2008, r 57, with effect from 1 Jul 2008]

11.9 Entitlement to record or transcript of examination held in public (1) This rule applies if— (a) an examination under the Corporations Act, section 597 is held completely or partly in public; and (b) a written record or transcript of the examination is filed in the court. (2) The person examined may apply to the registrar, not later than 3 years after the completion of the examination, for a copy of the record or transcript of the part of the examination of the person held in public. (3) On receiving an application from a person under subrule (2), and any applicable fee, the registrar must give a copy of the record or transcript to the person. 11.10 Default in relation to examination (1) This rule applies if a person is summoned or ordered by the court to attend for examination, and— (a) without reasonable cause, the person— (i) fails to attend at the time and place appointed; or (ii) fails to attend from day-to-day until the completion of the examination; or (iii) fails to take an oath or make an affirmation; or (iv) fails to answer a question that the court directs the person to answer; or (v) fails to produce books that the summons requires the person to produce; or (vi) fails to comply with a requirement by the court to sign a written record of the examination; or (b) before the day set for the examination, the person who applied for the summons or order satisfies the court that there is reason to believe that the person summoned or ordered to attend for examination has absconded or is about to abscond. (2) The court may— (a) issue a warrant for the arrest of the person summoned or ordered to attend for examination; and (b) make any other orders that the court considers just or necessary. 11.11 Service of application for order in relation to breaches etc by person concerned with corporation (Corporations Act, s 598) (1) This rule applies to a person applying for an order under the Corporations Act, section 598. (2) In addition to complying with rule 2.7 (Service of originating process or interlocutory process and supporting affidavit) and rule 2.8 (Notice of certain applications to be given to ASIC), the person must serve a copy of the originating or interlocutory process and the supporting affidavit on any liquidator or provisional liquidator (except if the person is the liquidator or provisional liquidator) of the corporation or body. Note: Under r 2.7, a plaintiff must serve a copy of the originating process, and any supporting affidavit, on a defendant to the proceeding and, if necessary, on the corporation to which the proceeding relates; and an applicant must serve a copy of an interlocutory process, and any supporting affidavit, on a respondent to the proceeding and, if necessary, on the corporation to which the proceeding relates. In certain cases, these documents may also be required to be served on ASIC (see r 2.8). [Subr (2) am SL 25 of 2008, r 57, with effect from 1 Jul 2008] [R 11.1 am SL 25 of 2008] ©

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Part 6.11A – Warrants (Corporations Act, s 486B and pt 5.4B, div 3, subdiv B) [Pt 6.11A insrt SL 25 of 2008, r 54, with effect from 1 Jul 2008]

11A.1 Arrest of person (Corporations Act, s 486B) (1) An application for the issue of a warrant under the Corporations Act, section 486B(1) for the arrest of a person must state the grounds for the issue of the warrant. (2) The application must be accompanied by an affidavit stating the facts in support of the application. Note: See approved form 17A (Arrest warrant) AF2008-69. (3) If a person is arrested under the warrant, the person who carried out the arrest must immediately give notice of the arrest to a registrar in the registry from which the warrant was issued. Note: The Corporations Act, ss 489A to 489E, inserted by the Corporations Amendment (Insolvency) Act 2007 (Cth), apply in relation to a warrant issued on or after 31 December 2007—see the Corporations Act, s 1481(3). [R 11A.1 insrt SL 25 of 2008, r 54, with effect from 1 Jul 2008]

Part 6.12 – Takeovers, acquisitions of shares and other matters (Corporations Act, chs 6, 6A, 6B, 6C, 6D and 7) and securities (Corporations Act, ch 7) 12.1 Service on ASIC in relation to proceedings under Corporations Act, ch 6, 6A, 6B, 6C, 6D or 7 If ASIC is not a party to an application made under the Corporations Act, chapter 6, 6A, 6B, 6C, 6D or 7, the plaintiff must serve a copy of the originating process and the supporting affidavit on ASIC as soon as practicable after filing the originating process. [R 12.1 am SL 25 of 2008, rr 55 and 57, with effect from 1 Jul 2008]

12.1A Reference to court of question of law arising in proceeding before Takeovers Panel (Corporations Act, s 659A) The procedures in the Federal Court Rules 2011 (Cth), part 38 (Cases stated and questions reserved) apply, with any necessary changes, to a reference of a question of law arising in a proceeding before the Takeovers Panel to the court under the Corporations Act, section 659A. [R 12.1A am SL 43 of 2012, r 56, with effect from 1 Jan 2013]

12.1B Notification to court if proceeding started before end of takeover bid period (Corporations Act, s 659B) (1) This rule applies to a party to a proceeding who suspects or becomes aware that— (a) the proceeding was started in relation to a takeover bid, or proposed takeover bid, before the end of the bid period; and (b) the proceeding falls within the definition of court proceedings in relation to a takeover bid or proposed takeover bid in the Corporations Act, section 659B(4). (2) The party identified in subrule (1) must, immediately on suspecting or becoming aware of the matters mentioned in subrule (1), notify any other party to the proceeding and the court of the suspicion or knowledge. (3) The party must comply with subrule (2), unless any other party to the proceeding has given a notice under this rule to the party. [R 12.1B insrt SL 16 of 2007, r 35, with effect from 1 Jul 2007]

12.2 Application for summons for appearance of person (Corporations Act, s 1071D(4)) (1) An application for the issue of a summons under the Corporations Act, section 1071D(4) must be made by filing an originating or interlocutory process. (2) The applicant may be the only party to the application. (3) The originating or interlocutory process seeking the issue of the summons must be— (a) supported by an affidavit stating the facts in support of the process; and (b) accompanied by a draft summons. 718

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See approved form 18 (Summons for appearance in relation to registration of transfer of interests) AF2007-146.

12.3 Application for orders relating to refusal to register transfer or transmission of securities (Corporations Act, s 1071F) As soon as practicable after filing an originating process under the Corporations Act, section 1071F, the plaintiff must serve a copy of the originating process and the supporting affidavit on— (a) the company; and (b) anyone against whom an order is sought.

Part 6.13 Note:

These rules do not include a pt 6.13. The division number has been kept to ensure that provision numbers in these rules are consistent with the uniform corporations rules.

Part 6.14 – Powers of courts (Corporations Act, pt 9.5) 14.1 Appeal from act, omission or decision of administrator, receiver or liquidator etc (Corporations Act, s 554A, s 1321) (1) All appeals to the court authorised by the Corporations Act must be started by an originating or interlocutory process that states— (a) the act, omission or decision complained of; and (b) for an appeal against a decision—whether all or part only of the decision is complained of and, if part only, which part of the decision is complained of; and (c) the grounds on which the complaint is based. (2) Unless the Corporations Act otherwise provides, the originating or interlocutory process must be filed within— (a) 21 days after the date of the act, omission or decision appealed against; or (b) any further time allowed by the court. (3) The court may extend the time for filing the originating or interlocutory process either before or after the time for filing ends and whether or not the application for extension is made before the time ends. (4) As soon as practicable after filing the originating or interlocutory process and, in any case, at least 5 days before the date set for hearing, the appellant must serve a copy of the process, and any supporting affidavit, on each person directly affected by the appeal. (5) As soon as practicable after being served with a copy of the originating or interlocutory process and any supporting affidavit, a person whose act, omission or decision is being appealed against must file an affidavit— (a) stating the basis on which the act, omission or decision was done or made; and (b) annexing or exhibiting a copy of all relevant documents that have not been put in evidence by the appellant.

Part 6.15 – Proceedings under ASIC Act 15.1 Reference to court of question of law arising at hearing of ASIC (ASIC Act, s 61) The procedures in the Federal Court Rules 2011 (Cth), part 38 (Cases stated and questions reserved) apply, with any necessary changes, to a reference of a question of law arising at a hearing by ASIC to the court under the ASIC Act, section 61. [R 15.1 am SL 43 of 2012, r 57, with effect from 1 Jan 2013; SL 25 of 2008, rr 56 and 57, with effect from 1 Jul 2008]

15.2 Note:

These rules do not include a r 15.2. The rule number has been kept to ensure that provision numbers in these rules are consistent with the uniform corporations rules.

15.3 Application for inquiry (ASIC Act, s 70, s 201, s 219) An application for an inquiry under the ASIC Act, section 70(3), section 201(3) or section 219(7) must be made by filing an originating process seeking an inquiry and orders under the relevant subsection.

Part 6.15A – Proceedings under the Cross-Border Insolvency Act [Pt 6.15A insrt SL 50 of 2008, r 16, with effect from 1 Jan 2009] ©

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15A.1 Application—pt 6.15A and other rules Unless the court otherwise orders— (a) this part applies to a proceeding in the court, under the Cross-Border Insolvency Act, involving a debtor other than an individual; and (b) the rules (other than this part) apply to a proceeding in the court under the Cross-Border Insolvency Act if they are relevant and not inconsistent with this part. Note: Cross-Border Insolvency Act—see r 1.5. [R 15A.1 insrt SL 50 of 2008, r 16, with effect from 1 Jan 2009]

15A.2 Terms used in Cross-Border Insolvency Act (1) Unless the contrary intention appears, a term that is used in this part and in the Cross-Border Insolvency Act, whether or not a particular meaning is given to the term by the Cross-Border Insolvency Act, has the same meaning in this part as it has in the Cross-Border Insolvency Act. Note: The following terms used in this part (including in the notes to this part) are defined in the Model Law as having the following meanings: establishment means any place of operations where the debtor carries out a non-transitory economic activity with human means and goods or services. foreign court means a judicial or other authority competent to control or supervise a foreign proceeding. foreign main proceeding means a foreign proceeding taking place in the State where the debtor has the centre of its main interests. foreign non-main proceeding means a foreign proceeding, other than a foreign main proceeding, taking place in a State where the debtor has an establishment within the meaning of subparagraph (f) of the present article. foreign proceeding means a collective judicial or administrative proceeding in a foreign State, including an interim proceeding, pursuant to a law relating to insolvency in which proceeding the assets and affairs of the debtor are subject to control or supervision by a foreign court, for the purpose of reorganisation or liquidation. foreign representative means a person or body, including one appointed on an interim basis, authorised in a foreign proceeding to administer the reorganisation or the liquidation of the debtor’s assets or affairs or to act as a representative of the foreign proceeding.

(2) This part is to be interpreted in a way that gives effect to the Cross-Border Insolvency Act. [R 15A.2 insrt SL 50 of 2008, r 16, with effect from 1 Jan 2009]

15A.3 Application for recognition (1) An application by a foreign representative for recognition of a foreign proceeding under the Model Law, article 15 must be made by filing an originating process. Note: See approved form 2 (Originating process) AF2008-143. (2) The originating process must— (a) be accompanied by the statements mentioned in the Model Law, article 15 and the Cross-Border Insolvency Act, section 13; and (b) name the foreign representative as the plaintiff and the debtor as the defendant; and (c) be accompanied by an affidavit verifying the matters mentioned in the Model Law, article 15, paragraphs 2 and 3 and the Cross-Border Insolvency Act, section 13. (3) When filing the originating process, the foreign representative must file, but need not serve, an interlocutory process seeking directions as to service, and the court may give any directions about service, and make any incidental orders, that it considers just. Note: See approved form 3 (Interlocutory process) AF2008-144. (4) The plaintiff must serve a copy of the originating process and the other documents mentioned in subrule (2)— (a) unless the court otherwise orders, in accordance with subrule 2.7(1); and (b) on any other people the court may direct at the hearing of the interlocutory process. (5) A person who intends to appear before the court at the hearing of an application for recognition must file and serve the documents mentioned in rule 2.9. [R 15A.3 insrt SL 50 of 2008, r 16, with effect from 1 Jan 2009] 720

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(1) Any application by the plaintiff for provisional relief under the Model Law, article 19 must be made by filing an interlocutory process. Note: See approved form 3 (Interlocutory process) AF2008-144. (2) Unless the court otherwise orders, the interlocutory process and any supporting affidavit must be served in accordance with subrule 2.7(2). [R 15A.4 insrt SL 50 of 2008, r 16, with effect from 1 Jan 2009]

15A.5 Official liquidator’s consent to act If an application is made for an order— (a) under the Model Law, article 19 or 21 to entrust the administration or realisation of all or part of the debtor’s assets to a person designated by the Court (other than the foreign representative); or (b) under article 21 to entrust the distribution of all or part of the debtor’s assets to a person designated by the Court (other than the foreign representative); then, unless the Court otherwise orders, the person must— (c) be an official liquidator; and (d) have filed a Consent to Act that states an address for service for the person within Australia. Note: See approved form 19 (Consent to act as designated person) AF2010-149. [R 15A.5 subst SL 24 of 2010, r 39, with effect from 1 Jul 2010; insrt SL 50 of 2008, r 16, with effect from 1 Jan 2009]

15A.6 Notice of filing application for recognition (1) Unless the court otherwise orders, the plaintiff in a proceeding mentioned in rule 15A.3 must— (a) send a notice of filing the application to each person whose claim to be a creditor of the defendant is known to the plaintiff; and (b) publish a notice of filing the application for recognition of a foreign proceeding in a daily newspaper circulating generally in the State or Territory of the defendant’s principal, or last known, place of business. Note: See approved form 20 (Notice of filing of application for recognition of foreign proceeding) AF2008-149. [Subr (1) am SL 43 of 2012, r 58, with effect from 1 Jan 2013]

(2) The court may direct the plaintiff to publish the notice in a daily newspaper circulating generally in any State or Territory not described in subrule (1)(b). [Subr (2) am SL 43 of 2012, r 59, with effect from 1 Jan 2013] [R 15A.6 am SL 43 of 2012; insrt SL 50 of 2008, r 16, with effect from 1 Jan 2009]

15A.7 Notice of order for recognition, withdrawal etc (1) If the court makes an order for recognition of a foreign proceeding under the Model Law, article 17 or makes any order under the Model Law, article 19 or 21, the plaintiff must, as soon as practicable after the order is made, do all of the following: (a) have the order entered; (b) serve a copy of the entered order on the defendant; (c) send a notice of the making of the order to each person whose claim to be a creditor of the defendant is known to the plaintiff; Note: See approved form 21 (Notice of making of order under the Cross-Border Insolvency Act 2008) AF2008-150.

(d)

publish the notice of the making of the order in a daily newspaper circulating generally in the State or Territory of the defendant’s principal, or last known, place of business.

[Subr (1) am SL 43 of 2012, r 60, with effect from 1 Jan 2013]

(2) The court may direct the plaintiff to publish the notice in a daily newspaper circulating generally in any state or territory not described in subrule (1)(d). [Subr (2) am SL 43 of 2012, r 61, with effect from 1 Jan 2013]

(3) If the application for recognition is dismissed or withdrawn, the plaintiff must, as soon as practicable, do all of the following: ©

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Court Procedures Rules 2006 (ACT) – (Extracts)

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(a) for a dismissal—have the order of dismissal entered; (b) serve a copy of the entered order of dismissal, or notice of the withdrawal, on the defendant; (c) send a notice of the dismissal or withdrawal to each person whose claim to be a creditor of the defendant is known to the plaintiff; Note: See approved form 22 (Notice of dismissal or withdrawal of application for recognition of foreign proceeding) AF2008-151.

(d)

publish the notice of the dismissal or withdrawal in a daily newspaper circulating generally in the State or Territory of the defendant’s principal, or last known, place of business.

[Subr (3) am SL 43 of 2012, r 62, with effect from 1 Jan 2013]

(4) The court may direct the plaintiff to publish the notice of the dismissal or withdrawal in a daily newspaper circulating generally in any State or Territory not described in subrule (3)(d). [Subr (4) am SL 43 of 2012, r 63, with effect from 1 Jan 2013] [R 15A.7 am SL 43 of 2012; insrt SL 50 of 2008, r 16, with effect from 1 Jan 2009]

15A.8 Relief after recognition (1) If the court has made an order for recognition of a foreign proceeding, any application by the plaintiff for relief under the Model Law, article 21, paragraph 1 must be made by filing an interlocutory process, and any supporting affidavit. Note: See approved form 3 (Interlocutory process) AF2008-144. (2) Unless the court otherwise orders, an interlocutory process under subrule (1) and any supporting affidavit must be served in accordance with rule 2.7(2) but on the following people: (a) the defendant; (b) any person that the court directed be served with the originating process by which the application for recognition was made; (c) any other person that the court directs. (3) A person who intends to appear before the court at the hearing of an application under subrule (1) must file and serve the documents mentioned in rule 2.9. [R 15A.8 insrt SL 50 of 2008, r 16, with effect from 1 Jan 2009]

15A.9 Application to modify or terminate order for recognition or other relief (1) This rule applies to— (a) an application under the Model Law, article 17, paragraph 4 for an order modifying or terminating an order for recognition of a foreign proceeding; and (b) an application under the Model Law, article 22, paragraph 3 for an order modifying or terminating relief granted under the Model Law, article 19 or 21. (2) An application mentioned in subrule (1) must be made by filing an interlocutory process. Note: See approved form 3 (Interlocutory process) AF2008-144. (3) An interlocutory process for an application under subrule (1) and any supporting affidavit must be served on— (a) for an application under subrule (1)(a)—the defendant and any other people who were served with, or filed a notice of appearance in relation to, the application for recognition; and (b) for an application under subrule (1)(b)—the defendant and any other people who were served with, or filed a notice of appearance in relation to, the application for relief under the Model Law, article 19 or 21. (4) Unless the court otherwise orders, a plaintiff who applies for an order under subrule (1) must— (a) send a notice of filing the application to each person whose claim to be a creditor of the defendant is known to the plaintiff; and Note: See approved form 23 (Notice of filing of application to modify or terminate an order for recognition or other relief) AF2008-152.

(b)

publish the notice of filing the application in a daily newspaper circulating generally in the State or Territory of the defendant’s principal, or last known, place of business.

[Subr (4) am SL 43 of 2012, r 64, with effect from 1 Jan 2013] 722

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[Subr (5) am SL 43 of 2012, r 65, with effect from 1 Jan 2013]

(6) A person who intends to appear before the court at the hearing of an application under subrule (1) must file and serve the documents mentioned in rule 2.9. [R 15A.9 am SL 43 of 2012; insrt SL 50 of 2008, r 16, with effect from 1 Jan 2009]

Part 6.16 Note:

This part of the uniform corporations rules has not been included. These rules deal with the powers of the court that may be exercised by the associate judge or registrar of the court (see pt 6.4 (Associate judge) and pt 6.5 (Registrar) and sch 5 (Jurisdiction of registrar)). [Pt 6.16 heading note am SL 22 of 2015, r 52, with effect from 1 Jul 2015] [Sch 6 am SL 22 of 2015; SL 43 of 2012; SL 24 of 2010; SL 50 of 2008; SL 25 of 2008; SL 37 of 2007; SL 16 of 2007]

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(5) The court may direct the applicant to publish the notice of filing the application in a daily newspaper circulating generally in any State or Territory not described in subrule (4)(b).

Court Procedures Rules 2006 (ACT) – (Extracts)

APPROVED FORMS Form 2 – Originating process [AF2008-143] Court Procedures Rules 2006 (see sch 6 r 2.2 (Originating process and interlocutory process) and r 15A.3 (Application for recognition)) In the Supreme Court of the Australian Capital Territory No SC .......... of (year) (Court to complete) In the matter of (full name of corporation to which the proceeding relates and, if applicable, the words “(in liquidation)”, “(receiver appointed)”, “(receiver and manager appointed)”, “(controller acting)” or “(under administration)”) * [ABN/ACN/ARBN]: (name) *[and others] Plaintiff (list, in a schedule, any further plaintiffs) (name) *[and others] * Defendant (list, in a schedule, any further defendants)

A DETAILS OF APPLICATION This application is made under *[section/regulation] (number) of the *[Corporations Act/ASIC Act/CrossBorder Insolvency Act/Corporations Regulations].

(State briefly the nature of the proceeding, eg application for winding-up on ground of insolvency or complaint about a receiver.) On the facts stated in the supporting affidavit(s), the plaintiff claims: 1 2 etc AND Date: (signature of plaintiff/plaintiff’s legal practitioner) (name of plaintiff/plaintiff’s legal practitioner) This application will be heard by the Supreme Court at Knowles Place, Canberra City at (time) *[am/pm] on (date). B NOTICE TO DEFENDANT(S) (IF ANY) To: (name and address of each defendant (if any)) If you or your legal practitioner do not appear before the Court at that time, the application may be dealt with, and an order made, in your absence. As soon after that time as the business of the Court will allow, any of the following may happen: (a) the application may be heard and final relief given; (b) directions may be given for the future conduct of the proceeding; (c) any interlocutory application may be heard. 724

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Before appearing before the Court, you must file a notice of appearance, in the approved form, in the Registry and serve a copy of it on the plaintiff. Note: Unless the Court otherwise orders, a defendant that is a corporation must be represented at a hearing by a legal practitioner. It may be represented at a hearing by a director of the corporation only if the Court gives leave.

*

C APPLICATION FOR WINDING-UP ON GROUND OF INSOLVENCY (Complete this section if this originating process is seeking an order that a company be wound up in insolvency on the ground that the company has failed to comply with a statutory demand (see Corporations Act, section 459Q.) (Set out particulars of service of the statutory demand on the company and of the failure to comply with the demand.) (Attach to this originating process a copy of the statutory demand and, if the demand has been varied by an order made under the Corporations Act, section 459H(4) because of a dispute or offsetting claim, a copy of the order made under that subsection.) (The affidavit in support of this originating process must: (a) verify service of the demand on the company; and (b) verify the failure of the company to comply with the demand; and (c) state whether and, if so, to what extent the debt, or each of the debts, to which the demand relates is still due and payable at the date when the affidavit is made.) Note 1: In an application for winding-up in insolvency on the ground that the company has failed to comply with a statutory demand, the plaintiff should consider completing form 2, pt C as shown in attachment A. Note 2: An example of the affidavit in support of an application for winding-up in insolvency for failure to comply with a statutory demand is shown in attachment B. D FILING Date of filing: (date of filing to be entered by Registrar) Registrar This originating process is filed by (name) for the plaintiff. E SERVICE The plaintiff’s address for service is (address of plaintiff’s legal practitioner or of plaintiff). * [It is not intended to serve a copy of this originating process on any person.] OR * [It is intended to serve a copy of this originating process on each defendant and on any person listed below: (name of defendant and any other person on whom a copy of the originating process is to be served)] (Complete the following section if the time for service has been shortened) The time by which a copy of this originating process is to be served has been shortened by order made by (name of Judge or other Court offıcer) on (date) to (time and date). * omit if, or whichever is, inapplicable Filed for the plaintiff by: (the plaintiff’s address for service and telephone number (if any) or, if the plaintiff is represented by a solicitor and the solicitor is the agent of another solicitor, the name and place of business of the other solicitor)

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ACT

Approved Forms Form 2 – Originating process

Court Procedures Rules 2006 (ACT) – (Extracts) Attachment A Note 1—see sch 6, r 2.2 (Form 2 part C) C. APPLICATION FOR WINDING-UP ON GROUND OF INSOLVENCY 1. The plaintiff relies on failure by the defendant to comply with a statutory demand. A copy of the demand, marked A, is attached to this originating process. * * [ [The demand was/The demand and an accompanying affidavit were] served by X.Y. 2. who delivered *[it/them] to the registered office of the defendant at (insert address) on (insert date). *[A copy of the accompanying affidavit, marked B, is attached to this originating process.]] OR (if service was by post) * * [ [The demand was/The demand and an accompanying affidavit were] served by X.Y 2. who posted *[it/them] by ordinary prepaid post to the registered office of the defendant at (insert address) on (insert date). *[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/total of the debts demanded] or to secure or compound for that *[amount/total] to the plaintiff’s reasonable satisfaction *[within 21 days after the demand was served on the defendant/within 7 days after (insert date) when an application by the defendant under the Corporations Act, section 459G was finally determined or otherwise disposed of/(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 the Corporations Act, s 459H(4)) 4. The demand was varied by order of the (insert name of Court) on (insert date of order). A copy of the order, marked (insert letter), is attached to this originating process. * omit if, or whichever is, inapplicable Attachment B Note 2—see sch 6, r 2.4 and r 5.4(2) (Affidavit in support) * AFFIDAVIT IN SUPPORT/*AFFIDAVIT IN SUPPORT OF APPLICATION FOR WINDING-UP IN INSOLVENCY I, (name) of (address and occupation), *[say on oath/solemnly affirm]: * [I am the abovenamed plaintiff. Now produced and shown to me and marked A is a 1. copy of the originating process to be filed in the proceeding.] OR (if the plaintiff is a corporation) * [I am *[a/the director] of the above-named plaintiff which is registered or taken to be 1. registered in (state the 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.] 2. Annexed to this affidavit is a current and historical extract of the records maintained by the Australian Securities and Investments Commission with respect to the defendant. 3. (Where the defendant is registered or taken to be registered in a State or Territory other than that of this Registry, state any facts—apart from the defendant’s principal place of business—which bear upon jurisdiction being exercised in the State or Territory of this Registry, rather than in another State or Territory.) 4. The following facts are within my own personal knowledge save as otherwise stated. 5. The defendant was on (state date of statutory demand or other relevant date) indebted to the plaintiff in the sum of $ (amount) for (state concisely the consideration, for example, goods sold and delivered etc.) which sum was then due and payable.

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Corporations – Court Rules and Related Legislation 2017

6.

7.

The demand, a copy of which is attached to the originating process, was signed by or on behalf of the plaintiff. *[I served the *[demand/demand and the accompanying affidavit] as referred to in the originating process/X.Y. has been instructed to make an affidavit of service of the *[demand/demand and the accompanying affidavit]]. The matters stated in the originating process concerning the demand and failure of the defendant to comply with it are true and correct. The sum demanded remains due and payable by the defendant to *[me/the plaintiff].

8. Sworn, etc. * omit if, or whichever is, inapplicable

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ACT

Approved Forms Form 2 – Originating process

Court Procedures Rules 2006 (ACT) – (Extracts)

Form 3 – Interlocutory process [AF2008-144] Court Procedures Rules 2006 (see sch 6 r 2.2 (Originating process and interlocutory process), r 15A.4 (Application for provisional relief under Model Law, art 19), r 15A.8 (Relief after recognition) and r 15A.9 (Application to modify or terminate order for recognition or other relief)) In the Supreme Court of the Australian Capital Territory No SC .......... of (year) In the matter of (full name of corporation to which the proceeding relates and, if applicable, the words “(in liquidation)”, “(receiver appointed)”, “(receiver and manager appointed)”, “(controller acting)” or “(under administration)”) * [ABN/ACN/ARBN]: (name) *[and others] Applicant (list, in a schedule, any further applicants) (name) *[and others] * Respondent (list, in a schedule, any further respondents) A DETAILS OF APPLICATION * [This application is made under *[section/*regulation] (number) of the *[Corporations Act/ASIC Act/CrossBorder Insolvency Act/Corporations Regulations].] On the facts stated in the supporting affidavit(s), the applicant, (name), applies for the following relief: 1 2 etc AND Date: (signature of applicant/applicant’s legal practitioner) (name of applicant/applicant’s legal practitioner) This application will be heard by the Supreme Court at Knowles Place, Canberra City at (time) *[am/pm] on (date). B NOTICE TO RESPONDENT(S) (IF ANY) To: (name and address of each respondent to this interlocutory process (if any). If applicable, also state the respondent’s address for service.) If you or your legal practitioner do not appear before the Court at that time, the application may be dealt with, and an order made, in your absence. Before appearing before the Court, you must, except if you have already done so or you are the plaintiff in this proceeding, file a notice of appearance, in the approved form, in the Registry and serve a copy of it on the plaintiff in the originating process. Note: Unless the Court otherwise orders, a respondent that is a corporation must be represented at a hearing by a legal practitioner. It may be represented at a hearing by a director of the corporation only if the Court grants leave. C FILING This interlocutory process is filed by (name) for the applicant. D SERVICE The applicant’s address for service is (address of applicant’s legal practitioner or of applicant). 728

Corporations – Court Rules and Related Legislation 2017

Approved Forms Form 3 – Interlocutory process [It is not intended to serve a copy of this interlocutory process on any person.] OR * [It is intended to serve a copy of this interlocutory process on each respondent and on any person listed below:] (name of respondent and any other person on whom a copy of the interlocutory process is to be served) (Complete the following section if the time for service has been shortened) The time by which a copy of this interlocutory process is to be served has been shortened by order made by (name of Judge or other Court offıcer) on (date) to (time and date). *

omit if, or whichever is, inapplicable

Filed for the applicant by: (the applicant’s address for service and telephone number (if any) or, if the applicant is represented by a solicitor and the solicitor is the agent of another solicitor, the name and place of business of the other solicitor)

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ACT

*

Court Procedures Rules 2006 (ACT) – (Extracts)

Form 4 – Notice of appearance [AF2007-134] Court Procedures Rules 2006 (see sch 6 r 2.9 (Notice of appearance (Corporations Act, s 465C))) In the Supreme Court of the Australian Capital Territory No SC .......... of (year) In the matter of (full name of corporation to which the proceeding relates and, if applicable, the words “(in liquidation)”, “(receiver appointed)”, “(receiver and manager appointed)”, “(controller acting)” or “(under administration)”) * [ABN/ACN/ARBN]: (name) *[and others] * [Plaintiff/Applicant] (list, in a schedule, any further plaintiffs/applicants) (name) *[and others] * [Defendant/Respondent] (list, in a schedule, any further defendants/respondents) A DETAILS OF PERSON INTENDING TO APPEAR Notice is given that (state full name and address), (briefly state your interest in the proceeding, eg a creditor for $ (amount), or a contributory, of the corporation) intends to appear before the Court at the hearing of the application to be heard on (date) and, if applicable, to *[oppose/support] the application.

Note: Unless the Court otherwise orders, a defendant or respondent that is a corporation must be represented at a hearing by a legal practitioner. It may be represented at a hearing by a director of the corporation only if the Court grants leave. *

B GROUNDS OF OPPOSITION TO WINDING-UP (Complete this section only if you are opposing an application to wind up a company) The grounds on which I oppose the application for winding-up are: 1 2 etc C SERVICE (This section must be completed) The address for service of the person giving this notice is (address of person’s legal practitioner or of person). (signature of person giving notice or person’s legal practitioner) (name of person giving notice or person’s legal practitioner) * omit if, or whichever is, inapplicable Filed for (the person intending to appear) by: (the person’s address for service and telephone number (if any) or, if the person is represented by a solicitor and the solicitor is the agent of another solicitor, the name and place of business of the other solicitor)

730

Corporations – Court Rules and Related Legislation 2017

Approved Forms Form 5 – Notice of intervention by ASIC

[AF2008-66] Court Procedures Rules 2006 (see sch 6 r 2.10 (Intervention in proceeding by ASIC (Corporations Act, s 1330))) In the Supreme Court of the Australian Capital Territory No SC .......... of (year) In the matter of (full name of corporation to which the proceeding relates and, if applicable, the words “(in liquidation)”, “(receiver appointed)”, “(receiver and manager appointed)”, “(controller acting)” or “(under administration)”) * [ABN/ACN/ARBN]: (name) *[and others] Plaintiff (list, in a schedule, any further plaintiffs) (name) *[and others] * Defendant (list, in a schedule, any further defendants) The Australian Securities and Investments Commission, whose address for service is (address), intervenes in this proceeding. Date: Signed on behalf of ASIC Name of signatory: (name) Capacity of signatory: (capacity) Filed for the Australian Securities and Investments Commission by: (the commission’s address for service and telephone number (if any) or, if the commission is represented by a solicitor and the solicitor is the agent of another solicitor, the name and place of business of the other solicitor)

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ACT

Form 5 – Notice of intervention by ASIC

Court Procedures Rules 2006 (ACT) – (Extracts)

Form 6 – Notice of hearing to approve compromise or arrangement [AF2006-431] Court Procedures Rules 2006 (see sch 6 r 3.4 (Notice of hearing (Corporations Act, s 411(4) and s 413(1)))) To all the creditors and members of (name of company). Take notice that at 10 am (or as soon after that as this application can be heard) on (date), the Supreme Court at Knowles Place, Canberra City will hear an application by (name of plaintiff) seeking the approval of a compromise or arrangement between the company and its *[members/creditors] as proposed by a resolution passed by the meeting of the *[members/creditors] of the company held on (date). (Complete this section if applicable) * [The proposed compromise or arrangement as passed by the meeting was amended from the form of compromise or arrangement previously sent to you in the following respects: (Set out the details of any amendment made at the meeting) If you wish to oppose the approval of the compromise or arrangement, you must file and serve on the plaintiff a notice of appearance, in the approved form, together with any affidavit on which you wish to rely at the hearing. The notice of appearance and affidavit must be served on the plaintiff at its address for service at least 1 day before the date fixed for the hearing of the application.] (This section must be completed) The address for service of the plaintiff is (address of plaintiff’s legal practitioner or of plaintiff). Name of *[person giving notice/legal practitioner of person giving notice]: (name) *

omit if, or whichever is, inapplicable

732

Corporations – Court Rules and Related Legislation 2017

Approved Forms Form 7 – Affidavit accompanying statutory demand

[AF2006-432] Court Procedures Rules 2006 (see sch 6 r 5.2 (Affidavit accompanying statutory demand (Corporations Act, s 459E(3)))) (name(s)) Creditor(s) (name(s)) Debtor company I, (name), of (address and occupation), *[say on oath/solemnly affirm]: 1 I am (state deponent’s relationship to the creditor(s), eg, “the creditor”, “(name), one of the creditors”, “a director of the creditor”, “a director of (name), one of the creditors”) in relation to *[a debt of $(amount)/debts totalling $(amount)] owed by (name of debtor company) to *[it/them] relating to (state nature of debt, or debts, ensuring that what is stated corresponds with the description of the debt, or debts, to be given in the proposed statutory demand, with which this affıdavit is to be served on the debtor company). * 2 (If the deponent is not the creditor, state the facts entitling the deponent to make the affıdavit, eg “I am authorised by the creditor(s) to make this affıdavit on its/their behalf”). 3 (State the source of the deponent’s knowledge of the matters stated in the affıdavit in relation to the debt or each of the debts, eg “I am the person who, on behalf of the creditor(s), had the dealings with the debtor company that gave rise to the debt”, “I have inspected the business records of the creditor in relation to the debtor company’s account with the creditor”). * [The debt/The total of the amounts of the debts], mentioned in paragraph 1 of this 4 affidavit, is due and payable by the debtor company. 5 I believe that there is no genuine dispute about the existence or amount of the * [debt/any of the debts]. * [Sworn/affirmed] at: (place of swearing or affırmation) on (date) OR * [Sworn/affirmed] by the deponent at: (place of swearing or affırmation) this (day) day of (month) (year) Signature of deponent Before me: Signature and designation of person before whom deponent swears or affirms affidavit *

omit if, or whichever is, inapplicable

Note: The form of this affidavit may be changed to comply with the form of affidavit used in a particular State or Territory—see sch 6 r 2.6.

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ACT

Form 7 – Affidavit accompanying statutory demand

Court Procedures Rules 2006 (ACT) – (Extracts)

Form 8 – Consent of liquidator/provisional liquidator [AF2008-67] Court Procedures Rules 2006 (see sch 6 r 5.5 (Consent of liquidator (Corporations Act, s 532(9))) and r 6.1 (Appointment of provisional liquidator (Corporations Act, s 472))) In the Supreme Court of the Australian Capital Territory No SC .......... of (year) In the matter of (full name of corporation to which the proceeding relates and, if applicable, the words “(in liquidation)”, “(receiver appointed)”, “(receiver and manager appointed)”, “(controller acting)” or “(under administration)”) * [ABN/ACN/ARBN]: (name) *[and others] Plaintiff (list, in a schedule, any further plaintiffs) (name) *[and others] * Defendant (list, in a schedule, any further defendants) I, (name), of (address), an official liquidator, consent to be appointed by the Court and to act as the * [liquidator/provisional liquidator] of (name of company). I am not aware of any conflict of interest or duty that would make it improper for me to act as * [liquidator/provisional liquidator] of the company. EITHER I am not aware of any relevant relationship mentioned in the Corporations Act, section 60(2). OR I have, or have had within the preceding 24 months, the following relevant relationships mentioned in the Corporations Act, section 60(2): (Set out all relevant relationships) The hourly rates currently charged in relation to work done as the *[liquidator/provisional liquidator] by me, and by my partners and employees who may perform work in this administration, are set out below or in the schedule attached to this consent. I acknowledge that my appointment by the Court does not constitute an express or implied approval by the Court of these hourly rates. Note: The requirement to disclose hourly rates should not be taken to imply that remuneration on an hourly basis is the most desirable or appropriate arrangement in every case. The Corporations Act acknowledges that another method of calculating remuneration may be appropriate (see eg, s 473(2) and (3)). Date: Signature of official liquidator *

omit if, or whichever is, inapplicable

Schedule (description of hourly rate(s)) Filed for the plaintiff by: (the plaintiff’s address for service and telephone number (if any) or, if the plaintiff is represented by a solicitor and the solicitor is the agent of another solicitor, the name and place of business of the other solicitor) 734

Corporations – Court Rules and Related Legislation 2017

Approved Forms Form 9 – Notice of application for winding-up order

[AF2012-199] Court Procedures Rules 2006 (see sch 6 r 5.6 (Notice of application for winding-up)) In the Supreme Court of the Australian Capital Territory No SC .......... of (year) (name of company) * [ABN/ACN]: (ABN or ACN of company to which proceeding relates) 1 A proceeding for the winding-up of (name of company and, if applicable, the words “trading as” and any trading name or names of the company) was commenced by the plaintiff, (name of plaintiff), on (date of filing of originating process) and will be heard by the Supreme Court at Knowles Place, Canberra City on (date) at 10 am (or as soon after that as the application can be heard). Copies of documents filed may be obtained from the plaintiff’s address for service. 2 The plaintiff’s address for service is (address of plaintiff’s legal practitioner or of plaintiff). 3 Any person intending to appear at the hearing must file a notice of appearance, in accordance with the approved form, together with any affidavit on which the person intends to rely, and serve a copy of the notice and any affidavit on the plaintiff at the plaintiff’s address for service at least 3 days before the date fixed for the hearing. Date: Name of *[plaintiff/plaintiff’s legal practitioner]: (name) *

omit if, or whichever is, inapplicable

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735

ACT

Form 9 – Notice of application for winding-up order

Court Procedures Rules 2006 (ACT) – (Extracts)

Form 10 – Notice of application for winding-up order by substituted plaintiff [AF2007-138] Court Procedures Rules 2006 (see sch 6 r 5.10 (Order substituting plaintiff in application for winding-up (Corporations Act, s 465B))) In the Supreme Court of the Australian Capital Territory No SC .......... of (year) (name of company) * [ABN/ACN]: (ABN or ACN of company to which proceeding relates) 1 (Name of substituted plaintiff), who was, by order of the Supreme Court, substituted as a plaintiff, will apply to the Court on (date) at 10 am (or as soon after that as the application can be heard) at Knowles Place, Canberra City for an order that the company be wound up. 2 The address for service of the substituted plaintiff is (address of substituted plaintiff’s legal practitioner or of substituted plaintiff). 3 Any person intending to appear at the hearing must file a notice of appearance, in accordance with the approved form, together with any affidavit on which the person intends to rely, and serve a copy of the notice and any affidavit on the substituted plaintiff at its address for service at least 3 days before the date fixed for the hearing. Date: Name of *[substituted plaintiff/substituted plaintiff’s legal practitioner]: (name) *

omit if, or whichever is, inapplicable

736

Corporations – Court Rules and Related Legislation 2017

Approved Forms Form 11 – Notice of winding-up order and appointment of liquidator

[AF2007-139] Court Procedures Rules 2006 (see sch 6 r 5.11 (Notice of winding-up order and appointment of liquidator)) In the Supreme Court of the Australian Capital Territory No SC .......... of (year) In the matter of (name of company to which proceeding relates) * [ABN/ACN]: (ABN or ACN of company to which proceeding relates) On (date), the Supreme Court in proceeding No SC (insert number) 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). *

omit if, or whichever is, inapplicable

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ACT

Form 11 – Notice of winding-up order and appointment of liquidator

Court Procedures Rules 2006 (ACT) – (Extracts)

Form 12 – Notice of appointment of provisional liquidator [AF2007-140] Court Procedures Rules 2006 (see sch 6 r 6.2 (Notice of appointment of provisional liquidator)) In the Supreme Court of the Australian Capital Territory No SC .......... of (year) In the matter of (name of company to which proceeding relates) * [ABN/ACN]: (ABN or ACN of company to which proceeding relates) On (date), in proceeding No SC (insert number) of (year), heard by the Supreme Court, I was appointed as the provisional liquidator of the company. Date: Name and address of provisional liquidator: (name and address). *

omit if, or whichever is, inapplicable

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Corporations – Court Rules and Related Legislation 2017

Approved Forms Form 13 – Notice by creditor or contributory of objection to release of liquidator

ACT

Form 13 – Notice by creditor or contributory of objection to release of liquidator [AF2007-141] Court Procedures Rules 2006 (see sch 6 r 7.6 (Objection to release of liquidator)) In the Supreme Court of the Australian Capital Territory No SC .......... of (year) In the matter of (full name of corporation to which the proceeding relates and, if applicable, the words “(in liquidation)”, “(receiver appointed)”, “(receiver and manager appointed)”, “(controller acting)” or “(under administration)”) * [ABN/ACN/ARBN]: (name) *[and others] Plaintiff (list, in a schedule, any further plaintiffs) (name) *[and others] * Defendant (list, in a schedule, any further defendants) (Name of creditor/contributory) of (address of creditor/contributory), a creditor of (name of company) for $ (amount), or a contributory of (name of company) holding (number) shares in the company, objects to the grant of a release to (name of liquidator) of (address of liquidator), who is the liquidator of (name of company), on the following grounds: (set out the grounds on which the objection is made) Date: (signature of objector/objector’s legal practitioner) (name of objector/objector’s legal practitioner) The objector’s address for service is (address of objector or objector’s legal practitioner). *

omit if, or whichever is, inapplicable

Filed for the objector by: (the objector’s address for service and telephone number (if any) or, if the objector is represented by a solicitor and the solicitor is the agent of another solicitor, the name and place of business of the other solicitor)

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Court Procedures Rules 2006 (ACT) – (Extracts)

Form 14 – Affidavit in support of applicaiton for order for payment of call [AF2007-142] Court Procedures Rules 2006 (see sch 6 r 7.8 (Application for payment of call (Corporations Act, s 483(3)(b)))) In the Supreme Court of the Australian Capital Territory No SC .......... of (year) In the matter of (full name of corporation to which the proceeding relates and, if applicable, the words “(in liquidation)”, “(receiver appointed)”, “(receiver and manager appointed)”, “(controller acting)” or “(under administration)”) * [ABN/ACN/ARBN]: (name) *[and others] Plaintiff (list, in a schedule, any further plaintiffs) (name) *[and others] * Defendant (list, in a schedule, any further defendants) I, (name), of (address), liquidator, *[say on oath/solemnly affirm]: 1 I am the liquidator of (name of company) (the company). 2 On (date) I made a call of $ (amount) per share on all the contributories of the company (or specify the class of contributories on whom the call was made). *[Annexed/ Exhibited] and marked A is a copy of the notice of the call. Each contributory whose name is shown in the schedule marked B was duly served with notice of the call in the form *[annexed/exhibited] and marked A. 3 Each contributory of the company whose name is set out in column 2 of the schedule marked B has not paid, or caused to be paid, to me the amount specified opposite the contributory’s name in column 5 of the schedule, which is due from that contributory under the call. 4 The amount set out opposite the name of each contributory in column 6 of the schedule is an estimate of the amount due by that contributory in relation to the costs of applying for and giving effect to the order for payment of the call. The estimate of the amounts so due by the several contributories has been reached by apportioning the costs among the contributories who have not paid the call according to the liability of the respective contributories to contribute. 5 The amount set out opposite the name of each contributory in column 7 of the schedule is the total of the amount due by that contributory in relation to the call as set out in column 5 and the amount due in relation to costs as set out in column 6. * Sworn/*affirmed at: (place of swearing or affırmation) on (date) OR * Sworn/*affirmed by the deponent at: (place of swearing or affırmation) this (day) day of (month) (year) Signature of deponent Before me: Signature and designation of person before whom deponent swears or affirms affidavit * omit if, or whichever is, inapplicable

740

Corporations – Court Rules and Related Legislation 2017

Approved Forms Form 14 – Affidavit in support of applicaiton for order for payment of call

ACT

Note: The form of this affidavit may be changed to comply with the form of affidavit used in a particular State or Territory—see sch 6 r 2.6.

column 1 number on list of contributories

column 2 name

column 3 address

Schedule B column 4 character in which included in the list

column 5 unpaid amount of call

column 6 proportion of costs of application

column 7 total amount payable

Filed for the liquidator by: (the liquidator’s address for service and telephone number (if any) or, if the liquidator is represented by a solicitor and the solicitor is the agent of another solicitor, the name and place of business of the other solicitor)

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741

Court Procedures Rules 2006 (ACT) – (Extracts)

Form 15 – Notice of application for leave to distribute a surplus [AF2007-143] Court Procedures Rules 2006 (see sch 6 r 7.9 (Distribution of surplus by liquidator with special leave of the court (Corporations Act, s 488(2)))) In the Supreme Court of the Australian Capital Territory No SC .......... of (year) In the matter of (name of company to which proceeding relates) * [ABN/ACN]: (ABN or ACN of company to which proceeding relates) On (date) at (time), the ......................... will hear an application by the liquidator of (name of company) in proceeding No SC (insert number) of (year) for leave to distribute a surplus in relation to the liquidation of the company. Any person intending to appear at the hearing must file a notice of appearance, in accordance with the approved form, together with any affidavit on which the person intends to rely, and serve a copy of the notice and affidavit on the liquidator at the address shown below at least 3 days before the date fixed for the hearing. Name of liquidator: (name). The liquidator’s address for service is (address). Signature of liquidator *

omit if, or whichever is, inapplicable

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Corporations – Court Rules and Related Legislation 2017

Approved Forms Form 16 – Notice of intention to apply for remuneration

[AF2007-144] Court Procedures Rules 2006 (see sch 6 r 9.1 (Remuneration of receiver (Corporations Act, s 425(1))), r 9.2 (Remuneration of administrator (Corporations Act, s 449E(1))), r 9.3 (Remuneration of provisional liquidator (Corporations Act, s 473(2))), r 9.4 (Remuneration of liquidator (Corporations Act, s 473(3))) and r 9.5 (Remuneration of special manager (Corporations Act, s 484(2)))) In the matter of (company name) * [ABN/ACN]: (ABN or ACN of company to which proceeding relates) To: (name and address of person to whom notice is given) Take notice that, not less than 21 days after this notice is served on you, I, (name and address), the * [receiver/administrator/liquidator/provisional liquidator/special manager] of the company, intend to apply to the Court to determine my remuneration. If you object to my application, you must, within 21 days after being served with this notice, serve on me a notice of objection stating the grounds of objection to the remuneration claimed. Date: Signature of *[receiver/administrator/liquidator/provisional liquidator/special manager] *

omit if, or whichever is, inapplicable

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ACT

Form 16 – Notice of intention to apply for remuneration

Court Procedures Rules 2006 (ACT) – (Extracts)

Form 16A – Notice of intention to apply for review of remuneration [AF2008-68] Court Procedures Rules 2006 (see sch 6 r 9.2A (Review of remuneration of administrator (Corporations Act, s 499E(2))) and r 9.4A (Review of remuneration of liquidator (Corporations Act, s 473(5) and (6) and s 504(1))) In the matter of (company name) [ACN/ABN]: (ACN or ABN of company to which proceeding relates) To: (name and address of person to whom notice is given) Take notice that, not less than 21 days after this notice is served on you, I, (name and address of plaintiff or applicant), the *[administrator/liquidator] of the company, intend to apply to the court to review *[the remuneration of/my remuneration as] the *[administrator/liquidator] of the company. The amount of the remuneration that has been determined or fixed is (state the amount). The remuneration was determined or fixed by (state who determined or fixed the remuneration) on (state the date when the remuneration was determined or fixed). I intend to apply for an order to *[confirm/increase/reduce] the remuneration. (Set out the grounds upon which an order or orders will be sought. If an order to increase or reduce the remuneration is sought, set out the amount by which the remuneration is sought to be increased or reduced.) If you wish to appear at the hearing of the application, in order to raise any issues before the court, you must, within 21 days after being served with this notice, serve on me a notice under the Court Procedures Rules 2006, rule *[9.2A(4)/9.4A(4)], stating your intention to appear at the hearing and setting out the issues that you seek to raise before the court. Date: Signature of *[plaintiff/applicant] *

omit if, or whichever is, inapplicable

744

Corporations – Court Rules and Related Legislation 2017

Approved Forms Form 17 – Summons for examination

[AF2007-145] Court Procedures Rules 2006 (see sch 6 r 11.3 (Application for examination summons (Corporations Act, s 596A, s 596B))) In the Supreme Court of the Australian Capital Territory No SC .......... of (year) In the matter of (full name of corporation to which the proceeding relates and, if applicable, the words “(in liquidation)”, “(receiver appointed)”, “(receiver and manager appointed)”, “(controller acting)” or “(under administration)”) * [ABN/ACN/ARBN]: (name) *[and others] Plaintiff (list, in a schedule, any further plaintiffs) (name) *[and others] * Defendant (list, in a schedule, any further defendants) A DETAILS OF SUMMONS To: (name and address of person to be examined) You are summoned under the Corporations Act, *[section 596A/section 596B] to: (a) attend before .......... at Knowles Place, Canberra City on (date) at 10 am, and from day-to-day until excused by the Court, to be examined on oath or affirmation about the examinable affairs of (name of corporation); and (b) *to produce at the examination the following books (specify books—include in a schedule if necessary). Date: Registrar

B NOTICE TO PERSON TO BE EXAMINED The Court may order that the questions put to you and the answers given by you at the examination are to be recorded in writing and signed by you. If you do not attend the examination in accordance with this summons, without reasonable cause, you may be arrested and imprisoned without further notice. This summons is issued at the request of (name) whose address for service is (address of person’s legal practitioner or of person). *

omit if, or whichever is, inapplicable

Filed for the applicant by: (the applicant’s address for service and telephone number (if any) or, if the applicant is represented by a solicitor and the solicitor is the agent of another solicitor, the name and place of business of the other solicitor)

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ACT

Form 17 – Summons for examination

Court Procedures Rules 2006 (ACT) – (Extracts)

Form 17A – Arrest warrant [AF2008-69] Court Procedures Rules 2006 (see sch 6 r 11A.1 (Arrest of person (Corporations Act, s 486B)) In the Supreme Court of the Australian Capital Territory In the matter of (full name of corporation to which the proceeding relates and, if applicable, the words “(in liquidation)”, “(receiver appointed)”, “(receiver and manager appointed)”, “(controller acting)” or “(under administration)”) * [ABN/ACN/ARBN]: (name) *[and others] Plaintiff (list, in a schedule, any further plaintiffs) (name) *[and others] * Defendant (list, in a schedule, any further defendants) 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 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/ by the court] * an application has been made for (name of company) (the company) to be wound up and the court is satisfied that (name of person): * (a) is about to leave Australia in order to avoid*[paying money payable to the company/being examined about the company’s affairs/complying with an order of the court, or some other obligation, under the Corporations Act, chapter 5 in connection with the winding up] * (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 * (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 to bring *[him/her] before the court at Knowles Place, Canberra City and to keep *[him/her] there pending the making of a further order by the court. This warrant also requires and authorises you to seize any property or books of the company in the possession of (name of person) and to deliver them into the custody of the registrar of the court to be kept by the registrar until the court makes an order for their disposal. Note: The Corporations Act, s 489A provides that if the court issues a warrant under s 486B for a person to be arrested and brought before the court, and the person is not in prison, then the person named in the warrant may be arrested by an officer of the police force of the State or Territory in which the person is found, the Sheriff of that State or Territory or any of the Sheriff’s officers, or a member or special member of the Australian Federal Police. Date: Registrar *

omit if, or whichever is, inapplicable

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Form 18 – Summons for appearance in relation to registration of transfer of interests [AF2007-146] Court Procedures Rules 2006 (see sch 6 r 12.2 (Application for summons for appearance of person (Corporations Act, s 1071D(4)))) In the Supreme Court of the Australian Capital Territory No SC .......... of (year) In the matter of (full name of corporation to which the proceeding relates and, if applicable, the words “(in liquidation)”, “(receiver appointed)”, “(receiver and manager appointed)”, “(controller acting)” or “(under administration)”) * [ABN/ACN/ARBN]: (name) *[and others] Plaintiff (list, in a schedule, any further plaintiffs) (name) *[and others] * Defendant (list, in a schedule, any further defendants) To: (name and address) You are required to appear before the Supreme Court at Knowles Place, Canberra City on (date) at 10 am and show cause why the document(s) specified in the schedule should not be *[delivered up/produced at the office of (name of company) at (address of company)] within (period as ordered), as required by the attached notice. The address for service of the person applying for this summons is (address of person’s legal practitioner or of person). Date: Registrar *

omit if, or whichever is, inapplicable

Schedule (description of document(s)) Filed for applicant by: (the applicant’s address for service and telephone number (if any) or, if the applicant is represented by a solicitor and the solicitor is the agent of another solicitor, the name and place of business of the other solicitor)

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Approved Forms Form 18 – Summons for appearance in relation to registration of transfer of interests

Court Procedures Rules 2006 (ACT) – (Extracts)

Form 19 – Consent to act as designated person [AF2010-149] Court Procedures Rules 2006 (see sch 6 r 15A.5 (Official liquidator’s consent to act)) In the Supreme Court of the Australian Capital Territory No SC .......... of (year) In the matter of (full name of corporation to which the proceeding relates and, if applicable, the words “(in liquidation)”, “(receiver appointed)”, “(receiver and manager appointed)”, “(controller acting)” or “(under administration)”) * [ABN/ACN/ARBN]: (name) *[and others] Plaintiff (list, in a schedule, any further plaintiffs) (name) *[and others] * Defendant (list, in a schedule, any further defendants) I, (name), of (address), an official liquidator, consent to be appointed by the Court and to act as the person designated by the Court under the Model Law, *[article 19/article 21] to *[administer/realise/distribute] the assets of (name of company). I am not aware of any conflict of interest or duty that would make it improper for me to act as the person designated by the Court. The hourly rates currently charged in relation to work done as the person designated by the Court by me, and by my partners and employees who may perform work in this administration, are set out below or in the schedule attached to this consent. I acknowledge that my appointment by the Court does not constitute an express or implied approval by the Court of these hourly rates. Date: Signature of official liquidator *

omit if, or whichever is, inapplicable

Schedule (description of hourly rate(s)) Filed for the plaintiff by: (the plaintiff’s address for service and telephone number (if any) or, if the plaintiff is represented by a solicitor and the solicitor is the agent of another solicitor, the name and place of business of the other solicitor)

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Form 21 – Notice of making of order under the Cross-Border Insolvency Act 2008 [AF2008-150] Court Procedures Rules 2006 (see sch 6 r 15A.7 (Notice of order for recognition, withdrawal etc)) In the Supreme Court of the Australian Capital Territory No SC .......... of (year) (name of company) * [ABN/ACN]: (ABN or ACN of company to which proceeding relates) To all the creditors of (name of company). Take notice that: 1. On (date), the Supreme Court in proceeding No SC .......... of (year), commenced by the plaintiff, (name of plaintiff), made the following orders under the Cross-Border Insolvency Act 2008 in relation to (name of company): (insert details of orders) 2. The plaintiff’s address for service is (name and address of plaintiff’s legal practitioner or, if there is no legal practitioner, plaintiff’s address). 3. The name and address of the foreign representative is (name and address of representative). * 4. The name and address of the person entrusted with distribution of the company’s assets is (name and address of person). Date: Name of *[plaintiff/plaintiff’s legal practitioner]: (name) *

omit if not applicable

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Approved Forms Form 21 – Notice of making of order under the Cross-Border Insolvency Act 2008

Court Procedures Rules 2006 (ACT) – (Extracts)

Form 22 – Notice of dismissal or withdrawal of application for recognition of foreign proceeding [AF2008-151] Court Procedures Rules 2006 (see sch 6 r 15A.7 (Notice of order for recognition, withdrawal etc)) In the Supreme Court of the Australian Capital Territory No SC .......... of (year) (name of company) * [ABN/ACN]: (ABN or ACN of company to which proceeding relates) To all the creditors of (name of company) Take notice that the application under the Cross-Border Insolvency Act 2008 for recognition of a foreign proceeding in relation to (name of company) commenced by the plaintiff, (name of plaintiff), on (date of filing originating process) was *[dismissed/withdrawn] on (date of dismissal or withdrawal). Date: Name of *[person giving notice/person’s legal practitioner]: (name) *

omit if not applicable

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Form 23 – Notice of filing of application to modify or terminate an order for recognition or other relief [AF2008-152] Court Procedures Rules 2006 (see sch 6 r 15A.9 (Application to modify or terminate order for recognition or other relief)) In the Supreme Court of the Australian Capital Territory No SC .......... of (year) (name of company) * [ABN/ACN]: (ABN or ACN of company to which proceeding relates) To all the creditors of (name of company) Take notice that: * 1. An application under the Cross-Border Insolvency Act 2008 for an order * [modifying/terminating] an order for recognition of a foreign proceeding in relation to (name of company) was filed by the applicant, (name of applicant), on (date of filing of interlocutory process) and will be heard by the Supreme Court at Knowles Place, Canberra City on (date) at 10 am (or as soon after that as the application can be heard). Copies of documents filed may be obtained from the applicant’s address for service. * 1. An application under the Cross-Border Insolvency Act 2008 for an order * [modifying/terminating] relief granted under the Model Law, *[article 19/article 21] in relation to (name of company) was filed by the applicant (name of applicant), on (date of filing of interlocutory process) and will be heard by the Supreme Court at Knowles Place, Canberra City on (date) at 10 am (or as soon after that as the application can be heard). Copies of documents filed may be obtained from the applicant’s address for service. 2. The applicant’s address for service is (address of applicant’s legal practitioner or, if there is no legal practitioner, applicant’s address). 3. Any person intending to appear at the hearing must file a notice of appearance (if the person has not already done so), in accordance with the approved form, together with any affidavit on which the person intends to rely, and serve a copy of the notice (if applicable) and any affidavit on the applicant at the applicant’s address for service at least 3 days before the date fixed for the hearing. Date: Name of *[applicant/applicant’s legal practitioner]: (name) *

omit if not applicable

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Approved Forms Notice of filing of application to modify/terminate an order for recognition/other relief

Freezing Orders (also known as “Mareva orders” or “asset preservation orders”): Notifiable instrument NI2008–74 ...................................................................................[ACTPD.20] Search Orders (also known as “Anton Piller Orders” : Notifiable instrument NI2008–78 .[ACTPD.30]

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ACT PRACTICE DIRECTIONS

ACT Practice Directions [ACTPD.20]

[ACTPD.20]

Notifiable instrument NI2008–74

Freezing Orders (also known as “Mareva orders” or “asset preservation orders”) 1. This Practice Note supplements Subdivision 2.9.4.2 of the Court Procedures Rules 2006 relating to freezing orders (also known as “Mareva orders” after Mareva Compania Naviera SA v International Bulkcarriers SA (The Mareva) [1975] 2 Lloyd’s Rep 509, or “asset preservation orders”). 2. This Practice Note addresses (among other things) the Court’s usual practice relating to the making of a freezing order and the usual terms of such an order. While a standard practice has benefits, this Practice Note and the example form of order annexed to it do not, and cannot, limit the judicial discretion to make such order as is appropriate in the circumstances of the particular case. 3. Words and expressions in this Practice Note that are defined in Subdivision 2.9.4.2 of the Court Procedures Rules 2006 have the meanings given to them in that subdivision. 4. An example form of ex parte freezing order is annexed to this Practice Note. The example form may be adapted to meet the circumstances of the particular case. It may be adapted for an inter partes freezing order as indicated in the footnotes to the example form (the footnotes and references to footnotes should not form part of the order as made). The example form contains provisions aimed at achieving the permissible objectives of the order consistently with the proper protection of the respondent and third parties. 5. The purpose of a freezing order is to prevent frustration or abuse of the process of the Court, not to provide security in respect of a judgment or order. 6. A freezing order should be viewed as an extraordinary interim remedy because it can restrict the right to deal with assets even before judgment, and is commonly granted ex parte. 7. The respondent is often the person said to be liable on a substantive cause of action of the applicant. However, the respondent may also be a third party, in the sense of a person who has possession, custody or control, or even ownership, of assets which he or she may be obliged ultimately to disgorge to help satisfy a judgment against another person. Subrule 743(5) addresses the minimum requirements that must ordinarily be satisfied on an application for a freezing order against such a third party before the discretion is enlivened. The third party will not necessarily be a party to the substantive proceeding (see Cardile v LED Builders Pty Ltd (1999) 198 CLR 380) but will be a respondent to the application for the freezing or ancillary order. Where a freezing order against a third party seeks only to freeze the assets of another person in the third party’s possession, custody or control (but not ownership), the example form will require adaptation. In particular, the references to “your assets” and “in your name” should be changed to refer to the other person’s assets or name (e.g. “John Smith’s assets”, “in John Smith’s name”). 8. A freezing or ancillary order may be limited to assets in Australia or in a defined part of Australia, or may extend to assets anywhere in the world, and may cover all assets without limitation, assets of a particular class, or specific assets (such as the amounts standing to the credit of identified bank accounts). 9. The duration of an ex parte freezing order should be limited to a period terminating on the return date of the motion, which should be as early as practicable (usually not more than a day or two) after the order is made, when the respondent will have the opportunity to be heard). The applicant will then bear the onus of satisfying the Court that the order should be continued or renewed. 10. A freezing order should reserve liberty for the respondent to apply on short notice. An application by the respondent to discharge or vary a freezing order will normally be treated by the Court as urgent. 11. The value of the assets covered by a freezing order should not exceed the likely maximum amount of the applicant’s claim, including interest and costs. Sometimes it may not be possible to satisfy this principle (for example, an employer may discover that an employee has been making fraudulent misappropriations, but does not know how much has been misappropriated at the time of the discovery and at the time of the approach to the Court). 12. The order should exclude dealings by the respondent with its assets for legitimate purposes, in particular: (a) payment of ordinary living expenses; (b) payment of reasonable legal expenses; 754

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13.

14.

15.

16. 17.

18. 19.

20.

ACT Practice Directions

(c) dealings and dispositions in the ordinary and proper course of the respondent’s business, including paying business expenses bona fide and properly incurred; and (d) dealings and dispositions in the discharge of obligations bona fide and properly incurred under a contract entered into before the order was made. Where a freezing order extends to assets outside Australia, the order should provide for the protection of persons outside Australia and third parties. Such provisions are included in the example form of freezing order. The Court may make ancillary orders. The most common example of an ancillary order is an order for disclosure of assets. The annexed example form provides for such an order and for the privilege against self-incrimination. The rules of court confirm that certain restrictions expressed in The Siskina [1979] AC 210 do not apply in this jurisdiction. First, the Court may make a freezing order before a cause of action has accrued (a “prospective” cause of action). Secondly, the Court may make a free-standing freezing order in aid of foreign proceedings in prescribed circumstances. Thirdly, where there are assets in Australia, service out of Australia is permitted under a new “long arm” service rule. As a condition of the making of a freezing order, the Court will normally require appropriate undertakings by the applicant to the Court, including the usual undertaking as to damages. If it is demonstrated that the applicant has or may have insufficient assets within the jurisdiction of the Court to provide substance for the usual undertaking as to damages, the applicant may be required to support the undertaking by providing security. There is provision for such security in the example form of freezing order. The order to be served should be served in accordance with the requirements of rule 2446. An applicant for an ex parte freezing order is under a duty to make full and frank disclosure of all material facts to the Court. This includes disclosure of possible defences known to the applicant and of any information which may cast doubt on the applicant’s ability to meet the usual undertaking as to damages from assets within Australia. The affidavits relied on in support of an application for a freezing or ancillary order should, if possible, address the following: (a) information about the judgment that has been obtained, or, if no judgment has been obtained, the following information about the cause of action: (i) the basis of the claim for substantive relief; (ii) the amount of the claim; and (iii) if the application is made without notice to the respondent, the applicant’s knowledge of any possible defence; (b) the nature and value of the respondent’s assets, so far as they are known to the applicant, within and outside Australia; (c) the matters referred to in rule 743; and (d) the identity of any person, other than the respondent, who, the applicant believes, may be affected by the order, and how that person may be affected by it.

Example form of ex parte Freezing Order [Title of Proceeding] PENAL NOTICE TO: [name of person against whom the order is made] IF YOU: (A) REFUSE OR NEGLECT TO DO ANY ACT WITHIN THE TIME SPECIFIEDIN THIS ORDER FOR THE DOING OF THE ACT; OR (B) DISOBEY THE ORDER BY DOING AN ACT WHICH THE ORDER REQUIRESYOU TO ABSTAIN FROM DOING, YOU WILL BE LIABLE TO IMPRISONMENT, SEQUESTRATION OF PROPERTY OR OTHER PUNISHMENT. ANY OTHER PERSON WHO KNOWS OF THIS ORDER AND DOES ANYTHING WHICH HELPS OR PERMITS YOU TO BREACH THE TERMS OF THIS ORDER MAY BE SIMILARLY PUNISHED. ©

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[ACTPD.20]

ACT Practice Directions

[ACTPD.20]

TO: [name of person against whom the order is made] This is a “freezing order” made against you on [insert date] by Justice [insert name of Judge] at a hearing without notice to you after the Court was given the undertakings set out in Schedule A to this order and after the Court read the affidavits listed in Schedule B to this order.1 THE COURT ORDERS: INTRODUCTION 1. (a) The application for this order is made returnable immediately. (b) The time for service of the application, supporting affidavits and originating process is abridged and service is to be effected by [insert time and date].2 2. Subject to the next paragraph, this order has effect up to and including [insert date] (“the Return Date”). On the Return Date at [insert time] am/pm there will be a further hearing in respect of this order before Justice [insert name of Judge].3 3. Anyone served with or notified of this order, including you, may apply to the Court at any time to vary or discharge this order or so much of it as affects the person served or notified. 4. In this order: (a) “applicant”, if there is more than one applicant, includes all the applicants; (b) “you”, where there is more than one of you, includes all of you and includes you if you are a corporation; (c) “third party” means a person other than you and the applicant; (d) “unencumbered value” means value free of mortgages, charges, liens or other encumbrances. 5. (a) If you are ordered to do something, you must do it by yourself or through directors, officers, partners, employees, agents or others acting on your behalf or on your instructions. (b) If you are ordered not to do something, you must not do it yourself or through directors, officers, partners, employees, agents or others acting on your behalf or on your instructions or with your encouragement or in any other way. FREEZING OF ASSETS [For order limited to assets in Australia] 6. (a) You must not remove from Australia or in any way dispose of, deal with or diminish the value of any of your assets in Australia (‘Australian assets’) up to the unencumbered value of AUD$ (“the Relevant Amount”). (b) If the unencumbered value of your Australian assets exceeds the Relevant Amount, you may remove any of those assets from Australia or dispose of or deal with them or diminish their value, so long as the total unencumbered value of your Australian assets still exceeds the Relevant Amount. [If the Court makes a worldwide order, the following additional paragraph (c) also applies.] (c) If the unencumbered value of your Australian assets is less than the Relevant Amount, and you have assets outside Australia (“ex-Australian assets”): (i) you must not dispose of, deal with or diminish the value of any of your Australian assets and ex-Australian assets up to the unencumbered value of your Australian and ex-Australian assets of the Relevant Amount; and (ii) you may dispose of, deal with or diminish the value of any of your ex-Australian assets, so long as the unencumbered value of your Australian assets and ex-Australian assets still exceeds the Relevant Amount. [For either form of order] 7. For the purposes of this order, (1) your assets include: (a) all your assets, whether or not they are in your name and whether they are solely or co-owned; 756

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[ACTPD.20]

(b) any asset which you have the power, directly or indirectly, to dispose of or deal with as if it were your own (you are to be regarded as having such power if a third party holds or controls the asset in accordance with your direct or indirect instructions); and (c) the following assets in particular: (i) the property known as [insert title/address] or, if it has been sold, the net proceeds of the sale; (ii) the assets of your business [known as [insert name]] [carried on at [insert address]] or, if any or all of the assets have been sold, the net proceeds of the sale; and (iii) any money in account [insert numbered account number] [in the name of [insert name]] at [insert name of bank and name and address of branch]. (2) the value of your assets is the value of the interest you have individually in your assets. PROVISION OF INFORMATION4 8. Subject to paragraph 9, you must: (a) at or before the further hearing on the Return Date (or within such further time as the Court may allow) to the best of your ability inform the applicant in writing of all your assets in [Australia] [world wide], giving their value, location and details (including any mortgages, charges or other encumbrances to which they are subject) and the extent of your interest in the assets; (b) within [ ] working days after being served with this order, swear and serve on the applicant an affidavit setting out the above information. 9. (a) This paragraph (9) applies if you are not a corporation and you wish to object that compliance with paragraph 8 may tend to incriminate you or make you liable to a civil penalty. (b) This paragraph (9) also applies if you are a corporation and all of the persons who are able to comply with paragraph 8 on your behalf and with whom you have been able to communicate, wish to object that compliance may tend to incriminate them respectively or make them respectively liable to a civil penalty. (c) You must, at or before the further hearing on the return date (or within such further time as the Court may allow), notify the applicant in writing that you or all the persons referred to in (b) wish to take such objection and identify the extent of the objection. (d) If you give such notice, you need comply with paragraph 8 only to the extent, if any, that it is possible to do so without disclosure of the material in respect of which the objection is taken. (e) If you give such notice, the Court may give directions as to the filing and service of affidavits setting out such matters as you or the persons referred to in (b) wish to place before the Court in support of the objection. EXCEPTIONS TO THIS ORDER 10. This order does not prohibit you from: (a) paying [up to $........ a week/day on] [your ordinary] living expenses; (b) paying [$........ on] [your reasonable] legal expenses; (c) dealing with or disposing of any of your assets in the ordinary and proper course of your business, including paying business expenses bona fide and properly incurred; and (d) in relation to matters not falling within (a), (b) or (c), dealing with or disposing of any of your assets in discharging obligations bona fide and properly incurred under a contract entered into before this order was made, provided that before doing so you give the applicant, if possible, at least two working days written notice of the particulars of the obligation. 11. You and the applicant may agree in writing that the exceptions in the preceding paragraph are to be varied. In that case the applicant or you must as soon as practicable file with the Court and serve on ©

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ACT Practice Directions

[ACTPD.20]

the other a minute of a proposed consent order recording the variation signed by or on behalf of the applicant and you, and the Court may order that the exceptions are varied accordingly. 12. (a) This order will cease to have effect if you: (i) pay the sum of $........ into Court; or (ii) pay that sum into a joint bank account in the name of your solicitor and the solicitor for the applicant as agreed in writing between them; or (iii) provide security in that sum by a method agreed in writing with the applicant to be held subject to the order of the Court. (b) Any such payment and any such security will not provide the applicant with any priority over your other creditors in the event of your insolvency. (c) If this order ceases to have effect pursuant (a), you must as soon as practicable file with the Court and serve on the applicant notice of that fact. COSTS 13. The costs of this application are reserved to the judge hearing the application on the Return Date. PERSONS OTHER THAN THE APPLICANT AND RESPONDENT 14. Set off by banks This order does not prevent any bank from exercising any right of set off it has in respect of any facility which it gave you before it was notified of this order. 15. Bank withdrawals by the respondent No bank need inquire as to the application or proposed application of any money withdrawn by you if the withdrawal appears to be permitted by this order. [For world wide order] 16. Persons outside Australia (a) Except as provided in subparagraph (b) below, the terms of this order do not affect or concern anyone outside Australia. (b) The terms of this order will affect the following persons outside Australia: (i) you and your directors, officers, employees and agents (except banks and financial institutions); (ii) any person (including a bank or financial institution) who: (A) is subject to the jurisdiction of this Court; and (B) has been given written notice of this order, or has actual knowledge of the substance of the order and of its requirements; and (C) is able to prevent or impede acts or omissions outside Australia which constitute or assist in a disobedience of the terms of this order; and (iii) any other person (including a bank of financial institution), only to the extent that this order is declared enforceable by or is enforced by a court in a country or state that has jurisdiction over that person or over any of that person’s assets. [For world wide order] 17. Assets located outside Australia Nothing in this order shall, in respect of assets located outside Australia, prevent any third party from complying or acting in conformity with what it reasonably believes to be its bona fide and properly incurred legal obligations, whether contractual or pursuant to a court order or otherwise, under the law of the country or state in which those assets are situated or under the proper law of any contract between a third party and you, provided that in the case of any future order of a court of that country or state made on your or the third party’s application, reasonable written notice of the making of the application is given to the applicant. SCHEDULE A UNDERTAKINGS GIVEN TO THE COURT BY THE APPLICANT (1) The applicant undertakes to submit to such order (if any) as the Court may consider to be just for the payment of compensation (to be assessed by the Court or as it may direct) to any person (whether or not a party) affected by the operation of the order. (2) As soon as practicable, the applicant will file and serve upon the respondent copies of: 758

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(3) (4)

(5)

(6)

(7)

[(8)

ACT Practice Directions

(a) this order; (b) the application for this order for hearing on the return date; (c) the following material in so far as it was relied on by the applicant at the hearing when the order was made: (i) affidavits (or draft affidavits); (ii) exhibits capable of being copied; (iii) any written submission; and (iv) any other document that was provided to the Court. (d) a transcript, or, if none is available, a note, of any exclusively oral allegation of fact that was made and of any exclusively oral submission that was put, to the Court; (e) the originating process, or, if none was filed, any draft originating process produced to the Court. As soon as practicable, the applicant will cause anyone notified of this order to be given a copy of it. The applicant will pay the reasonable costs of anyone other than the respondent which have been incurred as a result of this order, including the costs of finding out whether that person holds any of the respondent’s assets. If this order ceases to have effect5 the applicant will promptly take all reasonable steps to inform in writing anyone who has been notified of this order, or who the applicant has reasonable grounds for supposing may act upon this order, that it has ceased to have effect. The applicant will not, without leave of the Court, use any information obtained as a result of this order for the purpose of any civil or criminal proceedings, either in or outside Australia, other than this proceeding. The applicant will not, without leave of the Court, seek to enforce this order in any country outside Australia or seek in any country outside Australia an order of a similar nature or an order conferring a charge or other security against the respondent or the respondent’s assets. The applicant will: (a) on or before [insert date] cause an irrevocable undertaking to pay in the sum of $ to be issued by a bank with a place of business within Australia, in respect of any order the court may make pursuant to undertaking (1) above; and (b) immediately upon issue of the irrevocable undertaking, cause a copy of it to be served on the respondent.]6

SCHEDULE B7 AFFIDAVITS RELIED ON Name of DeponentDate affidavit made (1) (2) (3) NAME AND ADDRESS OF APPLICANT’S LEGAL REPRESENTATIVES The applicant’s legal representatives are: [Name, address, reference, fax and telephone numbers both in and out of offıce hours and email] 1 The words “without notice to you” and “and after the Court has read the affıdavits listed in Schedule B to this order” are appropriate only in the case of an ex parte order. 2 Paragraph 1 is appropriate only in the case of an ex parte order. 3 Paragraph 2 is appropriate only in the case of an ex parte order. 4 See Practice Note paragraph 14. 5 For example, if the respondent pays money into Court or provides security, as provided for in paragraph 12 of this Order. 6 See Practice Note paragraph 17. 7 Schedule B is appropriate only in the case of an ex parte order.

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[ACTPD.20]

ACT Practice Directions [ACTPD.30]

[ACTPD.30]

Notifiable instrument NI2008–78

Search Orders (also known as “Anton Piller Orders”) 1. This Practice Note supplements Subdivision 2.9.4.3 of the Court Procedures Rules 2006 relating to search orders (also known as Anton Piller orders, after Anton Piller KG v Manufacturing Processes Ltd [1976] Ch 55). 2. This Practice Note addresses (among other things) the Court’s usual practice relating to the making of a search order and the usual terms of such an order. While a standard practice has benefits, this Practice Note and the example form of order annexed to it do not, and can not, limit the judicial discretion to make such order as is appropriate in the circumstances of the particular case. 3. Words and expressions in this Practice Note that are defined in Subdivision 2.9.4.3 of the Court Procedures Rules 2006 have the meanings given to them in that subdivision. 4. Ordinarily, a search order is made ex parte and compels the respondent to permit persons specified in the order (“search party”) to enter premises and to search for, inspect, copy and remove the things described in the order. The order is designed to preserve important evidence pending the hearing and determination of the applicant’s claim in a proceeding brought or to be brought by the applicant against the respondent or against another person. The order is an extraordinary remedy in that it is intrusive, potentially disruptive, and made ex parte and prior to judgment. 5. An example form of ex parte search order is annexed to this Practice Note (the footnotes and references to footnotes in the example form should not form part of the order as made). The example form may be adapted to meet the circumstances of the particular case. It contains provisions which are aimed at achieving the permissible objectives of a search order, while minimising the potential for disruption or damage to the respondent and for abuse of the Court’s process. 6. The search party must include an independent solicitor who will supervise the search and a solicitor or solicitors representing the applicant. It may be necessary that it include other persons, such as an independent computer expert, and a person able to identify things being searched for if difficulties of identification may arise. Ordinarily, the search party should not include the applicant or the applicant’s directors, officers, employees or partners or any other person associated with the applicant (other than the applicant’s solicitor). 7. The order should be clear about the maximum number of persons permitted to be in the search party. The number of people in the search party should be as small as is reasonably practicable. The example form contemplates that they will be named in the order. This is desirable but if it is not possible the order should at least give a description of the class of person who will be there (e.g. “one solicitor employed by A, B and Co”). 8. The affidavits in support of an application for a search order should include the following information: (a) a description of the things or the categories of things, in relation to which the order is sought; (b) the address or location of any premises in relation to which the order is sought and whether they are private or business premises; (c) why the order is sought, including why there is a real possibility that the things to be searched for will be destroyed or otherwise made unavailable for use in evidence before the court unless the order is made; (d) the prejudice, loss or damage likely to be suffered by the applicant if the order is not made; (e) the name, address, firm, and commercial litigation experience of an independent solicitor, who consents to being appointed to serve the order, supervise its execution, and to such other things as the Court considers appropriate; and (f) if the premises to be searched are or include residential premises, whether or not the applicant believes that the only occupant of the premises is likely to be: (i) a female; or (ii) a child under the age of 18; or (iii) any other person (“vulnerable person”) that a reasonable person would consider to be in a position of vulnerability because of that person’s age, mental capacity, infirmity or English language ability; 760

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(iv) any combination of (i), (ii) and (iii), and any one or more of such persons. 9. If it is envisaged that specialised computer expertise may be required to search the respondent’s computers for documents, or if the respondent’s computers are to be imaged (i.e. hard drives are to be copied wholesale, thereby reproducing documents referred to in the order and other documents indiscriminately), special provision will need to be made, and an independent computer specialist will need to be appointed who should be required to give undertakings to the Court. 10. The applicant’s solicitor must undertake to the Court to pay the reasonable costs and disbursements of the independent solicitor and of any independent computer expert. 11. The independent solicitor is an important safeguard against abuse of the order. The independent solicitor must not be a member or employee of the applicant’s firm of solicitors. The independent solicitor should be a solicitor experienced in commercial litigation, preferably in the execution of search orders. The Law Society has been requested to maintain a list of solicitors who have indicated willingness to be appointed as an independent solicitor for the purpose of executing search orders, but it is not only persons on such a list who may be appointed. The responsibilities of the independent solicitor are important and ordinarily include the following: (a) serve the order, the application for it, the affidavits relied on in support of the application, and the originating process; (b) offer to explain, and, if the offer is accepted, explain the terms of the search order to the respondent; (c) explain to the respondent that he or she has the right to obtain legal advice; (d) supervise the carrying out of the order; (e) before removing things from the premises, make a list of them, allow the respondent a reasonable opportunity to check the correctness of the list, sign the list, and provide the parties with a copy of the list; (f) take custody of all things removed from the premises until further order of the Court; (g) if the independent solicitor considers it necessary to remove a computer from the premises for safekeeping or for the purpose of copying its contents electronically or printing out information in documentary form, remove the computer from the premises for that purpose, and return the computer to the premises within any time prescribed by the order together with a list of any documents that have been copied or printed out; (h) submit a written report to the Court within the time prescribed by the order as to the execution of the order; and (i) attend the hearing on the return date of the application, and have available to be brought to the Court all things that were removed from the premises. On the return date the independent solicitor may be required to release material in his or her custody which has been removed from the respondent’s premises or to provide information to the Court, and may raise any issue before the Court as to execution of the order. 12. Ordinarily, the applicant is not permitted, without the leave of the Court, to inspect things removed from the premises or copies of them, or to be given any information about them by members of the search party. 13. Ordinarily, a search order should be served between 9:00am and 2:00pm on a business day in order to permit the respondent more readily to obtain legal advice. However, there may be circumstances in which such a restriction is not appropriate. 14. A search order must not be executed at the same time as the execution of a search warrant by the police or by a regulatory authority. 15. If the premises are or include residential premises and the applicant is aware that when service of the order is effected the only occupant of the residential premises is likely to be any one or more of a female, a child under the age of 18, or a vulnerable person, the Court will give consideration to whether: (a) if the occupants are likely to include a female or child, the independent solicitor should be a woman or the search party should otherwise include a woman; and (b) if the occupants are likely to include a vulnerable person, the search party should include a person capable of addressing the relevant vulnerability. ©

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16. Any period during which the respondent is to be restrained from informing any other person (other than for the purposes of obtaining legal advice) of the existence of the search order should be as short as possible and not extend beyond 4:30pm on the return date. 17. At the inter partes hearing of the application on the return date, the Court will consider the following issues: (a) what is to happen to any things removed from the premises or to any copies which have been made; (b) how any commercial confidentiality of the respondent is to be maintained; (c) any claim of privilege by the respondent; (d) any application by a party; and (e) any issue raised by the independent solicitor. 18. Appropriate undertakings to the Court will be required of the applicant, the applicant’s solicitor and the independent solicitor, as conditions of the making of the search order. The undertakings required of the applicant will normally include the Court’s usual undertaking as to damages. The applicant’s solicitor’s undertaking includes an undertaking not to disclose to the applicant any information that the solicitor has acquired during or as a result of execution of the search order, without the leave of the Court. Release from this undertaking in whole or in part may be sought on the return date. 19. If it is demonstrated that the applicant has or may have insufficient assets within the jurisdiction of the Court to provide substance for the usual undertaking as to damages, the applicant may be required to provide security for the due performance of that undertaking. The security may, for example, take the form of a bank’s irrevocable undertaking to pay or a payment into Court. The example form of search order contains provision for an irrevocable undertaking. 20. An applicant ex parte for a search order is under a duty to the Court to make full and frank disclosure of all material facts to the Court. This includes disclosure of possible defences known to the applicant and of any financial information which may cast doubt on the applicant’s ability to meet the usual undertaking as to damages from assets within Australia. 21. The order to be served should be served in accordance with the requirements of rule 2446. 22. A search order is subject to the Court’s adjudication of any claim of privilege against self-incrimination. The privilege against self-incrimination is available to individuals but not to corporations. The Court will not make an order reducing or limiting that privilege in circumstances where the legislature has not indicated that it may do so. Example Form of Search Order [Title of Proceeding] PENAL NOTICE TO: [name of person against whom the order is made] IF YOU (BEING THE PERSON BOUND BY THIS ORDER): (A) REFUSE OR NEGLECT TO DO ANY ACT WITHIN THE TIME SPECIFIEDIN THE ORDER FOR THE DOING OF THE ACT; OR (B) DISOBEY THE ORDER BY DOING AN ACT WHICH THE ORDER REQUIRESYOU TO ABSTAIN FROM DOING, YOU WILL BE LIABLE TO IMPRISONMENT, SEQUESTRATION OF PROPERTY OR OTHER PUNISHMENT. ANY OTHER PERSON WHO KNOWS OF THIS ORDER AND DOES ANYTHING WHICH HELPS OR PERMITS YOU TO BREACH THE TERMS OF THIS ORDER MAY BE SIMILARLY PUNISHED. TO: [name of person against whom the order is made] This is a “search order” made against you on [insert date] by Justice [insert name of Judge] at a hearing without notice to you after the Court was given the undertakings set out in Schedule B to this order and after the Court read the affidavits listed in Schedule C to this order. THE COURT ORDERS: INTRODUCTION 1. (a) the application for this order is made returnable immediately. 762

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2. 3.

4. 5.

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(b) the time for service of the application, supporting affidavits and originating process is abridged and service is to be effected by [insert time and date]. Subject to the next paragraph, this order has effect up to and including [insert date] (“the Return Date”). On the Return Date at [insert time] am/pm there will be a further hearing in respect of this order before Justice [insert name of Judge]. You may apply to the Court at any time to vary or discharge this order, including, if necessary, by telephone to the judge referred to in the immediately preceding paragraph (phone No. ) or by arrangement through the Registrar (Phone No. 6207 2761). This order may be served only between [insert time] am/pm and [insert time] am/pm [on a business day].1 In this order: (a) “applicant” means the person who applied for this order, and if there is more than one applicant, includes all the applicants. (b) “independent computer expert” means the person (if any) identified as the independent computer expert in the search party referred to in Schedule A to this order. (c) “independent solicitor” means the person identified as the independent solicitor in the search party referred to in Schedule A to this order. (d) “listed thing” means any thing referred to in Schedule A to this order. (e) “premises” means the premises and any of the premises identified in Schedule A to this order, including any vehicles and vessels that are under the respondent’s control on or about the premises or that are otherwise identified in Schedule A. (f) “search party” means the persons identified or described as constituting the search party in Schedule A to this order. (g) “thing” includes a document. (h) “you”, where there is more than one of you, includes all of you and includes you if you are a corporation. (i) any requirement that something be done in your presence means: (A) in the presence of you or of one of the persons described in (6) below; or (B) if there is more than one of you, in the presence of each of you, or, in relation to each of you, in the presence of one of the persons described in (6) below. This order must be complied with by you by: (a) yourself; or (b) any director, officer, partner, employee or agent of yourself; or (c) any other person having responsible control of the premises. This order must be served by, and be executed under the supervision of, the independent solicitor.

ENTRY, SEARCH AND REMOVAL 8. Subject to paragraphs 10 to 20 below, upon service of this order you must permit members of the search party to enter the premises so that they can carry out the search and other activities referred to in this order. 9. Having permitted members of the search party to enter the premises, you must: (a) permit them to leave and re-enter the premises on the same and the following day until the search and other activities referred to in this order are complete; (b) permit them to search for and inspect the listed things and to make or obtain a copy, photograph, film, sample, test or other record of the listed things; (c) disclose to them the whereabouts of all the listed things in the respondent’s possession, custody or power, whether at the premises or otherwise; (d) disclose to them the whereabouts of all computers, computer disks and electronic information storage devices or systems at the premises in which any documents among the listed things are or may be stored, located or recorded and cause and permit those documents to be printed out; (e) do all things necessary to enable them to access the listed things, including opening or providing keys to locks and enabling them to access and operate computers and providing them with all necessary passwords; ©

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(f) permit the independent solicitor to remove from the premises into the independent solicitor’s custody: (i) the listed things or things which reasonably appear to the independent solicitor to be the listed things and any things the subject of dispute as to whether they are listed things; and (ii) the copies, photographs, films, samples, tests, other records and printed out documents referred to above; and (g) permit the independent computer expert (if there is one) to search any computer and make a copy or digital copy of any computer hard drive and permit the independent computer expert (if any) or the independent solicitor to remove any computer hard drive and computer from the premises as set out in paragraphs 20 and 21 below. RESTRICTIONS ON ENTRY, SEARCH AND REMOVAL 10. This order may not be executed at the same time as a search warrant (or similar process) is executed by the police or by a regulatory authority. 11. You are not required to permit anyone to enter the premises until: (a) the independent solicitor serves you with copies of this order and any affidavits referred to in Schedule C (confidential exhibits, if any, need not be served until further order of the Court); and (b) you are given an opportunity to read this order and, if you so request, the independent solicitor explains the terms of this order to you. 12. Before permitting entry to the premises by anyone other than the independent solicitor, you, for a time (not exceeding two hours from the time of service or such longer period as the independent solicitor may permit): (a) may seek legal advice; (b) may ask the Court to vary or discharge this order; (c) (provided you are not a corporation) may gather together any things which you believe may tend to incriminate you or make you liable to a civil penalty and hand them to the independent solicitor in (if you wish) a sealed envelope or container; and (d) may gather together any documents that passed between you and your lawyers for the purpose of obtaining legal advice or that are otherwise subject to legal professional privilege or client legal privilege, and hand them to the independent solicitor in (if you wish) a sealed envelope or container. 13. Subject to paragraph 22 below, the independent solicitor must not inspect or permit to be inspected by anyone, including the applicant and the applicant’s solicitors, any thing handed to the independent solicitor in accordance with subparagraphs 12(c) and (d) above and the independent solicitor must deliver it to the Court at or prior to the hearing on the Return Date. 14. During any period referred to in para 12 above, you must: (a) inform and keep the independent solicitor informed of the steps being taken; (b) permit the independent solicitor to enter the premises but not to start the search; (c) not disturb or remove any listed things; and (d) comply with the terms of paragraphs 25 and 26 below. 15. Any thing the subject of a dispute as to whether it is a listed thing must promptly be handed by you to the independent solicitor for safekeeping pending resolution of the dispute or further order of the Court. 16. Before removing any listed things from the premises (other than things referred to in the immediately preceding paragraph), the independent solicitor must supply a list of them to you, give you a reasonable time to check the correctness of the list, and give you and the applicant’s solicitors a copy of the list signed by the independent solicitor. 17. The premises must not be searched, and things must not be removed from the premises, except in the presence of you or of a person who appears to the independent solicitor to be your director, officer, partner, employee, agent or other person acting on your behalf or on your instructions. 764

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18. If the independent solicitor is satisfied that full compliance with the immediately preceding paragraph is not reasonably practicable, the independent solicitor may permit the search to proceed and the listed things to be removed without full compliance. 19. The applicant’s solicitors and the independent solicitor must not allow the applicant in person to inspect or have copies of any thing removed from the premises nor communicate to the applicant information about its contents or about anything observed at the premises until 4:30pm on the return date or other time fixed by further order of the Court. COMPUTERS 20. (a) If it is expected that a computer will be searched, the search party must include a computer expert who is independent of the applicant and of the applicant’s solicitors (“the independent computer expert”). (b) Any search of a computer must be carried out only by the independent computer expert. (c) The independent computer expert may make a copy or digital copy of the computer hard drive and remove that copy or digital copy from the premises. (d) The independent computer expert may search the computer or the copy or digital copy of the computer hard drive at the premises and/or away from the premises for listed things and may copy the listed things electronically or in hard copy or both. (e) The independent computer expert must as soon as practicable and, in any event, prior to the hearing on the return date, deliver the copy or digital copy of the computer hard drive and all electronic and hard copies of listed things to the independent solicitor, together with a report of what the independent computer expert has done including a list of such electronic and hard copies. (f) The independent solicitor must, at or prior to the hearing on the return date, deliver to the Court all things received from the independent computer expert and serve a copy of the latter’s report on the parties. (g) If no independent computer expert has been appointed, but the independent solicitor considers it necessary to remove a computer from the premises for safekeeping or for the purpose of copying its contents electronically and printing out information in documentary form, the independent solicitor may remove the computer from the premises for that purpose and cause that purpose to be achieved. 21. (a) Unless you are a corporation, you are entitled to object to paragraphs 20(b) to (f) on the ground that they might tend to incriminate you or make you liable to a civil penalty. (b) You are also entitled to object to paragraphs 20(b) to (f) on the ground that the computer contains material that is otherwise privileged. (c) Upon communicating any objection under para (a) or (b) to the independent solicitor, paragraphs 20(b) to (f) become inoperative to the extent that you have objected to them. In that event, if the applicant’s solicitor communicates to the independent solicitor that the applicant proposes to contest the objection: (i) the independent computer expert shall remove the computer hard drive (or, if that is not practicable, the computer) from the premises and deliver it into the custody of the independent solicitor who shall deliver it to the Court at or prior to the Return Date. (ii) on the Return Date or on another date, the applicant may apply to the Court for orders to similar effect as paragraphs 20(b) to (f) and if you object, the Court may adjudicate upon your objection. INSPECTION 22. Prior to the Return Date, you or your solicitor or representative shall be entitled, in the presence of the independent solicitor, to inspect any thing removed from the premises and to: (a) make copies of the same; and (b) provide the independent solicitor with a signed list of things which are claimed to be privileged or confidential and which you claim ought not to be inspected by the applicant. PROVISION OF INFORMATION 23. Subject to paragraph 24 below, you must: ©

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(a) at or before the further hearing on the Return Date (or within such further time as the Court may allow) to the best of your ability inform the applicant in writing as to: (i) the location of the listed things; (ii) the name and address of everyone who has supplied you, or offered to supply you, with any listed thing; (iii) the name and address of every person to whom you have supplied, or offered to supply, any listed thing; and (iv) details of the dates and quantities of every such supply and offer. (b) within [ ] working days after being served with this order, make and serve on the applicant an affidavit setting out the above information. (a) This paragraph (24) applies if you are not a corporation and you wish to object that compliance with paragraph 23 may tend to incriminate you or make you liable to a civil penalty. (b) This paragraph (24) also applies if you are a corporation and all of the persons who are able to comply with paragraph 23 on your behalf and with whom you have been able to communicate, wish to object that compliance may tend to incriminate them or make them liable to a civil penalty. (c) You must, at or before the further hearing on the Return Date (or within such further time as the Court may allow), notify the applicant in writing that you or all the persons referred to in (b) wish to take such objection and identify the extent of the objection. (d) If you give such notice, you need comply with paragraph 23 only to the extent, if any, that it is possible to do so without disclosure of the material in respect of which the objection is taken. (e) If you give such notice, the Court may give directions as to the filing and service of affidavits setting out such matters as you or the persons referred to in (b) wish to place before the Court in support of the objection.

PROHIBITED ACTS 25. Except for the sole purpose of obtaining legal advice, you must not, until 4:30pm on the Return Date, directly or indirectly inform any person of this proceeding or of the contents of this order, or tell any person that a proceeding has been or may be brought against you by the applicant. 26. Until 4:30pm on the Return Date you must not destroy, tamper with, cancel or part with possession, power, custody or control of the listed things otherwise than in accordance with the terms of this order or further order of the Court. COSTS 27. The costs of this application are reserved to the Judge hearing the application on the Return Date. SCHEDULE A Premises The premises located at [insert address or addresses] including any vehicle or vehicles under the respondent’s control on or about those premises. Listed Things 1. 2. 3. Search Party 1. The independent solicitor: [insert name and address] 2. The applicant’s solicitor or solicitors: (a) [insert name and address] [or description e.g. a partner or employed solicitor of A, B and Co]. (b) [insert name and address] [or description e.g. a partner or employed solicitor of A, B and Co]. (c) [insert name and address] [or description e.g. a partner or employed solicitor of A, B and Co]. 3. Other members of the search party: (a) [insert name and address] in the capacity of [e.g. an independent computer expert] 766

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SCHEDULE B UNDERTAKINGS GIVEN TO THE COURT Undertakings given to the Court by the applicant (1) The applicant undertakes to submit to such order (if any) as the Court may consider to be just for the payment of compensation (to be assessed by the Court or as it may direct) to any person (whether or not a party) affected by the operation of the order. (2) The applicant will not, without leave of the Court, use any information, document or thing obtained as a result of the execution of this order for the purpose of any civil or criminal proceeding, either within or outside Australia, other than this proceeding. (3) The applicant will not inform any other person of the existence of this proceeding except for the purposes of this proceeding until after 4:30pm on the Return Date. (4) If the applicant has not already done so, as soon as practicable the applicant will file a notice of motion for hearing on the Return Date and an originating process [in the form of the draft produced to the Court]. [(5) The applicant will insure the things removed from the premises against loss or damage for an amount that reasonably appears to the applicant to be their full value.]2 [(6) The applicant will:3 (a) on or before [insert date] cause a written irrevocable undertaking to pay in the sum of $[insert amount] to be issued from a bank with a place of business within Australia, in respect of any order the Court may make referred to in the undertaking as to damages contained in paragraph (1) above; and (b) immediately upon issue of the irrevocable undertaking to pay, cause a copy of it to be served on the respondent.] Undertakings given to the Court by the applicant’s solicitor (1) The applicant’s solicitor will pay the reasonable costs and disbursements of the independent solicitor and of any independent computer expert. (2) The applicant’s solicitor will provide to the independent solicitor for service on the respondent copies of the following documents: (a) this order; (b) the application for this order for hearing on the Return Date; (c) the following material in so far as it was relied on by the applicant at the hearing when the order was made: (i) affidavits (or draft affidavits); (ii) exhibits capable of being copied (other than confidential exhibits); (iii) any written submission; and (iv) any other document that was provided to the Court. (d) a transcript, or, if none is available, a note, of any exclusively oral allegation of fact that was made and of any exclusively oral submission that was put, to the Court; and (e) the originating process, or, if none was filed, any draft originating process produced to the Court. (3) The applicant’s solicitor will answer to the best of his or her ability any question as to whether a particular thing is a listed thing. (4) The applicant’s solicitor will use his or her best endeavours to act in conformity with the order and to ensure that the order is executed in a courteous and orderly manner and in a manner that minimises disruption to the respondent. (5) The applicant’s solicitor will not, without leave of the Court, use any information, document or thing obtained as a result of the execution of this order for the purpose of any civil or criminal proceeding, either within or outside Australia, other than this proceeding. (6) The applicant’s solicitor will not inform any other person of the existence of this proceeding except for the purposes of this proceeding until after 4:30pm on the Return Date. ©

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(7) The applicant’s solicitor will not disclose to the applicant any information that the solicitor acquires during or as a result of execution of the search order, without the leave of the Court. (8) The applicant’s solicitor will use best endeavours to follow all directions of the independent solicitor. Undertakings given to the Court by the independent solicitor (1) The independent solicitor will use his or her best endeavours to serve the respondent with this order and the other documents referred to in undertaking (2) of the above undertakings by the applicant’s solicitor or solicitors. (2) Before entering the premises, the independent solicitor will: (a) offer to explain the terms and effect of the search order to the person served with the order and, if the offer is accepted, do so; and (b) inform the respondent of his or her right to take legal advice. (3) Subject to undertaking (4) below, the independent solicitor will retain custody of all things removed from the premises by the independent solicitor pursuant to this order until delivery to the Court or further order of the Court. (4) At or before the hearing on the Return Date, the independent solicitor will provide a written report on the carrying out of the order to the Court and provide a copy to the applicant’s solicitors and to the respondent or the respondent’s solicitors. The report will attach a copy of any list made pursuant to the order and a copy of any report received from an independent computer expert. (5) The independent solicitor will use best endeavours to ensure that members of the search party act in conformity with the order and that the order is executed in a courteous and orderly manner and in a manner that minimises disruption to the respondent, and will give such reasonable directions to other members of the search party as are necessary or convenient for the execution of the order. (6) The independent solicitor will not, without leave of the Court, use any information, document or thing obtained as a result of the execution of this order for the purpose of any civil or criminal proceeding, either within or outside Australia, other than this proceeding. (7) The independent solicitor will not inform any other person of the existence of this proceeding except for the purposes of this proceeding until after 4:30pm on the Return Date. Undertakings given to the Court by the independent computer expert (1) The independent computer expert will use his or her best endeavours to act in conformity with the order and to ensure that the order, so far as it concerns the independent computer expert, is executed in a courteous and orderly manner and in a manner that minimises disruption to the respondent. (2) The independent computer expert will not, without leave of the Court, use any information, document or thing obtained as a result of the execution of this order for the purpose of any civil or criminal proceeding, either within or outside Australia, other than this proceeding. (3) The independent computer expert will not inform any other person of the existence of this proceeding except for the purposes of this proceeding until after 4:30pm on the Return Date. (4) The independent computer expert will use best endeavours to follow all directions of the independent solicitor. SCHEDULE C AFFIDAVITS RELIED ON Name of DeponentDate affidavit made (1) (2) (3) NAME AND ADDRESS OF APPLICANT’S SOLICITORS The applicant’s solicitors are: [Insert name, address, reference, fax and telephone numbers both in and out offıce hours]. 1 Normally the order should be served between 9:00 am and 2:00 pm on a business day to enable the respondent more readily to obtain legal advice. 768

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2 Depending on the nature of the things likely to be removed and their likely value, and the likely particular risks of their being lost or damaged, this undertaking or a more elaborate one may be required. 3 See Practice Note paragraph 19.

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Division 1 – Preliminary 1.1 Citation............................................................................................................................................ 777 1.2 Commencement.............................................................................................................................. 777 1.3 Application of these Rules and other rules of the Court.................................................................777 1.4 Expressions used in the Corporations Act...................................................................................... 777 1.5 Definitions for these Rules.............................................................................................................. 778 1.6 References to rules and forms........................................................................................................778 1.7 Substantial compliance with forms..................................................................................................779 1.8 Court’s power to give directions......................................................................................................779 1.9 Calculation of time...........................................................................................................................779 1.10 Extension and abridgment of time.................................................................................................. 779 Division 2 – Proceedings generally 2.1 Title of documents in a proceeding – Form 1................................................................................. 779 2.2 Originating process and interlocutory process – Forms 2 and 3....................................................779 2.3 Fixing of hearing..............................................................................................................................780 2.4 Supporting affidavit..........................................................................................................................780 2.4A Application for order setting aside statutory demand (Corporations Act s 459G).......................... 780 2.5 Affidavits made by creditors............................................................................................................ 781 2.6 Form of affidavits.............................................................................................................................781 2.7 Service of originating process or interlocutory process and supporting affidavit........................... 781 2.8 Notice of certain applications to be given to ASIC......................................................................... 781 2.9 Notice of appearance (Corporations Act s 465C) – Form 4........................................................... 782 2.10 Intervention in proceeding by ASIC (Corporations Act s 1330) – Form 5...................................... 782 2.11 Publication of notices...................................................................................................................... 783 2.12 Proof of publication......................................................................................................................... 783 2.13 Leave to creditor, contributory or officer to be heard......................................................................783 2.14 Inquiry in relation to corporation’s debts etc................................................................................... 784 2.15 Meetings ordered by the Court....................................................................................................... 784 Division 3 – Compromises and arrangements in relation to Part 5.1 bodies 3.1 Application of Division 3.................................................................................................................. 784 3.2 Nomination of chairperson for meeting........................................................................................... 784 3.3 Order for meetings to identify proposed scheme............................................................................784 3.4 Notice of hearing (Corporations Act s 411(4), s 413(1)) – Form 6.................................................785 3.5 Copy of order approving compromise or arrangement to be lodged with ASIC............................ 785 Division 4 – Receivers and other controllers of corporation property (Corporations Act Part 5.2) 4.1 Inquiry into the conduct of controller (Corporations Act s 423)...................................................... 785 Division 5 – Winding up proceedings (including oppression proceedings where winding up is sought) 5.1 Application of Division 5.................................................................................................................. 785 5.2 Affidavit accompanying statutory demand (Corporations Act s 459E(3)) – Form 7....................... 786 5.3 Application for leave to apply for winding up in insolvency (Corporations Act s 459P(2)).............786 5.4 Affidavit in support of application for winding up (Corporations Act s 459P, s 462, s 464)........... 786 5.5 Consent of liquidator (Corporations Act s 532(9)) – Form 8.......................................................... 786 5.6 Notice of application for winding up – Form 9 [Repealed]............................................................. 786 5.7 Applicant to make copies of documents available..........................................................................786 5.8 Discontinuance of application for winding up..................................................................................787 5.9 Appearance before Registrar.......................................................................................................... 787 5.10 .........................................................................................................................................................787 Order substituting plaintiff in application for winding up (Corporations Act s 465B) – Form 10 5.11 Notice of winding up order and appointment of liquidator – Form 11............................................ 787 Division 6 – Provisional liquidators (Corporations Act Part 5.4B) 6.1 Appointment of provisional liquidator (Corporations Act s 472) – Form 8......................................787 6.2 Notice of appointment of provisional liquidator – Form 12............................................................. 788 Division 7 – Liquidators ©

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CORPORATIONS LAW RULES (NT)

Corporations Law Rules (NT) 7.1 7.2 7.3 7.4 7.5 7.6 7.7 7.8 7.9 7.10 7.11

Resignation of liquidator (Corporations Act s 473(1)).....................................................................788 Filling vacancy in office of liquidator (Corporations Act s 473(7), s 502)....................................... 788 Report to liquidator as to company’s affairs (Corporations Act s 475)........................................... 788 .........................................................................................................................................................789 Liquidator to file certificate and copy of settled list of contributories (Corporations Act s 478) Release of liquidator and deregistration of company (Corporations s 480(c) and (d)).................. 789 Objection to release of liquidator – Form 13.................................................................................. 790 Report on accounts of liquidator (Corporations Act s 481).............................................................790 Application for payment of call (Corporations Act s 483(3)(b)) – Form 14.....................................791 Distribution of surplus by liquidator with special leave of the Court (Corporations Act s 488(2)) – Form 15........................................................................................................................ 791 Powers delegated to liquidator by the Court (Corporations Act s 488).......................................... 791 Inquiry into conduct of liquidator (Corporations Act s 536(1) and (2))........................................... 791

Division 8 – Special managers (Corporations Act Part 5.4B) 8.1 Application for appointment of special manager (Corporations Act s 484).................................... 792 8.2 Security given by special manager (Corporations Act s 484).........................................................792 8.3 Special manager’s receipts and payments (Corporations Act s 484).............................................792 Division 9 – Remuneration of office-holders 9.1 Remuneration of receiver (Corporations Act s 425(1)) – Form 16................................................. 792 9.2 Determination by Court of remuneration of administrator (Corporations Act s 449E(1)(c) and (1A)(c)) – Form 16.......................................................................................................................... 793 9.2A Review of remuneration of administrator (Corporations Act s 449E(2)).........................................794 9.3 Remuneration of provisional liquidator (Corporations Act s 473(2)) – Form 16.............................795 9.4 Determination by Court of liquidator’s remuneration (Corporations Act s 473(3)(b)(ii))................. 796 9.4A Review of remuneration of liquidator (Corporations Act s 473(5) and (6) and 504(1))..................797 9.5 Remuneration of special manager (Corporations Act s 84(2)) – Form 16..................................... 798 Division 10 – Winding up generally 10.1 Determination of value of debts or claims (Corporations Act s 554A(2))....................................... 799 10.2 Disclaimer of contract (Corporations Act s 568(1A))...................................................................... 799 10.3 Winding up Part 5.7 bodies (Corporations Act s 583, s 585) and registered schemes (Corporations Act s 601ND)............................................................................................................ 799 Division 11 – Examinations and orders (Corporations Act Part 5.9 Divisions 1 and 2) 11.1 Definition for Division 11..................................................................................................................799 11.2 Application for examination or investigation under s 411(9)(B), s 423 or s 536(3) of the Corporations Act.............................................................................................................................. 799 11.3 Application for examination summons (Corporations Act s 596A, s 596B) – Form 17..................800 11.4 Service of examination summons................................................................................................... 800 11.5 Discharge of examination summons............................................................................................... 800 11.6 Filing of record of examination (Corporations Act s 597(13)).........................................................801 11.7 Authentication of transcript of examination (Corporations Act s 597(14))...................................... 801 11.8 Inspection of record or transcript of examination or investigation under s 411, s 423 or s 536 of the Corporations Act................................................................................................................... 801 11.9 Entitlement to record or transcript of examination held in public................................................... 801 11.10 Default in relation to examination....................................................................................................801 11.11 Service of application for order in relation to breaches etc by person concerned with corporation (Corporations Act s 598).............................................................................................. 802 Division 11A – Warrants (Corporations Act s 486B and Part 5.4B, Division 3, Subdivision B) 11A.1 Arrest of person (Corporations Act s 486B) – Form 17A............................................................... 802 Division 12 – Takeovers, acquisitions of shares etc (Corporations Act Chapters 6 to 6B) and Securities (Corporations Act Chapter 7) 12.1 Service on ASIC in relation to proceedings under Chapter 6, 6A, 6B, 6C, 6D or 7 of the Corporations Act.............................................................................................................................. 802 12.1A Reference to Court of question of law arising in proceeding before Takeovers Panel (Corporations Act s 659A)............................................................................................................... 803 12.1B Notification to Court where proceeding is commenced before end of takeover bid period (Corporations Act s 659B)............................................................................................................... 803 12.2 Application for summons for appearance of person (Corporations Act s 1071D(4)) – Form 774

Corporations – Court Rules and Related Legislation 2017

Table of provisions 18.....................................................................................................................................................803 Application for orders relating to refusal to register transfer or transmission of securities (Corporations Act s 1071F)............................................................................................................. 803

12.3

Division 13 – The futures industry (Chapter 8 of the Law) [Repealed]

Division 15 – Proceedings under the ASIC Act 15.1 Reference to Court of question of law arising at hearing of ASIC (ASIC Act s 61)....................... 804 15.2 Reference to Court of question of law arising at hearing of Corporations and Securities Panel (s 196 of the ASIC Law) [Repealed].....................................................................................804 15.3 Application for inquiry (ASIC Act s 70, s 201, s 219)..................................................................... 804 Division 15A 15A.1 15A.2 15A.3 15A.4 15A.5 15A.6 15A.7 15A.8 15A.9

– Proceedings under the Cross-Border Insolvency Act Application of this Division and other rules of the Court................................................................ 804 Expressions used in the Cross-Border Insolvency Act................................................................... 805 Application for recognition............................................................................................................... 805 Application for provisional relief under article 19 of the Model Law...............................................805 Official liquidator’s consent to act................................................................................................... 805 Notice of filing of application for recognition................................................................................... 806 Notice of order for recognition, withdrawal etc............................................................................... 806 Relief after recognition.................................................................................................................... 806 Application to modify or terminate an order for recognition or other relief.....................................807

Division 16 – Powers of Master and Registrar 16.1 Powers of Master............................................................................................................................ 807 16.2 Powers of Registrar.........................................................................................................................807 16.3 Appeal............................................................................................................................................. 808 Division 17 – Repeal 17 Repeal............................................................................................................................................. 808

SCHEDULE 1 – FORMS Form Form Form Form Form Form Form Form Form Form Form Form Form Form Form Form Form Form Form Form Form Form Form Form Form

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 16A 17 17A 18 19 20 21 22 23

Document Title................................................................................................................................ 809 Originating process......................................................................................................................... 810 Interlocutory process....................................................................................................................... 812 Notice Of Appearance..................................................................................................................... 813 Notice of intervention by ASIC........................................................................................................ 814 Notice of hearing to approve compromise or arrangement............................................................ 815 Affidavit accompanying statutory demand...................................................................................... 816 Consent of liquidator/provisional liquidator..................................................................................... 817 Notice of application for winding up order [Repealed]....................................................................818 Notice of application for winding up order by substituted plaintiff.................................................. 819 Notice of winding up order and of appointment of liquidator..........................................................820 Notice of appointment of provisional liquidator............................................................................... 821 Notice by creditor or contributory of objection to release of liquidator........................................... 822 Affidavit in support of application for order for payment of call...................................................... 823 Notice of application for leave to distribute a surplus.....................................................................824 Notice of intention to apply for remuneration..................................................................................825 Notice of intention to apply for review of remuneration.................................................................. 826 Summons for examination.............................................................................................................. 827 Arrest warrant.................................................................................................................................. 828 Summons for appearance in relation to registration of transfer of interests.................................. 829 Consent to act as designated person............................................................................................. 830 Notice of filing of application for recognition of foreign proceeding................................................831 Notice of making of order under the Cross-Border Insolvency Act 2008 (Cth).............................. 832 Notice of dismissal or withdrawal of application for recognition of foreign proceeding..................833 Notice of filing of application to modify or terminate an order for recognition or other relief.........834

SCHEDULE 2 – NOTES TO THESE RULES............................................................................................835 ©

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Division 14 – Powers of Courts (Corporations Act Part 9.5) 14.1 Appeal from act, omission or decision of administrator, receiver or liquidator, etc (Corporations Act s 554A, s 1321)..................................................................................................803

Corporations Law Rules (NT) Table of Amending Legislation Date assent/ gazettal/ registration 12 Jul 2000

Date of commencement

Date of commencement

35 of 2001

Date assent/ gazettal/ registration 29 Jun 2001

60 of 2003

11 Feb 2004

11 Feb 2004

30 of 2004

11 Aug 2004

11 Aug 2004

34 of 2005

12 Oct 2005

12 Oct 2005

29 of 2007

29 Aug 2007

29 Aug 2007

36 of 2008

17 Dec 2008

17 Dec 2008

13 of 2009

10 Jun 2009

10 Jun 2009

39 of 2009

16 Dec 2009

16 Dec 2009

40 of 2010

18 Nov 2010

Ss 120–122: 1 Mar 2011 (Gaz G7, 16 Feb 2011, p 4)

Principal legislation

Number

Corporations Law Rules

40 of 2000

This legislation has been amended as follows: Amending legislation Number

Amendments of Corporations Law Rules Amendments of Corporations Law Rules Amendments of Corporations Law Rules Corporations Law Amendment Rules 2005 Corporations Law Amendment Rules 2007 Corporations Law Amendment Rules 2008 Corporations Law Amendment (Cross-Border Insolvency) Rules 2009 Corporations Law Amendment Rules 2009 Oaths, Affıdavits and Declarations (Consequential Amendments) Act 2010 Corporations Law Amendment Rules 2012 Corporations Law Amendment Rules 2013

776

1 Sep 2000 (Gaz G34, 30 Aug 2000, p 3)

30 Jun 2001

40 of 2012

R 3: 28 Nov 2012

32 of 2013

Rr 3–5: 21 Aug 2013

Corporations – Court Rules and Related Legislation 2017

Division 1 – Preliminary r 1.4

DIVISION 1 – PRELIMINARY 1.1 Citation These Rules may be cited as the Corporations Law Rules. 1.2 Commencement These Rules come into operation on a date fixed by the Chief Justice of the Court by notice in the Gazette.

(1) Unless the Court otherwise orders: (a) these Rules apply to a proceeding in the Court under the Corporations Act, or the ASIC Act, that is commenced on or after the commencement of these Rules; and (b) Division 15A applies to a proceeding in the Court under the Cross-Border Insolvency Act. [Subr (1) subst SL 13 of 2009, r 3, with effect from 10 Jun 2009; am SL 60 of 2003, r 23 and Sch, with effect from 11 Feb 2004; SL 35 of 2001, r 20 and Sch, with effect from 30 Jun 2001]

(2) The rules in Chapter 1 of the Supreme Court Rules apply, to the extent that they are relevant and not inconsistent with these Rules: (a) to a proceeding in the Court under the Corporations Act, or the ASIC Act, that is commenced on or after the commencement of these Rules; and (b) to a proceeding in the Court under the Cross-Border Insolvency Act that is commenced on or after the commencement of Division 15A. [Subr (2) subst SL 13 of 2009, r 3, with effect from 10 Jun 2009; am SL 60 of 2003, r 23 and Sch, with effect from 11 Feb 2004; SL 35 of 2001, r 20 and Sch, with effect from 30 Jun 2001]

(3) Unless the Court otherwise orders, the rules applying to a proceeding in the Court under the Corporations Act, or the ASIC Act, as in force immediately before the commencement of these Rules, continue to apply to a proceeding under the Corporations Act, or the ASIC Act, that was commenced before the commencement of these Rules. [Subr (3) am SL 60 of 2003, r 23 and Sch, with effect from 11 Feb 2004; SL 35 of 2001, r 20 and Sch, with effect from 30 Jun 2001] Note: By virtue of the definition of ‘this Act’ in section 9 of the Corporations Act, a reference to the Corporations Act includes a reference to the Corporations Regulations. [R 1.3 am SL 13 of 2009; SL 60 of 2003, r 2, with effect from 11 Feb 2004; SL 35 of 2001]

1.4 Expressions used in the Corporations Act Unless the contrary intention appears, an expression used in these Rules and in the Corporations Act has the same meaning in these Rules as it has in the Corporations Act. Note: Expressions used in these Rules (including the notes to these Rules) that are defined in the Corporations Act include: ABN (short for Australian Business Number) – see section 9 [Def insrt SL 29 of 2007, r 3, with effect from 29 Aug 2007] ACN (short for Australian Company Number) – see section 9 ARBN (short for Australian Registered Body Number) – see section 9 ASIC – see section 9 [Def insrt SL 36 of 2008, r 3, with effect from 17 Dec 2008] body – see section 9 body corporate – see section 9 books – see section 9 Commission [Repealed] [Def rep SL 36 of 2008, r 3, with effect from 17 Dec 2008] company – see section 9 corporation – see section 57A daily newspaper – see section 9 foreign country – see section 9 ©

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1.3 Application of these Rules and other rules of the Court

r 1.4

Corporations Law Rules (NT)

futures broker – see section 9 Gazette – see section 9 officer, in relation to a body corporate – see section 82A official liquidator – see section 9 Part 5.1 body – see section 9 Part 5.7 body – see section 9 register – see section 9 registered liquidator – see section 9 registered office – see section 9 statutory demand – see section 9 [R 1.4 am SL 36 of 2008; SL 29 of 2007; SL 60 of 2003, r 23 and Sch, with effect from 11 Feb 2004]

1.5 Definitions for these Rules 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. [Def insrt SL 60 of 2003, r 3, with effect from 11 Feb 2004]

Corporations Act means the Corporations Act 2001 of the Commonwealth. [Def insrt SL 60 of 2003, r 3, with effect from 11 Feb 2004]

Corporations Regulations means the Corporations Regulations 2001 of the Commonwealth. [Def insrt SL 60 of 2003, r 3, with effect from 11 Feb 2004]

Cross-Border Insolvency Act means the Cross-Border Insolvency Act 2008 (Cth) including, unless the contrary intention appears, the Model Law. [Def insrt SL 13 of 2009, r 4, with effect from 10 Jun 2009]

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. [Def subst SL 13 of 2009, r 4, with effect from 10 Jun 2009; am SL 60 of 2003, r 23 and Sch, with effect from 11 Feb 2004; SL 35 of 2001, r 20 and Sch, with effect from 30 Jun 2001]

interlocutory process means an interlocutory process in accordance with Form 3. Model Law means the Model Law on Cross-Border 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. [Def insrt SL 13 of 2009, r 4, with effect from 10 Jun 2009]

originating process means an originating process in accordance with Form 2. plaintiff means a person claiming relief (except interlocutory relief) under the Corporations Act, the ASIC Act or the Cross-Border Insolvency Act, whether in the originating process or not. [Def subst SL 13 of 2009, r 4, with effect from 10 Jun 2009; am SL 60 of 2003, r 23 and Sch, with effect from 11 Feb 2004; SL 35 of 2001, r 20 and Sch, with effect from 30 Jun 2001]

respondent means a person against whom interlocutory relief is claimed in a proceeding. the Law [Repealed] [Def rep SL 60 of 2003, r 3, with effect from 11 Feb 2004] [R 1.5 am SL 13 of 2009; SL 60 of 2003; SL 35 of 2001]

1.6 References to rules and forms In these Rules, unless the contrary intention appears: (a) a reference to a rule is a reference to a rule in these Rules; and 778

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Division 2 – Proceedings generally r 2.2 (b)

a reference to a form followed by a number is a reference to the form so numbered in Schedule 1 to these Rules.

[Para (b) am SL 60 of 2003, r 4, with effect from 11 Feb 2004] [R 1.6 am SL 60 of 2003]

1.7 Substantial compliance with forms (1) It is sufficient compliance with these Rules in relation to a document that is required to be in accordance with a form in Schedule 1 if the document is substantially in accordance with the form required or has only such variations as the nature of the case requires. (2) Without limiting subrule (1), the Registrar must not reject a document for filing only because a term used to describe a party in the document differs from the term used in these Rules. [R 1.7 am SL 60 of 2003]

1.8 Court’s power to give directions The Court may give directions in relation to the practice and procedure to be followed in a proceeding if it is satisfied, in the circumstances of the proceeding, that: (a) the provisions of the Corporations Act, ASIC Act, or the rules of this Court do not adequately provide for the practice and procedure to be followed in the proceeding; or [Para (a) am SL 60 of 2003, r 23 and Sch, with effect from 11 Feb 2004; SL 35 of 2001, r 20 and Sch, with effect from 30 Jun 2001]

(b)

a difficulty arises, or doubt exists, in relation to the practice and procedure to be followed in the proceeding.

[R 1.8 am SL 60 of 2003; SL 35 of 2001]

1.9 Calculation of time (1) If, for any purpose, these Rules: (a) prohibit, permit or require an act or thing to be done within, by, or before the end of; or (b) otherwise prescribe, allow or provide for, a period of time before or after a particular day, act or event, the period is to be calculated without counting that day, or the day of the act or event, as the case may be. (2) Without limiting subrule (1), in calculating how many days a particular day, act or event is before or after another day, act or event, only the first day, or the day of the first act or event, is to be counted. (3) If the last day of any period prescribed or allowed by these Rules for an act or thing to be done falls on a day that is not a business day in the place where the act or thing is to be or may be done, the act or thing may be done on the first business day in the place after that day. (4) In calculating a period of time for the purposes of these Rules, the period beginning on 25 December in a year and ending at the end of 1 January in the next year is not to be counted. 1.10 Extension and abridgment of time Unless the Corporations Act, the ASIC Act, or these Rules otherwise provide, the rules in Chapter 1 of the Supreme Court Rules that provide for the extension or abridgment of a period of time fixed for the doing of any act or thing in relation to a proceeding apply to a proceeding to which these Rules apply. [R 1.10 am SL 60 of 2003, r 23 and Sch, with effect from 11 Feb 2004; SL 35 of 2001, r 20 and Sch, with effect from 30 Jun 2001]

DIVISION 2 – PROCEEDINGS GENERALLY 2.1 Title of documents in a proceeding – Form 1 The title of a document filed in a proceeding must be in accordance with Form 1. 2.2 Originating process and interlocutory process – Forms 2 and 3 (1) Unless these Rules otherwise provide, a person must make an application required or permitted by the Corporations Act to be made to the Court: (a) if the application is not made in a proceeding already commenced in the Court – by filing an originating process; and ©

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[Subr (1) am SL 60 of 2003, r 5, with effect from 11 Feb 2004]

r 2.2

Corporations Law Rules (NT) (b)

in any other case, and whether interlocutory relief or final relief is claimed – by filing an interlocutory process.

[Subr (1) am SL 34 of 2005, r 3, with effect from 12 Oct 2005; SL 60 of 2003, r 23 and Sch, with effect from 11 Feb 2004]

(2) Unless the Court otherwise directs, a person may make an application to the Court in relation to a proceeding in respect of which final relief has been granted by filing an interlocutory process in that proceeding. (3) An originating process must: (a) be in accordance with Form 2; and (b) state: (i) each section of the Corporations Act or the ASIC Act, or each regulation of the Corporations Regulations, under which the proceeding is brought; and (ii) the relief sought. [Subr (3) am SL 60 of 2003, r 23 and Sch, with effect from 11 Feb 2004; SL 35 of 2001, r 20 and Sch, with effect from 30 Jun 2001]

(4) An interlocutory process must: (a) be in accordance with Form 3; and (b) state: (i) if appropriate, each section of the Corporations Act or the ASIC Act, or each regulation of the Corporations Regulations, or each rule of Court under which the application is made; and (ii) the relief sought. [Subr (4) am SL 29 of 2007, r 4, with effect from 29 Aug 2007; SL 60 of 2003, r 23 and Sch, with effect from 11 Feb 2004; SL 35 of 2001, r 20 and Sch, with effect from 30 Jun 2001] Note: In an application for winding up in insolvency on the ground that the company has failed to comply with a statutory demand, the applicant should consider completing Part C of Form 2 as shown in Schedule 2 (Notes to these Rules). [R 2.2 am SL 29 of 2007; SL 34 of 2005; SL 60 of 2003, r 6, with effect from 11 Feb 2004; SL 35 of 2001]

2.3 Fixing of hearing On receiving an originating process or interlocutory process, the Registrar: (a) must fix a time, date and place for hearing and endorse those details on the originating process or interlocutory process; and (b) may seal a sufficient number of copies for service and proof of service. 2.4 Supporting affidavit (1) Unless the Court otherwise directs, an originating process, or interlocutory process, must be supported by an affidavit stating the facts in support of the process. (2) Subject to rule 2.4A, an affidavit in support of an originating process must annex a record of a search of the records maintained by ASIC, in relation to the company that is the subject of the application to which the originating process relates, carried out no earlier than 7 days before the originating process is filed. [Subr (2) am SL 36 of 2008, r 11 and Sch, with effect from 17 Dec 2008; SL 35 of 2001, r 3, with effect from 30 Jun 2001] Note: An example of the affidavit in support of an application for winding up in insolvency for failure to comply with a statutory demand is shown in Schedule 2 (Notes to these Rules). [R 2.4 am SL 36 of 2008; SL 60 of 2003, r 7, with effect from 11 Feb 2004; SL 35 of 2001]

2.4A Application for order setting aside statutory demand (Corporations Act s 459G) (1) This rule applies, and subrule 2.4(2) does not apply, to an application by a company under section 459G of the Corporations Act for an order setting aside a statutory demand served on the company. [Subr (1) am SL 60 of 2003, r 23 and Sch, with effect from 11 Feb 2004]

(2) The plaintiff may file with the originating process seeking the order a copy of the statutory demand and a copy of any affidavit that accompanied the statutory demand. (3) The plaintiff must: 780

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Division 2 – Proceedings generally r 2.8 (a) no earlier than 7 days before the originating process is filed, and no later than the day before the hearing of the application, carry out a search of the records maintained by ASIC in relation to the plaintiff; and (b) either: (i) annex the record of the search to the affidavit in support of the originating process; or (ii) file the record of the search before or tender it on the hearing of the application. [Subr (3) am SL 36 of 2008, r 11 and Sch, with effect from 17 Dec 2008]

2.5 Affidavits made by creditors Subject to rule 5.4, an affidavit that is to be made by a creditor may be made: (a) if the creditor is a corporation – by a director, secretary, or other principal officer of the corporation, or by a person employed by the corporation who is authorised to make the affidavit on its behalf; (b) if the creditor is a company to which a liquidator, provisional liquidator, receiver, administrator or controller has been appointed – by that person; or (c) in any other case – by the creditor or a person authorised by the creditor to make the affidavit on behalf of the creditor. 2.6 Form of affidavits An affidavit must be in a form that complies with: (a) the rules in Chapter 1 of the Supreme Court Rules; (b) the rules of the Supreme Court of the State (if any) or Territory (if any) where the affidavit was sworn or affirmed; or (c) the rules of the Federal Court of Australia. 2.7 Service of originating process or interlocutory process and supporting affidavit (1) As soon as practicable after filing an originating process and, in any case, at least 5 days before the date fixed for hearing, the plaintiff must serve a copy of the originating process and any supporting affidavit on: (a) each defendant (if any) to the proceeding; and (b) if the corporation to which the proceeding relates is not a party to the proceeding – the corporation. (2) As soon as practicable after filing an interlocutory process and, in any case, at least 3 days before the date fixed for hearing, the applicant must serve a copy of the interlocutory process and any supporting affidavit on: (a) each respondent (if any) to the application in the interlocutory process; and (b) if the corporation to which the application in the interlocutory process relates is not a party to the application in the interlocutory process – the corporation. [Subr (2) am SL 29 of 2007, r 5, with effect from 29 Aug 2007] [R 2.7 am SL 29 of 2007]

2.8 Notice of certain applications to be given to ASIC (1) This rule has effect in addition to the requirements of the Corporations Act that, in relation to a proceeding, particular documents are to be served on ASIC or notice of particular matters is to be given to ASIC. [Subr (1) am SL 36 of 2008, r 11 and Sch, with effect from 17 Dec 2008; SL 60 of 2003, r 23 and Sch, with effect from 11 Feb 2004]

(2) This rule does not apply to a person making an application if the person is ASIC or a person authorised by ASIC. [Subr (2) am SL 36 of 2008, r 11 and Sch, with effect from 17 Dec 2008]

(3) Unless the Court otherwise orders, if a person makes an application under a provision of the Corporations Act mentioned in Column 1 of an item of the following table, the person must serve on ASIC, a ©

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[R 2.4A am SL 36 of 2008; SL 60 of 2003, r 23 and Sch, with effect from 11 Feb 2004; insrt SL 35 of 2001, r 4, with effect from 30 Jun 2001]

r 2.8

Corporations Law Rules (NT)

reasonable time before the hearing of the application, a copy of the originating process, or interlocutory process, and supporting affidavit in respect of the application. Item 1.

Column 1 Provision Section 480

2. 3. 4.

Subsection 482(1) Subsection 509(6) Subsection 536(1)

5. 6.

Subsection 601AH(2) Subsection 601CC(8)

7.

Subsection 601CL(9)

8. 9.

Chapter 6, 6A, 6B, 6C, 6D or 7 Subsections 1317S(2), (4) and (5)

Column 2 Description of application For the release of a liquidator of a company and the deregistration of the company For the stay or termination of a winding up For the deregistration of a company For an inquiry into the conduct of a liquidator To reinstate the registration of a company To restore the name of an Australian body to the register To restore the name of a foreign company to the register Any application under these Chapters For the relief from liability for contravention of a civil penalty provision

[Subr (3) am SL 36 of 2008, r 11 and Sch, with effect from 17 Dec 2008; SL 60 of 2003, r 23 and Sch, with effect from 11 Feb 2004; subst SL 35 of 2001, r 5, with effect from 30 Jun 2001] [R 2.8 am SL 36 of 2008, r 11 and Sch, with effect from 17 Dec 2008; SL 60 of 2003; SL 35 of 2001]

2.9 Notice of appearance (Corporations Act s 465C) – Form 4 (1) A person who intends to appear before the Court at the hearing of an application must, before appearing: (a) file: (i) a notice of appearance in accordance with Form 4; and (ii) if appropriate – an affidavit stating any facts on which the person intends to rely; and (b) serve on the plaintiff a copy of the notice of appearance and any affidavit not later than: (i) if the person is named in an originating process – 3 days before the date fixed for hearing; or (ii) if the person is named in an interlocutory process – one day before the date fixed for hearing. (2) If the person intends to appear before the Court to oppose an application for winding up, the person may include in the notice of appearance the notice of the grounds on which the person opposes the application required by section 465C of the Corporations Act. [Subr (2) am SL 60 of 2003, r 23 and Sch, with effect from 11 Feb 2004]

(3) The period prescribed for filing and serving the notice and affidavit required by section 465C of the Corporations Act is the period mentioned in subparagraph (1)(b)(i). [Subr (3) am SL 60 of 2003, r 23 and Sch, with effect from 11 Feb 2004] Note: Under section 465C of the Corporations Act, a person may not, without the leave of the Court, oppose an application for winding up unless, within the period prescribed by the rules (see subrule (3) of this rule), the person has filed, and served on the plaintiff, notice of the grounds on which the person opposes the application and an affidavit verifying the matters stated in the notice. [R 2.9 am SL 60 of 2003, r 23 and Sch, with effect from 11 Feb 2004]

2.10 Intervention in proceeding by ASIC (Corporations Act s 1330) – Form 5 (1) If ASIC intends to intervene in a proceeding, ASIC must file a notice of intervention in accordance with Form 5. [Subr (1) am SL 36 of 2008, r 11 and Sch, with effect from 17 Dec 2008]

(2) Not later than 3 days before the date fixed for the hearing at which ASIC intends to appear in the 782

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Division 2 – Proceedings generally r 2.13 proceeding, ASIC must serve a copy of the notice, and any affidavit on which it intends to rely, on the plaintiff and on any other party to the proceeding. [Subr (2) am SL 36 of 2008, r 11 and Sch, with effect from 17 Dec 2008] [R 2.10 am SL 36 of 2008, r 11 and Sch, with effect from 17 Dec 2008; SL 60 of 2003, r 23 and Sch, with effect from 11 Feb 2004]

If a rule requires a notice in relation to a body to be published in accordance with this rule, the notice must be published once in a daily newspaper circulating generally in the State or Territory where the body has its principal, or last known, place of business. Note: Under the Corporations Act, certain notices may also be required to be published in the Gazette or in accordance with the Corporations Regulations. Nothing in this rule is intended to affect the operation of any provision of the Corporations Act that requires publication of a notice in the Gazette or in accordance with the Corporations Regulations. [R 2.11 am SL 32 of 2013, r 3, with effect from 21 Aug 2013; SL 60 of 2003, r 23 and Sch, with effect from 11 Feb 2004]

2.12 Proof of publication (1) This rule applies in relation to any matter published in connection with a proceeding. (2) Unless these Rules otherwise provide, or the Court otherwise orders, the person responsible for the publication of the matter, or the person’s legal practitioner, must file: (a) an affidavit made by the person, or the person’s legal practitioner, that states the date of publication and to which is annexed or exhibited a copy of the published matter; or (b) a memorandum signed by the person, or the person’s legal practitioner, that states the date of publication and refers to and annexes a copy of the published matter. (3) The affidavit or memorandum is prima facie evidence that the publication took place on the date and otherwise as stated in the affidavit or memorandum. 2.13 Leave to creditor, contributory or officer to be heard (1) The Court may grant leave to any person who is, or who claims to be: (a) a creditor, contributory or officer of a corporation; (b) an officer of a creditor, or contributory, of a corporation; or (c) any other interested person, to be heard in a proceeding without becoming a party to the proceeding. [Subr (1) am SL 35 of 2001, r 6, with effect from 30 Jun 2001]

(2) If the Court considers that the attendance of a person to whom leave has been granted under subrule (1) has resulted in additional costs for any party, or the corporation, which should be borne by the person to whom leave was granted, the Court may: (a) direct that the person pay the costs; and (b) order that the person not be heard further in the proceeding until the costs are paid or secured to the Court’s satisfaction. (3) The Court may order that a person who is, or who claims to be, a creditor, contributory or officer of a corporation be added as a defendant to the proceeding. (4) The Court may grant leave to a person under subrule (1), or order that a person be added as a defendant to a proceeding under subrule (3): (a) on application by the person or a party to the proceeding; or (b) on the Court’s own initiative. (5) The Court may: (a) appoint a creditor or contributory to represent all or any class of the creditors or contributories on any question, or in relation to any proceeding, before the Court, at the expense of the corporation; and (b) remove any person so appointed. [R 2.13 am SL 35 of 2001]

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2.14 Inquiry in relation to corporation’s debts etc The Court may direct an inquiry in relation to the debts, claims or liabilities, or a class of debts, claims or liabilities, of or affecting a corporation to which a proceeding relates. 2.15 Meetings ordered by the Court Subject to the Corporations Act, these Rules and any direction of the Court to the contrary, regulations 5.6.11 to 5.6.36A of the Corporations Regulations apply to meetings ordered by the Court. [R 2.15 am SL 36 of 2008, r 11 and Sch, with effect from 17 Dec 2008; SL 60 of 2003, r 23 and Sch, with effect from 11 Feb 2004]

DIVISION 3 – COMPROMISES AND ARRANGEMENTS IN RELATION TO PART 5.1 BODIES 3.1 Application of Division 3 This Division applies if an application is made to the Court for approval of a compromise or arrangement between a Part 5.1 body and its creditors or members, or any class of its creditors or members. 3.2 Nomination of chairperson for meeting Before the hearing of an application under subsection 411(1), (1A) or (1B) of the Corporations Act, the plaintiff must file an affidavit stating: (a) the names of the persons who have been nominated to be the chairperson and alternate chairperson of the meeting; (b) that each person nominated: (i) is willing to act as chairperson; (ii)

has had no previous relationship or dealing with the body, or any other person interested in the proposed compromise or arrangement, except as disclosed in the affidavit; and

(iii)

has no interest or obligation that may give rise to a conflict of interest or duty if the person were to act as chairperson of the meeting, except as disclosed in the affidavit; (c) the name of the person (if any) proposed to be appointed to administer the proposed compromise or arrangement; and (d) that the person does not fall within paragraphs 411(7)(a) to (f) of the Corporations Act, except as disclosed in the affidavit. [Para (d) am SL 60 of 2003, r 23 and Sch, with effect from 11 Feb 2004] [R 3.2 am SL 60 of 2003, r 23 and Sch, with effect from 11 Feb 2004]

3.3 Order for meetings to identify proposed scheme (1) An order under subsection 411(1) or (1A) of the Corporations Act ordering a meeting or meetings in relation to a proposed compromise or arrangement must set out in a schedule, or otherwise identify, a copy of the proposed compromise or arrangement. [Subr (1) am SL 60 of 2003, r 23 and Sch, with effect from 11 Feb 2004; SL 35 of 2001, r 7, with effect from 30 Jun 2001]

(2) Unless the Court otherwise orders, a meeting of members ordered under section 411 of the Corporations Act must be convened, held and conducted in accordance with: (a) the provisions of Part 2G.2 of the Corporations Act that apply to the members of a company; and (b) the provisions of the plaintiff’s constitution that apply in relation to meetings of members and are not inconsistent with Part 2G.2 of the Corporations Act. [Subr (2) am SL 60 of 2003, r 23 and Sch, with effect from 11 Feb 2004; insrt SL 35 of 2001, r 7, with effect from 30 Jun 2001]

(3) Unless the Court otherwise orders, a meeting of a class of holders of convertible securities ordered under section 411 of the Corporations Act must be convened, held and conducted as if: (a) the holders were a separate class of members; and 784

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Div 5 – Winding up proceedings r 5.1 (b) the meeting were a meeting of members convened, held and conducted under subrule (2), but in accordance with, and subject to, the applicable provisions of the instrument under which the securities were issued. [Subr (3) am SL 60 of 2003, r 23 and Sch, with effect from 11 Feb 2004; insrt SL 35 of 2001, r 7, with effect from 30 Jun 2001] [R 3.3 am SL 60 of 2003; SL 35 of 2001]

(1) This rule applies to: (a) an application, under subsection 411(4) of the Corporations Act, for an order approving a proposed compromise or arrangement in relation to a Part 5.1 body; and (b) an application, under subsection 413(1) of the Corporations Act, for an order in relation to the reconstruction of a Part 5.1 body, or Part 5.1 bodies, or the amalgamation of 2 or more Part 5.1 bodies. [Subr (1) am SL 60 of 2003, r 23 and Sch, with effect from 11 Feb 2004]

(2) Unless the Court otherwise orders, the plaintiff must publish a notice of the hearing of the application. (3) The notice must be: (a) in accordance with Form 6; and (b) published in accordance with rule 2.11 at least 5 days before the date fixed for the hearing of the application. [R 3.4 am SL 60 of 2003, r 23 and Sch, with effect from 11 Feb 2004]

3.5 Copy of order approving compromise or arrangement to be lodged with ASIC If the Court makes an order under subsection 411(1), (1A) or (4) or 413(1) of the Corporations Act, the plaintiff must, as soon as practicable after the order is made: (a) have the order authenticated; (b) lodge an office copy of the order with ASIC; and [Para (b) am SL 36 of 2008, r 11 and Sch, with effect from 17 Dec 2008]

(c) serve an office copy of the order on any person appointed to administer the compromise or arrangement. [R 3.5 am SL 36 of 2008, r 11 and Sch, with effect from 17 Dec 2008; SL 60 of 2003, r 23 and Sch, with effect from 11 Feb 2004]

DIVISION 4 – RECEIVERS AND OTHER CONTROLLERS OF CORPORATION PROPERTY (CORPORATIONS ACT PART 5.2) [Div 4 heading am SL 60 of 2003, r 8, with effect from 11 Feb 2004]

4.1 Inquiry into the conduct of controller (Corporations Act s 423) A complaint to the Court under paragraph 423(1)(b) of the Corporations Act about an act or omission of a receiver, or a controller appointed by the Court, must be made by an originating process seeking an inquiry in relation to the complaint. [R 4.1 am SL 60 of 2003, r 23 and Sch, with effect from 11 Feb 2004]

DIVISION 5 – WINDING UP PROCEEDINGS (INCLUDING OPPRESSION PROCEEDINGS WHERE WINDING UP IS SOUGHT) 5.1 Application of Division 5 This Division applies to the following applications for the winding up of a company: (a) an application for an order under Part 2F.1 of the Corporations Act; [Para (a) am SL 60 of 2003, r 23 and Sch, with effect from 11 Feb 2004; subst SL 35 of 2001, r 8, with effect from 30 Jun 2001]

(b)

an application under Part 5.4 or Part 5.4A of the Corporations Act.

[Para (b) am SL 60 of 2003, r 23 and Sch, with effect from 11 Feb 2004] [R 5.1 am SL 60 of 2003; SL 35 of 2001]

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5.2 Affidavit accompanying statutory demand (Corporations Act s 459E(3)) – Form 7 For the purposes of subsection 459E(3) of the Corporations Act, the affidavit accompanying a statutory demand relating to a debt, or debts, owed by a company must: (a) be in accordance with Form 7 and state the matters mentioned in that Form; (b) be made by the creditor or by a person with the authority of the creditor or creditors; and (c) not state a proceeding number, or refer to a Court proceeding, in any heading or title to the affidavit. [R 5.2 am SL 60 of 2003, r 23 and Sch, with effect from 11 Feb 2004]

5.3 Application for leave to apply for winding up in insolvency (Corporations Act s 459P(2)) An application for leave to apply to the Court for an order that a company be wound up in insolvency may be made at the same time as the application for an order that the company be wound up in insolvency is made. [R 5.3 am SL 60 of 2003, r 23 and Sch, with effect from 11 Feb 2004]

5.4 Affidavit in support of application for winding up (Corporations Act s 459P, s 462, s 464) (1) The affidavit in support of an originating process seeking an order that a company be wound up must be made by the plaintiff or by a person with the authority of the plaintiff or plaintiffs. (2) If the application is made in reliance on a failure by the company to comply with a statutory demand, the affidavit must: (a) verify service of the demand on the company; (b) verify the failure of the company to comply with the demand; and (c) state whether and, if so, to what extent, the debt, or each of the debts, to which the demand relates is still due and payable by the company at the date when the affidavit is made. Note: An example of the affidavit in support of an application for winding up in insolvency for failure to comply with a statutory demand is shown in Schedule 2 (Notes to these Rules). [Subr (2) am SL 60 of 2003, r 9, with effect from 11 Feb 2004]

(3) If the application is made in reliance on the ground mentioned in paragraph 461(1)(a) of the Corporations Act, the affidavit must: (a) state whether the company is able to pay all its debts as and when they become due and payable; and (b) refer to the company’s most recent balance sheet and profit and loss statement as an annexure or exhibit to the affidavit, or explain their absence. [Subr (3) am SL 60 of 2003, r 23 and Sch, with effect from 11 Feb 2004]

(4) The affidavit must be made within 7 days before the originating process is filed. [R 5.4 am SL 60 of 2003]

5.5 Consent of liquidator (Corporations Act s 532(9)) – Form 8 (1) In this rule, liquidator does not include a provisional liquidator. (2) For the purposes of subsection 532(9) of the Corporations Act, the consent of an official liquidator to act as liquidator of a company must be in accordance with Form 8. [Subr (2) am SL 60 of 2003, r 23 and Sch, with effect from 11 Feb 2004]

(3) In an application for an order that a company be wound up, the plaintiff must: (a) before the hearing of the application, file the consent mentioned in subrule (2) of an official liquidator who would be entitled to be appointed as liquidator of the company; and (b) serve a copy of the consent on the company at least one day before the hearing. [R 5.5 am SL 60 of 2003, r 23 and Sch, with effect from 11 Feb 2004]

5.6 Notice of application for winding up – Form 9 [Repealed] [R 5.6 rep SL 32 of 2013, r 4, with effect from 21 Aug 2013]

5.7 Applicant to make copies of documents available A copy of any document filed in a proceeding to which this Division applies must be available at the plaintiff’s address for service for inspection by a creditor, contributory or officer of the company, or an officer of a creditor or contributory of the company. 786

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Division 6 – Provisional liquidators (Corporations Act Part 5.4B) r 6.1 5.8 Discontinuance of application for winding up An application for an order that a company be wound up may not be discontinued except with the leave of the Court. 5.9 Appearance before Registrar After filing an originating process seeking an order that a company be wound up, the plaintiff must, if required: (a) appear before the Registrar on a date to be appointed by the Registrar; and (b) satisfy the Registrar that the plaintiff has complied with the Corporations Act and these Rules in relation to applications for a winding up order. NT

[Para (b) am SL 60 of 2003, r 23 and Sch, with effect from 11 Feb 2004] [R 5.9 am SL 60 of 2003]

5.10 Order substituting plaintiff in application for winding up (Corporations Act s 465B) – Form 10 (1) If the Court makes an order under section 465B of the Corporations Act, the Court may also order that the substituted plaintiff or plaintiffs publish a notice stating that the substituted plaintiff or plaintiffs intend to apply for an order that the company be wound up. [Subr (1) am SL 60 of 2003, r 23 and Sch, with effect from 11 Feb 2004]

(2) The notice must be: (a) in accordance with Form 10; and (b) published: (i) in accordance with rule 2.11 at least 7 days before the date fixed for the hearing of the application; or (ii) as otherwise directed by the Court. [Subr (2) am SL 30 of 2004, r 2, with effect from 11 Aug 2004] [R 5.10 am SL 30 of 2004; SL 60 of 2003, r 23 and Sch, with effect from 11 Feb 2004]

5.11 Notice of winding up order and appointment of liquidator – Form 11 (1) This rule applies if the Court orders that a company be wound up and an official liquidator be appointed as liquidator of the company. (2) Not later than the day after the order is made, the plaintiff must inform the liquidator of the appointment. (3) As soon as practicable after being informed of the appointment, the liquidator must publish a notice of the winding up order and the liquidator’s appointment. (4) The notice must be: (a) in accordance with Form 11; and (b) published in accordance with rule 2.11. (5) In this rule, liquidator does not include a provisional liquidator.

DIVISION 6 – PROVISIONAL LIQUIDATORS (CORPORATIONS ACT PART 5.4B) [Div 6 heading am SL 60 of 2003, r 10, with effect from 11 Feb 2004]

6.1 Appointment of provisional liquidator (Corporations Act s 472) – Form 8 (1) An application for an official liquidator to be appointed, under subsection 472(2) of the Corporations Act, as a provisional liquidator of a company must be accompanied by the written consent of the official liquidator. [Subr (1) subst SL 34 of 2005, r 4, with effect from 12 Oct 2005; SL 60 of 2003, r 23 and Sch, with effect from 11 Feb 2004]

(2) The consent must be in accordance with Form 8. (3) If: (a) an order is made appointing a provisional liquidator; and ©

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the order provides that the provisional liquidator may take into the provisional liquidator’s custody part only of the property of the company, the order is to include a short description of the part of the property of the company that the provisional liquidator may take into custody. [Subr (3) subst SL 35 of 2001, r 9, with effect from 30 Jun 2001]

(4) The Court may require the plaintiff to give an undertaking as to damages. [R 6.1 am SL 34 of 2005; SL 60 of 2003, r 23 and Sch, with effect from 11 Feb 2004; SL 35 of 2001]

6.2 Notice of appointment of provisional liquidator – Form 12 (1) This rule applies if the Court orders that an official liquidator be appointed as a provisional liquidator of a company. (2) Not later than the day after the order is made, the plaintiff must: (a) except if the plaintiff is ASIC – lodge an office copy of the order with ASIC; (b) serve an office copy of the order on the company (except if the plaintiff is the company) and on any other person as directed by the Court; and (c) give to the provisional liquidator an office copy of the order and a written statement that the order has been served as required by paragraph (b). [Subr (2) am SL 36 of 2008, r 11 and Sch, with effect from 17 Dec 2008]

(3) As soon as practicable after the order is made, the provisional liquidator must publish a notice of the provisional liquidator’s appointment. (4) The notice must be: (a) in accordance with Form 12; and (b) published in accordance with rule 2.11. [R 6.2 am SL 36 of 2008]

DIVISION 7 – LIQUIDATORS 7.1 Resignation of liquidator (Corporations Act s 473(1)) (1) A liquidator appointed by the Court who wishes to resign office must file with the Registrar, and lodge with ASIC, a memorandum of resignation. [Subr (1) am SL 36 of 2008, r 11 and Sch, with effect from 17 Dec 2008]

(2) The resignation takes effect on the filing and lodging of the memorandum. [R 7.1 am SL 36 of 2008; SL 60 of 2003, r 23 and Sch, with effect from 11 Feb 2004]

7.2 Filling vacancy in office of liquidator (Corporations Act s 473(7), s 502) (1) If, for any reason, there is no liquidator acting in a winding up, the Court may: (a) in the case of a winding up by the Court – appoint another official liquidator whose written consent in accordance with Form 8 has been filed; and (b) in the case of a voluntary winding up – appoint another registered liquidator whose written consent in accordance with Form 8 has been filed. (2) The Court may make the appointment: (a) in any case – on application by ASIC, a creditor or a contributory; or (b) in the case of a winding up by the Court – on its own initiative. [Subr (2) am SL 36 of 2008, r 11 and Sch, with effect from 17 Dec 2008] [R 7.2 am SL 36 of 2008; SL 60 of 2003, r 23 and Sch, with effect from 11 Feb 2004]

7.3 Report to liquidator as to company’s affairs (Corporations Act s 475) (1) If a person is required under section 475 of the Corporations Act to submit and verify a report as to the affairs of a company, the liquidator must give to the person the appropriate forms and instructions for the preparation of the report. [Subr (1) am SL 60 of 2003, r 23 and Sch, with effect from 11 Feb 2004]

(2) Except by order of the Court, no person is to be allowed out of the property of a company any costs or 788

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Division 7 – Liquidators r 7.5 expenses incurred in relation to the preparation of the report that have not been: (a) sanctioned by the liquidator before being incurred; or (b) taxed or assessed. (3) The liquidator must report to the Court any default in complying with the requirements of section 475 of the Corporations Act. [Subr (3) am SL 60 of 2003, r 23 and Sch, with effect from 11 Feb 2004]

(4) In this rule, liquidator includes a provisional liquidator. 7.4 Liquidator to file certificate and copy of settled list of contributories (Corporations Act s 478) If, in a winding up by the Court, a liquidator has settled and certified a list, or supplementary list, of contributories, the liquidator must, within 14 days after doing so, file the certificate and a copy of the list. [R 7.4 am SL 60 of 2003, r 23 and Sch, with effect from 11 Feb 2004]

7.5 Release of liquidator and deregistration of company (Corporations s 480(c) and (d)) (1) This rule applies to an application by the liquidator of a company: (a) for an order that the liquidator be released; or (b) for an order that the liquidator be released and that ASIC deregister the company. [Subr (1) am SL 36 of 2008, r 11 and Sch, with effect from 17 Dec 2008]

(2) The interlocutory process seeking the order must include: (a) a notice stating that any objection to the release of the liquidator must be made by filing and serving a notice of objection, in the prescribed form, within 21 days after the date of service of the interlocutory process; and (b) a statement setting out the terms of subsection 481(3) of the Corporations Act. Note: Subsection 481(3) of the Corporations Act provides that an order of the Court releasing a liquidator discharges the liquidator from all liability in respect of any act done or default made by the liquidator in the administration of the affairs of the company, or otherwise in relation to the liquidator’s conduct as liquidator, but any such order may be revoked on proof that it was obtained by fraud or by suppression or by concealment of any material fact. [Subr (2) am SL 60 of 2003, r 23 and Sch, with effect from 11 Feb 2004]

(3) The supporting affidavit must include details of the following matters: (a) whether the whole of the company’s property has been realised or whether so much of the company’s property has been realised as, in the liquidator’s opinion, can be realised without needlessly protracting the winding up; (b) any calls made on contributories in the course of the winding up; (c) any dividends paid in the course of the winding up; (d) whether the committee of inspection (if any) has passed a resolution approving the liquidator’s release; (e) whether ASIC has appointed an auditor to report on an account or statement of the position in the winding up under subsection 539(2) of the Corporations Act; (f) whether the Court has ordered a report on the accounts of the liquidator to be prepared; (g) whether any objection to the release of the liquidator has been received by the liquidator from: (i) an auditor appointed by ASIC or by the Court; or (ii) any creditor, contributory or other interested person; (h) whether any report has been submitted by the liquidator to ASIC under section 533 of the Corporations Act; (i) whether the liquidator considers it necessary to report on the affairs of the company or any of its officers; (j) any property disclaimed in the course of the winding up; (k) any remuneration paid or payable to the liquidator and how such remuneration was determined; (l) any costs, charges or expenses payable by the liquidator if the Court grants the liquidator’s release; ©

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Corporations Law Rules (NT) if the application is made under paragraph 480(c) of the Corporations Act – the facts and circumstances by reason of which it is submitted that the company should not be deregistered.

[Subr (3) am SL 36 of 2008, r 11 and Sch, with effect from 17 Dec 2008; SL 60 of 2003, r 23 and Sch, with effect from 11 Feb 2004]

(4) The liquidator must include in the supporting affidavit the statements set out in paragraphs (a) and (b) of this subrule, including, if appropriate, the words in brackets: (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 [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 [except as disclosed in this affidavit]”. (5) The liquidator must file with, or annex to, the supporting affidavit: (a) a statement of the financial position of the company at the date when the interlocutory process seeking release was filed; and (b) a summary of the liquidator’s receipts and payments in winding up the company. (6) Unless the Court otherwise orders, the liquidator must serve by prepaid post, on each creditor who has proved a debt in the course of the winding up, and on each contributory, a copy of the interlocutory process accompanied by: (a) a copy of the summary of the liquidator’s receipts and payments in winding up the company; and (b) a copy of the statement of the financial position of the company at the date when the interlocutory process seeking release was filed. [R 7.5 am SL 36 of 2008; SL 60 of 2003, r 23 and Sch, with effect from 11 Feb 2004]

7.6 Objection to release of liquidator – Form 13 (1) A creditor or contributory of a company who wishes to object to the release of the liquidator of the company must, within 21 days after the date of service of the interlocutory process seeking release: (a) file: (i) a notice of objection in accordance with Form 13; and (ii) if appropriate, an affidavit stating any facts relied on; and (b) serve a copy of the notice and the affidavit (if any) on the liquidator. (2) If the liquidator is served with a notice of objection by a creditor or contributory, the liquidator must, within 3 days after being served, serve on the creditor or contributory a copy of the affidavit supporting the interlocutory process. 7.7 Report on accounts of liquidator (Corporations Act s 481) (1) If the Court orders that a report on the accounts of a liquidator be prepared under subsection 481(1) of the Corporations Act, the liquidator must give to the auditor appointed to prepare the report all information, books and vouchers required to prepare the report. [Subr (1) am SL 60 of 2003, r 23 and Sch, with effect from 11 Feb 2004]

(2) On completing the report, the auditor must: (a) file a copy of the report in a sealed envelope that is marked with the title and number of the proceeding and the words ‘Auditor’s report under subsection 481(1) of the Corporations Act 2001’; (b) serve a copy of the report on the liquidator; and (c) lodge a copy of the report with ASIC. [Subr (2) am SL 36 of 2008, r 11 and Sch, with effect from 17 Dec 2008; SL 60 of 2003, r 23 and Sch, with effect from 11 Feb 2004]

(3) Except with the leave of the Court, a report is not available for inspection by any person except the liquidator or ASIC. [Subr (3) am SL 36 of 2008, r 11 and Sch, with effect from 17 Dec 2008] [R 7.7 am SL 36 of 2008; SL 60 of 2003, r 23 and Sch, with effect from 11 Feb 2004] 790

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Division 7 – Liquidators r 7.11 7.8 Application for payment of call (Corporations Act s 483(3)(b)) – Form 14 The affidavit in support of an application by the liquidator of a company, under paragraph 483(3)(b) of the Corporations Act, for an order for the payment of a call must be in accordance with Form 14. [R 7.8 am SL 60 of 2003, r 23 and Sch, with effect from 11 Feb 2004]

7.9 Distribution of surplus by liquidator with special leave of the Court (Corporations Act s 488(2)) – Form 15

(2) At least 14 days before the date fixed for hearing of the application, the liquidator must publish a notice of the application. (3) The notice must be: (a) in accordance with Form 15; and (b) published in accordance with rule 2.11. [R 7.9 am SL 60 of 2003, r 23 and Sch, with effect from 11 Feb 2004]

7.10 Powers delegated to liquidator by the Court (Corporations Act s 488) Subject to the Corporations Act, the Corporations Regulations, these Rules, and any order of the Court, the powers and duties conferred or imposed on the Court by Part 5.4B of the Corporations Act in respect of the matters mentioned in subsection 488(1) of the Corporations Act may be exercised or performed by a liquidator appointed by the Court as an officer of the Court and subject to the control of the Court. [R 7.10 am SL 60 of 2003, r 23 and Sch, with effect from 11 Feb 2004]

7.11 Inquiry into conduct of liquidator (Corporations Act s 536(1) and (2)) (1) A complaint to the Court under paragraph 536(1)(b) of the Corporations Act must be made: (a) in the case of a winding up by the Court – by an interlocutory process seeking an inquiry; and (b) in the case of a voluntary winding up – by an originating process seeking an inquiry. [Subr (1) am SL 60 of 2003, r 23 and Sch, with effect from 11 Feb 2004]

(2) A report to the Court by ASIC under subsection 536(2) of the Corporations Act must be made: (a) in the case of a winding up by the Court – by filing: (i) an interlocutory process seeking orders under the section; and (ii) a written report in a sealed envelope that is marked with the title and number of the proceeding; and (b) in the case of a voluntary winding up – by filing: (i) an originating process seeking orders under the subsection; and (ii) a written report in a sealed envelope that is marked with the title of the proceeding and provision for its number. [Subr (2) am SL 36 of 2008, r 11 and Sch, with effect from 17 Dec 2008; SL 60 of 2003, r 23 and Sch, with effect from 11 Feb 2004]

(3) The contents of a report filed under subrule (2) need not, at the time of filing, be verified by an affidavit. (4) Except with the leave of the Court, a report made under section 536(2) of the Corporations Act is not available for inspection by any person except the liquidator or ASIC. [Subr (4) am SL 36 of 2008, r 11 and Sch, with effect from 17 Dec 2008; SL 60 of 2003, r 23 and Sch, with effect from 11 Feb 2004]

(5) In this rule, liquidator includes a provisional liquidator. [R 7.11 am SL 36 of 2008; SL 60 of 2003, r 23 and Sch, with effect from 11 Feb 2004; SL 35 of 2001, r 20 and Sch, with effect from 30 Jun 2001]

©

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(1) The affidavit in support of an application for special leave to distribute a surplus must state how the liquidator intends to distribute the surplus including the name and address of each person to whom the liquidator intends to distribute any part of the surplus.

r 8.1

Corporations Law Rules (NT)

DIVISION 8 – SPECIAL MANAGERS (CORPORATIONS ACT PART 5.4B) [Div 8 heading am SL 60 of 2003, r 11, with effect from 11 Feb 2004]

8.1 Application for appointment of special manager (Corporations Act s 484) (1) An application by a liquidator for the appointment of a special manager in relation to a company must state the powers which, in the liquidator’s opinion, should be entrusted by the Court to the special manager. (2) The supporting affidavit must state: (a) the circumstances making it proper that a special manager be appointed; (b) details of the remuneration proposed to be paid to the special manager; and (c) whether any committee of inspection in the winding up, or a meeting of creditors, has approved the appointment of a special manager. [R 8.1 am SL 60 of 2003, r 23 and Sch, with effect from 11 Feb 2004]

8.2 Security given by special manager (Corporations Act s 484) (1) The Court may, from time to time, direct that the amount of security given by a special manager be varied. (2) Unless the Court otherwise directs, the costs of furnishing the security given by a special manager in respect of a particular winding up: (a) are the personal expenses of the special manager; and (b) are not to be charged against the property of the company as an expense incurred in the winding up. [R 8.2 am SL 60 of 2003, r 23 and Sch, with effect from 11 Feb 2004]

8.3 Special manager’s receipts and payments (Corporations Act s 484) (1) A special manager must give to the liquidator: (a) an account of the special manager’s receipts and payments; and (b) a statutory declaration verifying the account. (2) If the liquidator approves the account, the liquidator must include the total amounts of the special manager’s receipts and payments in the liquidator’s accounts. [R 8.3 am SL 60 of 2003, r 23 and Sch, with effect from 11 Feb 2004]

DIVISION 9 – REMUNERATION OF OFFICE-HOLDERS 9.1 Remuneration of receiver (Corporations Act s 425(1)) – Form 16 (1) This rule applies to an application by a receiver of property of a corporation for an order under subsection 425(1) of the Corporations Act fixing the receiver’s remuneration. Notes for subrule (1): 1 Under paragraph 425(2)(b) of the Corporations Act, the Court may exercise its power to make an order fixing the remuneration of a receiver appointed under an instrument even if the receiver has died, or has ceased to act, before the making of the order or the application for the order. 2 The amendment to section 425 of the Corporations Act made by the Corporations Amendment (Insolvencies) Act 2007 applies in relation to a receiver appointed on or after 31 December 2007 – see Corporations Act s 1480(5). [Subr (1) am SL 36 of 2008, r 4, with effect from 17 Dec 2008; SL 60 of 2003, r 23 and Sch, with effect from 11 Feb 2004; SL 35 of 2001, r 10, with effect from 30 Jun 2001]

(2) At least 21 days before filing an originating process, or interlocutory process, seeking the order, the receiver must serve a notice in accordance with Form 16 of the receiver’s intention to apply for the order, and a copy of any affidavit on which the receiver intends to rely, on the following persons: (a) the person who appointed the receiver; (b) any creditor holding security over all or any of the same property of the corporation (except if the creditor is the person who appointed the receiver); (c) any administrator, liquidator or provisional liquidator of the corporation; (d) any administrator of a deed of company arrangement executed by the corporation; (e) if there is no person of the kind mentioned in paragraph (c) or (d): 792

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Division 9 – Remuneration of office-holders r 9.2 (i)

each of the 5 largest (measured by amount of debt) unsecured creditors of the corporation; and (ii) each member of the corporation whose shareholding represents at least 10 per cent of the issued capital of the corporation.

(4) If the receiver does not receive a notice of objection within the period mentioned in subrule (3): (a) the receiver may file an affidavit, made after the end of that period, in support of the originating process, or interlocutory process, seeking the order stating: (i) the date, or dates, when the notice and affidavit required to be served under subrule (2) were served; and (ii) that the receiver has not received any notice of objection to the remuneration claimed within the period mentioned in subrule (3); (b) the receiver may endorse the originating process, or interlocutory process, with a request that the application be dealt with in the absence of the public and without any attendance by, or on behalf of, the receiver; and (c) the application may be so dealt with. (5) If the receiver receives a notice of objection within the period mentioned in subrule (3), the receiver must serve a copy of the originating process, or interlocutory process, seeking the order on each creditor or contributory, or other person, who has given a notice of objection. (6) An (a) (b) (c) (d) (e) (f)

affidavit in support of the originating process, or interlocutory process, seeking the order must: include evidence of the matters mentioned in subsection 425(8) of the Corporations Act; and state the nature of the work performed or likely to be performed by the receiver; and state the amount of remuneration claimed; and include a summary of the receipts taken and payments made by the receiver; and state particulars of any objection of which the receiver has received notice; and if the receivership is continuing – give details of any matters delaying the completion of the receivership.

[Subr (6) subst SL 36 of 2008, r 4, with effect from 17 Dec 2008; am SL 35 of 2001, r 10, with effect from 30 Jun 2001] [R 9.1 am SL 36 of 2008; SL 60 of 2003, r 23 and Sch, with effect from 11 Feb 2004; SL 35 of 2001]

9.2 Determination by Court of remuneration of administrator (Corporations Act s 449E(1)(c) and (1A)(c)) – Form 16 (1) This rule applies to an application by the administrator of a company under administration, or of a deed of company arrangement, for an order under paragraph 449E(1)(c) or (1A)(c) of the Corporations Act determining the administrator’s remuneration. (2) At least 21 days before filing an originating process, or interlocutory process, seeking the order, the administrator must serve a notice in accordance with Form 16 of the administrator’s intention to apply for the order, and a copy of any affidavit on which the administrator intends to rely, on the following persons: (a) each creditor who was present, in person or by proxy, at any meeting of creditors; (b) each member of any committee of creditors or committee of inspection; (c) if there is no committee of creditors or committee of inspection, and no meeting of creditors has been convened and held, each of the 5 largest (measured by amount of debt) creditors of the company; (d) each member of the company whose shareholding represents at least 10% of the issued capital of the company. (3) Within 21 days after the last service of the documents mentioned in subrule (2), any creditor or contributory may give to the administrator a notice of objection to the remuneration claimed, stating the grounds of objection. (4) If the administrator does not receive a notice of objection within the period mentioned in subrule (3): ©

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(3) Within 21 days after the last service of the documents mentioned in subrule (2), any creditor or contributory, or any person mentioned in paragraph (2)(c), (d) or (e), may give to the receiver a notice of objection to the remuneration claimed, stating the grounds of objection.

r 9.2

Corporations Law Rules (NT) (a) the administrator may file an affidavit, made after the end of that period, in support of the originating process, or interlocutory process, seeking the order stating: (i) the date, or dates, when the notice and affidavit required to be served under subrule (2) were served; and (ii) that the administrator has not received any notice of objection to the remuneration claimed within the period mentioned in subrule (3); and (b) the administrator may endorse the originating process, or interlocutory process, with a request that the application be dealt with in the absence of the public and without any attendance by, or on behalf of, the administrator; and (c) the application may be so dealt with.

(5) If the administrator receives a notice of objection within the period mentioned in subrule (3), the administrator must serve a copy of the originating process, or interlocutory process, seeking the order on each creditor or contributory who has given a notice of objection. (6) An (a) (b) (c) (d) (e) (f)

affidavit in support of the originating process, or interlocutory process, seeking the order must: include evidence of the matters mentioned in subsection 449E(4) of the Corporations Act; and state the nature of the work performed or likely to be performed by the administrator; and state the amount of remuneration claimed; and include a summary of the receipts taken and payments made by the administrator; and state particulars of any objection of which the administrator has received notice; and if the administration is continuing – give details of any matters delaying the completion of the administration.

[R 9.2 subst SL 36 of 2008, r 5, with effect from 17 Dec 2008; am SL 60 of 2003; SL 35 of 2001]

9.2A Review of remuneration of administrator (Corporations Act s 449E(2)) (1) This rule applies to an application for review of the amount of the remuneration of an administrator under subsection 449E(2) of the Corporations Act. Note for subrule (1): The amendment to section 449E of the Corporations Act made by the Corporations Amendment (Insolvency) Act 2007 applies in relation to an administrator appointed on or after 31 December 2007 – see Corporations Act s 1480(6).

(2) The application may be made only after the remuneration has been determined under paragraph 449E(1)(a) or (b) or (1A)(a) or (b) of the Corporations Act. (3) At least 21 days before filing the originating process, or the interlocutory process, applying for a review, the plaintiff or applicant must serve a notice, in accordance with Form 16A, of intention to apply for the review and a copy of any affidavit on which the plaintiff or applicant intends to rely (other than an affidavit required by subrule (9)), on the following persons: (a) if there is a committee of creditors or a committee of inspection – each member of the committee; (b) if the remuneration of the administrator was determined by the creditors – each creditor who was present, in person or by proxy, at the meeting of creditors at which the remuneration was determined; (c) each member of the company whose shareholding represents at least 10% of the issued capital of the company. (4) Within 21 days after the last service of the documents mentioned in subrule (3), any person on whom the notice has been served may serve on the plaintiff or applicant a notice: (a) stating the person’s intention to appear at the hearing of the application for review; and (b) setting out the issues that the person seeks to raise before the Court. (5) A person mentioned in subrule (3) is entitled to be heard on the application for review, but only (unless the Court otherwise orders) if the person has served on the plaintiff or applicant a notice in accordance with subrule (4). (6) If the plaintiff or applicant is served with a notice in accordance with subrule (4), the plaintiff or applicant must serve a copy of the originating process or interlocutory process applying for the review on each person who has served such a notice. 794

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Division 9 – Remuneration of office-holders r 9.3

(8) The affidavit mentioned in subrule (7) must annex a copy of the report that the administrator was required to prepare before remuneration was determined. (9) The plaintiff or applicant must: (a) file an affidavit stating whether any notice or notices under subrule (4) has or have been served; and (b) annex or exhibit to the affidavit a copy of any such notice. [R 9.2A insrt SL 36 of 2008, r 5, with effect from 17 Dec 2008]

9.3 Remuneration of provisional liquidator (Corporations Act s 473(2)) – Form 16 (1) This rule applies to an application by a provisional liquidator of a company for an order under subsection 473(2) of the Corporations Act determining the provisional liquidator’s remuneration. [Subr (1) am SL 60 of 2003, r 23 and Sch, with effect from 11 Feb 2004]

(2) The application must be made by interlocutory process in the winding up proceeding. (3) At least 21 days before filing the interlocutory process seeking the order, the provisional liquidator must serve a notice in accordance with Form 16 of the provisional liquidator’s intention to apply for the order, and a copy of any affidavit on which the provisional liquidator intends to rely, on the following persons: (a) any liquidator (except the provisional liquidator) of the company; (b) each member of any committee of inspection or, if there is no committee of inspection, each of the 5 largest (measured by amount of debt) creditors of the company; (c) each member of the company whose shareholding represents at least 10 per cent of the issued capital of the company. [Subr (3) am SL 36 of 2008, r 6, with effect from 17 Dec 2008; SL 35 of 2001, r 12, with effect from 30 Jun 2001]

(4) Within 21 days after the last service of the documents mentioned in subrule (3), the liquidator, or any creditor or contributory, may give to the provisional liquidator a notice of objection to the remuneration claimed, stating the grounds of objection. (5) If the provisional liquidator does not receive a notice of objection within the period mentioned in subrule (4): (a) the provisional 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 provisional liquidator has not received any notice of objection to the remuneration claimed within the period mentioned in subrule (4); (b) the provisional liquidator may endorse the interlocutory process with a request that the application be dealt with in the absence of the public and without any attendance by, or on behalf of, the provisional liquidator; and (c) the application may be so dealt with. (6) If the provisional liquidator receives a notice of objection within the period mentioned in subrule (4), the provisional liquidator must serve a copy of the interlocutory process seeking the order: (a) on each creditor or contributory who has given a notice of objection; and (b) on the liquidator (if any). ©

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(7) The administrator must file an affidavit stating the following matters: (a) the matters mentioned in subsection 449E(4) of the Corporations Act; (b) the nature of the work performed or likely to be performed by the administrator; (c) the amount of remuneration claimed by the administrator if that amount is different from the amount of remuneration that has been determined; (d) a summary of the receipts taken and payments made by the administrator; (e) particulars of any objection to the remuneration as determined, of which the administrator has received notice; (f) if the administration is continuing – details of any matters delaying the completion of the administration.

r 9.3 (7) An (a) (b) (c) (d) (e)

Corporations Law Rules (NT) affidavit in support of the interlocutory process seeking the order must: state the nature of the work performed or likely to be performed by the provisional liquidator; state the amount of remuneration claimed; include a summary of the receipts taken and payments made by the provisional liquidator; state particulars of any objection of which the provisional liquidator has received notice; and if the winding up proceeding has not been determined – give details of: (i) any reasons known to the provisional liquidator why the winding up proceeding has not been determined; and (ii) any reasons why the provisional liquidator’s remuneration should be determined before the determination of the winding up proceeding.

[Subr (7) am SL 36 of 2008, r 6, with effect from 17 Dec 2008; SL 35 of 2001, r 12, with effect from 30 Jun 2001]

(8) The affidavit must also provide evidence of the matters mentioned in subsection 473(10) of the Corporations Act: (a) to the extent that they may be relevant to a provisional liquidator; and (b) as if references in that subsection to a liquidator were references to a provisional liquidator. [Subr (8) insrt SL 36 of 2008, r 6, with effect from 17 Dec 2008] [R 9.3 am SL 36 of 2008; SL 60 of 2003, r 23 and Sch, with effect from 11 Feb 2004; SL 35 of 2001]

9.4 Determination by Court of liquidator’s remuneration (Corporations Act s 473(3)(b)(ii)) (1) This rule applies to an application by a liquidator of a company for an order under subparagraph 473(3)(b)(ii) of the Corporations Act determining the liquidator’s remuneration. Note for subrule (1): The amendment to section 473 of the Corporations Act made by the Corporations Amendment (Insolvency) Act 2007 applies in relation to a liquidator appointed on or after 31 December 2007 – see Corporations Act s 1480(7). [Subr (1) am SL 36 of 2008, r 7, with effect from 17 Dec 2008; SL 60 of 2003, r 23 and Sch, with effect from 11 Feb 2004]

(2) The application: (a) must be made by interlocutory process in the winding up proceeding; and (b) must not be made until after the date of the meeting of creditors mentioned in subsection 473(4) of the Corporations Act. [Subr (2) am SL 60 of 2003, r 23 and Sch, with effect from 11 Feb 2004; SL 35 of 2001, r 13, with effect from 30 Jun 2001]

(3) At least 21 days before filing the interlocutory process seeking the order, the liquidator must serve a notice in accordance with Form 16 of the liquidator’s intention to apply for the order, and a copy of any affidavit on which the liquidator intends to rely, on the following persons: (a) each creditor who was present, in person or by proxy, at any meeting of creditors at which the remuneration of the liquidator was considered; (b) each member of any committee of inspection; (c) if there is no committee of inspection, and no meeting of creditors has been convened and held – each of the 5 largest (measured by amount of debt) creditors of the company; (d) each member of the company whose shareholding represents at least 10% of the issued capital of the company. [Subr (3) am SL 36 of 2008, r 7, with effect from 17 Dec 2008; SL 35 of 2001, r 13, with effect from 30 Jun 2001]

(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); 796

Corporations – Court Rules and Related Legislation 2017

Division 9 – Remuneration of office-holders r 9.4A (b)

the liquidator may endorse the interlocutory process with a request that the application be dealt with in the absence of the public and without any attendance by, or on behalf of, the liquidator; and (c) the application may be so dealt with.

(7) An (a) (b) (c) (d) (e) (f)

affidavit in support of the interlocutory process seeking the order must: include evidence of the matters mentioned in subsection 473(10) of the Corporations Act; and state the nature of the work performed or likely to be performed by the liquidator; and state the amount of remuneration claimed; and include a summary of the receipts taken and payments made by the liquidator; and state particulars of any objection of which the liquidator has received notice; and if the winding up is continuing – give details of any matters delaying the completion of the winding up.

[Subr (7) subst SL 36 of 2008, r 7, with effect from 17 Dec 2008; am SL 35 of 2001, r 13, with effect from 30 Jun 2001] [R 9.4 am SL 36 of 2008, r 7, with effect from 17 Dec 2008; SL 60 of 2003, r 23 and Sch, with effect from 11 Feb 2004; SL 35 of 2001]

9.4A Review of remuneration of liquidator (Corporations Act s 473(5) and (6) and 504(1)) (1) This rule applies to an application for review of the amount of the remuneration of a liquidator under subsection 473(5) or (6) or 504(1) of the Corporations Act. Note for subrule (1): The amendment to section 504 of the Corporations Act made by the Corporations Amendment (Insolvency) Act 2007 applies in relation to a liquidator appointed on or after 31 December 2007 – see Corporations Act s 1480(7).

(2) The application may be made only after remuneration has been determined under paragraph 473(3)(a) or subparagraph 473(3)(b)(i), or fixed under subsection 495(1) or 499(3), of the Corporations Act. (3) At least 21 days before filing the originating process or interlocutory process applying for a review, the plaintiff or applicant must serve a notice, in accordance with Form 16A, of intention to apply for the review and a copy of any affidavit on which the plaintiff or applicant intends to rely (other than an affidavit required by subrule (9)), on the following persons: (a) if there is a committee of inspection – each member of the committee; (b) if the remuneration of the liquidator was determined or fixed by the creditors – each creditor who was present, in person or by proxy, at the meeting of creditors at which the remuneration was determined or fixed; (c) each member of the company whose shareholding represents at least 10% of the issued capital of the company. (4) Within 21 days after the last service of the documents mentioned in subrule (3), any person on whom the notice has been served may serve on the plaintiff or applicant a notice: (a) stating the person’s intention to appear at the hearing of the application for review; and (b) setting out the issues that the person seeks to raise before the Court. (5) A person mentioned in subrule (3) is entitled to be heard on the application for review, but only (unless the Court otherwise orders) if the person has served on the plaintiff or applicant a notice in accordance with subrule (4). (6) If the plaintiff or applicant is served with a notice in accordance with subrule (4), the plaintiff or applicant must serve a copy of the originating process or interlocutory process applying for the review on each person who has served such a notice. (7) The liquidator must file an affidavit stating the following matters: (a) for an application under subsection 473(5) or (6) of the Corporations Act – the matters mentioned in subsection 473(10) of the Corporations Act; (b) for an application under subsection 504(1) of the Corporations Act – the matters mentioned in subsection 504(2) of the Corporations Act; ©

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(6) If the liquidator receives a notice of objection within the period mentioned in subrule (4), the liquidator must serve a copy of the interlocutory process seeking the order on each creditor or contributory who has given a notice of objection.

r 9.4A

Corporations Law Rules (NT)

(c) the nature of the work performed or likely to be performed by the liquidator; (d) the amount of remuneration claimed by the liquidator if that amount is different from the amount of remuneration that has been determined or fixed; (e) a summary of the receipts taken and payments made by the liquidator; (f) particulars of any objection to the remuneration as determined or fixed of which the liquidator has received notice; (g) if the winding up is continuing – details of any matters delaying the completion of the winding up. (8) The affidavit under subrule (7) must annex a copy of the report that the liquidator was required to prepare before remuneration was determined or fixed. Note for subrule (8): For the requirement to prepare a report, see subsections 473(11) and (12), 495(5) and 499(6) and (7) of the Corporations Act.

(9) The plaintiff or applicant must: (a) file an affidavit stating whether any notice or notices under subrule (4) has or have been served; and (b) annex or exhibit to the affidavit a copy of any such notice. [R 9.4A insrt SL 36 of 2008, r 8, with effect from 17 Dec 2008]

9.5 Remuneration of special manager (Corporations Act s 84(2)) – Form 16 (1) This rule applies to an application by a special manager of the property or business of a company for an order under subsection 484(2) of the Corporations Act fixing the special manager’s remuneration. [Subr (1) am SL 60 of 2003, r 23 and Sch, with effect from 11 Feb 2004]

(2) The application must be made by interlocutory process in the winding up proceeding. (3) At least 21 days before filing the interlocutory process seeking the order, the special manager must serve a notice in accordance with Form 16 of the special manager’s intention to apply for the order, and a copy of any affidavit on which the special manager intends to rely, on the following persons: (a) the liquidator of the company; (b) each member of any committee of creditors or committee of inspection or, if there is no committee of creditors or committee of inspection, each of the 5 largest (measured by amount of debt) creditors of the company; (c) each member of the company whose shareholding represents at least 10 per cent of the issued capital of the company. [Subr (3) am SL 36 of 2008, r 11 and Sch, with effect from 17 Dec 2008; SL 35 of 2001, r 14, with effect from 30 Jun 2001]

(4) Within 21 days after the last service of the documents mentioned in subrule (3), the liquidator, or any creditor or contributory, may give to the special manager a notice of objection to the remuneration claimed, stating the grounds of objection. (5) If the special manager does not receive a notice of objection within the period mentioned in subrule (4): (a) the special manager 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 special manager has not received any notice of objection to the remuneration claimed within the period mentioned in subrule (4); (b) the special manager may endorse the interlocutory process with a request that the application be dealt with in the absence of the public and without any attendance by, or on behalf of, the special manager; and (c) the application may be so dealt with. (6) If the special manager receives a notice of objection within the period mentioned in subrule (4), the special manager must serve a copy of the interlocutory process seeking the order: (a) on each creditor or contributory who has given a notice of objection; and 798

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Division 11 – Examinations and orders (Corporations Act Part 5.9 Divisions 1 and 2) r 11.2 (b)

on the liquidator.

[Subr (7) am SL 36 of 2008, r 11 and Sch, with effect from 17 Dec 2008; SL 35 of 2001, r 14, with effect from 30 Jun 2001] [R 9.5 am SL 36 of 2008; SL 60 of 2003, r 23 and Sch, with effect from 11 Feb 2004; SL 35 of 2001] [Editor’s Note: There appears to be a drafting error in the heading of r 9.5. The reference to “s 84(2)” should probably read “s 484(2)”.]

DIVISION 10 – WINDING UP GENERALLY 10.1 Determination of value of debts or claims (Corporations Act s 554A(2)) A reference to the Court by a liquidator of a company under paragraph 554A(2)(b) of the Corporations Act must be made: (a) in the case of a winding up by the Court – by filing an interlocutory process seeking an order estimating, or determining a method for working out, the value of the debt or claim; and (b) in the case of a voluntary winding up – by filing an originating process seeking an order estimating, or determining a method for working out, the value of the debt or claim. [R 10.1 am SL 60 of 2003, r 23 and Sch, with effect from 11 Feb 2004]

10.2 Disclaimer of contract (Corporations Act s 568(1A)) (1) The affidavit in support of an application by a liquidator, under subsection 568(1A) of the Corporations Act, for leave to disclaim a contract in relation to a company must: (a) specify the persons interested, and their interests, under the contract; and (b) state the facts on which it is submitted that the contract should be disclaimed. [Subr (1) am SL 60 of 2003, r 23 and Sch, with effect from 11 Feb 2004]

(2) The liquidator must serve the affidavit on each party to the contract (except the company) and on any person interested in the contract. [R 10.2 am SL 60 of 2003, r 23 and Sch, with effect from 11 Feb 2004]

10.3 Winding up Part 5.7 bodies (Corporations Act s 583, s 585) and registered schemes (Corporations Act s 601ND) These Rules apply, with any necessary adaptations, and in the same way as they apply to a company, in relation to the winding up of a Part 5.7 body or a registered scheme. [R 10.3 am SL 60 of 2003, r 23 and Sch, with effect from 11 Feb 2004]

DIVISION 11 – EXAMINATIONS AND ORDERS (CORPORATIONS ACT PART 5.9 DIVISIONS 1 AND 2) [Div 11 heading am SL 60 of 2003, r 12, with effect from 11 Feb 2004]

11.1 Definition for Division 11 In this Division, examination summons means a summons under section 596A or 596B of the Corporations Act for the examination of a person about a corporation’s examinable affairs. [R 11.1 am SL 60 of 2003, r 23 and Sch, with effect from 11 Feb 2004]

11.2 Application for examination or investigation under s 411(9)(B), s 423 or s 536(3) of the Corporations Act (1) An application for an order for the examination or investigation of a person under paragraph 411(9)(b), section 423 or subsection 536(3) of the Corporations Act may be made by: (a) ASIC; ©

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(7) The affidavit in support of the interlocutory process seeking the order must: (a) state the nature of the work performed or likely to be performed by the special manager; (b) state the amount of remuneration claimed; (c) include a summary of the receipts taken and payments made by the special manager; (d) state particulars of any objection of which the special manager has received notice; and (e) if the special management is continuing – give details of any matters delaying the completion of the special management.

r 11.2

Corporations Law Rules (NT)

(b) a person authorised by ASIC; (c) a creditor or contributory; or (d) any other person aggrieved by the conduct of: (i) a person appointed to administer a compromise or arrangement; (ii) a controller; or (iii) a liquidator or provisional liquidator. [Subr (1) am SL 36 of 2008, r 11 and Sch, with effect from 17 Dec 2008; SL 60 of 2003, r 23 and Sch, with effect from 11 Feb 2004; SL 35 of 2001, r 15, with effect from 30 Jun 2001]

(2) The application may be made without notice to any person. [Subr (2) subst SL 35 of 2001, r 15, with effect from 30 Jun 2001]

(3) The provisions of this Division that apply to an examination under Division 1 of Part 5.9 of the Corporations Act apply, with any necessary adaptations, to an examination or an investigation under paragraph 411(9)(b), section 423 or subsection 536(3) of the Corporations Act. [Subr (3) am SL 60 of 2003, r 23 and Sch, with effect from 11 Feb 2004; SL 35 of 2001, r 15, with effect from 30 Jun 2001] [R 11.2 am SL 36 of 2008; SL 60 of 2003, r 23 and Sch, with effect from 11 Feb 2004; SL 35 of 2001]

11.3 Application for examination summons (Corporations Act s 596A, s 596B) – Form 17 (1) An application for the issue of an examination summons must be made by filing an interlocutory process or an originating process, as the case requires. (2) The application may be made without notice to any person. [Subr (2) subst SL 35 of 2001, r 16, with effect from 30 Jun 2001]

(3) The originating process, or interlocutory process, seeking the issue of the examination summons must be: (a) supported by an affidavit stating the facts in support of the process; and (b) accompanied by a draft examination summons. (4) The originating process, or interlocutory process, and supporting affidavit must be filed in a sealed envelope marked, as appropriate: (a) “Application and supporting affidavit for issue of summons for examination under section 596A of the Corporations Act 2001”; or (b) “Application and supporting affidavit for issue of summons for examination under section 596B of the Corporations Act 2001”. [Subr (4) am SL 60 of 2003, r 23 and Sch, with effect from 11 Feb 2004]

(5) If the application is not made by the liquidator, the liquidator must be given notice of the application and, if required by the liquidator, served with a copy of the originating process, or interlocutory process, and the supporting affidavit. (6) If the application is not made by ASIC, ASIC must be given notice of the application and, if required by ASIC, served with a copy of the originating process, or interlocutory process, and the supporting affidavit. [Subr (6) am SL 36 of 2008, r 11 and Sch, with effect from 17 Dec 2008]

(7) Unless the Court otherwise orders, an affidavit in support of an application for an examination summons is not available for inspection by any person. (8) An examination summons is to be in accordance with Form 17. [R 11.3 am SL 36 of 2008; SL 60 of 2003, r 23 and Sch, with effect from 11 Feb 2004; SL 35 of 2001]

11.4 Service of examination summons An examination summons issued by the Court must be personally served, or served in any other manner as the Court may direct, on the person who is to be examined at least 8 days before the date fixed for the examination. 11.5 Discharge of examination summons (1) This rule applies if a person is served with an examination summons. (2) Within 3 days after the person is served with the examination summons, the person may apply to the Court for an order discharging the summons by filing: 800

Corporations – Court Rules and Related Legislation 2017

Division 11 – Examinations and orders (Corporations Act Part 5.9 Divisions 1 and 2) r 11.10 (a) an interlocutory process seeking an order discharging the summons; and (b) an affidavit stating the facts in support of the interlocutory process. (3) As soon as practicable after filing the interlocutory process seeking the order and the supporting affidavit, the person must serve a copy of the interlocutory process and the supporting affidavit on: (a) the person who applied for the examination; and (b) unless that person is ASIC or a person authorised by ASIC – ASIC. [Subr (3) am SL 36 of 2008, r 11 and Sch, with effect from 17 Dec 2008] [R 11.5 am SL 36 of 2008]

If the Court makes an order in relation to an examination under subsection 597(13) of the Corporations Act, the Court may give directions for the filing of the written record of the examination. [R 11.6 am SL 60 of 2003, r 23 and Sch, with effect from 11 Feb 2004]

11.7 Authentication of transcript of examination (Corporations Act s 597(14)) For the purposes of subsection 597(14) of the Corporations Act, a transcript of an examination may be authenticated: (a) by the person, or persons, who prepared the record of examination, or under whose supervision the record was prepared, certifying in writing signed by the person or persons, that the record is a true transcript of the record of examination; or (b) by any person present at the examination, or any part of the examination, signing the person’s name at the bottom of each page of the written record that records a part of the examination at which the person was present. [R 11.7 am SL 60 of 2003, r 23 and Sch, with effect from 11 Feb 2004]

11.8 Inspection of record or transcript of examination or investigation under s 411, s 423 or s 536 of the Corporations Act (1) A written record or transcript of an examination or investigation under section 411, 423 or 536 is not available for inspection by any person except: (a) with the consent of the liquidator (if any) or ASIC; or (b) by leave of the Court. [Subr (1) am SL 36 of 2008, r 11 and Sch, with effect from 17 Dec 2008]

(2) This rule does not apply to the liquidator, ASIC or any person authorised by ASIC. [Subr (2) am SL 36 of 2008, r 11 and Sch, with effect from 17 Dec 2008] [R 11.8 am SL 36 of 2008; SL 60 of 2003, r 23 and Sch, with effect from 11 Feb 2004]

11.9 Entitlement to record or transcript of examination held in public (1) This rule applies if: (a) an examination under section 597 of the Corporations Act is held wholly or partly in public; and (b) a written record or transcript of the examination is filed in the Court. [Subr (1) am SL 60 of 2003, r 23 and Sch, with effect from 11 Feb 2004]

(2) The person examined may apply to the Registrar, within 3 years after the date of completion of the examination, for a copy of the record or transcript of the part of the examination of the person held in public. (3) On receiving an application from a person under subrule (2), and any applicable fee, the Registrar must give a copy of the record or transcript to the person. [R 11.9 am SL 60 of 2003]

11.10 Default in relation to examination (1) This rule applies if a person is summoned or ordered by the Court to attend for examination, and: (a) without reasonable cause, the person: (i) fails to attend at the time and place appointed; or (ii) fails to attend from day to day until the conclusion of the examination; or ©

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11.6 Filing of record of examination (Corporations Act s 597(13))

r 11.10

Corporations Law Rules (NT)

(iii) refuses or fails to take an oath; or (iv) refuses or fails to answer a question that the Court directs the person to answer; or (v) refuses or fails to produce books that the summons requires the person to produce; or (vi) fails to comply with a requirement by the Court to sign a written record of the examination; or (b) before the day fixed for the examination, the person who applied for the summons or order satisfies the Court that there is reason to believe that the person summoned or ordered to attend for examination has absconded or is about to abscond. [Subr (1) am Act 40 of 2010, s 120, with effect from 1 Mar 2011]

(2) The Court may: (a) issue a warrant for the arrest of the person summoned or ordered to attend for examination; and (b) make any other orders that the Court thinks just or necessary. [R 11.10 am Act 40 of 2010]

11.11 Service of application for order in relation to breaches etc by person concerned with corporation (Corporations Act s 598) (1) This rule applies to a person applying for an order under section 598 of the Corporations Act. [Subr (1) am SL 60 of 2003, r 23 and Sch, with effect from 11 Feb 2004]

(2) In addition to complying with rules 2.7 and 2.8, the person must serve a copy of the originating process, or interlocutory process, as the case requires, and the supporting affidavit on any liquidator or provisional liquidator (except if the person is the liquidator or provisional liquidator) of the corporation or body. Note: Under rule 2.7, a plaintiff must serve a copy of the originating process, and any supporting affidavit, on a defendant to the proceeding and, if necessary, on the corporation to which the proceeding relates; and an applicant must serve a copy of an interlocutory process, and any supporting affidavit, on a respondent to the proceeding and, if necessary, on the corporation to which the proceeding relates. In certain cases, these documents may also be required to be served on ASIC – see rule 2.8. [R 11.11 am SL 36 of 2008, r 11 and Sch, with effect from 17 Dec 2008; SL 60 of 2003]

DIVISION 11A – WARRANTS (CORPORATIONS ACT S 486B AND PART 5.4B, DIVISION 3, SUBDIVISION B) [Div 11A insrt SL 36 of 2008, r 9, with effect from 17 Dec 2008]

11A.1 Arrest of person (Corporations Act s 486B) – Form 17A (1) An application for the issue of a warrant under subsection 486B(1) of the Corporations Act for the arrest of a person must state the grounds for the issue of the warrant. (2) The application must be accompanied by an affidavit stating the facts in support of the application. (3) The warrant must be in accordance with Form 17A. (4) If a person is arrested under the warrant, the person who carried out the arrest must immediately give notice of the arrest to the Registrar. Note for rule (11A.1): Sections 489A to 489E of the Corporations Act, inserted by the Corporations Amendment (Insolvency) Act 2007, apply in relation to a warrant issued on or after 31 December 2007 – see Corporations Act s 1481(3). [R 11A.1 insrt SL 36 of 2008, r 9, with effect from 17 Dec 2008]

DIVISION 12 – TAKEOVERS, ACQUISITIONS OF SHARES ETC (CORPORATIONS ACT CHAPTERS 6 TO 6B) AND SECURITIES (CORPORATIONS ACT CHAPTER 7) [Div 12 heading am SL 60 of 2003, r 13, with effect from 11 Feb 2004; subst SL 35 of 2001, r 17, with effect from 30 Jun 2001]

12.1 Service on ASIC in relation to proceedings under Chapter 6, 6A, 6B, 6C, 6D or 7 of the Corporations Act If ASIC is not a party to an application made under Chapter 6, 6A, 6B, 6C, 6D or 7 of the Corporations Act, the plaintiff must serve a copy of the originating process and the supporting affidavit on ASIC as soon as practicable after filing the originating process. [R 12.1 am SL 36 of 2008, r 11 and Sch, with effect from 17 Dec 2008; SL 60 of 2003, r 23 and Sch, with effect from 11 Feb 2004; subst SL 35 of 2001, r 18, with effect from 30 Jun 2001] 802

Corporations – Court Rules and Related Legislation 2017

Division 14 – Powers of Courts (Corporations Act Part 9.5) r 14.1 12.1A Reference to Court of question of law arising in proceeding before Takeovers Panel (Corporations Act s 659A) Order 64 of the Supreme Court Rules applies, with any necessary adaptations, to a reference of a question of law arising in a proceeding before the Takeovers Panel to the Court under section 659A of the Corporations Act. [R 12.1A insrt SL 60 of 2003, r 14, with effect from 11 Feb 2004]

(1) This rule applies to a party to a proceeding who suspects or becomes aware that: (a) the proceeding was commenced in relation to a takeover bid, or proposed takeover bid, before the end of the bid period; and (b) the proceeding falls within the definition court proceedings in relation to a takeover bid or proposed takeover bid in section 659B(4) of the Corporations Act. (2) The party identified in subrule (1) must, immediately on suspecting or becoming aware of the matters mentioned in subrule (1), notify any other party to the proceeding and the Court of that suspicion or knowledge. (3) The party must comply with subrule (2), unless any other party to the proceeding has given a notice under this rule to the party. [R 12.1B insrt SL 29 of 2007, r 6, with effect from 29 Aug 2007]

12.2 Application for summons for appearance of person (Corporations Act s 1071D(4)) – Form 18 (1) An application for the issue of a summons under section 1071D(4) of the Corporations Act must be made by filing an originating process or an interlocutory process. [Subr (1) subst SL 60 of 2003, r 15, with effect from 11 Feb 2004]

(2) The application may be made ex parte. (3) The originating process, or interlocutory process, seeking the issue of the summons must be: (a) supported by an affidavit stating the facts in support of the process; and (b) accompanied by a draft summons. (4) Unless the Court otherwise orders, a summons issued under this rule is to be in accordance with Form 18. [R 12.2 am SL 60 of 2003]

12.3 Application for orders relating to refusal to register transfer or transmission of securities (Corporations Act s 1071F) As soon as practicable after filing an originating process under section 1071F of the Corporations Act, the plaintiff must serve a copy of the originating process and the supporting affidavit on: (a) the company; and (b) any person against whom an order is sought. [R 12.3 subst SL 60 of 2003, r 16, with effect from 11 Feb 2004]

DIVISION 13 – THE FUTURES INDUSTRY (CHAPTER 8 OF THE LAW) [REPEALED] [Div 13, rr 13.1 and 13.2, rep SL 60 of 2003, r 17, with effect from 11 Feb 2004]

DIVISION 14 – POWERS OF COURTS (CORPORATIONS ACT PART 9.5) [Div 14 heading am SL 60 of 2003, r 18, with effect from 11 Feb 2004]

14.1 Appeal from act, omission or decision of administrator, receiver or liquidator, etc (Corporations Act s 554A, s 1321) (1) All appeals to the Court authorised by the Corporations Act must be commenced by an originating process, or interlocutory process, stating: (a) the act, omission or decision complained of; (b) in the case of an appeal against a decision – whether the whole or part only and, if part only, which part of the decision is complained of; and ©

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12.1B Notification to Court where proceeding is commenced before end of takeover bid period (Corporations Act s 659B)

r 14.1

Corporations Law Rules (NT)

(c) the grounds on which the complaint is based. [Subr (1) am SL 60 of 2003, r 23 and Sch, with effect from 11 Feb 2004]

(2) Unless the Corporations Act or the Corporations Regulations otherwise provide, the originating process, or interlocutory process, must be filed within: (a) 21 days after the date of the act, omission or decision appealed against; or (b) any further time allowed by the Court. [Subr (2) am SL 60 of 2003, r 23 and Sch, with effect from 11 Feb 2004]

(3) The Court may extend the time for filing the originating process, or interlocutory process, either before or after the time for filing expires and whether or not the application for extension is made before the time expires. (4) As soon as practicable after filing the originating process, or interlocutory process, and, in any case, at least 5 days before the date fixed for hearing, the person instituting the appeal must serve a copy of the originating process, or interlocutory process, and any supporting affidavit, on each person directly affected by the appeal. (5) As soon as practicable after being served with a copy of the originating process, or interlocutory process, and any supporting affidavit, a person whose act, omission or decision is being appealed against must file an affidavit: (a) stating the basis on which the act, omission or decision was done or made; and (b) annexing or exhibiting a copy of all relevant documents that have not been put in evidence by the person instituting the appeal. [R 14.1 am SL 60 of 2003, r 23 and Sch, with effect from 11 Feb 2004]

DIVISION 15 – PROCEEDINGS UNDER THE ASIC ACT [Div 15 heading am SL 60 of 2003, r 19, with effect from 11 Feb 2004; SL 35 of 2001, r 20 and Sch, with effect from 30 Jun 2001]

15.1 Reference to Court of question of law arising at hearing of ASIC (ASIC Act s 61) Order 64 of the Supreme Court Rules applies, with any necessary adaptations, to a reference of a question of law arising at a hearing by ASIC to the Court under section 61 of the ASIC Act. [R 15.1 am SL 36 of 2008, r 11 and Sch, with effect from 17 Dec 2008; SL 60 of 2003, r 23 and Sch, with effect from 11 Feb 2004; SL 35 of 2001, r 20 and Sch, with effect from 30 Jun 2001]

15.2 Reference to Court of question of law arising at hearing of Corporations and Securities Panel (s 196 of the ASIC Law) [Repealed] [R 15.2 rep SL 60 of 2003, r 20, with effect from 11 Feb 2004; am SL 35 of 2001]

15.3 Application for inquiry (ASIC Act s 70, s 201, s 219) An application for an inquiry under subsection 70(3), 201(3) or 219(7) of the ASIC Act must be made by filing an originating process seeking an inquiry and orders under the relevant section. [R 15.3 am SL 60 of 2003, r 23 and Sch, with effect from 11 Feb 2004; SL 35 of 2001, r 20 and Sch, with effect from 30 Jun 2001]

DIVISION 15A – PROCEEDINGS UNDER THE CROSS-BORDER INSOLVENCY ACT [Div 15A insrt SL 13 of 2009, r 5, with effect from 10 Jun 2009]

15A.1 Application of this Division and other rules of the Court Unless the Court otherwise orders: (a) this Division applies to a proceeding in the Court, under the Cross-Border Insolvency Act, involving a debtor other than an individual; and (b) the rules in the other Divisions of these Rules, and the rules in Chapter 1 of the Supreme Court Rules, apply to a proceeding in the Court under the Cross-Border Insolvency Act if they are relevant and not inconsistent with this Division. Note: See rule 1.5 for definitions Cross-Border Insolvency Act and Model Law. [R 15A.1 insrt SL 13 of 2009, r 5, with effect from 10 Jun 2009]

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Division 15A – Proceedings under the Cross-Border Insolvency Act r 15A.5 15A.2 Expressions used in the Cross-Border Insolvency Act (1) Unless the contrary intention appears, an expression that is used in this Division and in the Cross-Border Insolvency Act, whether or not a particular meaning is given to the expression by the Cross-Border Insolvency Act, has the same meaning in this Division as it has in the Cross-Border Insolvency Act. Note: The following expressions used in this Division (including in the notes to this Division) are defined in the Model Law as having the following meanings: establishment means any place of operations where the debtor carries out a non-transitory economic activity with human means and goods or services. foreign main proceeding means a foreign proceeding taking place in the State where the debtor has the centre of its main interests. foreign non-main proceeding means a foreign proceeding, other than a foreign main proceeding, taking place in a State where the debtor has an establishment within the meaning of subparagraph (f) of the present article. foreign proceeding means a collective judicial or administrative proceeding in a foreign State, including an interim proceeding, pursuant to a law relating to insolvency in which proceeding the assets and affairs of the debtor are subject to control or supervision by a foreign court, for the purpose of reorganization or liquidation. foreign representative means a person or body, including one appointed on an interim basis, authorized in a foreign proceeding to administer the reorganization or the liquidation of the debtor’s assets or affairs or to act as a representative of the foreign proceeding.

(2) This Division is to be interpreted in a manner that gives effect to the Cross-Border Insolvency Act. [R 15A.2 insrt SL 13 of 2009, r 5, with effect from 10 Jun 2009]

15A.3 Application for recognition (1) An application by a foreign representative for recognition of a foreign proceeding under article 15 of the Model Law must be made by filing an originating process in accordance with Form 2. (2) The originating process must: (a) be accompanied by the statements referred to in article 15 of the Model Law and in section 13 of the Cross-Border Insolvency Act; and (b) name the foreign representative as the plaintiff and the debtor as the defendant; and (c) be accompanied by an affidavit verifying the matters mentioned in paragraphs 2 and 3 of article 15 of the Model Law and in section 13 of the Cross-Border Insolvency Act. (3) When filing the originating process, the foreign representative must file, but need not serve, an interlocutory process seeking directions as to service, and the Court may give any directions about service, and make any incidental orders, that it thinks just. (4) The plaintiff must serve a copy of the originating process and the other documents mentioned in subrule (2): (a) unless the Court otherwise orders, in accordance with subrule 2.7(1); and (b) on any other persons the Court may direct at the hearing of the interlocutory process. (5) A person who intends to appear before the Court at the hearing of an application for recognition must file and serve the documents mentioned in rule 2.9. [R 15A.3 insrt SL 13 of 2009, r 5, with effect from 10 Jun 2009]

15A.4 Application for provisional relief under article 19 of the Model Law (1) Any application by the plaintiff for provisional relief under article 19 of the Model Law must be made by filing an interlocutory process in accordance with Form 3. (2) Unless the Court otherwise orders, the interlocutory process and any supporting affidavit must be served in accordance with subrule 2.7(2). [R 15A.4 insrt SL 13 of 2009, r 5, with effect from 10 Jun 2009]

15A.5 Official liquidator’s consent to act If an application is made for an order under article 19 or 21 of the Model Law to entrust the administration, realisation or distribution of all or part of the debtor’s assets to a person designated by the Court (other than the foreign representative) then, unless the Court otherwise orders, the person must: ©

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foreign court means a judicial or other authority competent to control or supervise a foreign proceeding.

r 15A.5

Corporations Law Rules (NT)

(a) be an official liquidator; and (b) have filed a Consent to Act, in accordance with Form 19, that specifies an address for service for the person within Australia. [R 15A.5 subst SL 39 of 2009, r 3, with effect from 16 Dec 2009; insrt SL 13 of 2009, r 5, with effect from 10 Jun 2009]

15A.6 Notice of filing of application for recognition (1) Unless the Court otherwise orders, the plaintiff in a proceeding mentioned in rule 15A.3 must: (a) send a notice of the filing of the application in accordance with Form 20 to each person whose claim to be a creditor of the defendant is known to the plaintiff; and (b) publish a notice of the filing of the application for recognition of a foreign proceeding in accordance with Form 20, in accordance with rule 2.11. (2) The Court may direct the plaintiff to publish a notice in accordance with Form 20 in a daily newspaper circulating generally in any State or Territory not described in rule 2.11. [R 15A.6 insrt SL 13 of 2009, r 5, with effect from 10 Jun 2009]

15A.7 Notice of order for recognition, withdrawal etc (1) If the Court makes an order for recognition of a foreign proceeding under article 17 of the Model Law, or makes any order under article 19 or 21 of the Model Law, the plaintiff must, as soon as practicable after the order is made, do all of the following: (a) have the order entered; (b) serve a copy of the entered order on the defendant; (c) send a notice of the making of the order in accordance with Form 21 to each person whose claim to be a creditor of the defendant is known to the plaintiff; (d) publish a notice of the making of the order in accordance with Form 21, in accordance with rule 2.11. (2) The Court may direct the plaintiff to publish the notice in accordance with Form 21 in a daily newspaper circulating generally in any State or Territory not described in rule 2.11. (3) If the application for recognition is withdrawn or dismissed, the plaintiff must, as soon as practicable, do all of the following: (a) for a dismissal, have the order of dismissal entered; (b) serve a copy of the entered order of dismissal or notice of the withdrawal, on the defendant; (c) send a notice of the dismissal or withdrawal in accordance with Form 22 to each person whose claim to be a creditor of the defendant is known to the plaintiff; (d) publish a notice of the dismissal or withdrawal in accordance with Form 22, in accordance with rule 2.11. (4) The Court may direct the plaintiff to publish the notice in accordance with Form 22 in a daily newspaper circulating generally in any State or Territory not described in rule 2.11. [R 15A.7 insrt SL 13 of 2009, r 5, with effect from 10 Jun 2009]

15A.8 Relief after recognition (1) If the Court has made an order for recognition of a foreign proceeding, any application by the plaintiff for relief under paragraph 1 of article 21 of the Model Law must be made by filing an interlocutory process, and any supporting affidavit, in accordance with Form 3. (2) Unless the Court otherwise orders, an interlocutory process under subrule (1) and any supporting affidavit must be served, in accordance with subrule 2.7(2), but on the following persons: (a) the defendant; (b) any person that the Court directed be served with the originating process by which the application for recognition was made; (c) any other person that the Court directs. (3) A person who intends to appear before the Court at the hearing of an application under subrule (1) must file and serve the documents mentioned in rule 2.9. [R 15A.8 insrt SL 13 of 2009, r 5, with effect from 10 Jun 2009] 806

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Division 16 – Powers of Master and Registrar r 16.2 15A.9 Application to modify or terminate an order for recognition or other relief (1) This rule applies to: (a) an application under paragraph 4 of article 17 of the Model Law for an order modifying or terminating an order for recognition of a foreign proceeding; and (b) an application under paragraph 3 of article 22 of the Model Law for an order modifying or terminating relief granted under article 19 or 21 of the Model Law.

(3) An interlocutory process for an application under subrule (1) and any supporting affidavit must be served on: (a) for an application under paragraph (1)(a) – the defendant and other persons who were served with, or filed a notice of appearance in relation to, the application for recognition; and (b) for an application under paragraph (1)(b) – the defendant and other persons who were served with, or filed a notice of appearance in relation to, the application for relief under article 19 or 21. (4) Unless the Court otherwise orders, a plaintiff who applies for an order under subrule (1) must: (a) send a notice of the filing of the application in accordance with Form 23 to each person whose claim to be a creditor of the defendant is known to the plaintiff; and (b) publish a notice of the filing of the application in accordance with Form 23, in accordance with rule 2.11. (5) The Court may direct the applicant to publish the notice in accordance with Form 23 in a daily newspaper circulating generally in any State or Territory not described in rule 2.11. (6) A person who intends to appear before the Court at the hearing of an application under subrule (1) must file and serve the documents mentioned in rule 2.9. [R 15A.9 insrt SL 13 of 2009, r 5, with effect from 10 Jun 2009]

DIVISION 16 – POWERS OF MASTER AND REGISTRAR 16.1 Powers of Master (1) The Master may hear and determine any originating process or interlocutory process brought under these Rules, subject to the limitations contained in rule 77.02(4) of the Supreme Court Rules. [Subr (1) am SL 60 of 2003, r 23 and Sch, with effect from 11 Feb 2004]

(2) If a proceeding before the Master appears to the Master to be proper for the decision of a Judge, the Master may, on the application of a party or of his or her own motion, refer the proceeding to a Judge. (3) Any application brought under subrule (2) is to be dealt with before the substantive application is heard. (4) If the Master refers a proceeding to a Judge, the Judge may dispose of the proceeding or refer it back to the Master with any direction that the Judge considers appropriate. (5) A Judge before whom any application is brought may direct that it, or any issue relating to it, be heard by the Master. [R 16.1 am SL 60 of 2003]

16.2 Powers of Registrar (1) The Master may, with the approval of the Chief Justice, direct that, during a specified period or at any time, a Registrar may hear: (a) a specified application; (b) an application of a specified type; or (c) all applications, that the Master may hear. (2) If a proceeding before a Registrar appears to the Registrar to be proper for the decision of a Judge, the Registrar: (a) may refer the proceeding to a Judge; or ©

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(2) An application mentioned in subrule (1) must be made by filing an interlocutory process in accordance with Form 3.

r 16.2 (b)

Corporations Law Rules (NT) on the application of a party to the proceeding – must refer the proceeding to a Judge.

(3) If the Registrar refers a proceeding to a Judge, the Judge may dispose of the proceeding or refer it back to the Registrar with any direction that the Judge considers appropriate. 16.3 Appeal (1) A person affected by a direction, decision or order of the Master or Registrar may appeal to the Court of Appeal under Order 85 of the Supreme Court Rules. [Subr (1) am SL 36 of 2008, r 11 and Sch, with effect from 17 Dec 2008]

(2) Order 85 of the Supreme Court Rules applies, with any necessary adaptations, in relation to an appeal under this rule as if it were an appeal in relation to a judgment given or order made by the Master or Registrar under Chapter 1 of the Supreme Court Rules. [Subr (2) am SL 36 of 2008, r 11 and Sch, with effect from 17 Dec 2008] [R 16.3 am SL 36 of 2008]

DIVISION 17 – REPEAL 17 Repeal The Supreme Court (Corporations Law) Interim Rules (Regulations 990, No. 51) and the Supreme Court (Companies) Rules (Regulations 1986, No. 31 and Regulations 1988, No. 27) are repealed.

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Schedule 1 – Forms Document Title

Form 1

SCHEDULE 1 – FORMS rule 1.6

Form 1 – Document Title IN THE [name of Court] No. .......... of [year] DIVISION: [insert if appropriate] REGISTRY: [1] IN THE MATTER OF [full name of corporation to which the proceeding relates and, if applicable, the words ‘(in liquidation)’, ‘(receiver appointed)’, ‘(receiver and manager appointed)’, ‘(controller acting)’, or ‘(administrator appointed)’] ABN or ACN or ARBN: [insert ABN or ACN or ARBN] AB (and Others) Plaintiff(s) [list, in a schedule, any further plaintiffs] CD (and Others) Defendant(s) [list, in a schedule, any further defendants] [Form 1 am SL 29 of 2007, r 7, with effect from 29 Aug 2007; SL 30 of 2004, r 3, with effect from 11 Aug 2004]

©

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(rule 2.1)

Form 2

Corporations Law Rules (NT)

Form 2 – Originating process (rules 2.2 and 15A.3)

[Title] A. DETAILS OF APPLICATION This application is made under *section/*regulation [number] of the *Corporations Act/*ASIC Act/*CrossBorder Insolvency Act/*Corporations Regulations. [State briefly the nature of the proceeding, eg application for winding-up on ground of insolvency; or complaint about a receiver.] On the facts stated in the supporting affidavit(s), the plaintiff claims: 1 2 etc AND Date: .................................................. Signature of plaintiff or plaintiff’s legal practitioner * * This application will be heard by ................................... at [address of Court] at .......... am/ pm on .......... . B. NOTICE TO DEFENDANT(S) (IF ANY) TO: [name and address of each defendant (if any)] If you or your legal practitioner do not appear before the Court at the time shown above, the application may be dealt with, and an order made, in your absence. As soon after that time as the business of the Court will allow, any of the following may happen: (a) the application may be heard and final relief given; (b) directions may be given for the future conduct of the proceeding; (c) any interlocutory application may be heard. Before appearing before the Court, you must file a notice of appearance, in the prescribed form, in the Registry and serve a copy of it on the plaintiff. Note: Unless the Court otherwise orders, a defendant that is a corporation must be represented at a hearing by a legal practitioner. It may be represented at a hearing by a director of the corporation only if the Court grants leave. * Omit if not applicable. C. APPLICATION FOR WINDING UP ON GROUND OF INSOLVENCY [Complete this section if this originating process is seeking an order that a company be wound up in insolvency on the ground that the company has failed to comply with a statutory demand (see section 459Q of the Corporations Act)] [Set out particulars of service of the statutory demand on the company and of the failure to comply with the demand] [Attach to this originating process a copy of the statutory demand and, if the demand has been varied by an order made under subsection 459H(4) of the Corporations Act because of a dispute or offsetting claim, a copy of the order made under that subsection] [The affıdavit in support of this originating process must: (a) verify service of the demand on the company; and (b) verify the failure of the company to comply with the demand; and (c) state whether and, if so, to what extent the debt, or each of the debts, to which the demand relates is still due and payable at the date when the affıdavit is made]

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Corporations – Court Rules and Related Legislation 2017

Schedule 1 – Forms Originating process

Form 2

.................................................. Registrar This originating process is filed by [name] for the plaintiff. E. SERVICE The plaintiff’s address for service is [address of plaintiff’s legal practitioner or of plaintiff]. * It is not intended to serve a copy of this originating process on any person. OR * It is intended to serve a copy of this originating process on each defendant and on any person listed below: [name of defendant and any other person on whom a copy of the originating process is to be served] [Complete the following section if the time for service has been abridged] The time by which a copy of this originating process is to be served has been abridged by order made by [name of Judge] on [date] to [time and date]. * Omit if not applicable [Form 2 am SL 13 of 2009, r 6, with effect from 10 Jun 2009; SL 60 of 2003, r 21, with effect from 11 Feb 2004; SL 35 of 2001, r 19, with effect from 30 Jun 2001]

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Note 1: In an application for winding up in insolvency on the ground that the company has failed to comply with a statutory demand, the applicant should consider completing Part C of Form 2 as shown in Schedule 2 (Notes to these Rules). Note 2: An example of the affidavit in support of an application for winding up in insolvency for failure to comply with a statutory demand is shown in Schedule 2 (Notes to these Rules). D. FILING Date of filing: [date of filing to be entered by Registrar]

Form 3

Corporations Law Rules (NT)

Form 3 – Interlocutory process (rules 2.2, 15A.4, 15A.8 and 15A.9)

[Title] A. DETAILS OF APPLICATION This application is made under *section/*regulation [number] of the *Corporations Act/*ASIC Act/*CrossBorder Insolvency Act/*Corporations Regulations. On the facts stated in the supporting affidavit(s), the applicant, [name], applies for the following relief: 1 2 etc AND Date: .................................................. Signature of applicant making this application or applicant’s legal practitioner This application will be heard by .................................................. at [address of Court] at .......... *am/*pm on .......... . B. NOTICE TO RESPONDENT(S) (IF ANY) TO: [name and address of each respondent to this interlocutory process (if any). If applicable, also state the respondent’s address for service.] If you or your legal practitioner do not appear before the Court at the time shown above, the application may be dealt with, and an order made, in your absence. Before appearing before the Court, you must, except if you have already done so or you are the plaintiff in this proceeding, file a notice of appearance, in the prescribed form, in the Registry and serve a copy of it on the plaintiff in the originating process. Note: Unless the Court otherwise orders, a respondent that is a corporation must be represented at a hearing by a legal practitioner. It may be represented at a hearing by a director of the corporation only if the Court grants leave. * Omit if not applicable. C. FILING This interlocutory process is filed by [name] for the applicant. D. SERVICE The applicant’s address for service is [address of applicant’s legal practitioner or of applicant]. * It is not intended to serve a copy of this interlocutory process on any person. OR * It is intended to serve a copy of this interlocutory process on each respondent and on any person listed below: [name of respondent and any other person on whom a copy of the interlocutory process is to be served] [Complete the following section if the time for service has been abridged] The time by which a copy of this interlocutory process is to be served has been abridged by order made by [name of Judge] on [date] to [time and date]. * Omit if not applicable [Form 3 am SL 13 of 2009, r 6, with effect from 10 Jun 2009; subst SL 29 of 2007, r 7, with effect from 29 Aug 2007; am SL 60 of 2003, r 21, with effect from 11 Feb 2004; SL 35 of 2001, r 19, with effect from 30 Jun 2001]

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Corporations – Court Rules and Related Legislation 2017

Schedule 1 – Forms Notice Of Appearance

Form 4

Form 4 – Notice Of Appearance [Title] A. DETAILS OF PERSON INTENDING TO APPEAR Notice is given that [state full name and address], [briefly state your interest in the proceeding, eg a creditor for $ (amount), or a contributory, of the corporation] intends to appear before the Court at the hearing of the application to be heard at [name of Court and address] on [date] and, if applicable, to *oppose/*support the application. Note: Unless the Court otherwise orders, a defendant or respondent that is a corporation must be represented at a hearing by a legal practitioner. It may be represented at a hearing by a director of the corporation only if the Court grants leave. B. GROUNDS OF OPPOSITION TO WINDING UP [Complete this section only if you are opposing an application to wind up a company] The grounds on which I oppose the application for winding up are: 1 2 etc C. SERVICE [This section must be completed] The address for service of the person giving this notice is [address of person’s legal practitioner or of person]. .................................................. Signature of person giving notice or of person’s legal practitioner *

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Omit if not applicable

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NT

(rule 2.9)

Form 5

Corporations Law Rules (NT)

Form 5 – Notice of intervention by ASIC (rule 2.10)

[Title] The Australian Securities and Investments Commission, whose address for service is [address], intervenes in this proceeding. Date: .................................................. Signed on behalf of ASIC Name of signatory: [name]. Capacity of signatory: [capacity]. [Form 5 am SL 36 of 2008, r 10, with effect from 17 Dec 2008]

814

Corporations – Court Rules and Related Legislation 2017

Schedule 1 – Forms Notice of hearing to approve compromise or arrangement

Form 6

Form 6 – Notice of hearing to approve compromise or arrangement TO all the creditors and members of [name of company]. TAKE NOTICE that at .......... *am/*pm on .......... , the ......................... at [address of Court] will hear an application by [name of plaintiff] seeking the approval of a compromise or arrangement between the above-named company and its *members/*creditors as proposed by a resolution passed by the meeting of the * members/*creditors of the company held on [date]. [Complete this section if applicable] The proposed compromise or arrangement as passed by the meeting was amended from the form of compromise or arrangement previously sent to you in the following respects: [Set out the details of any amendment made at the meeting] If you wish to oppose the approval of the compromise or arrangement, you must file and serve on the plaintiff a notice of appearance, in the prescribed form, together with any affidavit on which you wish to rely at the hearing. The notice of appearance and affidavit must be served on the plaintiff at its address for service at least one day before the date fixed for the hearing of the application. [This section must be completed] The address for service of the plaintiff is [address of plaintiff’s legal practitioner or of plaintiff]. Name of person giving notice or of person’s legal practitioner [name]. * Omit if not applicable

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(rule 3.4)

Form 7

Corporations Law Rules (NT)

Form 7 – Affidavit accompanying statutory demand (rule 5.2)

[Name of creditor(s)] Creditor(s) [Name of debtor company] Debtor company I, [name] of [address and occupation], make oath and say: 1 I am [state deponent’s relationship to the creditor(s), e.g. ‘the creditor’, ‘(name), one of the creditors’, ‘a director of the creditor’, ‘a director of (name), one of the creditors’] in respect of *a debt of $[amount]/*debts totalling $[amount] owed by [name of debtor company] to *it/*them relating to [state nature of debt, or debts, ensuring that what is stated corresponds with the description of the debt, or debts, to be given in the proposed statutory demand, with which this affıdavit is to be served on the debtor company]. 2

[If the deponent is not the creditor, state the facts entitling the deponent to make the affıdavit, eg ‘I am authorised by the creditor(s) to make this affıdavit on its/their behalf’]

3

[State the source of the deponent’s knowledge of the matters stated in the affıdavit in relation to the debt or each of the debts, eg ‘I am the person who, on behalf of the creditor(s), had the dealings with the debtor company that gave rise to the debt’, ‘I have inspected the business records of the creditor in relation to the debtor company’s account with the creditor’]

4

*

5

I believe that there is no genuine dispute about the existence or amount of the *debt/*any of the debts.

The debt/*The total of the amounts of the debts, mentioned in paragraph 1 of this affidavit, is due and payable by the debtor company.

Made at [place] By [signature of deponent] Witnessed by Signature

.................................................. on [date] .................................................. ........................................................................................................................................

........................................................................................................................................

Justice of the peace / commissioner for oaths ........................................................................................................................................ Name Address or phone no. ........................................................................................................................................ * Omit if not applicable [Form 7 am Act 40 of 2010, s 121(1) and (2), with effect from 1 Mar 2011; SL 35 of 2001, r 19, with effect from 30 Jun 2001]

816

Corporations – Court Rules and Related Legislation 2017

Schedule 1 – Forms Consent of liquidator/provisional liquidator

Form 8

Form 8 – Consent of liquidator/provisional liquidator [Title] I, [name], of [address], an official liquidator, consent to be appointed by the Court and to act as the * liquidator/*provisional liquidator of [name of company]. I am not aware of any conflict of interest or duty that would make it improper for me to act as * liquidator/*provisional liquidator of the company. EITHER I am not aware of any relevant relationship mentioned in subsection 60(2) of the Corporations Act. OR I have, or have had within the preceding 24 months, the following relevant relationships mentioned in subsection 60(2) of the Corporations Act: [Set out all relevant relationships] The hourly rates currently charged in respect of work done as *liquidator/*provisional liquidator by me, and by my partners and employees who may perform work in this administration, are set out below or in the Schedule which is attached to this Consent. I acknowledge that my appointment by the Court does not constitute an express or implied approval by the Court of these hourly rates. Note: The requirement to disclose hourly rates should not be taken to imply that remuneration on an hourly basis is the most desirable or appropriate arrangement in every case. The Corporations Act acknowledges that another method of calculating remuneration may be appropriate (see, for example, s 473(2) and (3)). Date: .................................................. Signature of offıcial liquidator *

Omit if not applicable Schedule [description of hourly rate(s)]

[Form 8 am SL 36 of 2008, r 10, with effect from 17 Dec 2008; SL 60 of 2003, r 21, with effect from 11 Feb 2004]

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NT

(rules 5.5, 6.1)

Form 9

Corporations Law Rules (NT)

Form 9 – Notice of application for winding up order [Repealed] [Form 9 rep SL 32 of 2013, r 5, with effect from 21 Aug 2013; am SL 29 of 2007, r 7, with effect from 29 Aug 2007]

818

Corporations – Court Rules and Related Legislation 2017

Schedule 1 – Forms Notice of application for winding up order by substituted plaintiff

Form 10

Form 10 – Notice of application for winding up order by substituted plaintiff IN THE [name of Court] No. .......... of [year] [Name of company] ABN or ACN: [ABN or ACN of company to which proceeding relates] 1 [Name of substituted plaintiff], who was, by order of the [name of Court], substituted as a plaintiff, will apply to the Court at .......... *am/*pm on .......... at [address of Court] for an order that the above company be wound up. 2 The address for service of the substituted plaintiff is [address of substituted plaintiff’s legal practitioner or of substituted plaintiff]. 3 Any person intending to appear at the hearing must file a notice of appearance, in accordance with the prescribed form, together with any affidavit on which the person intends to rely, and serve a copy of the notice and any affidavit on the substituted plaintiff at its address for service at least 3 days before the date fixed for the hearing. Date: Name of substituted plaintiff or substituted plaintiff’s legal practitioner: [name] * Omit if not applicable [Form 10 am SL 29 of 2007, r 7, with effect from 29 Aug 2007; SL 60 of 2003, r 21, with effect from 11 Feb 2004]

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(rule 5.10)

Form 11

Corporations Law Rules (NT)

Form 11 – Notice of winding up order and of appointment of liquidator (rule 5.11)

IN 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] [Form 11 am SL 29 of 2007, r 7, with effect from 29 Aug 2007]

820

Corporations – Court Rules and Related Legislation 2017

Schedule 1 – Forms Notice of appointment of provisional liquidator

Form 12

Form 12 – Notice of appointment of provisional liquidator (rule 6.2)

NT

IN 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], 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] [Form 12 am SL 29 of 2007, r 7, with effect from 29 Aug 2007]

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Form 13

Corporations Law Rules (NT)

Form 13 – Notice by creditor or contributory of objection to release of liquidator (rule 7.6)

[Title] [Name of creditor/contributory] of [address of creditor/contributory], a creditor of [name of company] for $[amount], or a contributory of [name of company] holding [number] shares in the company, objects to the grant of a release to [name of liquidator] of [address of liquidator], who is the liquidator of [name of company], on the following grounds: [set out the grounds upon which the objection is made] Date: .................................................. Signature of objector or objector’s legal practitioner Name of objector or objector’s legal practitioner: [name]. The objector’s address for service is [address of objector or objector’s legal practitioner].

822

Corporations – Court Rules and Related Legislation 2017

Schedule 1 – Forms Affidavit in support of application for order for payment of call

Form 14

Form 14 – Affidavit in support of application for order for payment of call [Title] I, [name] of [address], liquidator, make oath and say: 1 I am the liquidator of [name of company] (the company). 2 On [date] I made a call of $[amount] per share on all the contributories of the company [or specify the class of contributories on whom the call was made]. *Annexed/*Exhibited and marked A is a copy of the notice of the call. Each contributory whose name is shown in the Schedule marked B was duly served with notice of the call in the form annexed or exhibited and marked A. 3 Each contributory of the company whose name is set out in column 2 of the Schedule marked B has not paid, or caused to be paid, to me the sum specified opposite the contributory’s name in column 5 of the Schedule, which is due from that contributory under the call. 4 The amount set out opposite the name of each contributory in column 6 of the Schedule is an estimate of the amount due by that contributory in respect of the costs of applying for and giving effect to the order for payment of the call. The estimate of the amounts so due by the several contributories has been reached by apportioning the costs among the contributories who have not paid the call according to the liability of the respective contributories to contribute. 5 The amount set out opposite the name of each contributory in column 7 of the Schedule is the total of the amount due by that contributory in respect of the call as set out in column 5 and the amount due in respect of costs as set out in column 6. .................................................. on [date] .................................................. Made at [place] By [signature of deponent] ................................................................................................................................ Witnessed by Signature

................................................................................................................................

Name Address or phone no. * Omit if not applicable

Number on list of contributories

Name

Justice of the peace / commissioner for oaths ................................................................................................................................ ................................................................................................................................

Address

Schedule B Character in Unpaid which amount of included in call the list

Proportion of costs of application

Total amount payable

[Form 14 am Act 40 of 2010, s 121(3) and (4), with effect from 1 Mar 2011]

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NT

(rule 7.8)

Form 15

Corporations Law Rules (NT)

Form 15 – Notice of application for leave to distribute a surplus (rule 7.9)

IN THE [name of Court and address] APPLICATION NO: .......... IN THE MATTER OF [company name] ABN or ACN: [ABN or ACN of company to which proceeding relates] On .......... at .......... , the .................................................. will hear an application by the liquidator of [name of company] in Proceeding No. .......... of [year] for leave to distribute a surplus in respect of the liquidation of the company. Any person intending to appear at the hearing must file a notice of appearance, in accordance with the prescribed form, together with any affidavit on which the person intends to rely, and serve a copy of the notice and affidavit on the liquidator at the address shown below at least 3 days before the date fixed for the hearing. Name of liquidator: [name]. The liquidator’s address for service is [address]. .................................................. Signature of liquidator [Form 15 am SL 29 of 2007, r 7, with effect from 29 Aug 2007]

824

Corporations – Court Rules and Related Legislation 2017

Schedule 1 – Forms Notice of intention to apply for remuneration

Form 16

Form 16 – Notice of intention to apply for remuneration IN THE MATTER OF [company name] ABN or ACN: [ABN or ACN of company to which proceeding relates] TO: [name and address of person to whom notice is given] TAKE NOTICE that, not less than 21 days after this notice is served on you, I, [name and address], the * receiver/*administrator/*liquidator/*provisional liquidator/*special manager of the above company, intend to apply to the Court to determine my remuneration. If you object to my application, you must, within 21 days after being served with this notice, serve on me a notice of objection stating the grounds of objection to the remuneration claimed. Date: .................................................. Signature of receiver/ administrator/ liquidator/ provisional liquidator/*special manager Omit if not applicable *

*

*

*

*

[Form 16 am SL 29 of 2007, r 7, with effect from 29 Aug 2007]

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(rules 9.1, 9.2, 9.3, 9.4, 9.5)

Form 16A

Corporations Law Rules (NT)

Form 16A – Notice of intention to apply for review of remuneration (rules 9.2A, 9.4A)

IN THE MATTER OF [company name] ACN or ABN: [ACN or ABN of company to which proceeding relates] TO: [name and address of person to whom notice is given] TAKE NOTICE that, not less than 21 days after this notice is served on you, I, [name and address of plaintiff or applicant], *[the *administrator/*liquidator of the above company,] intend to apply to the Court to review *the remuneration of/*my remuneration as the *administrator/*liquidator of the above company. The amount of the remuneration that has been determined or fixed is [state the amount]. The remuneration was determined or fixed by [state who determined or fixed the remuneration] on [state the date when the remuneration was determined or fixed]. I intend to apply for an order to *confirm/*increase/*reduce the remuneration. [Set out the grounds upon which an order or orders will be sought. If an order to increase or reduce the remuneration is sought, set out the amount by which the remuneration is sought to be increased or reduced.] If you wish to appear at the hearing of the application, in order to raise any issues before the Court, you must, within 21 days after being served with this notice, serve on me a notice under rule *9.2A(4)/ * 9.4A(4) of the Corporations Law Rules, stating your intention to appear at the hearing and setting out the issues that you seek to raise before the Court. Date: .................................................. Signature of plaintiff or applicant *

Omit if not applicable

[Form 16A insrt SL 36 of 2008, r 10, with effect from 17 Dec 2008]

826

Corporations – Court Rules and Related Legislation 2017

Schedule 1 – Forms Summons for examination

Form 17

Form 17 – Summons for examination [Title] A. DETAILS OF SUMMONS TO: [name and address of person to be examined] You are summoned under *section 596A/*section 596B of the Corporations Act to: (a) attend before ......................... at [address of Court] at .......... *am/*pm on .......... , and from day to day until excused by the Court, to be examined on oath about the examinable affairs of [name of corporation]; and (b) *to produce at the examination the following books [specify books – include in a schedule if necessary]. Date: .................................................. Registrar/Master B. NOTICE TO PERSON TO BE EXAMINED The Court may order that the questions put to you and the answers given by you at the examination are to be recorded in writing and signed by you. If you do not attend the examination in accordance with this summons, without reasonable cause, you may be arrested and imprisoned without further notice. This summons is issued at the request of [name] whose address for service is [address of person’s legal practitioner or of person]. * Omit if not applicable [Form 17 am Act 40 of 2010, s 121(5), with effect from 1 Mar 2011; SL 60 of 2003, r 21, with effect from 11 Feb 2004; SL 35 of 2001, r 19, with effect from 30 Jun 2001]

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(rule 11.3)

Form 17A

Corporations Law Rules (NT)

Form 17A – Arrest warrant (Corporations Act s 486B and rule 11A.1)

[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 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; * [name of company] (the Company) is being wound up by the Court; * an application has been made for [name of company] (the Company) to be wound up; AND THE COURT IS SATISFIED THAT [name of person]: * is about to leave [*the name of the jurisdiction/*Australia] in order to avoid: * paying money payable to the company; * being examined about the company’s affairs; * complying with an order of the Court, or some other obligation, under Chapter 5 of the Corporations Act in connection with the winding up; * 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; * 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 to 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. THIS WARRANT ALSO requires and authorises you to seize any property or books of the company in the possession of [name of person] and to deliver them into the custody of the Registrar of the Court to be kept by the Registrar until the Court makes an order for their disposal. Date: .................................................. Judge *

Omit if not applicable Note for Form 17A: Section 489A of the Corporations Act provides that if the Court issues a warrant under section 486B for a person to be arrested and brought before the Court, and the person is not in prison, then the person named in the warrant may be arrested by an officer of the police force of the State or Territory in which the person is found, or the Sheriff of that State or Territory or any of the Sheriff’s officers, or a member or special member of the Australian Federal Police. [Form 17A insrt SL 36 of 2008, r 10, with effect from 17 Dec 2008]

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Corporations – Court Rules and Related Legislation 2017

Schedule 1 – Forms Summons for appearance in relation to registration of transfer of interests

Form 18

Form 18 – Summons for appearance in relation to registration of transfer of interests [Title] TO: [name and address] You are required to appear before the ......................... at [address of Court] at .......... *am/*pm on .......... and show cause why the document(s) specified in the Schedule should not be *delivered up/*produced at the office of [name of company] at [address of company] within [period as ordered], as required by the attached notice. The address for service of the person applying for this summons is [address of person’s legal practitioner or of person]. Date: .................................................. Registrar *

Omit if not applicable Schedule [description of document(s)]

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(rule 12.2)

Form 19

Corporations Law Rules (NT)

Form 19 – Consent to act as designated person (rule 15A.5)

[Title] I, [name], of [address], an official liquidator, consent to be appointed by the Court and to act as the person designated by the Court under *article 19/*article 21 of the Model Law to *administer/*realise/*distribute the assets of [name of company]. I am not aware of any conflict of interest or duty that would make it improper for me to act as the person designated by the Court. The hourly rates currently charged in respect of work done as the person designated by the Court by me, and by my partners and employees who may perform work in this *administration/*realisation/*distribution, are set out below or in the Schedule which is attached to this Consent. I acknowledge that my appointment by the Court does not constitute an express or implied approval by the Court of these hourly rates. Date: .................................................. Signature of official liquidator *

Omit if not applicable Schedule [description of hourly rate(s)]

[Form 19 am SL 40 of 2012, r 3, with effect from 28 Nov 2012; SL 13 of 2009, r 6, with effect from 10 Jun 2009]

830

Corporations – Court Rules and Related Legislation 2017

Schedule 1 – Forms Notice of filing of application for recognition of foreign proceeding

Form 20

Form 20 – Notice of filing of application for recognition of foreign proceeding IN THE [name of Court] No. .......... of [year] [Name of company] ABN or ACN: [ABN or ACN of company to which proceeding relates] TO all the creditors of [name of company]. TAKE NOTICE that: 1. An application under the Cross-Border Insolvency Act 2008 (Cth) for recognition of a foreign proceeding in relation to [name of company] was commenced by the plaintiff, [name of plaintiff], on [date of filing of originating process] and will be heard by ........................... at [address of Court] at ......................... *am/*pm on ......................... Copies of documents filed may be obtained from the plaintiff’s address for service. 2. The plaintiff’s address for service is [name and address of plaintiff’s legal practitioner or, if there is no legal practitioner, address of the plaintiff]. 3. Any person intending to appear at the hearing must file a notice of appearance, in accordance with the prescribed form, together with any affidavit on which the person intends to rely, and serve a copy of the notice and any affidavit on the plaintiff at the plaintiff’s address for service at least 3 days before the date fixed for the hearing. 4. If you are a foreign creditor you must file in the registry of the Court at the address mentioned in paragraph 1 an affidavit setting out the details of any claim, secured or unsecured, that you may have against the company above at least 3 days before the date fixed for the hearing. Date: Name of plaintiff or plaintiff’s legal practitioner: [name] * Omit if not applicable [Form 20 insrt SL 13 of 2009, r 6, with effect from 10 Jun 2009]

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(rule 15A.6)

Form 21

Corporations Law Rules (NT)

Form 21 – Notice of making of order under the Cross-Border Insolvency Act 2008 (Cth) (rule 15A.7)

IN THE [name of Court] No. .......... of [year] [Name of company] ABN or ACN: [ABN or ACN of company to which proceeding relates] TO all the creditors of [name of company]. TAKE NOTICE that: 1. On [date], the [name of Court] in Proceeding No. of [year], commenced by the plaintiff [name of plaintiff], made the following orders under the Cross-Border Insolvency Act 2008 (Cth) in relation to [name of company]: [insert details of order]. 2. The plaintiff’s address for service is [name and address of plaintiff’s legal practitioner or, if there is no legal practitioner, address of the plaintiff]. 3. The name and address of the foreign representative is [insert name and address]. * 4. The name and address of the person entrusted with distribution of the company’s assets is [insert name and address]. Date: Name of plaintiff or plaintiff’s legal practitioner: [name] * Omit if not applicable [Form 21 insrt SL 13 of 2009, r 6, with effect from 10 Jun 2009]

832

Corporations – Court Rules and Related Legislation 2017

Schedule 1 – Forms Notice of dismissal/withdrawal of application for recognition of foreign proceeding Form 22

Form 22 – Notice of dismissal or withdrawal of application for recognition of foreign proceeding IN THE [name of Court] No. .......... of [year] [Name of company] ABN or ACN: [ABN or ACN of company to which proceeding relates] TO all the creditors of [name of company]. TAKE NOTICE that the application under the Cross-Border Insolvency Act 2008 (Cth) for recognition of a foreign proceeding in relation to [name of company] commenced by the plaintiff, [name of plaintiff], on [date of filing of originating process] was *dismissed/*withdrawn on [date of dismissal/withdrawal]. Date: Name of person giving notice or of person’s legal practitioner: [name] * Omit if not applicable [Form 22 insrt SL 13 of 2009, r 6, with effect from 10 Jun 2009]

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833

NT

(rule 15A.7)

Form 23

Corporations Law Rules (NT)

Form 23 – Notice of filing of application to modify or terminate an order for recognition or other relief (rule 15A.9)

IN THE [name of Court] No. .......... of [year] [Name of company] ABN or ACN: [ABN or ACN of company to which proceeding relates] TO all the creditors of [name of company]. TAKE NOTICE that: * 1. An application under the Cross-Border Insolvency Act 2008 (Cth) for an order * modifying/*terminating an order for recognition of a foreign proceeding in relation to [name of company] was filed by the applicant, [name of applicant], on [date of filing of interlocutory process] and will be heard by .................................................. at [address of Court] at .......... * am/*pm on ......................... Copies of documents filed may be obtained from the applicant’s address for service. * 1. An application under the Cross-Border Insolvency Act 2008 (Cth) for an order * modifying/*terminating relief granted under *article 19/*article 21 of the Model Law in relation to [name of company] was filed by the applicant, [name of applicant], on [date of filing of interlocutory process] and will be heard by .................................................. at [address of Court] at .......... *am/*pm on ......................... Copies of documents filed may be obtained from the applicant’s address for service. 2. The applicant’s address for service is [name and address of applicant’s legal practitioner or of applicant]. 3. Any person intending to appear at the hearing must file a notice of appearance (if the person has not already done so), in accordance with the prescribed form, together with any affidavit on which the person intends to rely, and serve a copy of the notice (if applicable) and any affidavit on the applicant at the applicant’s address for service at least 3 days before the date fixed for the hearing. Date: Name of applicant or applicant’s legal practitioner: [name] * Omit if not applicable [Form 23 insrt SL 13 of 2009, r 6, with effect from 10 Jun 2009] [Sch 1 am SL 32 of 2013; SL 40 of 2012; Act 40 of 2010; SL 13 of 2009; SL 36 of 2008; SL 29 of 2007; SL 30 of 2004; SL 60 of 2003, r 21, with effect from 11 Feb 2004; SL 35 of 2001]

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Schedule 2 – Notes to these Rules Schedule 2

SCHEDULE 2 – NOTES TO THESE RULES Note 1 — see rule 2.2 (Form 2 Part C) C. APPLICATION FOR WINDING UP ON GROUND OF INSOLVENCY 1. The plaintiff relies on failure by the defendant to comply with a statutory demand. A copy of the demand, marked A, is attached to this originating process. 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/*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/*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. * Omit if not applicable Note 2 — see rule 2.4 and subrule 5.4(2) (Affidavit in support) * AFFIDAVIT IN SUPPORT/*AFFIDAVIT IN SUPPORT OF APPLICATION FOR WINDING UP IN INSOLVENCY I, [name] of [address and occupation], make oath and say: 1. I am the above-named plaintiff [or if the applicant is a corporation, I am *a/*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. 2. Annexed to this affidavit is a current and historical extract of the records maintained by the Australian Securities and Investments Commission with respect to the defendant. 3. [Where the defendant is registered or taken to be registered in a State or Territory other than that of this Registry, state any facts – apart from the defendant’s principal place of business – which bear upon jurisdiction being exercised in the State or Territory of this Registry, rather than in another State or Territory.] 4. The following facts are within my own personal knowledge save as otherwise stated. 5. The defendant was on [state date of statutory demand or other relevant date] indebted to the plaintiff in the sum of $ [amount] for [state concisely the consideration, for example, goods sold and delivered etc.] which sum was then due and payable. 6. The demand, a copy of which is attached to the originating process, was signed by or on behalf of the plaintiff. I served the demand [or the demand and the accompanying affidavit] as referred to in the originating process [or X.Y. has been instructed to make an affidavit of service of the demand [or the demand and the accompanying affidavit]]. 7. The matters stated in the originating process concerning the demand and failure of the defendant to comply with it are true and correct. 8. The sum demanded remains due and payable by the defendant to me [or the plaintiff]. .................................................. on [date] .................................................. Made at [place] By [signature of deponent] ................................................................................................................................ Witnessed by ©

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(rules 2.2, 2.4 and 5.4)

Corporations Law Rules (NT) Signature Name Address or phone no. * Omit if not applicable

Schedule 2

................................................................................................................................ Justice of the peace / commissioner for oaths ................................................................................................................................ ................................................................................................................................

[Sch 2 am Act 40 of 2010, s 122, with effect from 1 Mar 2011; SL 30 of 2004, r 4, with effect from 11 Aug 2004; insrt SL 60 of 2003, r 22, with effect from 11 Feb 2004]

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Corporations Law: Practice Direction No 1 of 1992 ........................................................... [NTPD.10] Appointment of liquidators by the court on winding up of a company: Practice Direction No 5 of 2001 .................................................................................................................. [NTPD.20] Appointment of liquidators by the court on winding up of a company: Practice Direction No 5 of 2001 .................................................................................................................. [NTPD.30] Freezing orders (also known as “Mareva orders” or “asset preservation orders”): Practice Direction No 5 of 2006 ................................................................................................... [NTPD.40] Search orders (also known as “Anton Piller orders”): Practice Direction No 6 of 2006 .... [NTPD.50] Expert reports: Practice Direction No 4 of 2009 ................................................................ [NTPD.60] Corporations Law Rules Division 15A – Cross-border insolvency – Cooperation with foreign courts or foreign representatives: Practice Direction No 5 of 2009 .................. [NTPD.70] Costs in winding up of proceedings: Master’s Memorandum No 1 of 2013 ..................... [NTPD.80] Bills of costs – Winding up orders – Appointment of provisional liquidator: Master’s Memorandum No 3 of 1993 ........................................................................................... [NTPD.90] Application for determination of liquidators’ remuneration by the court: Master’s Memorandum No 1A of 1994 ........................................................................................[NTPD.100] Evidence of work done – Official liquidators’ remuneration: Registrar’s Memoranda ....... [NTPD.110] Expert Reports: Practice Direction No 6 of 2015 ...............................................................[NTPD.120]

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NT PRACTICE DIRECTIONS

NT Practice Directions [NTPD.10]

[NTPD.10]

Practice Direction No 1 of 1992

Corporations Law In pursuance of section 72 of the Supreme Court Act, I direct as follows– An order for the winding up of a company will not be made unless– (a) there has been compliance with section 470(1) of the Corporations Law; and (b) the judge or master making the order is satisfied that no prior order for the winding up of the company has been made by any court in the Commonwealth of Australia having jurisdiction to make orders for the winding up of a company. The fact that, on the day on which a winding up order is sought, a search was made of the records of the Australian Securities and Investments Commission at its Darwin office and that no prior order for winding up was found by that search, shall be sufficient evidence for the purposes of par 1(b). Evidence of the matters required by this practice direction shall be adduced by affidavit. April 1992

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[NTPD.20] [NTPD.20]

NT Practice Directions Practice Direction No 5 of 2001

Appointment of Liquidators by the Court on winding up of a company There will be established an “A”, “B” and “C” list.

On appointing a Liquidator (whether as a Provisional Liquidator or otherwise), the Court will give preference to those Liquidators on the “A” list. Where there are reasons why the appointment of a Liquidator on that list cannot be made (eg conflict of interest), the next preference will be given to the Liquidators on the “B” list. Where there are good reasons why no Liquidator on either the““A” list or the “B” list should be appointed, (eg where the company is part of a group of companies and the main or principle company has had a Liquidator appointed out of the Territory), then a Liquidator from the “C” list may be appointed. In the case of the example given, the Liquidator approved will be the Liquidator who was appointed out of the Territory. To be on the “B” list, a Liquidator will have to undertake in writing to the Master that: • he or she can operate from his or her Darwin office or the office in the place in the Northern Territory where the company had its office or operation; • he or she will pay regular visits to Darwin or to the place in the Northern Territory where the company had its office or operation; and • the costs of any interstate travel and of any additional costs involved in a liquidation by reason of the liquidator’s being resident out of the Northern Territory will be absorbed by him or her or his or her firm. In any event, any such costs claimed in a liquidation will be disallowed. Where in an application for winding up a company the appointment of a Liquidator who is on the “B” or “C” list is sought, the applicant shall, before the hearing, file an affidavit setting out the grounds upon which the appointment of such a Liquidator is sought. Such an affidavit may be made by the applicant’s solicitor on the basis of information and belief. A Liquidator whose name is entered on any of the above lists shall notify the Registrar in writing of– (a) any change of the address of his place of business; (b) such changes as– (i) the merger of his firm with that of another firm; or (ii) his retirement from business; and (c) any other changes in his circumstances which may be relevant to his being or remaining on any of the lists. A Liquidator shall give notice of any such change as soon as possible after it has occurred. 31 January 2001

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The “A” list shall consist of local resident Liquidators, ie those who reside in, and operate from Darwin, or the place in the Northern Territory where the company had its registered office or operation. The “B” list shall consist of Liquidators with Darwin offices or offices in the place in the Northern Territory where the company had its registered office or operation, but who do not reside there. The “C” list shall consist of Liquidators who neither reside in, nor have offices in Darwin, or in the place in the Northern Territory where the company had its registered office or operation.

NT Practice Directions [NTPD.30]

[NTPD.30]

Practice Direction No 3 of 2004

Guidelines – Disclosure by Insolvency Practitioners of fees to be charged 1. The Insolvency Practitioners Association of Australia no longer publishes a Scale of Rates in respect of fees. 2. Where application is made to the Court for an order that a company be wound up or for an official liquidator to be appointed as a provisional liquidator of a company, an official liquidator must consent in writing to be appointed: see Corporations Act 2001 (Cth) (“the Act”), subs 532(9); Corporations Law Rules (“the Rules”) s 6.1(2). Form 8 requires disclosure of the hourly rates currently (as at the signing of the “consent” charged in respect of work done as a liquidator or provisional liquidator (as the case may be) by the person signing the consent, and by that person’s partners and employees who may perform work in the administration in question. 3. The provisions referred to in 2 above have no application, however, to appointments of persons as external administrators: • otherwise than by the Court; or • by the Court otherwise than as liquidator or as liquidator provisionally. Moreover, even in the case of appointments as liquidators or as liquidators provisionally, the provisions referred to in 2 above do not touch on changes in the hourly rates after the signing of the Form 8 consent. 4. Various provisions of the Act empower the Court, in certain circumstances, to determine or review the remuneration of insolvency practitioners when they are filling the office of various forms of external administrator: see ss 425, 449E, 473(2), (3), (5) and (6) and 504. 5. With the exception of Form 8 where it is applicable, the provisions referred to in 2 above do not indicate a standard of disclosure of fees to be charged which the Court might regard as appropriate in any situation in which it may be relevant for the Court to take into account whether an insolvency practitioner has followed a practice of making adequate disclosure of such fees. 6. The guidelines in 7 and 8 below are intended to fill that gap. Those guidelines are not, however, intended to limit the judicial discretion available in any particular case, or to require non-observance of the guidelines to be taken into account where that would not be relevant to the exercise of a judicial discretion. All external administrators (including persons appointed as liquidators or as liquidators provisionally) should, in their first report to creditors; • disclose the hourly rate of fees which are being charged by them and by any of their partners and employees who may work in the administration; and • give their best estimate of the cost of the administration to completion or to a specified milestone identified in the report. 8. If, at any time after an external administrator has reported in accordance with 7, the hourly rates are to change, or the administrator has reason to believe that the estimate given to creditors is no longer reliable, he or she should report to creditors, disclosing the new hourly rates and giving a revised estimate. Note: These guidelines are not intended: • to prevent an external administrator from charging hourly rates or revising estimates if he or she is otherwise lawfully permitted to do so; or • to authorise an external administrator to change hourly rates or revise estimates if he or she is not otherwise lawfully permitted to do so. 3 August 2004

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[NTPD.40]

Practice Direction No 5 of 2006

Freezing Orders (also known as “Mareva orders” or “asset preservation orders”) 1. This Practice Direction supplements Order 37A of the Supreme Court Rules relating to freezing orders (also known as “Mareva orders” after Mareva Compania Naviera SA v International Bulkcarriers SA (The Mareva) [1975] 2 Lloyd’s Rep 509, or “asset preservation orders”). 2. This Practice Direction addresses (among other things) the Court’s usual practice relating to the making of a freezing order and the usual terms of such an order. While a standard practice has benefits, this Practice Direction and the example form of order annexed to it do not, and cannot, limit the judicial discretion to make such order as is appropriate in the circumstances of the particular case. 3. Words and expressions in this Practice Direction that are defined in Order 37A have the meanings given to them in that Order. 4. An example form of ex parte freezing order is annexed to this Practice Direction. The example form may be adapted to meet the circumstances of the particular case. It may be adapted for an inter partes freezing order as indicated in the footnotes to the example form (the footnotes and references to footnotes should not form part of the order as made). The example form contains provisions aimed at achieving the permissible objectives of the order consistently with the proper protection of the respondent and third parties. 5. The purpose of a freezing order is to prevent frustration or abuse of the process of the Court, not to provide security in respect of a judgment or order. 6. A freezing order should be viewed as an extraordinary interim remedy because it can restrict the right to deal with assets even before judgment, and is commonly granted ex parte. 7. The respondent is often the person said to be liable on a substantive cause of action of the applicant. However, the respondent may also be a third party, in the sense of a person who has possession, custody or control, or even ownership, of assets which he or she may be obliged ultimately to disgorge to help satisfy a judgment against another person. Subrule 5(5) addresses the minimum requirements that must ordinarily be satisfied on an application for a freezing order against such a third party before the discretion is enlivened. The third party will not necessarily be a party to the substantive proceeding, (see Cardile v LED Builders Pty Ltd (1999) 198 CLR 380) but will be a respondent to the application for the freezing or ancillary order. Where a freezing order against a third party seeks only to freeze the assets of another person in the third party’s possession, custody or control (but not ownership), the example form will require adaptation. In particular, the references to “your assets” and “in your name” should be changed to refer to the other person’s assets or name (e.g. “John Smith’s assets”, “in John Smith’s name”). 8. A freezing or ancillary order may be limited to assets in Australia or in a defined part of Australia, or may extend to assets anywhere in the world, and may cover all assets without limitation, assets of a particular class, or specific assets (such as the amounts standing to the credit of identified bank accounts). 9. The duration of an ex parte freezing order should be limited to a period terminating on the return date of the motion, which should be as early as practicable (usually not more than a day or two) after the order is made, when the respondent will have the opportunity to be heard. The applicant will then bear the onus of satisfying the Court that the order should be continued or renewed. 10. A freezing order should reserve liberty for the respondent to apply on short notice. An application by the respondent to discharge or vary a freezing order will normally be treated by the Court as urgent. 11. The value of the assets covered by a freezing order should not exceed the likely maximum amount of the applicant’s claim, including interest and costs. Sometimes it may not be possible to satisfy this principle (for example, an employer may discover that an employee has been making fraudulent misappropriations, but does not know how much has been misappropriated at the time of the discovery and at the time of the approach to the Court). 12. The order should exclude dealings by the respondent with its assets for legitimate purposes, in particular: (a) payment of ordinary living expenses; (b) payment of reasonable legal expenses; ©

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[NTPD.40]

NT Practice Directions

NT Practice Directions

13.

14.

15.

16. 17.

18. 19.

20.

[NTPD.40]

(c) dealings and dispositions in the ordinary and proper course of the respondent’s business, including paying business expenses bona fide and properly incurred; and (d) dealings and dispositions in the discharge of obligations bona fide and properly incurred under a contract entered into before the order was made. Where a freezing order extends to assets outside Australia, the order should provide for the protection of persons outside Australia and third parties. Such provisions are included in the example form of freezing order. The Court may make ancillary orders. The most common example of an ancillary order is an order for disclosure of assets. The annexed example form provides for such an order and for the privilege against self-incrimination. The rules of court confirm that certain restrictions expressed in The Siskina [1979] AC 210 do not apply in this jurisdiction. First, the Court may make a freezing order before a cause of action has accrued (a “prospective” cause of action). Secondly, the Court may make a freestanding freezing order in aid of foreign proceedings in prescribed circumstances. Thirdly, where there are assets in Australia, service out of Australia is permitted under a new ‘long arm’ service rule. As a condition of the making of a freezing order, the Court will normally require appropriate undertakings by the applicant to the Court, including the usual undertaking as to damages. If it is demonstrated that the applicant has or may have insufficient assets within the jurisdiction of the Court to provide substance for the usual undertaking as to damages, the applicant may be required to support the undertaking by providing security. There is provision for such security in the example form of freezing order. The order to be served should be endorsed with a notice which meets the requirements of O 66.10. An applicant for an ex parte freezing order is under a duty to make full and frank disclosure of all material facts to the Court. This includes disclosure of possible defences known to the applicant and of any information which may cast doubt on the applicant’s ability to meet the usual undertaking as to damages from assets within Australia. The affidavits relied on in support of an application for a freezing or ancillary order should, if possible, address the following: (a) information about the judgment that has been obtained, or, if no judgment has been obtained, the following information about the cause of action: (i) the basis of the claim for substantive relief; (ii) the amount of the claim; and (iii) if the application is made without notice to the respondent, the applicant’s knowledge of any possible defence; (b) the nature and value of the respondent’s assets, so far as they are known to the applicant, within and outside Australia; (c) the matters referred to in rule 5 of the Freezing Orders rules of court (Order 37A); and (d) the identity of any person, other than the respondent, who, the applicant believes, may be affected by the order, and how that person may be affected by it.

27 November 2006 Example form of ex parte Freezing Order Form 60C Rule 60.08 [Title of Proceeding] PENAL NOTICE TO: [name of person against whom the order is made] IF YOU: (A) REFUSE OR NEGLECT TO DO ANY ACT WITHIN THE TIME SPECIFIEDIN THIS ORDER FOR THE DOING OF THE ACT; OR (B) DISOBEY THE ORDER BY DOING AN ACT WHICH THE ORDER REQUIRESYOU TO ABSTAIN FROM DOING, 842

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[NTPD.40]

NT Practice Directions

YOU WILL BE LIABLE TO IMPRISONMENT, SEQUESTRATION OF PROPERTY OR OTHER PUNISHMENT.

ORDER JUDGE: DATE MADE: ORIGINATING PROCESS: HOW OBTAINED: OTHER MATTERS: The Court was given the undertakings set out in Schedule A to this order and after the Court read the affidavits listed in Schedule B to this order.1 TO: [name of person against whom the order is made] THE COURT ORDERS: INTRODUCTION 1. (a) The application for this order is made returnable immediately. (b) The time for service of the application, supporting affidavits and originating process is abridged and service is to be effected by [insert time and date].2 2. Subject to the next paragraph, this order has effect up to and including [insert date] (“the Return Date”). On the Return Date at [insert time] am/pm there will be a further hearing in respect of this order before Justice [insert name of Judge].3 3. Anyone served with or notified of this order, including you, may apply to the Court at any time to vary or discharge this order or so much of it as affects the person served or notified. 4. In this order: (a) “applicant”, if there is more than one applicant, includes all the applicants; (b) “you”, where there is more than one of you, includes all of you and includes you if you are a corporation; (c) “third party” means a person other than you and the applicant; (d) “unencumbered value” means value free of mortgages, charges, liens or other encumbrances. 5. (a) If you are ordered to do something, you must do it by yourself or through directors, officers, partners, employees, agents or others acting on your behalf or on your instructions. (b) If you are ordered not to do something, you must not do it yourself or through directors, officers, partners, employees, agents or others acting on your behalf or on your instructions or with your encouragement or in any other way. FREEZING OF ASSETS [For order limited to assets in Australia] 6. (a) You must not remove from Australia or in any way dispose of, deal with or diminish the value of any of your assets in Australia (“Australian assets”) up to the unencumbered value of AUD$ (“the Relevant Amount”). (b) If the unencumbered value of your Australian assets exceeds the Relevant Amount, you may remove any of those assets from Australia or dispose of or deal with them or diminish their value, so long as the total unencumbered value of your Australian assets still exceeds the Relevant Amount. [If the Court makes a worldwide order, the following additional paragraph (c) also applies.] (c) If the unencumbered value of your Australian assets is less than the Relevant Amount, and you have assets outside Australia (“ex-Australian assets”): (i) You must not dispose of, deal with or diminish the value of any of your Australian assets and ex-Australian assets up to the unencumbered value of your Australian and ex- Australian assets of the Relevant Amount; and ©

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ANY OTHER PERSON WHO KNOWS OF THIS ORDER AND DOES ANYTHING WHICH HELPS OR PERMITS YOU TO BREACH THE TERMS OF THIS ORDER MAY BE SIMILARLY PUNISHED.

NT Practice Directions

[NTPD.40]

(ii) You may dispose of, deal with or diminish the value of any of your ex-Australian assets, so long as the unencumbered value of your Australian assets and ex-Australian assets still exceeds the Relevant Amount. [For either form of order] 7. For the purposes of this order, (1) your assets include: (a) all your assets, whether or not they are in your name and whether they are solely or co-owned; (b) any asset which you have the power, directly or indirectly, to dispose of or deal with as if it were your own (you are to be regarded as having such power if a third party holds or controls the asset in accordance with your direct or indirect instructions); and (c) the following assets in particular: (i) the property known as [title/address] or, if it has been sold, the net proceeds of the sale; (ii) the assets of your business [known as [name]] [carried on at [address]] or, if any or all of the assets have been sold, the net proceeds of the sale; and (iii) any money in account [numbered account number] [in the name of] at [name of bank and name and address of branch]. (2) the value of your assets is the value of the interest you have individually in your assets. PROVISION OF INFORMATION4 8. Subject to paragraph 9, you must: (a) at or before the further hearing on the Return Date (or within such further time as the Court may allow) to the best of your ability inform the applicant in writing of all your assets in [Australia] [world wide], giving their value, location and details (including any mortgages, charges or other encumbrances to which they are subject) and the extent of your interest in the assets; (b) within [ ] working days after being served with this order, swear and serve on the applicant an affidavit setting out the above information. 9. (a) This paragraph (9) applies if you are not a corporation and you wish to object that compliance with paragraph 8 may tend to incriminate you or make you liable to a civil penalty; (b) This paragraph (9) also applies if you are a corporation and all of the persons who are able to comply with paragraph 8 on your behalf and with whom you have been able to communicate, wish to object that compliance may tend to incriminate them respectively or make them respectively liable to a civil penalty; (c) You must, at or before the further hearing on the return date (or within such further time as the Court may allow), notify the applicant in writing that you or all the persons referred to in (b) wish to take such objection and identify the extent of the objection; (d) If you give such notice, you need comply with paragraph 8 only to the extent, if any, that it is possible to do so without disclosure of the material in respect of which the objection is taken; and (e) If you give such notice, the Court may give directions as to the filing and service of affidavits setting out such matters as you or the persons referred to in (b) wish to place before the Court in support of the objection. EXCEPTIONS TO THIS ORDER 10. This order does not prohibit you from: (a) paying [up to $........ a week/day on] [your ordinary] living expenses; (b) paying [$........ on] [your reasonable] legal expenses; (c) dealing with or disposing of any of your assets in the ordinary and proper course of your business, including paying business expenses bona fide and properly incurred; and 844

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NT Practice Directions

(d) in relation to matters not falling within (a), (b) or (c), dealing with “or disposing of any of your assets” in discharging obligations bona fide and properly incurred under a contract entered into before this order was made, provided that before doing so you give the applicant, if possible, at least two working days written notice of the particulars of the obligation. 11. You and the applicant may agree in writing that the exceptions in the preceding paragraph are to be varied. In that case the applicant or you must as soon as practicable file with the Court and serve on the other a minute of a proposed consent order recording the variation signed by or on behalf of the applicant and you, and the Court may order that the exceptions are varied accordingly. 12. (a) This order will cease to have effect if you: (i) pay the sum of $........ into Court; or (ii) pay that sum into a joint bank account in the name of your solicitor and the solicitor for the applicant as agreed in writing between them; or (iii) provide security in that sum by a method agreed in writing with the applicant to be held subject to the order of the Court. (b) Any such payment and any such security will not provide the applicant with any priority over your other creditors in the event of your insolvency. (c) If this order ceases to have effect pursuant (a), you must as soon as practicable file with the Court and serve on the applicant notice of that fact. COSTS 13. The costs of this application are reserved to the judge hearing the application on the Return Date. PERSONS OTHER THAN THE APPLICANT AND RESPONDENT 14. Set off by banks This order does not prevent any bank from exercising any right of set off it has in respect of any facility which it gave you before it was notified of this order. 15. Bank withdrawals by the respondent No bank need inquire as to the application or proposed application of any money withdrawn by you if the withdrawal appears to be permitted by this order. [For world wide order] 16. Persons outside Australia (a) Except as provided in subparagraph (b) below, the terms of this order do not affect or concern anyone outside Australia. (b) The terms of this order will affect the following persons outside Australia: (i) you and your directors, officers, employees and agents (except banks and financial institutions); (ii) any person (including a bank or financial institution) who: (A) is subject to the jurisdiction of this Court; and (B) has been given written notice of this order, or has actual knowledge of the substance of the order and of its requirements; and (C) is able to prevent or impede acts or omissions outside Australia which constitute or assist in a disobedience of the terms of this order; and (iii) any other person (including a bank of financial institution), only to the extent that this order is declared enforceable by or is enforced by a court in a country or state that has jurisdiction over that person or over any of that person’s assets. [For world wide order] 17. Assets located outside Australia Nothing in this order shall, in respect of assets located outside Australia, prevent any third party from complying or acting in conformity with what it reasonably believes to be its bona fide and properly incurred legal obligations, whether contractual or pursuant to a court order or otherwise, under the law of the country or state in which those assets are situated or under the proper law of any contract between a third party and you, provided that in the case of any future order of a court of that country or state made on your or the third party’s application, reasonable written notice of the making of the application is given to the applicant. ©

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[NTPD.40]

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SCHEDULE A UNDERTAKINGS GIVEN TO THE COURT BY THE APPLICANT (1) The applicant undertakes to submit to such order (if any) as the Court may consider to be just for the payment of compensation (to be assessed by the Court or as it may direct) to any person (whether or not a party) affected by the operation of the order. (2) As soon as practicable, the applicant will file and serve upon the respondent copies of: (a) this order; (b) the application for this order for hearing on the return date; (c) the following material in so far as it was relied on by the applicant at the hearing when the order was made: (i) affidavits (or draft affidavits); (ii) exhibits capable of being copied; (iii) any written submission; and (iv) any other document that was provided to the Court. (d) a transcript, or, if none is available, a note, of any exclusively oral allegation of fact that was made and of any exclusively oral submission that was put, to the Court; (e) the originating process, or, if none was filed, any draft originating process produced to the Court. (3) As soon as practicable, the applicant will cause anyone notified of this order to be given a copy of it. (4) The applicant will pay the reasonable costs of anyone other than the respondent which have been incurred as a result of this order, including the costs of finding out whether that person holds any of the respondent’s assets. (5) If this order ceases to have effect5 the applicant will promptly take all reasonable steps to inform in writing anyone to who has been notified of this order, or who he has reasonable grounds for supposing may act upon this order, that it has ceased to have effect. (6) The applicant will not, without leave of the Court, use any information obtained as a result of this order for the purpose of any civil or criminal proceedings, either in or outside Australia, other than this proceeding. (7) The applicant will not, without leave of the Court, seek to enforce this order in any country outside Australia or seek in any country outside Australia an order of a similar nature or an order conferring a charge or other security against the respondent or the respondent’s assets. [(8) The applicant will: (a) on or before [date] cause an irrevocable undertaking to pay in the sum of $ to be issued by a bank with a place of business within Australia, in respect of any order the court may make pursuant to undertaking (1) above; and (b) immediately upon issue of the irrevocable undertaking, cause a copy of it to be served on the respondent.]6 SCHEDULE B7 AFFIDAVITS RELIED ON Name of DeponentDate affidavit made (1) (2) (3) NAME AND ADDRESS OF APPLICANT’S LEGAL REPRESENTATIVES The applicant’s legal representatives are: [Name, address, reference, fax and telephone numbers both in and out of offıce hours and email] 1 The words “and after the Court has read the affıdavits listed in Schedule B to this order” are appropriate only in the case of an ex parte order. 2 Paragraph 1 is appropriate only in the case of an ex parte order. 3 Paragraph 2 is appropriate only in the case of an ex parte order. 4 See Practice Direction paragraph 14. 846

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5 For example, if the respondent pays money into Court or provides security, as provided for in paragraph 12 of this Order. 6 See Practice Direction paragraph 17. 7 Schedule B is appropriate only in the case of an ex parte order.

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Practice Direction No 6 of 2006

Search Orders (also known as “Anton Piller Orders”) 1. This Practice Note supplements Order 37B of the Supreme Court Rules relating to search orders (also known as Anton Piller orders, after Anton Piller KG v Manufacturing Processes Ltd [1976] Ch 55). 2. This Practice Direction addresses (among other things) the Court’s usual practice relating to the making of a search order and the usual terms of such an order. While a standard practice has benefits, this Practice Direction and the example form of order annexed to it do not, and can not, limit the judicial discretion to make such order as is appropriate in the circumstances of the particular case. 3. Words and expressions in this Practice Direction that are defined in Order 37B have the meanings given to them in that Order. 4. Ordinarily, a search order is made ex parte and compels the respondent to permit persons specified in the order (“search party”) to enter premises and to search for, inspect, copy and remove the things described in the order. The order is designed to preserve important evidence pending the hearing and determination of the applicant’s claim in a proceeding brought or to be brought by the applicant against the respondent or against another person. The order is an extraordinary remedy in that it is intrusive, potentially disruptive, and made ex parte and prior to judgment. 5. An example form of ex parte search order is annexed to this Practice Direction (the footnotes and references to footnotes in the example form should not form part of the order as made). The example form may be adapted to meet the circumstances of the particular case. It contains provisions which are aimed at achieving the permissible objectives of a search order, while minimising the potential for disruption or damage to the respondent and for abuse of the Court’s process. 6. The search party must include an independent solicitor who will supervise the search and a solicitor or solicitors representing the applicant. It may be necessary that it include other persons, such as an independent computer expert, and a person able to identify things being searched for if difficulties of identification may arise. Ordinarily, the search party should not include the applicant or the applicant’s directors, officers, employees or partners or any other person associated with the applicant (other than the applicant’s solicitor). 7. The order should be clear about the maximum number of persons permitted to be in the search party. The number of people in the search party should be as small as is reasonably practicable. The example form contemplates that they will be named in the order. This is desirable but if it is not possible the order should at least give a description of the class of person who will be there (e.g. “one solicitor employed by A, B and Co”). 8. The affidavits in support of an application for a search order should include the following information: (a) a description of the things or the categories of things, in relation to which the order is sought; (b) the address or location of any premises in relation to which the order is sought and whether they are private or business premises; (c) why the order is sought, including why there is a real possibility that the things to be searched for will be destroyed or otherwise made unavailable for use in evidence before the Court unless the order is made; (d) the prejudice, loss or damage likely to be suffered by the applicant if the order is not made; (e) the name, address, firm, and commercial litigation experience of an independent solicitor, who consents to being appointed to serve the order, supervise its execution, and do such other things as the Court considers appropriate; and (f) if the premises to be searched are or include residential premises, whether or not the applicant believes that the only occupant of the premises is likely to be: (i) a female; or (ii) a child under the age of 18; or 848

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(iii) any other person (“vulnerable person”) that a reasonable person would consider to be in a position of vulnerability because of that person’s age, mental capacity, infirmity or English language ability; or (iv) any combination of (i), (ii) and (iii), and any one or more of such persons. If it is envisaged that specialised computer expertise may be required to search the respondent’s computers for documents, or if the respondent’s computers are to be imaged (i.e. hard drives are to be copied wholesale, thereby reproducing documents referred to in the order and other documents indiscriminately), special provision will need to be made, and an independent computer specialist will need to be appointed who should be required to give undertakings to the Court. The applicant’s solicitor must undertake to the Court to pay the reasonable costs and disbursements of the independent solicitor and of any independent computer expert. The independent solicitor is an important safeguard against abuse of the order. The independent solicitor must not be a member or employee of the applicant’s firm of solicitors. The independent solicitor should be a solicitor experienced in commercial litigation, preferably in the execution of search orders. The Law Society has been requested to maintain a list of solicitors who have indicated willingness to be appointed as an independent solicitor for the purpose of executing search orders, but it is not only persons on such a list who may be appointed. The responsibilities of the independent solicitor are important and ordinarily include the following: (a) serve the order, the application for it, the affidavits relied on in support of the application, and the originating process; (b) offer to explain, and, if the offer is accepted, explain the terms of the search order to the respondent; (c) explain to the respondent that he or she has the right to obtain legal advice; (d) supervise the carrying out of the order; (e) before removing things from the premises, make a list of them, allow the respondent a reasonable opportunity to check the correctness of the list, sign the list, and provide the parties with a copy of the list; (f) take custody of all things removed from the premises until further order of the Court; (g) if the independent solicitor considers it necessary to remove a computer from the premises for safekeeping or for the purpose of copying its contents electronically or printing out information in documentary form, remove the computer from the premises for that purpose, and return the computer to the premises within any time prescribed by the order together with a list of any documents that have been copied or printed out; (h) submit a written report to the Court within the time prescribed by the order as to the execution of the order; and (i) attend the hearing on the, return date of the application, and have available to be brought to the Court all things that were removed from the premises. On the return date the independent solicitor may be required to release material in his or her custody which has been removed from the respondent’s premises or to provide information to the Court, and may raise any issue before the Court as to execution of the order. Ordinarily, the applicant is not permitted, without the leave of the Court, to inspect things removed from the premises or copies of them, or to be given any information about them by members of the search party. Ordinarily, a search order should be served between 9:00am and 2:00pm on a business day in order to permit the respondent more readily to obtain legal advice. However, there may be circumstances in which such a restriction is not appropriate. A search order must not be executed at the same time as the execution of a search warrant by the police or by a regulatory authority. If the premises are or include residential premises and the applicant is aware that when service of the order is effected the only occupant of the residential premises is likely to be any one or more of a female, a child under the age of 18, or a vulnerable person, the Court will give consideration to whether:

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(a) if the occupants are likely to include a female or child, the independent solicitor should be a woman or the search party should otherwise include a woman; and (b) if the occupants are likely to include a vulnerable person, the search party should include a person capable of addressing the relevant vulnerability. Any period during which the respondent is to be restrained from informing any other person (other than for the purposes of obtaining legal advice) of the existence of the search order should be as short as possible and not extend beyond 4:30pm on the Return Date. At the inter partes hearing of the application on the return date, the Court will consider the following issues: (a) what is to happen to any things removed from the premises or to any copies which have been made; (b) how any commercial confidentiality of the respondent is to be maintained; (c) any claim of privilege by the respondent; (d) any application by a party; and (e) any issue raised by the independent solicitor. Appropriate undertakings to the Court will be required of the applicant, the applicant’s solicitor and the independent solicitor, as conditions of the making of the search order. The undertakings required of the applicant will normally include the Court’s usual undertaking as to damages. The applicant’s solicitor’s undertaking includes an undertaking not to disclose to the applicant any information that the solicitor has acquired during or as a result of execution of the search order, without the leave of the Court. Release from this undertaking in whole or in part may be sought on the return date. If it is demonstrated that the applicant has or may have insufficient assets within the jurisdiction of the Court to provide substance for the usual undertaking as to damages, the applicant may be required to provide security for the due performance of that undertaking. The security may, for example, take the form of a bank’s irrevocable undertaking to pay or a payment into Court. The example form of search order contains provision for an irrevocable undertaking. An applicant ex parte for a search order is under a duty to the Court to make full and frank disclosure of all material facts to the Court. This includes disclosure of possible defences known to the applicant and of any financial information which may cast doubt on the applicant’s ability to meet the usual undertaking as to damages from assets within Australia. The order to be served should be endorsed with a notice which meets the requirements of O 66.10. A search order is subject to the Court’s adjudication of any claim of privilege against self-incrimination. The privilege against selfincrimination is available to individuals but not to corporations. The Court will not make an order reducing or limiting that privilege in circumstances where the legislature has not indicated that it may do so.

27 November 2006 Example Form of Search Order Form 60C Rule 60.08 GENERAL FORM OF ORDER [Title of Proceeding] PENAL NOTICE TO: [name of person against whom the order is made] IF YOU (BEING THE PERSON BOUND BY THIS ORDER): (A) REFUSE OR NEGLECT TO DO ANY ACT WITHIN THE TIME SPECIFIEDIN THE ORDER FOR THE DOING OF THE ACT; OR (B) DISOBEY THE ORDER BY DOING AN ACT WHICH THE ORDER REQUIRESYOU TO ABSTAIN FROM DOING, YOU WILL BE LIABLE TO IMPRISONMENT, SEQUESTRATION OF PROPERTY OR OTHER PUNISHMENT. 850

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ANY OTHER PERSON WHO KNOWS OF THIS ORDER AND DOES ANYTHING WHICH HELPS OR PERMITS YOU TO BREACH THE TERMS OF THIS ORDER MAY BE SIMILARLY PUNISHED.

THE COURT ORDERS: INTRODUCTION 1. (a) the application for this order is made returnable immediately. (b) the time for service of the application, supporting affidavits and originating process is abridged and service is to be effected by [insert time and date]. 2. Subject to the next paragraph, this order has effect up to and including [insert date] (“the Return Date”). On the Return Date at [insert time] am/pm there will be a further hearing in respect of this order before Justice [insert name of Judge]. 3. You may apply to the Court at any time to vary or discharge this order; including, if necessary, by telephone to the judge referred to in the immediately preceding paragraph (phone No. ). 4. This order may be served only between [insert time] am/pm and [insert time] am/pm [on a business day].1 5. In this order: (a) “applicant” means the person who applied for this order, and if there is more than one applicant, includes all the applicants. (b) “independent computer expert” means the person (if any) identified as the independent computer expert in the search party referred to in Schedule A to this order. (c) “independent solicitor” means the person identified as the independent solicitor in the search party referred to in Schedule A to this order. (d) “listed thing” means any thing referred to in Schedule A to this order. (e) “premises” means the premises and any of the premises identified in Schedule A to this order, including any vehicles and vessels that are under the respondent’s control on or about the premises or that are otherwise identified in Schedule A. (f) “search party” means the persons identified or described as constituting the search party in Schedule A to this order. (g) “thing” includes a document. (h) “you”, where there is more than one of you, includes all of you and includes you if you are a corporation. (i) any requirement that something be done in your presence means: (i) in the presence of you or of one of the persons described in (6) below; or (ii) if there is more than one of you, in the presence of each of you, or, in relation to each of you, in the presence of one of the persons described in (6) below. 6. This order must be complied with by you by: (a) yourself; or (b) any director, officer, partner, employee or agent of yourself; or (c) any other person having responsible control of the premises. 7. This order must be served by, and be executed under the supervision of, the independent solicitor. ENTRY, SEARCH AND REMOVAL 8. Subject to paragraphs 10 to 20 below, upon service of this order you must permit members of the search party to enter: the premises so that they can carry out the search and other activities referred to in this order. 9. Having permitted members of the search party to enter the premises, you must: ©

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ORDER JUDGE: DATE MADE: ORIGINATING PROCESS: HOW OBTAINED: OTHER MATTERS: The Court was given the undertakings set out in Schedule B to this order and after the Court read the affidavits listed in Schedule C to this order. TO: [name of person against whom the order is made]

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(a) permit them to leave and re-enter the premises on the same and the following day until the search and other activities referred to in this order are complete; (b) permit them to search for and inspect the listed things and to make or obtain a copy, photograph, film, sample, test or other record of the listed things; (c) disclose to them the whereabouts of all the listed things in the respondent’s possession, custody or power, whether at the premises or otherwise; (d) disclose to them the whereabouts of all computers, computer disks and electronic information storage devices or systems at the premises in which any documents among the listed things are or may be stored, located or recorded and cause and permit those documents to be printed out; (e) do all things necessary to enable them to access the listed things, including opening or providing keys to locks and enabling them to access and operate computers and providing them with all necessary passwords; (f) permit the independent solicitor to remove from the premises into the independent solicitor’s custody: (i) the listed things or things which reasonably appear to the independent solicitor to be the listed things and any things the subject of dispute as to whether they are listed things; and (ii) the copies, photographs, films, samples, tests, other records and printed out documents referred to above; and (g) permit the independent computer expert (if there is one) to search any computer and make a copy or digital copy of any computer hard drive and permit the independent computer expert (if any) or the independent solicitor to remove any computer hard drive and computer from the premises as set out in paragraphs 20 and 21 below. RESTRICTIONS ON ENTRY, SEARCH AND REMOVAL 10. This order may not be executed at the same time as a search warrant (or similar process) is executed by the police or by a regulatory authority. 11. You are not required to permit anyone to enter the premises until: (a) the independent solicitor serves you with copies of this order and any affidavits referred to in Schedule C (confidential exhibits, if any, need not be served until further order of the Court); and (b) you are given an opportunity to read this order and, if you so request, the independent solicitor explains the terms of this order to you. 12. Before permitting entry to the premises by anyone other than the independent solicitor, you, for a time (not exceeding two hours from the time of service or such longer period as the independent solicitor may permit): (a) may seek legal advice; (b) may ask the Court to vary or discharge this order; (c) (provided you are not a corporation) may gather together any things which you believe may tend to incriminate you or make you liable to a civil penalty and hand them to the independent solicitor in (if you wish) a sealed envelope or container; and (d) may gather together any documents that passed between you and your lawyers for the purpose of obtaining legal advice or that are otherwise subject to legal professional privilege or client legal privilege, and hand them to the independent solicitor in (if you wish) a sealed envelope or container. 13. Subject to paragraph 22 below, the independent solicitor must not inspect or permit to be inspected by anyone, including the applicant and the applicant’s solicitors, any thing handed to the independent solicitor in accordance with subparagraphs 12(c) and (d) above and the independent solicitor must deliver it to the Court at or prior to the hearing on the Return Date. 14. During any period referred to in para 12 above, you must: (a) inform and keep the independent solicitor informed of the steps being taken; (b) permit the independent solicitor to enter the premises but not to start the search; (c) not disturb or remove any listed things; and 852

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(d) comply with the terms of paragraphs 25 and 26 below. 15. Any thing the subject of a dispute as to whether it is a listed thing must promptly be handed by you to the independent solicitor for safekeeping pending resolution of the dispute or further order of the Court. 16. Before removing any listed things from the premises (other than things referred to in the immediately preceding paragraph), the independent solicitor must supply a list of them to you, give you a reasonable time to check the correctness of the list, and give you and the applicant’s solicitors a copy of the list signed by the independent solicitor. 17. The premises must not be searched, and things must not be removed from the premises, except in the presence of you or of a person who appears to the independent solicitor to be your director, officer, partner, employee, agent or other person acting on your behalf or on your instructions. 18. If the independent solicitor is satisfied that full compliance with the immediately preceding paragraph is not reasonably practicable, the independent solicitor may permit the search to proceed and the listed things to be removed without full compliance. 19. The applicant’s solicitors and the independent solicitor must not allow the applicant in person to inspect or have copies of any thing removed from the premises nor communicate to the applicant information about its contents or about anything observed at the premises until 4:30pm on the return date or other time fixed by further order of the Court. COMPUTERS 20. (a) If it is expected that a computer will be searched, the search party must include a computer expert who is independent of the applicant and of the applicant’s solicitors (“the independent computer expert”). (b) Any search of a computer must be carried out only by the independent computer expert. (c) The independent computer expert may make a copy or digital copy of the computer hard drive and remove that copy or digital copy from the premises. (d) The independent computer expert may search the computer or the copy or digital copy of the computer hard drive at the premises and/or away from the premises for listed things and may copy the listed things electronically or in hard copy or both. (e) The independent computer expert must as soon as practicable and, in any event, prior to the hearing on the return date, deliver the copy or digital copy of the computer hard drive and all electronic and hard copies of listed things to the independent solicitor, together with a report of what the independent computer expert has done including a list of such electronic and hard copies. (f) The independent solicitor must, at or prior to the hearing on the return date, deliver to the Court all things received from the independent computer expert and serve a copy of the latter’s report on the parties. (g) If no independent computer expert has been appointed, but the independent solicitor considers it necessary to remove a computer from the premises for safekeeping or for the purpose of copying its contents electronically and printing out information in documentary form, the independent solicitor may remove the computer from the premises for that purpose and cause that purpose to be achieved. 21. (a) Unless you are a corporation, you are entitled to object to paragraphs 20(b) to (f) on the ground that they might tend to incriminate you or make you liable to a civil penalty. (b) You are also entitled to object to paragraphs 20(b) to (f) on the ground that the computer contains material that is otherwise privileged. (c) Upon communicating any objection under para (a) or (b) to the independent solicitor, paragraphs 20(b) to (f) become inoperative to the extent that you have objected to them. In that event, if the applicant’s solicitor communicates to the independent solicitor that the applicant proposes to contest the objection: (i) the independent computer expert shall remove the computer hard drive (or, if that is not practicable, the computer) from the premises and deliver it into the custody of the independent solicitor who shall deliver it to the Court at or prior to the Return Date. ©

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(ii) on the Return Date or on another date, the applicant may apply to the Court for orders to similar effect as paragraphs 20(b) to (f) and if you object, the Court may adjudicate upon your objection. INSPECTION 22. Prior to the Return Date, you or your solicitor or representative shall be entitled, in the presence of the independent solicitor, to inspect any thing removed from the premises and to: (a) make copies of the same; and (b) provide the independent solicitor with a signed list of things which are claimed to be privileged or confidential and which you claim ought not to be inspected by the applicant. PROVISION OF INFORMATION 23. Subject to paragraph 24 below, you must: (a) at or before the further hearing on the Return Date (or within such further time as the Court may allow) to the best of your ability inform the applicant in writing as to: (i) the location of the listed things; (ii) the name and address of everyone who has supplied you, or offered to supply you, with any listed thing; (iii) the name and address of every person to whom you have supplied, or offered to supply, any listed thing; and (iv) details of the dates and quantities of every such supply and offer. (b) within [ ] working days after being served with this order, make and serve on the applicant an affidavit setting out the above information. 24. (a) This paragraph (24) applies if you are not a corporation and you wish to object that compliance with paragraph 23 may tend to incriminate you or make you liable to a civil penalty. (b) This paragraph (24) also applies if you are a corporation and all of the persons who are able to comply with paragraph 23 on your behalf and with whom you have been able to communicate, wish to object that compliance may tend to incriminate them or make them liable to a civil penalty. (c) You must, at or before the further hearing on the Return Date (or within such further time as the Court may allow), notify the applicant in writing that you or all the persons referred to in (b) wish to take such objection and identify the extent of the objection. (d) If you give such notice, you need comply with paragraph 23 only to the extent, if any, that it is possible to do so without disclosure of the material in respect of which the objection is taken. (e) If you give such notice, the Court may give directions as to the filing and service of affidavits setting out such matters as you or the persons referred to in (b) wish to place before the Court in support of the objection. PROHIBITED ACTS 25. Except for the sole purpose of obtaining legal advice, you must not, until 4:30pm on the Return Date, directly or indirectly inform any person of this proceeding or of the contents of this order, or tell any person that a proceeding has been or may be brought against you by the applicant. 26. Until 4:30pm on the Return Date you must not destroy, tamper with, cancel or part with possession, power, custody or control of the listed things otherwise than in accordance with the terms of this order or further order of the Court. COSTS 27. The costs of this application are reserved to the Judge hearing the application on the Return Date. SCHEDULE A Premises The premises located at [insert address or addresses] including any vehicle or vehicles under the respondent’s control on or about those premises. Listed Things 1. 854

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2. 3. Search Party 1. The independent solicitor: [insert name and address] 2. The applicant’s solicitor or solicitors: (a) [insert name and address] [or description e.g. a partner or employed solicitor of A, B and Co]. (b) [insert name and address] [or description e.g. a partner or employed solicitor of A, B and Co]. (c) [insert name and address] [or description e.g. a partner or employed solicitor of A, B and Co]. NT

3. Other members of the search party: (a) [insert name and address] in the capacity of [e.g. an independent computer expert] (b) [insert name and address] in the capacity of [insert capacity] SCHEDULE B UNDERTAKINGS GIVEN TO THE COURT Undertakings given to the Court by the applicant (1) The applicant undertakes to submit to such order (if any) as the Court may consider to be just for the payment of compensation (to be assessed by the Court or as it may direct) to any person (whether or not a party) affected by the operation of the order. (2) The applicant will not, without leave of the Court, use any information, document or thing obtained as a result of the execution of this order for the purpose of any civil or criminal proceeding, either within or outside Australia, other than this proceeding. (3) The applicant will not inform any other person of the existence of this proceeding except for the purposes of this proceeding until after 4:30pm on the Return Date. (4) If the applicant has not already done so, as soon as practicable the applicant will file a notice of motion for hearing on the Return Date and an originating process [in the form of the draft produced to the Court]. [(5) The applicant will insure the things removed from the premises against loss or damage for an amount that reasonably appears to the applicant to be their full value.2] [(6) The applicant will3: (a) on or before [insert date] cause a written irrevocable undertaking to pay in the sum of $[insert amount] to be issued from a bank with a place of business within Australia, in respect of any order the Court may make referred to in the undertaking as to damages contained in paragraph (1) above; and (b) immediately upon issue of the irrevocable undertaking to pay, cause a copy of it to be served on the respondent.] Undertakings given to the Court by the applicant’s solicitor (1) The applicant’s solicitor will pay the reasonable costs and disbursements of the independent solicitor and of any independent computer expert. (2) The applicant’s solicitor will provide to the independent solicitor for service on the respondent copies of the following documents: (a) this order; (b) the application for this order for hearing on the Return Date; (c) the following material in so far as it was relied on by the applicant at the hearing when the order was made: (i) affidavits (or draft affıdavits); (ii) exhibits capable of being copied (other than confidential exhibits); (iii) any written submission; and (iv) any other document that was provided to the Court. (d) a transcript, or, if none is available, a note, of any exclusively oral allegation of fact that was made and of any exclusively oral submission that was put, to the Court; and (e) the originating process, or, if none was filed, any draft originating process produced to the Court. ©

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(3) The applicant’s solicitor will answer to the best of his or her ability any question as to whether a particular thing is a listed thing. (4) The applicant’s solicitor will use his or her best endeavours to act in conformity with the order and to ensure that the order is executed in a courteous and orderly manner and in a manner that minimises disruption to the respondent. (5) The applicant’s solicitor will not, without leave of the Court, use any information, document or thing obtained as a result of the execution of this order for the purpose of any civil or criminal proceeding, either within or outside Australia, other than this proceeding. (6) The applicant’s solicitor will not inform any other person of the existence of this proceeding except for the purposes of this proceeding until after 4:30pm on the Return Date. (7) The applicant’s solicitor will not disclose to the applicant any information that the solicitor acquires during or as a result of execution of the search order, without the leave of the Court. (8) The applicant’s solicitor will use best endeavours to follow all directions of the independent solicitor. Undertakings given to the Court by the independent solicitor (1) The independent solicitor will use his or her best endeavours to serve the respondent with this order and the other documents referred to in undertaking (2) of the above undertakings by the applicant’s solicitor or solicitors. (2) Before entering the premises, the independent solicitor will: (a) offer to explain the terms and effect of the search order to the person served with the order and, if the offer is accepted, do so; and (b) inform the respondent of his or her right to take legal advice. (3) Subject to undertaking (4) below, the independent solicitor will retain custody of all things removed from the premises by the independent solicitor pursuant to this order until delivery to the Court or further order of the Court. (4) At or before the hearing on the Return Date, the independent solicitor will provide a written report on the carrying out of the order to the Court and provide a copy to the applicant’s solicitors and to the respondent or the respondent’s solicitors. The report will attach a copy of any list made pursuant to the order and a copy of any report received from an independent computer expert. (5) The independent solicitor will use best endeavours to ensure that members of the search party act in conformity with the order and that the order is executed in a courteous and orderly manner and in a manner that minimises disruption to the respondent, and will give such reasonable directions to other members of the search party as are necessary or convenient for the execution of the order. (6) The independent solicitor will not, without leave of the Court, use any information, document or thing obtained as a result of the execution of this order for the purpose of any civil or criminal proceeding, either within or outside Australia, other than this proceeding. (7) The independent solicitor will not inform any other person of the existence of this proceeding except for the purposes of this proceeding until after 4:30pm on the Return Date. Undertakings given to the Court by the independent computer expert (1) The independent computer expert will use his or her best endeavours to act in conformity with the order and to ensure that the order, so far as it concerns the independent computer expert, is executed in a courteous and orderly manner and in a manner that minimises disruption to the respondent. (2) The independent computer expert will not, without leave of the Court, use any information, document or thing obtained as a result of the execution of this order for the purpose of any civil or criminal proceeding, either within or outside Australia, other than this proceeding. (3) The independent computer expert will not inform any other person of the existence of this proceeding except for the purposes of this proceeding until after 4:30pm on the Return Date. (4) The independent computer expert will use best endeavours to follow all directions of the independent solicitor. SCHEDULE C AFFIDAVITS RELIED ON Name of DeponentDate affidavit made 856

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(1) (2) (3)

1 Normally the order should be served between 9:00 am and 2:00 pm on a business day to enable the respondent more readily to obtain legal advice. 2 Depending on the nature of the things likely to be removed and their likely value, and the likely particular risks of their being lost or damaged, this undertaking or a more elaborate one may be required. 3 See Practice Direction paragraph 19.

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NAME AND ADDRESS OF APPLICANT’S LEGAL REPRESENTATIVES The Applicant’s legal representatives are: [Name, address, reference, fax and telephone numbers both in and out of offıce hours and email].

NT Practice Directions [NTPD.60]

[NTPD.60]

Practice Direction No 4 of 2009

Expert Reports 1. This practice direction applies to all expert reports prepared after the date hereof in respect of a matter in the Court’s civil jurisdiction (except for reports to which O 33 applies), and applies in addition to, and to the extent that it is not inconsistent with, the requirements of O 44. 2. Unless otherwise ordered, a party who intends at trial to adduce the evidence of a person as an expert shall – (a) as soon as practicable after the engagement of the expert and before the expert makes a report, provide the expert with a copy of the code of conduct for experts set out hereunder; (b) not later than 6 weeks before the day fixed for trial serve on each other party a report by the expert in accordance with paragraph 3 and file a copy for use of the Court. 3. The report shall state the opinion of the expert and shall state, specify or provide – (1) the name and address of the expert; (2) an acknowledgement that the expert has read the code and agrees to be bound by it; (3) the qualifications of the expert to prepare the report; (4) the facts, matters and assumptions on which the opinion is based (a letter of instructions may be annexed); (5) the reasons for, any literature or other materials utilised in support of, and a summary of the opinion; (6) if applicable, that a particular question, issue or matter falls outside the expert’s field of expertise; (7) any examinations, tests, or other investigations on which the expert has relied, identifying the person who carried them out and that person’s qualifications; (8) details of any other expert reports read by the expert and the extent to which the expert agrees with those reports and, to the extent that there is disagreement, the reasons why; (9) a declaration – (a) that the expert has made all enquiries which the expert believes are desirable and appropriate; and (b) that no matters of significance which the expert regards as relevant have, to the knowledge of the expert, been withheld from the Court; (10) any qualification of an opinion expressed in the report without which the report is or may be incomplete or inaccurate; and (11) whether an opinion expressed in the report is not a concluded opinion because of insufficient research or insufficient data or for any other reason. 4. If the expert provides to a party a supplementary report, including a report indicating that the expert has changed his or her opinion on a material matter expressed in an earlier report – (1) that party shall forthwith serve the supplementary report on all other parties; and (2) in default of such service, the party and the any other party having a like interest shall not use the earlier report of the supplementary report at trial without the leave of the Court. 5. Any report provided by an expert pursuant to this practice direction – (1) shall be signed by the expert; and (2) shall be accompanied by clear copies of any photographs, plans, calculations, analyses, measurements, survey reports or other extrinsic matter to which the report refers. 6. Save with the leave of the Court or by consent of the parties affected, a party shall not except in cross examination, adduce any evidence from a person as an expert at the trial of a proceeding unless the substance of the evidence is contained within a report or reports which the party has served in accordance with this practice direction. 7. Unless otherwise ordered, a party may put in evidence a report served on that party by another party under this Practice Direction. Expert Witness Code of Conduct 1. The expert witness code of conduct is as set out hereunder: 858

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(1) A person engaged as an expert witness has an overriding duty to assist the Court impartially on matters relevant to the area of expertise of the witness. (2) An expert witness is not an advocate for a party. (3) Every report prepared by an expert witness for the use of the Court shall state the opinion or opinions of the expert and shall state, specify or provide – (a) the name and address of the expert; (b) an acknowledgement that the expert has read this code and agrees to be bound by it; (c) the qualifications of the expert to prepare the report; (d) the facts, matters and assumptions on which each opinion expressed in the report is based (a letter of instructions may be annexed); (e) the reasons for, any literature or other materials utilised in support of, and a summary of each such opinion; (f) (if applicable) that a particular question, issue or matter falls outside the expert’s filed of expertise; (g) any examinations, tests or other investigations on which the expert has relied, identifying the person who carried them out and that person’s qualifications; (h) a declaration that the expert has made all inquires which the expert believes are desirable and appropriate, and that no matters of significance which the expert regards as relevant have, to the knowledge of the expert, been withheld from the Court; (i) any qualification of an opinion expressed in the report without which the report is or may be incomplete or inaccurate; (j) details of any other expert reports seen by the expert and the extent to which the expert agrees with those reports and, to the extent that there is disagreement, the reasons why; and (k) whether any opinion expressed in the report is not a concluded opinion because of insufficient research or insufficient data or for any other reason. 2. Where an expert witness has provided to a party (or that party’s legal representative) a report for the use of the Court, and the expert thereafter changes his or her opinion on a material matter, the expert shall forthwith provide to the party (or that party’s legal representative) a supplementary report which shall state, specify or provide the information referred to in paragraphs (a) (d) (e) (g) (h) (i) and (j) of sub-clause 1(3) of this code and, if applicable, paragraph (f) of that clause. 3. If directed to do so by the Court, an expert witness shall – (1) confer with any other expert witness; and (2) provide the Court with a joint report specifying (as the case requires) matters agreed and matters not agreed and the reasons for the experts not agreeing. 4. Each expert witness shall exercise his or her independent judgment in relation to every conference in which the expert participates pursuant to a direction of the Court and in relation to each report thereafter provided, and shall not act on any instruction or request to withhold or avoid agreement. 22 May 2009

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[NTPD.60]

NT Practice Directions [NTPD.70]

[NTPD.70]

Practice Direction No 5 of 2009

Corporations Law Rules Division 15A – Cross-Border Insolvency – Cooperation with Foreign Courts or Foreign Representatives The Cross-Border Insolvency Act 2008 (Cth) (the Act) provides in s 6 that, subject to the Act, the Model Law on Cross-Border Insolvency of the United Nations Commission on International Trade Law (UNCITRAL) (the Model Law), with the modifications set out in Pt 2 of the Act, has the force of law in Australia. The English text of the Model Law is set out in Schedule 1 to the Act. Chapter IV of the Model Law, comprising Articles 25-27, provides for cooperation with foreign courts and foreign representatives in the cross-border insolvency matters that are referred to in Article 1 of the Model Law. Articles 25 and 27 of the Model Law, as modified by s 11 of the Act, and as presently relevant, provide: Article 25 Cooperation and direct communication between [this Court] and foreign courts or foreign representatives 1. In matters referred to in article 1, the court shall cooperate to the maximum extent possible with foreign courts or foreign representatives, either directly or through a registered liquidator (within the meaning of section 9 of the Corporations Act 2001). 2. The court is entitled to communicate directly with, or to request information or assistance directly from, foreign courts or foreign representatives. Article 27 Forms of cooperation Cooperation referred to in [article 25] may be implemented by any appropriate means, including: (a) Appointment of a person or body to act at the direction of the court; (b) Communication of information by any means considered appropriate by the court; (c) Coordination of the administration and supervision of the debtor’s assets and affairs; (d) Approval or implementation by courts of agreement concerning the coordination of proceedings; (e) Coordination of concurrent proceedings regarding the same debtor; (f) [The enacting State may wish to list additional forms or examples of cooperation]. [Section 18 of the Act provides that no additional forms or examples of cooperation are added.] The form or forms of cooperation appropriate to each particular case will depend on the circumstances of that case. As experience and jurisprudence in the area develop, it may be possible for later versions of this Practice Direction to lay down certain parameters or guidelines. Cooperation between the Court and a foreign court or foreign representative under Article 25 will generally occur within a framework or protocol that has previously been approved by the Court, and is known to the parties, in the particular proceeding. Ordinarily it will be the parties who will draft the framework or protocol. In doing so, the parties should have regard to: • the Guidelines Applicable to Court-to-Court Communication in Cross-Border Cases published by The American Law Institute and The International Insolvency Association (available at www.ali.org/ doc/Guidelines.pdf); and • the Draft UNCITRAL Notes on cooperation, communication and coordination in cross-border insolvency proceedings (available at http://www.uncitral.org/uncitral/en/ commission/working_ groups/5Insovency.html, by clicking the link under the heading “35th Session, 17-21 November 2008, Vienna” (last item)). 11 June 2009

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NT Practice Directions Memorandum to Practitioners No 1/13

Memorandum to Practitioners No 1/13 - Costs in winding up proceedings This memorandum is in substitution for Master’s Memorandum No 2/93 and applies in respect of the taxation of costs in winding up proceedings filed from the date hereof.

The composite fee was initially set at an amount which represented the then average amount allowed on a full taxation in such matters. The composite fee has been revised annually contemporaneously with the review of the unit rate for costs pursuant to the Supreme Court Rules. Currently the composite fee is $3,023.00. Additionally, where the court allowed or reserved the costs of an adjournment, Master’s Memoranda No 2/93 provided that the composite fee bill could include an additional fee for each such adjournment. The fee was set at 10 units at the standard rate but that fee has never been revised. Henceforth the fee will be increased to 10 units at the current standard rate, namely $250.00. In future the adjournment fee will be revised whenever the composite fee is revised. Where the Plaintiff elects to accept the composite fee, a Summons for Taxation is not required. The Plaintiff is only required to file a bill in short form, in the form of the sample attached with such variations as are required. The composite fee bill is to be endorsed with a notation that the Liquidator may, by notice in writing given to the Registrar or the Plaintiff, no later than 8 days after the service of the bill, object to the bill in that form. It must be served on the Liquidator no later than 10 days before it is filed. Service on the Liquidator may be effected by post addressed to the Liquidator’s office and will be effective service if it is not returned as undelivered. Alternatively it may be served by electronic mail provided that a receipt acknowledgement is requested and received and provided further that the Taxing Master is satisfied as to the correct email address. If the Liquidator files an objection to the composite fee bill at the Supreme Court then the Registrar will notify the Plaintiff’s solicitor of the objection and no further action will then be taken in respect of the composite fee bill. Where the Liquidator gives notice to the Plaintiff’s solicitor, then the composite fee bill procedure may not be utilised. In either case, the Plaintiff will then be required to follow the usual procedure and produce the usual bill which will be dealt with in the usual way. In that event, the Plaintiff may claim the costs of and incidental to the attempted composite fee taxation. If the Liquidator notifies the Plaintiff that he/she does not object to the composite fee procedure then that fact shall be endorsed on the short form bill. Otherwise the fact that the Liquidator has not notified the Plaintiff of an objection to the composite fee bill is to be acknowledged in the composite fee bill. If service on the Liquidator is effected in the manner provided for in this Memorandum, then it will not be necessary for proof of service to be filed provided the short form bill is endorsed to that effect in accordance with the attached sample. It should be noted that the composite fee takes into account service of all documents by the solicitor’s clerk so that a fee for service in the disbursements will not be allowed. As soon as practicable upon the filing of a composite fee bill, accompanied by photocopies of supporting documents in respect of disbursements, if the procedure set out in this Memorandum has been complied with, the bill will be allowed without the need for anyone to attend on the taxation. A form of order in triplicate (see sample attached) should accompany the bill. Subject to there being no objection received from the Liquidator, the order will be authenticated and sealed and, upon payment of the taxing fee, copies made available to the solicitor for service. The usual taxing fee of 7.5% of the total of costs and disbursements allowed will apply to a composite fee bill. Where a practitioner opts not to accept the composite fee, then the practitioner will then be required to follow the usual procedure and produce the usual bill which will be dealt with in the usual way. 13 March 2013 IN THE SUPREME COURT ©

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Master’s Memorandum No 2/93 established a simplified process in respect of the taxation of costs in proceedings for the winding up of a company where the Plaintiff elected to accept the composite fee prescribed from time to time in lieu of the taxation procedure set out in the Supreme Court Rules.

[NTPD.80]

NT Practice Directions OF THE NORTHERN TERRITORY OF AUSTRALIA AT DARWIN No of 2008 (

)

BETWEEN: (name) Plaintiff AND: (name) Defendant IN THE MATTER OF (name of company), In Liquidation BILL OF COSTS 1. 2. 3.

Plaintiff’s bill of costs on composite fee basis (where applicable) Costs on adjournment on (date) allowed (or reserved) by the Court on (date) (allow 10 units at the current rate eg 10 x $25.00) Plus disbursements, per the attached copies of invoices:a) Search fees:b) Photocopying fees:c) Filing fee:d) Advertisement:Total disbursements:

4. 5.

$ $ $ $ $ $ $

Plus 7.5% taxing fee on total costs and disbursements Total costs

$ $ $

TO: (name of Liquidator)(address) 1. The Plaintiff in this proceeding has elected to accept the composite fee for costs of winding up the company. 2. TAKE NOTICE that 10 days after service on you of this bill, the plaintiff intends to file a copy of the bill at the Supreme Court for an order for costs as shown above. You may, by notice in writing delivered either to the Registrar at the Supreme Court Registry or to the Plaintiff by post or delivered to the address specified below within 8 days of this service on you, object to the bill in this form. Thereafter the plaintiff will be required to file, and serve upon you, a Summons for Taxation and a full Bill of Costs in taxable form in as is otherwise required by the Supreme Court Rules. Additional costs will be incurred in that event which the Plaintiff will be entitled to claim those additional costs on taxation. TO: THE TAXING MASTER This bill of costs was served on the liquidator on (insert date) the manner permitted by Master’s Memorandum 1/2013. *The Liquidator has notified me that he/she has no objection to taxation of the Plaintiff’s costs by composite fee short form bill. *The Liquidator has not notified me that he/she objects to taxation of the Plaintiff’s costs by composite fee short form bill. *Delete whichever is not applicable 862

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Dated the day of 20 ((Signature of Plaintiff’s solicitor)) Plaintiff’s address for service:

(

NT

IN THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA AT DARWIN No of 20 )

BETWEEN: (name) Plaintiff AND: (name) IN THE MATTER OF (name of company), In Liquidation ORDER

TAXING MASTER: DATE MADE: ORIGINATING PROCESS: HOW OBTAINED: APPEARANCE: OTHER MATTERS: THE COURT ORDERS THAT: The Plaintiff’s costs be allowed in the sum of $ a taxing fee of $ DATE AUTHENTICATED:

ORDER (leave blank) (leave blank) Originating Process filed (date) Taxation of costs pursuant to Master’s Memorandum 1/2013 Nil

(total amount) including

REGISTRAR

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[NTPD.90]

Master’s Memoranda No 3 of 1993

Memorandum to all Legal Practitioners No 3/93 – Bills of costs – winding up orders – appointment of Provisional Liquidator Following my recent memo and attachments concerning the above I have been requested to extend the winding up composite fee to include, where relevant, the appointment of a provisional liquidator. Without disbursements, the costs of preparing an itemised bill, the costs of taxation and with no adjournments, in a case where a provisional liquidator has been appointed, the costs of having a provisional liquidator appointed averages out at $750.00.* Accordingly, a practitioner will now have the option of accepting a further composite fee of $750.00* in cases of this kind. An additional fee of $140.00* for each adjournment where the court has allowed or reserved costs will apply. The usual taxing fee of 7.5% of the total of costs and disbursements allowed will also apply. The forms circulated with my recent memo, with any necessary modifications in wording, should be used. # 29 July 1993

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[NTPD.100]

Master’s Memoranda No 1A of 1994

Memorandum to all Official Liquidators (NT) (“A” & “B” Lists) and to all Legal Practitioners – No 1A/94 – Application for determination of Liquidators’ remuneration by the Court Section 473 of the Corporations Law provides for the determination of remuneration payable to a Liquidator. Sub-section (3) provides that that determination is to be: (a) if there is a committee of inspection – by agreement between the liquidator and the committee of inspection; or (b) if there is no committee of inspection or the liquidator and the committee of inspection have failed to agree: (i) by resolution of the creditors; or (ii) if no such resolution is passed – by the Court. The court’s jurisdiction may only be invoked if there is no agreement as provided in sub-section (3)(a) or no resolution of the creditors is passed as provided by sub-section 3(b)(i). (See Re Interchase Corp Ltd (in Prov Liq) (1993) 117 ALR 267). This does not apply to Provisional Liquidators. (See Deputy Commissioner of Taxation v Muswellbrook Engineering Pty Ltd (1992) 10 ACLC 1580). An application for determination of remuneration should contain evidence as to whether or not there was a committee of inspection, and if so, the failure to obtain its agreement, and as to the failure to obtain a resolution at a meeting of creditors. 26 April 1994

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[NTPD.110]

Registrar’s Memoranda

Evidence of work done – Official Liquidators’ Remuneration Following the liquidation of a company, a liquidator often applies to the court pursuant to s 473 of the Corporations Law for approval of fees. An application under s 473 is usually referred by the Master to the Registrar for a report. It is my practice as Registrar, to examine an application (ie the affidavit of the liquidator with evidence of the work done annexed) and to prepare a report which includes the following statement (if correct): On the evidence available to me, I am satisfied that the work carried out by the liquidator and his/her staff was both reasonable and necessary. To assist me in deciding whether work done was “both reasonable and necessary”, I will, in future, require a liquidator to swear that it was. In future, therefore, a liquidator’s affidavit should contain a statement to the effect that all the work claimed for was both reasonable and necessary in the liquidation. I will not be recommending payment of fees and disbursement unless this requirement is complied with. 12 July 1993

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[NTPD.120] [NTPD.120]

NT Practice Directions Practice Direction No 6 of 2015

Expert Reports Repeal of Former Practice Direction 1. Practice Direction No 4 of 2009 – Expert Reports is repealed but continues to apply in the transitional period to all matters in the Court’s civil jurisdiction commenced before the date hereof.

Filing of Expert Reports 3. A party who serves an expert report pursuant to Order 44 shall, as soon as practicable thereafter, file a copy at Court. Compliance With Code of Conduct 4. An expert who provides a report to which this practice direction applies shall comply with the Code of Conduct for experts set out below. Supplementary Reports 5. If an expert provides to a party a supplementary report, including a report indicating that the expert has changed his or her opinion on a material matter expressed in an earlier report then, unless the supplementary report is served on all other parties, the party and any other party having a like interest shall not use the earlier report or the supplementary report at trial without the leave of the Court. Signing and Annexures 6. Any report provided by an expert pursuant to this practice direction shall be accompanied by clear copies of any photographs, plans, calculations, analyses, measurements, survey reports or other extrinsic matter to which the report refers. Evidence Save with the leave of the Court or by consent of the parties affected, a party shall not, except in cross examination, adduce any evidence from a person as an expert at the trial of a proceeding unless the substance of the evidence is contained within a report or reports which the party has served in accordance with this practice direction. Code of Conduct Application of Code 1.This Code of Conduct applies to any expert witness engaged or appointed: (a) to provide an expert’s report for use as evidence in proceedings or proposed proceedings; or (b) to give opinion evidence in proceedings or proposed proceedings. General Duties to the Court 2. An expert witness is not an advocate for a party and has a paramount duty, overriding any duty to the party to the proceedings or other person retaining the expert witness, to assist the Court impartially on matters relevant to the area of expertise of the witness. Content of Report 3. Every report prepared by an expert witness for use in Court shall clearly state the opinion or opinions of the expert and shall state, specify or provide:(a) the name and address of the expert; (b) an acknowledgment that the expert has read this Code and agrees to be bound by it; (c) the qualifications of the expert to prepare the report; (d) the assumptions and material facts on which each opinion expressed in the report is based (a letter of instructions may be annexed); (e) the reasons for and any literature or other materials utilised in support of each such opinion; (f) (if applicable) that a particular question, issue or matter falls outside the expert’s field of expertise; (g) any examinations, tests or other investigations on which the expert has relied, identifying the person who carried them out and that person’s qualifications; ©

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Application of Practice Direction 2. This practice direction applies to all expert reports prepared after the date hereof in respect of a matter in the Court’s civil jurisdiction commenced after the date hereof (except for reports to which Order 33 applies), and applies in addition to, and to the extent that it is not inconsistent with, the requirements of Order 44.

NT Practice Directions

[NTPD.120]

(h) the extent to which any opinion which the expert has expressed involves the acceptance of another person’s opinion, the identification of that other person and the opinion expressed by that other person; (i) a declaration that the expert has made all the inquiries which the expert believes are desirable and appropriate (save for any matters identified explicitly in the report), and that no matters of significance which the expert regards as relevant have, to the knowledge of the expert, been withheld from the Court; (j) any qualification of an opinion expressed in the report without which the report is or may be incomplete or inaccurate; (k) whether any opinion expressed in the report is not a concluded opinion because of insufficient research or insufficient data or for any other reason; and (l) where the report is lengthy or complex, a brief summary of the report at the beginning of the report. Supplementary Report Following Change of Opinion 4. Where an expert witness has provided to a party (or that party’s legal representative) a report for use in Court, and the expert thereafter changes his or her opinion on a material matter, the expert shall forthwith provide to the party (or that party’s legal representative) a supplementary report which shall state, specify or provide the information referred to in paragraphs (a), (d), (e), (g), (h), (i), (j), (k) and (1) of clause 3 of this code and, if applicable, paragraph (f) of that clause. 5. In any subsequent report (whether prepared in accordance with clause 4 or not) the expert may refer to material contained in the earlier report without repeating it. Duty to Comply with the Court’s Directions 6. If directed to do so by the Court, an expert witness shall (a) confer with any other expert witness; (b) provide the Court with a joint report specifying (as the case requires) matters agreed and matters not agreed and the reasons for the experts not agreeing; and (c) abide in a timely way with any direction of the Court. Conferences of Experts 7. Each expert witness shall (a) exercise his or her independent judgment in relation to every conference in which the expert participates pursuant to a direction of the Court and in relation to each report thereafter provided, and shall not act on any instruction or request to withhold or avoid agreement; and (b) endeavour to reach agreement with the other expert witness (or witnesses) on any issue in dispute between them, or failing agreement, endeavour to identify and clarify the basis of disagreement on the issues which are in dispute. Dated 11 September 2015 Trevor Riley, Chief Justice

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TAKEOVERS PANEL PROCEDURAL RULES [TPPR.01] Procedural Rules to be followed in Panel Proceedings In accordance with section 195(1) of the Australian Securities and Investments Commission Act 2001 (Cth), the Takeovers Panel has determined that the attached Procedural Rules be the procedural rules to be followed in Panel proceedings in relation to which an application is received on or after 1 June 2010 (Rules). The Rules are registered under the Legislative Instruments Act 2003 (Cth). The former rules on procedure dated 18 June 2004 (as amended) (Legislative Instrument – F2006B00082) (Former Rules) are repealed with effect from 1 June 2010. The Former Rules continue to apply to an application made to the Takeovers Panel before the Rules take effect. Simon McKeon President

Dated: 12 April 2010

CONTENTS 1. Introduction ...................................................................................................................... 1.1. Objectives of the rules 1.2. Application of the rules 2. All Documents ................................................................................................................. 2.1. Form 2.2. Provision to Panel and others 2.3. Withholding information or documents 2.4. Draft documents from Panel 3. Application ....................................................................................................................... 3.1. Form 3.2. Review of ASIC decision 3.3. Review of Panel decision 3.4. Withdrawal 4. Parties ................................................................................................................................ 4.1. Interested persons 4.2. Undertakings in Notice of Appearance 4.3. Legal representation 5. Sitting Panel ..................................................................................................................... 5.1. Conflict of interest 6. Sourcing information ...................................................................................................... 6.1. Preliminary submissions 6.2. Submissions 6.3. Evidence 6.4. Conferences 7. Decision ............................................................................................................................ 7.1. Date of Decision 8. Orders ................................................................................................................................ 8.1. Application for orders 9. Court referrals .................................................................................................................. 9.1. Referral by Panel to Court 10. Miscellaneous ................................................................................................................ 10.1. Role of executive 10.2. Definitions and interpretation ©

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[TPPR.4]

[TPPR.5] [TPPR.6]

[TPPR.7] [TPPR.8] [TPPR.9] [TPPR.10]

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Takeovers Panel

Takeovers Panel Procedural Rules

11. Annexure A – Notice of Appearance ........................................................................ [TPPR.11] 12. Annexure B – Application to the Takeovers Panel ............................................... [TPPR.12] [TPPR.1] 1. Introduction This document is dated 1 June 2010. It may be amended from time to time. It sets out the rules on procedure (made under ASIC Act s 195) and related guidance for applications to the Takeovers Panel. It replaces the rules on procedure dated 18 June 2004 (as updated in March 2005) and Guidance Note 8 on Matter Procedures (fourth issue dated 18 December 2007). These rules are registered under the Legislative Instruments Act 2003 (Cth) and take effect from 1 June 2010, at which time the former rules are repealed. The former rules continue to apply to an application made to the Takeovers Panel before these rules take effect. These rules supplement any procedural or other requirements in Part 6.10 of the Corporations Act, regulation 6.10.01 of the Corporations Regulations, Part 10 of the ASIC Act and Part 3 of the ASIC Regulations. The notes below a rule may assist in the interpretation of the rule. They also explain how the Panel’s procedure works in the usual case. The procedure in a particular case may be different depending on the situation. The “Origin” references are to the former rules on procedure dated 18 June 2004 (as updated in March 2005). An interpretation section is at the end of this document. In the online version of this document, cross-references are hyperlinked where possible. The Takeovers Panel accepts no responsibility for the accuracy of information on a website not its own. A person considering making an application is welcome to contact the executive to discuss the application, timing issues and any other matters that might be of concern. The executive will offer as much assistance as it reasonably can, but cannot bind a Panel. Contact details Panel website Panel email Panel telephone

http://www.takeovers.gov.au [email protected] 03 9655 3500

A copy of any application should also be provided to ASIC at [email protected] 1.1. Objectives of the rules 1.1.1. The objectives of the rules are to promote: a) procedural fairness b) timely and cost-effective completion of proceedings c) obtaining the best available information and d) not unnecessarily delaying commercial transactions. Origin: r 1.2 Reference: ASIC Act s 195 and ASIC Reg 13 & 16 Note 1: Given the objectives, the Panel prefers to: a) act on written submissions and evidence b) conduct proceedings in private (where parties are subject to confidentiality obligations) c) give all parties access to all material before it in a proceeding and d) keep time limits as short as is reasonable. (Origin: r 1.3) 1.2. Application of the rules 1.2.1. The Panel: a) has control over the entire conduct of the proceeding and b) may give directions from time to time concerning the conduct of the proceeding, including application of these rules. Origin: r 9.1 & 9.2 872

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Reference: ASIC Reg 16(1) Note 1: A party may request in writing that the Panel give a direction. The request should set out the direction which the party wants the Panel to consider and its submissions in support of the request. (Origin: r 9.5) 1.2.2. The rules apply to each application and proceeding, except to the extent the Panel directs otherwise. If a direction by the Panel is inconsistent with a rule, the direction prevails to the extent of the inconsistency. The Panel or the President may excuse any failure by a person to comply with a rule. Origin: r 1.5 & 1.6 Reference: ASIC Act s 195 1.2.3. A party must comply with any direction of the Panel, and must liaise and cooperate with each other party in good faith for the purposes of complying with any direction. Reference: ASIC Reg 16(1)

2.1. Form 2.1.1. Any document intended for the Panel must: a) be in writing b) be in a form (if any) required by the Panel c) include any content required by the rules d) be succinct, on point and avoid repetition (including of previously submitted material) e) be expressed simply and clearly f) be accompanied by any relevant material (unless already provided to the Panel) and g) identify the proceeding, the party and the person providing the document. Origin: r 4.1 and GN 8.62 Note: 1 Applications or submissions which are unnecessarily lengthy or complex, or which use jargon or emotive language, are strongly discouraged by the Panel. (Origin: GN 8.62) 2 If a document does not comply with this rule, the President or Panel may require that the party provide a further document that does comply. The Panel may treat the original document as received but may not consider it if it directs a further document be provided. 3 Documents should refer to past submissions or cross-references in other parts of the document, not repeat the submissions. 4 A party may provide the Panel with an index of relevant ASX announcements, which the Panel can look up for itself. 5 A party may keep the Panel up to date during the proceedings with relevant announcements it makes. (Origin: r 5.9) 6 Submissions should identify clearly what matters of fact or policy are in dispute. (Origin: r 4.4) 7 A typical form of identification would include the name of the proceeding, the party for whom the document is lodged, the solicitors acting for the party and the type of document (eg, “applicant’s submission on Panel brief”). 2.2. Provision to Panel and others 2.2.1. A document is provided to the Panel or President when it is received by the executive. Origin: r 2.2, 6.1 & 6.2 Note: 1 Documents to be provided to the Panel are to be sent by email to [email protected] or by mail to Level 10, 63 Exhibition Street, Melbourne, Vic, 3000, Australia. The Panel uses email as its primary method of communication during proceedings and expects parties to do likewise. A single email should not be larger than 8 megabytes in total. Individual attachments to the email should not be larger than 3 megabytes and should be in Word format where available. If a person in ©

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[TPPR.2] 2. All Documents

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unable to send a document by email, or to do so would cause significant expense, the person may send the document by post. If a document is sent by post, the executive should be contacted to identify the document posted and advise when it is expected to be received. (Origin: r 6.4 and GN 8.39 & 8.60) 2 A document received by the executive on a day that is not a Business Day or after 6.00pm (Melbourne time) may not be considered or actioned by the Panel until the following Business Day. (Origin: r 6.7) 2.2.2. An application must be provided to ASIC and any person identified in the application as a potentially interested person. Note: 1 As far as possible the applicant should identify all persons who potentially have an interest in the subject matter of an application. 2 An application may be provided by the Panel to any other person subsequently identified as potentially interested. 3 An application seeking review of a Panel decision under Corporations Act s 657EA should be sent to ASIC and each other party to the proceeding in which the decision was made. Documents to be sent to ASIC are to be sent by email to [email protected], unless action officers have been identified. (Origin: r 2.4) 4 An application seeking review of an ASIC decision under Corporations Act s 656A should be sent to ASIC. As may be applicable, it should also be sent to the entity to which the decision relates or would have related and each other party who, to the knowledge of the applicant, made submissions to ASIC in relation to that decision. (Origin: r 2.5) ASIC may not have invited submissions and, for reasons of confidentiality, it may not be necessary to consult other parties. If the Panel decides to invite submissions, it will raise the matter with the parties. 2.2.3. Any other document provided to the Panel must be provided to ASIC and each other party to a proceeding. This rule does not apply to notice given or a document provided to the Panel under rule 5.1.1 (conflict), unless the President directs otherwise. Origin: r 2.2, 6.1 & 8.1 Note: 1 Documents provided to other parties by email should be in Word or PDF format. It should be clear on the face of the email to whom it has been sent (i.e. there should be no “blind copies”). (Origin: r 6.3 and GN 8.60) In exceptional circumstances, the Panel may allow documents to be lodged only with it, which the Panel will then to forward to the other parties once all submissions have been received (for example, if time zone differences might result in an unfair tactical advantage to a party). 2 A party providing a document to another person should inform the executive as soon as possible if it appears that the other person has not received the document. (Origin: r 6.6) 3 The Panel may want information or a document to be given to any person who is not a party but who has been invited to become a party or invited to make a submission. The Panel may want a confidentiality undertaking to be given before the information or document is given to the person. (Origin: r 3.4 & 8.3, and GN 8.32) 4 The Panel may agree to a redacted document. See rule 2.3.1. 5 A party wishing to inquire whether an undertaking might satisfy the Panel should contact the Executive if it wishes to provide a draft undertaking confidentially before circulating the draft to all parties. See also rule 2.3.1. 6 ASIC Act s 190 allows the Panel to restrict publication of submissions or evidence. 2.2.4. A person required to provide a document, or who has accepted an invitation to make a submission, must do so by the date and time specified by the Panel or President. Origin: r 9.6 Reference: ASIC Reg 16(1)(e), 28(1), 30(3) & 34 874

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2.3. Withholding information or documents 2.3.1. A request to the Panel for a direction to withhold information from a party (for confidentiality or other reasons) must: a) be made before the information is provided to the Panel b) explain why the information needs to be withheld and c) include everything necessary for the Panel to consider: i) any effect on procedural fairness and ii) any adverse effect to the party of providing the information. Origin: r 8.2 Reference: ASIC Act s 190 & 195(4) Note: 1 The request should be provided to all other parties. It does not need to include any of the information that the party proposes to withhold. However, this does not apply if a party is seeking a preliminary view about an undertaking. See note 5 to rule 2.2.3. 2 Given the need for procedural fairness, a request under this rule will only be accepted in exceptional cases. However, if accepted, the Panel may direct that information is: a) withheld from a party and its legal representatives b) provided to a party’s legal representatives only, and be withheld by them from the party itself or c) subject to other measures specified by the Panel to mitigate adverse effects of providing the information. (Origin: r 8.4) 3 If a party’s request to redact a document (for confidentiality or other reasons) is refused, the party should decide whether it is prepared to submit the complete document. If it is not, the party may consider whether it should withdraw from the proceeding. If the party is the applicant it would require the Panel’s consent to withdraw its application, which may be more readily given in these circumstances. 2.3.2. A party that wishes to claim client legal privilege over advice given in a document (and that wishes to withhold that document or part of it) must identify: a) the circumstances in which the advice was given and b) the subject matter or question(s) to which the advice was directed. Note: 1 If a party is concerned that compliance with this rule may involve a waiver of the privilege, details of the concern should be discussed with the executive. It is insufficient to simply claim that the advice is privileged. 2 A claim of privilege should be made by or on behalf of a named holder of the privilege. 3 The Panel will consider whether the claim is established based on the information supplied and any submissions made. 2.4. Draft documents from Panel 2.4.1. Any document provided by the Panel (including the executive) to a person for comment or which is marked as a draft is a confidential and incomplete document that is subject to change. ©

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1 If a document is provided after the time specified, the Panel or President may decide not to consider it. (Origin: note to r 9.6) 2 A person who anticipates that the date and time specified by the Panel or President does not give them sufficient time to respond should advise the executive as soon as possible. The Panel or President may not consider a request for an extension unless the party explains why additional time is required and provides an estimate of the additional time required. The Panel or President normally decides whether to grant the extension without consulting any other person.

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[TPPR.2]

[TPPR.3] 3. Application 3.1. Form 3.1.1. An application does not need to be in a particular form or follow the structure of the pro-forma Application, but must: a) ensure that all the content required in the pro-forma Application (see Form – Annexure B) is included in the application. This is not required in the case of an application for review of a Panel decision b) include a Notice of Appearance in the prescribed form and c) not exceed 10 A4 pages in 12 point for the details of the application. Origin: r 2.1 and GN 8.22 Reference: Corporations Act s 657C and ASIC Reg 19 Note: 1 The page limit does not include procedural information such as the Notice of Appearance or background information on the applicant and potentially interested persons. The page limit includes attachments that contain submissions. 2 An applicant should contact the executive if it is likely to exceed the page limit. A request to exceed the page limit should explain why the additional pages are necessary. 3 If the page limit is exceeded, the President or Panel may require the applicant to provide an alternative document that complies with this rule. 4 A potential applicant should contact the executive as soon as it is likely to provide an application, and advise the executive of the persons and advisors involved (so far as known). 5 An applicant should also contact the executive as soon as possible after it sends an application to confirm that it has been received by the executive. (Origin: GN 8.10) 6 The Panel encourages parties to resolve issues by negotiation. However applicants should not delay unreasonably in making an application. Note also the 2 month time limit under s 657C. (Origin: GN 8.86-8.88) 7 A fee is payable on an application to the Panel. As at the date of this document, the fee under the Corporations (Fees) Regulations 2001 (Cth) Sch 1, item 27I is A$2,010. Applicants should post a cheque in favour of “The Department of Treasury” to the executive at Level 10, 63 Exhibition Street, Melbourne VIC 3000, Australia. If the executive does not receive the cheque within 3 Business Days of receipt of the application, the executive may seek an undertaking that the cheque will be posted. (Origin: GN 8.9) 8 A party (including the applicant) may make an additional application. The additional application may include a request that the President appoint the same Panel as appointed to consider the initial application and that the Panel direct the applications be considered in the same proceeding. The Panel may also of its own volition direct that some or all of the applications be considered in the same proceeding. The Panel may decide not to give such a direction if it considers that it would be inconvenient or inappropriate to do so. For example, if the additional application canvases significant new factual material or would unreasonably delay consideration of the preceding application. (Origin: r 2.6 and GN 8.42 & 8.43) 9 On receiving an application (other than an application to review an ASIC decision), the Panel normally prepares a media release which states that an application has been received and provides an outline of the issues. This media release is generally not provided in draft to the applicant or any other person for comment. It will normally not be necessary for parties to make a separate media release (although listed parties remain subject to their continuous disclosure obligations). (Origin: GN 8.11) 3.2. Review of ASIC decision 3.2.1. A review of a decision of ASIC is a de novo consideration on the merits, having regard to the information available at the time of the review. 876

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Reference: Corporations Act s 656A. GN 2 on Reviewing Decisions Note: 1 A de novo review means the Panel considers afresh the circumstances in the application being reviewed and any new circumstances raised (which may have arisen subsequent to the initial decision), and makes its own findings and decisions. 3.2.2. An application for review of an ASIC decision must explain how the applicant’s interests are affected by the decision and, to the extent available, include a copy of: a) the application to ASIC b) any relevant submissions received by ASIC c) any instrument granted by ASIC and d) any notice of the decision and any statement of grounds or reasons for the decision provided by ASIC. Origin: r 5.2 Reference: Corporations Act s 656A and ASIC Reg 16(1)(d) 3.2.3. As soon as practicable after receipt of an application for review of an ASIC decision, ASIC must give the Panel and each party a statement of its findings of fact and reasons for its decision. Note: 1 This statement could include a copy of any policy or internal papers ASIC relied on and any submissions it received. 3.3. Review of Panel decision 3.3.1. A review of a decision of the Panel is a de novo consideration on the merits, having regard to the information available at the time of the review. Reference: Corporations Act s 657EA. GN 2 on Reviewing Decisions Note: 1 Under Corporations Reg 6.10.01, an application for review of a Panel decision must be given to the Panel no later than 2 Business Days after the date on which that decision was made. Reference: Corporations Reg 6.10.01. Rules 2.2.1, 7.1.1 2 A de novo review means the review Panel considers afresh the circumstances in the application being reviewed and any new circumstances raised (which may have arisen subsequent to the initial decision), and makes its own findings and decisions. 3 It is open to a review Panel to decide not to conduct proceedings in relation to a review application if it agrees with the decision of the initial Panel (and the form of any declaration or final orders) and the reasons for that decision, and considers that it would not come to a different decision. 4 The initial Panel seeks to issue its draft reasons promptly although it may not have done so within the 2 Business Day deadline for a review application. While the review is a de novo consideration, the Panel recognises that it is important to have the initial Panel’s reasons. It may be, therefore, that the review Panel will conduct the review in such a way that the parties and the review Panel will have access to the draft reasons of the initial Panel in formulating the issues to be considered and in making submissions in relation to them. (Origin: GN 8.84 & 8.85) 3.3.2. If the consent of the President for a review of a Panel decision is required, the request must: a) be addressed to the President b) identify the relevant decision and c) contain enough information to allow a proper consideration of the effects of the decision and the reasons for review. Origin: r 4.3 Reference: Corporations Act s 657EA(2) Note: 1 The request may be included in the application for review of the Panel decision. ©

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2 Consent is not required to appeal from a decision to make an interim order under s 657E even though a declaration has not been made. Consent is required to appeal from a decision not to make orders even though a declaration has been made. 3.4. Withdrawal 3.4.1. An applicant may only withdraw its application with the consent of: a) the Panel or b) if the request for consent to withdraw is made before the appointment of a Panel, the President. Origin: r 14.1 & 14.2 Note: 1 If the dispute is resolved, the Panel or President will generally give consent to withdraw. However, consent may be refused if there is reason to suspect that unacceptable circumstances will occur or continue to occur. (Origin: note to r 14.3) [TPPR.4] 4. Parties 4.1. Interested persons 4.1.1. A person who would like to become a party must provide the Panel with a Notice of Appearance. A person does not become a party until the Notice of Appearance is accepted by the Panel. Origin: r 3.2 & 3.3, and GN 8.22 & 8.23 Note: 1 A person who would like to become a party after becoming aware of an application should not delay in providing a Notice of Appearance (see Form – Annexure A to these rules). 2 Any delay in providing a Notice of Appearance may delay consideration of the application. Accordingly, any unreasonable delay may mean that the Notice of Appearance is not accepted. (Origin: r 3.2 and GN 8.23) 3 The Panel may decide not to take a document or submission into account unless the person providing it has given a Notice of Appearance. A Notice of Appearance includes undertakings in relation to confidentiality and media canvassing. The requirement for a Notice of Appearance does not apply to ASIC. (Origin: GN 8.25) Reference: r 6.1.1 4 When giving a Notice of Appearance, a person not identified in an application as potentially interested who wishes to become a party should explain why they may be materially affected. 5 Persons identified in the application as interested will normally receive material after filing a Notice of Appearance (if desired). The Panel may see that they receive material before then. For example, the Panel may allow them 2 Business Days after the date of the application for the filing of a Notice of Appearance. 6 The Panel may invite a person to become a party if it appears that the person’s interests may be materially affected or the person is likely to be able to assist the Panel. To become a party, the person will still have to provide a Notice of Appearance. (Origin: r 3.4 and GN 8.23) 7 The Panel may invite submissions from a person without requiring the person to become a party. (Origin: r 3.4) Reference: ASIC Reg 16(1)(g) & 24 8 The Panel would normally notify a person if the Notice of Appearance is not accepted. 4.1.2. The Panel may withdraw its acceptance of a party’s Notice of Appearance if in the Panel’s opinion: a) the person is no longer potentially interested in the matter or b) it is otherwise appropriate to do so. 4.2. Undertakings in Notice of Appearance 4.2.1. A party that provides a Notice of Appearance is bound by the undertakings in the Notice of Appearance. 878

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4.3. Legal representation 4.3.1. A party that wishes to be legally represented other than by its commercial lawyers must explain why when requesting consent. Reference: ASIC Act s 194 Note: 1 Under s 194 the Panel must consent before a party can be legally represented in a proceeding. The form of request is set out in the Notice of Appearance. However, there is no requirement that a party be legally represented and a party may make submissions directly to the Panel or through other representatives. (Origin: GN 8.33 & 8.35) 2 If a party is to be legally represented, the Panel prefers it to be by the commercial lawyers who have been advising it in the transaction the subject of the application. (Origin: GN 8.34) 3 If a party seeks consent to be represented by lawyers different to those who have advised it on the transaction (even from the same firm), it should explain why. (Origin: r 11.1 & 11.2 and GN 8.34) [TPPR.5] 5. Sitting Panel 5.1. Conflict of interest 5.1.1. A party must notify the Panel as soon as possible after it becomes aware of an interest of a Panel member that: a) could conflict with the proper performance or exercise of that member’s functions or powers in the proceeding and b) it believes, on reasonable grounds, is not immaterial or indirect and will prevent the member from acting impartially in relation to the matter. The notification must describe the interest and explain why both paragraphs (a) and (b) are met. 5.1.2. Rule 2.2.3 does not apply to a party who gives notice of a conflict, unless the President directs otherwise. Reference: ASIC Act s 184 & 185 and GN 11 on Conflicts of Interest Note: 1 If a party fails to comply (or unreasonably delays in complying) with this rule, the party may be taken to have waived its right to take issue with the interest. 2 Notification is equally important if the interest is one which may favour a party. 3 Guidance Note 11 says that: • The President will appoint a Panel as soon as possible following receipt of an application. If the President has an interest, an Acting President will fulfil the role of President and appoint the Panel. (Origin: GN 8.12) • The President will consider the composition of a potential Panel on the basis of known interests notified by any party and the members themselves. (Origin: GN 8.13) 4 A Panel consists of three Panel members, with one appointed as the sitting President and another as the sitting Deputy President. Generally, the Panel aims to ensure a mix of expertise for each Panel including a lawyer, an investment banker or other corporate adviser and, if possible, a member with particular skills directly relevant to the issues raised. (Origin: GN 8.14) 5 The Panel provides parties with a Declaration of Interests which includes the identity of each member of the Panel, their backgrounds and any interest or connection that the members may have with a party or adviser if this was considered by the President to be immaterial or indirect and will not conflict with the proper performance of the members’ functions in relation to the matter. Any interests of the executive are also disclosed. (Origin: GN 8.16) ©

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Reference: ASIC Act s 200 & 201A

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6 In addition to considering the Declaration of Interests, it is recommended that each party undertake any public searches that it thinks may identify any other interest that may give rise to a concern. 7 If the President believes that an interest is immaterial or indirect and will not prevent the member from acting impartially, he or she can decide that no change to the composition of the Panel is required. (Origin: GN 8.17) [TPPR.6] 6. Sourcing information 6.1. Preliminary submissions 6.1.1. A party may make preliminary submissions concerning whether the Panel should conduct proceedings in relation to an application, but must not make rebuttal submissions to a preliminary submission. An applicant must not make preliminary submissions. Origin: note 5 to r 2.7, & r 9.10 and GN 8.46 Reference: ASIC Act s 188 and ASIC Reg 20(a) Note: 1 The Panel may accept a submission from a person that is not a party. This includes accepting a preliminary submission. Generally the Panel will accept a submission from a person not a party if it appears that the person’s interests may be materially affected by the proceeding or the person is likely to be able to assist the Panel. (Origin: r 3.4 and GN 8.23) Reference: ASIC Reg 16(1)(g), 23 & 24 2 As soon as practicable after an application is received, a Panel is constituted and it convenes to decide whether to conduct proceedings. As part of making this decision, the Panel considers: a) whether the Panel has jurisdiction b) whether the claims would give rise to unacceptable circumstances if established c) the strength of the preliminary evidence d) the remedies available e) whether the circumstances are the subject of court proceedings f) whether the application is out of time and, if not, whether it is timely and g) whether the application is trivial, frivolous or vexatious. (Origin: GN 8.41 & 8.45) 3 Preliminary submissions should be brief (generally no more than 2 pages). They should be directed to whether the Panel should conduct proceedings having regard to the above considerations. If appropriate, they should propose any undertakings that the party is willing to give which may remedy some or all of the concerns in the application. They might also identify any additional facts the Panel should take into account when deciding whether to conduct proceedings. 4 Preliminary submissions may be made on a review application in accordance with this rule. 6.2. Submissions 6.2.1. Submissions in response to a brief do not need to be in a particular form other than to comply with any directions in the brief. Reference: ASIC Reg 20(b), 22(1), 25, 28 & 30 Note: 1 Under ASIC Reg 16 the Panel is required to act fairly. 2 A brief is normally provided to parties as soon as practicable after the Panel decides to conduct proceedings. The brief sets out the key issues or questions that the Panel requires be addressed, invites the parties to make submissions on those issues or 880

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3 4 5

6

7

questions, and sets out the timetable for parties to make submissions and rebuttal submissions. A sample brief is available on the Panel’s website. (Origin: GN 8.48 & 8.49) The Panel may issue one or more supplementary briefs at any stage of the proceeding. (Origin: r 9.11 & GN 8.48) If a party would like to address any other issue or question not raised in the brief (either for that party or generally), it should be clearly identified as additional. Parties are usually provided with 2 Business Days from receipt of a brief to provide submissions and 1 Business Day from receipt of submissions to provide rebuttal submissions. However, shorter or longer times may be allowed. If a submission is provided after the time specified by the Panel, the issue may be decided without it. (Origin: GN 8.50) The brief may invite parties to provide a statement of what is agreed between them, which may include any policy considerations and matters of fact and law not in dispute. (Origin: r 5.1) Given ASIC Act s 199, the Panel expects a person who does not have personal knowledge of a matter included in a submission to have made appropriate inquiries that the matter is true and not misleading. See also rule 6.3.1 note 3. Reference: rule 1.2.3.

6.3. Evidence 6.3.1. The Panel is not bound by the rules of evidence and may act on any logically probative material from any source. Origin: r 7 Reference: ASIC Act s 192 & 199 and ASIC Reg 16(2) Note: 1 The Panel may inform itself of any publicly available information, including information published by parties or other persons under the Corporations Act, or the rules of ASX or another securities exchange. 2 A party may provide statements and documents to support any matter raised in an application or in submissions. The Panel may summons a person to give evidence or to produce specified documents on application to do so by a party (see Note 7), or without any application to do so. 3 It is an offence if a person gives, in a written submission to the Panel for the purposes of a proceeding, information or evidence that is false or misleading in a material particular, unless it is proved that the person, when giving the information or evidence, believed on reasonable grounds that it was true and not misleading. Reference: ASIC Act s 199 4 Evidence may be provided to the Panel in the form of oral testimony (if a conference is held) or a document that is signed and includes statements to the effect that: a) the person is aware of the offence and its particulars in ASIC Act s 199 (see note above) b) there are no material omissions from the statement and c) any attachments are true copies of the originals. 5 Sworn evidence may be provided to the Panel in the form of a statutory declaration or affidavit that has been declared, sworn or affirmed in accordance with the law of the place where it is made. 6 A declaration, affidavit or statement may be sent to parties and the Panel electronically (as a scanned copy of the original). The Panel may request that the original be provided. 7 A party may request the Panel to issue a summons to a witness. The request should set out the matters to be dealt with in the witness’ evidence. The Panel may direct the proposed witness to answer specific questions in writing before appearing before the Panel. ©

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[TPPR.6]

6.4. Conferences 6.4.1. The Panel may hold a conference (for all or part of a proceeding): a) at the request of a party or b) of its own volition. Origin: r 10 Reference: ASIC Act s 192 & 199 and ASIC Reg 16(1) Note: 1 A Panel may consider convening a conference if it thinks that it will expedite proceedings or if it requires a better understanding of evidence, issues or arguments. If it proposes a conference, the Panel will provide written notice to the parties. 2 A conference may be held in person, by video, by audio or by any combination of communication facilities. 3 A party requesting a conference should indicate the issues to be addressed, the persons to attend, the reasons why a conference is desirable and the estimated time it would take. (Origin: r 10.1) 6.4.2. A conference is held subject to any directions the Panel gives. Origin: r 10.3 Reference: ASIC Act s 192 & 199 and ASIC Reg 16(1)(c) Note: 1 The Panel may, for example, direct what evidence will be taken in a conference and may specify time periods for parties to address the conference. (Origin r 10.4 and 10.5) [TPPR.7] 7. Decision 7.1. Date of Decision 7.1.1. A decision of the Panel is made on the date it is communicated to the parties in final form. Reference: Corporations Act s 657A(6) and ASIC Reg 21 Note: 1 The Panel will normally first provide parties with a proposed decision it is minded to make (which may include a draft of a declaration and supplementary brief on orders or draft of final orders). The proposed decision will normally include a list of factors which the Panel considered important to its decision. Those factors should not be taken as the Panel’s reasons for its decision. Parties should not treat this as a decision in final form (see also rule 2.4.1). The Panel does this to seek comments on the form of the declaration and any final orders. Comments should be limited to matters of fact or unfair prejudice. It is not an opportunity to seek to reargue the merits. Generally, rebuttals on comments will not be taken into account. Parties may also use this as a final opportunity to offer an undertaking in lieu of any proposed final orders. 2 The Panel is generally willing to consider undertakings to resolve a matter, although the Panel may make a declaration but not final orders when it accepts an undertaking. Undertakings should deal with all issues in the proceeding which might otherwise have been dealt with in final orders. (Reference: ASIC Act s 201A) 3 In some cases, before providing parties with a proposed decision, the Panel may provide parties with proposed findings it is considering making. The Panel does this to seek comments on possible findings before they are made. Parties should also not treat these as findings or a decision in final form (see also rule 2.4.1). 4 The decision in final form will normally be accompanied by a signed copy of the declaration and final orders as applicable. 5 Reasons are normally provided to parties separately after the decision. The exception to this is where the decision is not to conduct proceedings. The reasons for that decision are provided at the same time as the decision, as required by ASIC Reg 21(2). (Origin: GN 8.72 & 8.77) 882

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[TPPR.9]

Takeovers Panel Procedural Rules

[TPPR.8] 8. Orders 8.1. Application for orders 8.1.1. A party that applies for an interim or final order (or to vary an existing interim or final order) must give the application to ASIC, each other party and each person who would, to the applicant’s knowledge, be materially affected by the proposed order or variation. Origin: r 9.9 Reference: Corporations Act s 657D & 657E, ASIC Reg 21 and GN 4 on Remedies – General Note: 1 In determining whether to make an interim order, the Panel or President may take into consideration any delay by the applicant in making its application. 2 The usual minimum time in which the Panel or President can deal with an application for an interim order is 1 Business Day. If less time is provided, the applicant should explain why it could not have applied earlier. 3 The Panel or President may make an interim order without seeking submissions from or consulting any other person. To support the making of an interim order, the applicant should address the impact of the proposed interim order and the need to protect the status quo while the Panel considers the application. The applicant should also demonstrate that the impact of the interim order being sought would be minimal or would not be unfair to any of the interested persons or the market. (Origin: GN 8.54) 4 If an interim order is requested in an application and it is not urgent, an initial brief may be sent to parties requesting submissions and rebuttal submissions on that aspect of the application. Tight times may be imposed on parties if the interim order request requires more urgent resolution. Alternatively, an interim order that operates for a very short time might be made to allow the Panel or President to obtain more information. (Origin: GN 8.53 & 8.75) 5 The Panel or President may allow a person who may be affected by the proposed interim order the opportunity to provide an undertaking in lieu of the interim order. (Origin: GN 8.55) 6 The Panel may make any interim or final orders it thinks appropriate, even if they are not the orders sought in the application or in any submissions. 7 If the Panel proposes to make final orders it will normally provide parties with an opportunity to make submissions on the final orders it proposes to make. Parties are usually provided with 2 Business Days from receipt of a brief on final orders to provide submissions and 1 Business Day from receipt of submissions to provide rebuttal submissions. However, shorter or longer times may be allowed. If a submission is provided after the time specified by the Panel, the Panel may decide the issue without it: see ASIC Reg 28(1). [TPPR.9] 9. Court referrals 9.1. Referral by Panel to Court 9.1.1. A request that the Panel refer a question of law arising in a proceeding to the Court must: a) be accompanied by a draft of a case stated ©

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6 After the decision in final form is communicated, the Panel will normally announce the decision in a media release published on its website and ASX’s companies announcement platform (if relevant). Beforehand, parties are normally provided with a draft of the media release for any comments on matters of factual accuracy and unfair prejudice. Any Panel media release also does not constitute the Panel’s reasons. (Origin: GN 8.78 & 8.79) 7 Before the Panel’s reasons are published, parties are normally provided with a draft for any comments on matters of factual accuracy and unfair prejudice. 8 Parties should be careful not to selectively use or quote statements from a decision, reasons or media release in a way which might mislead a reader who has not read them in full. (Origin: GN 8.74 & 8.81)

Takeovers Panel Procedural Rules

[TPPR.9]

b) explain how the decision of the Court is relevant to a decision of the Panel in the proceeding and c) include an undertaking by the requesting party in favour of the Panel to pay or reimburse on demand all costs of the Panel in the matter on a solicitor and own client basis. Origin: r 9.8 Reference: Corporations Act s 659A Note: 1 A case stated is a statement of the question of law that the Court is asked to answer and any facts relevant to the Court’s consideration of that question. [TPPR.10] 10. Miscellaneous 10.1. Role of executive 10.1.1. The executive does not bind the Panel unless the context indicates otherwise. Note: 1 The executive is the point of contact for the parties. The executive acts with the authority of the President or Panel in the conduct of Panel business and when liaising with parties. Generally speaking, parties and the President or a Panel do not communicate directly. This helps maintain procedural fairness. (Origin: GN 8.1 & GN 8.38) 2 The executive manages the administration of matters on behalf of the President and Panel, including (when appropriate) informing parties of the status of the consideration of the application. The executive advises the President or Panel (as applicable) in relation to parties’ submissions, questions of law and issues of policy where appropriate. Specifically, the executive: a) assists the President to identify a Panel for a matter b) assists Panel members with conflict checks c) conducts research for the Panel d) prepares draft documents for the Panel (for example, correspondence, media releases, brief, declaration, interim and final orders and reasons for decision) and e) if requested, advises and assists the President or Panel in the performance or exercise of their functions or powers. (Origin: GN 8.3, 8.4 & 8.40) 3 The executive does not make decisions on the merits of an application (as this is the function of a Panel) and does not filter submissions, although it may (in addition to the submission) provide a summary or advice for a Panel. (Origin: GN 8.4, 8.5, 8.7 & 8.38) 4 The executive also liaises with market participants on current and prospective takeovers and other control transactions and policy issues to provide a perspective on the Panel’s Guidance Notes and decisions. The executive may give market participants or parties its views on the Panel’s likely view in relation to any real or hypothetical circumstances. These discussions do not bind the Panel. (Origin: GN 8.6 & 8.7) 10.2. Definitions and interpretation 10.2.1. The rules are to be interpreted: a) according to their spirit b) by looking beyond form to substance and c) in a way that best promotes the objectives in rule 1.1.1. 10.2.2. In these rules, the following expressions have their corresponding meaning, unless indicated otherwise:

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[TPPR.11] Expression application

Meaning an application: a) under Corporations Act s 657C b) for a review of a Panel decision under Corporations Act s 657EA or c) for a review of an ASIC decision under Corporations Act s 656A

ASIC ASIC Act ASIC Regulations

Australian Securities and Investments Commission Australian Securities and Investments Commission Act 2001 (Cth) Australian Securities and Investments Commission Regulations 2001 (Cth) Australian Securities Exchange a day that is not a Saturday, Sunday or public holiday in Melbourne, Australia Corporations Act 2001 (Cth) Corporations Regulations 2001 (Cth)

ASX Business Day Corporations Act Corporations Regulations declaration executive final orders GN GN 8 interim orders Notice of Appearance Panel party

President pro-forma Application rules [TPPR.11]

declaration of unacceptable circumstances made under Corporations Act s 657A any or all of the staff of the Commonwealth Department of Treasury, and secondees, working in offices of the Panel orders made under Corporations Act s 657D Panel Guidance Note Superseded GN 8 on Matter Procedures (Fourth Issue dated 18 December 2007) orders made under Corporations Act s 657E a notice of appearance in the form in Annexure A (which is also available on the Panel’s website) sitting Panel appointed under ASIC Act s 184 to consider an application a) an applicant (whose Notice of Appearance is incorporated in its application or separately filed) b) ASIC and c) any person who provides a Notice of Appearance which is accepted by the Panel President of the Panel appointed under ASIC Act s 173 or an Acting President appointed under ASIC Act s 182 the pro-forma application in the form in Annexure B (which is also available on Panel’s website) Panel’s rules on procedure made under ASIC Act s 195

11. Annexure A – Notice of Appearance

NOTICE OF APPEARANCE Proposed party: [*name of proposed party] In this proceeding, the proposed party: 1. seeks to be a party and requests that the Panel accept this Notice of Appearance [and] 2. gives the following contact details and undertakings [and] 3. Optional: seeks to be legally represented and requests the Panel’s consent to be represented by [*name of legal adviser]]. ©

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Takeovers Panel Procedural Rules

Takeovers Panel Procedural Rules

[TPPR.11]

CONTACT DETAILS (for up to 4 individuals) Name and position: Office address: Direct office telephone number: Office fax number: Mobile number: Email address:

UNDERTAKINGS The proposed party undertakes to the Panel under section 201A of the Australian Securities and Investments Commissions Act 2001 (Cth) and to each party to the matter from time to time that it and its directors, officers and advisers will not: A. use or disclose any confidential information provided to it in the proceeding. This undertaking is not limited by time. However, this undertaking does not apply to inhibit the use of confidential information: • in the proceeding itself as permitted under the Panel’s rules or • disclosed as required by law or the rules of a securities exchange. B. directly or indirectly cause, participate in or assist the canvassing in any media of any issue that is before (or likely to be before) the Panel in this proceeding. This undertaking applies: • until the Panel publishes its reasons for decision and • if an application is made in a proceeding to vary any final order, from the time the proposed party becomes aware of the application until it is determined by the Panel.* However, this undertaking does not apply to statements that, without discussing merits, identify the parties or the subject matter of the proceeding or the broad nature of the unacceptable circumstances alleged or the orders sought. The proposed party also undertakes to instruct each of its directors, officers and advisers to comply with the preceding undertakings. Dated: Signed on behalf of the proposed party by:

[full name and position of signatory]

* This does not extend to review proceedings. If there is a review, new Notices of Appearance are required

A person authorised to bind the proposed party [TPPR.12] 12. Annexure B – Application to the Takeovers Panel

SECTION 657C(2) APPLICATION TO THE TAKEOVERS PANEL Date: Insert date of application Applicant: Insert name of applicant In relation to the affairs of: Insert company Other parties: Identify the other parties

1. OVERVIEW OF APPLICATION

886

Corporations – Court Rules and Related Legislation 2017

[TPPR.12]

Takeovers Panel Procedural Rules

Declaration basis Circumstances

Summary Insert decision or declaration sought (e.g. unacceptable circumstances) Insert section relied on (e.g. s 657A(2)(a)) 1. Insert in a few sentences a summary of relevant circumstances 2. Identify whether the circumstances are continuing 3. State when the circumstances first occurred

Effect of circumstances on control/ Identify the effect of the circumstances substantial interest/ 602 principles What (if any) contravention of If none identified, write NA or delete box chapters 6–6C? Interim order(s) sought Insert interim orders sought. If none, write NA or delete box Final order(s) sought 1. Insert final orders sought 2. Identify how the requested orders protect rights or interests (s 657D(2)(a)) or ensure the takeover bid proceeds as it should have (s 657D(2)(b)).

2. DETAILS OF APPLICATION (KEEP TO 10 PAGES) 2.1. BACKGROUND Insert all relevant matters of fact, so far as they are known to the applicant If possible, include a diagram of the corporate/ shareholding relationships.

2.2. CHRONOLOGY Insert chronology of key events Date

Event

2.3. SUBMISSIONS Set out separately each claim and the submission to support it. Include the policy considerations, submissions on law or the exercise of discretion relevant to the claim. 2.3.1 Issue 1: (eg, misleading information regarding funding of bid) Detail first claim and submissions 2.3.2. Issue 2: (eg, misleading information regarding value of the bid) Detail second claim and submissions

3. ORDERS Set out separately each order sought and the submission to support it. Include the policy considerations, and unfair prejudice submissions relevant to the order.

4. PROCEDURAL 4.1. FEES Insert statement that fee has been forwarded or provide undertaking to pay fee.

4.2. LEAVE TO BE LEGALLY REPRESENTED If applicable, insert request for the Panel to grant leave to be legally represented by the party’s commercial solicitors.

4.3. INFORMATION ABOUT THE APPLICANT ©

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Aspect Decision sought

Takeovers Panel Procedural Rules

[TPPR.12]

Applicant Principal Shareholders Directors Controllers Legal advisers Financial advisers Auditors Principal financiers Name of any person with whom, or on whose behalf, the applicant is acting in relation to the application or the matters described in it. State which paragraph of s 657C(2) applies. If s 657C(2)(d), state the nature and extent of the interest affected.

4.4. INFORMATION ABOUT POTENTIALLY INTERESTED PARTIES Potentially interested party*

Potentially interested party*

Principal Shareholders Directors Controllers Legal advisers Financial advisers Auditors Principal financiers *Identify each person (other than ASIC) known to the applicant whose interests would be materially affected by the making of the decision or declaration or the granting of the orders.

4.5. SERVICE ON OTHER PARTIES Confirm that the other parties have been, or will be, given a copy of this application (Note must include ASIC)

4.6. OUT OF TIME (If need a determination by the Panel under s 657C(3)(b) – otherwise delete) If necessary, state why it is desirable to commence proceedings more than two months after the circumstances first occurred (e.g., whether the circumstances were concealed or otherwise unknown to the applicant and what, if any, adverse effect the circumstances have had or would have)

4.7. NOTICE OF APPEARANCE AND UNDERTAKING Complete Annexure A of these Procedural Rules.

5. ANNEXURES Insert list of documents annexed to the application. Include any documents that the Rules require to accompany the application.

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Corporations – Court Rules and Related Legislation 2017

[TPPR.12] Annexure 1 2 3

Takeovers Panel Procedural Rules Description

Takeovers

Signed: Name and authority:

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Related Legislation Corporations (Review Fees) Act 2003 (Cth) ................................................................................... 893 Corporations (Review Fees) Regulations 2003 (Cth) ..................................................................... 897 Corporations (National Guarantee Fund Levies) Act 2001 (Cth) ................................................... 903 Corporations (Compensation Arrangements Levies) Act 2001 (Cth) ............................................. 907 Corporations (Repeals, Consequentials and Transitionals) Act 2001 (Cth) [Extracts] ................... 911 Criminal Code Act 1995 (Cth) [Extracts] ......................................................................................... 921

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891

CORPORATIONS (REVIEW FEES) ACT 2003 (CTH) Short title......................................................................................................................................... 895 Commencement.............................................................................................................................. 895 Application to the Crown................................................................................................................. 895 Definitions........................................................................................................................................ 895 Imposition of review fees................................................................................................................ 895 Matters relating to amount of fees.................................................................................................. 895 Who is liable to pay a review fee, and time that liability is incurred.............................................. 895 Regulations......................................................................................................................................896

Corps (RF) Act

1 2 3 4 5 6 7 8

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893

Corporations (Review Fees) Act 2003 (Cth) Table of Amending Legislation In this edition, the Corporations (Review Fees) Act 2003 contains future amendments made by the Insolvency Law Reform Act 2016 (No 11). Principal legislation

Number

Corporations (Review Fees) Act 2003

23 of 2003

This legislation has been amended as follows: Amending legislation Number Corporations (Review Fees) Amendment Act 2007

103 of 2007

Date of gazettal/ assent/registration 11 Apr 2003

Date of commencement

Date of gazettal/ assent/registration 28 Jun 2007

Date of commencement

1 Jul 2003

Sch 1: 1 Sep 2007

Corporations (Review Fees) Act 2003 Future Commencements Amending legislation Number Insolvency Law Reform 11 of 2016 Act 2016

894

Date of gazettal/assent/ Date of commencement registration 29 Feb 2016 Sch 2 items 266 and 267 commence at the same time as provs covered by table item 2 (to be proclaimed or 1 Mar 2017).

Corporations – Court Rules and Related Legislation 2017

Corporations (Review Fees) Act 2003 (Cth)

s7

Act 23 of 2003

An Act to impose, as taxes, review fees in relation to the Corporations Act 2001, and for related purposes [Assented to 11 April 2003] The Parliament of Australia enacts: 1 Short title This Act may be cited as the Corporations (Review Fees) Act 2003. 2 Commencement This Act commences on 1 July 2003. 3 Application to the Crown If the Crown, in a capacity, is bound by the provision or provisions of the Corporations Act 2001 to which a review fee relates, then the Crown, in that capacity, is bound by this Act in respect of that review fee. 4 Definitions (1) In this Act: review date: (a) for a company or a registered scheme—has the meaning given by section 345A of the Corporations Act 2001; and (b) for a person mentioned in subsection 5(1) other than a company or a registered scheme—has the meaning prescribed by the regulations in relation to that person.

5 Imposition of review fees (1) Subject to section 6, the regulations may prescribe fees in relation to the review dates of the following: (a) companies; (b) registered schemes; (c) registered Australian bodies; (d) natural persons registered as auditors under Part 9.2 of the Corporations Act 2001; (e) natural persons registered as liquidators under Part 9.2 of the Corporations Act 2001; (f) persons holding an Australian financial services licence under Part 7.6 of the Corporations Act 2001. Note: The regulations may prescribe a fee to be paid in one year in relation to the review date of a later year (see paragraph 1351(4)(b) of the Corporations Act 2001).

★

[Subs (1) future am Act 11 of 2016, s 3 and Sch 2 item 266, with effect from a date TBP, or if not sooner, 1 Mar 2017, by repealing para (e).; am Act 103 of 2007, s 3 and Sch 1 item 1, with effect from 1 Sep 2007]

(2) The fees prescribed by the regulations are imposed, and are so imposed as taxes. [S 5 am Act 103 of 2007]

6 Matters relating to amount of fees (1) The regulations may prescribe a review fee by specifying an amount (not exceeding $10,000) as the fee. (2) A review fee need not bear any relationship to the cost of providing any service. 7 Who is liable to pay a review fee, and time that liability is incurred (1) The person who is liable to pay a review fee is worked out under this table. Liability for review fees Item For a review fee imposed on… 1 a company ©

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The person liable is… the company 895

Corps (RF) Act

review fee means a fee imposed by section 5. (2) Other expressions used in this Act that are defined in the Corporations Act 2001 have the same meanings as they have in that Act.

s7

Corporations (Review Fees) Act 2003 (Cth)

Liability for review fees Item For a review fee imposed on… 2 a registered scheme 3 a registered Australian body 4 a natural person registered as an auditor under Part 9.2 of the Corporations Act 2001 5 a natural person registered as a liquidator under Part 9.2 of the Corporations Act 2001 6 a person holding an Australian financial services licence under Part 7.6 of the Corporations Act 2001 ★

The person liable is… the responsible entity of the scheme the body the natural person the natural person the person

[Subs (1) future am Act 11 of 2016, s 3 and Sch 2 item 267, with effect from a date TBP, or if not sooner, 1 Mar 2017, by repealing table item 5.]

(2) A person who is liable to pay a review fee incurs that liability on each review date for the person. 8 Regulations The Governor-General may make regulations for the purposes of this Act and section 1351 of the Corporations Act 2001. [S 8 am Act 103 of 2007, s 3 and Sch 1 item 2, with effect from 1 Sep 2007]

896

Corporations – Court Rules and Related Legislation 2017

CORPORATIONS (REVIEW FEES) REGULATIONS 2003 (CTH) 1 2 3 4 5

Name of Regulations.......................................................................................................................899 Commencement.............................................................................................................................. 899 Definitions........................................................................................................................................ 899 Review fees..................................................................................................................................... 900 No fee for second review date in a financial year.......................................................................... 901

SCHEDULE 1 – REVIEW FEES

Corps (RF) Reg

Part 1 – Annual fees........................................................................................................................ 902 Part 1A – Upfront fees..................................................................................................................... 902 Part 2 – Late fees............................................................................................................................ 902

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897

Corporations (Review Fees) Regulations 2003 (Cth) Table of Amending Legislation Principal legislation

Number

Date of gazettal/ assent/registration 26 Jun 2003

Date of commencement

Corporations (Review Fees) Regulations 2003

160 of 2003

Date of commencement

370 of 2003

Date of gazettal/ assent/registration 23 Dec 2003

196 of 2004

1 Jul 2004

Sch 1: 1 Jul 2004

200 of 2007

29 Jun 2007

Sch 1: 1 Sep 2007

58 of 2010

25 Mar 2010

Sch 1: 26 Mar 2010

109 of 2011

21 Jun 2011

Sch 1: 1 Jul 2011

125 of 2013

14 Jun 2013

Sch 1 item 2: 1 Jul 2013

This legislation has been amended as follows: Amending legislation Number Corporations (Review Fees) Amendment Regulations 2003 (No 1) Corporations (Review Fees) Amendment Regulations 2004 (No 1) Corporations (Review Fees) Amendment Regulations 2007 (No 1) Corporations (Review Fees) Amendment Regulations 2010 (No 1) Corporations (Review Fees) Amendment Regulations 2011 (No 1) Corporations Legislation Amendment (Membership Designations and Other Measures) Regulation 2013

898

1 Jul 2003

Sch 1: 1 Jan 2004

Corporations – Court Rules and Related Legislation 2017

Corporations (Review Fees) Regulations 2003 (Cth)

reg 3

Statutory Rules 160 of 2003 1

Name of Regulations These Regulations are the Corporations (Review Fees) Regulations 2003.

2 Commencement These Regulations commence on 1 July 2003. 3 Definitions In these Regulations: Act means the Corporations Act 2001.

special purpose company means: (a) a company holding a licence that is continued in force by section 151 of the Act and allows the company to omit “Limited” from its name; or (b) in the case of a company limited by guarantee, or by both shares and guarantee, that was registered immediately before the commencement of this paragraph—if the constitution of the company states that the company: (i) is formed for the purpose of providing recreation or amusement or promoting commerce, industry, art, science, religion, charity, patriotism, pension or superannuation schemes or any other object useful to the community; and (ii) applies its profits (if any) or other income in promoting its purpose; and (iii) prohibits the distribution of its income or property to its members; or (c) a company that, under subsection 150(1) of the Act, is registered without “Limited” in its name; or (d) a company the constitution of which: (i) requires the company to pursue charitable purposes only and to apply its income in promoting those purposes; and (ii) prohibits the company making distributions to its members and paying fees to its directors; and (iii) requires its directors to approve all other payments the company makes to them; or (e) a proprietary company, if: (i) the company is the proprietor of land on which a building divided into separate residential areas and areas for common use is erected; and (ii) the members of the company are entitled, because of the shares they hold in the company, to the exclusive occupation of 1 or more of the residential areas and to the use of the common areas; and (iii) the company only operates to facilitate and enforce the rights of company members in relation to the exclusive occupation of the residential areas and to maintain the common areas; or (f) a company, other than a company mentioned in paragraph (a), (b), (c), (d) or (e), if: ©

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899

Corps (RF) Reg

small transferring financial institution means a transferring financial institution of a State or Territory: (a) for which a review date applies in accordance with sections 345A, 345B and 345C of the Act; and (b) for which any of the following circumstances exists on 1 July immediately before that review date: (i) a levy under the Authorised Deposit-taking Institutions Supervisory Levy Imposition Act 1998 or the Life Insurance Supervisory Levy Imposition Act 1998 is not payable; (ii) the minimum levy amount determined under subsection 7(3) of the Authorised Deposit-taking Institutions Supervisory Levy Imposition Act 1998 is payable; (iii) the minimum levy amount determined under subsection 7(3) of the Life Insurance Supervisory Levy Imposition Act 1998 is payable.

reg 3

Corporations (Review Fees) Regulations 2003 (Cth) (i)

the constitution of the company prohibits distribution of the company’s income or property to its members; and (ii) the sole purpose of the company is to act as the trustee of a regulated superannuation fund within the meaning of section 19 of the Superannuation Industry (Supervision) Act 1993. transferring financial institution of a State or Territory has the meaning given by clause 1 of Schedule 4 to the Act. [Cross-reference: ASIC: Form 201: Application for registration as an Australian company; Form 484: Change to company details.]

4 Review fees Fees (1) For subsection 5(1) of the Corporations (Review Fees) Act 2003, fees are prescribed in relation to review dates for a company or registered scheme mentioned in an item of Part 1 of Schedule 1 if the fees are to be paid annually. (2) For subsection 5(1) of the Corporations (Review Fees) Act 2003: (a) fees are prescribed in relation to review dates for a company or registered scheme mentioned in an item of Part 1A of Schedule 1 if the fees are to be paid before the conduct of the review; and (b) a company or registered scheme that pays the fee specified in this regulation before the conduct of the review is not required to pay another fee in relation to review dates for the period of 10 years starting when the company or registered scheme pays the fee. (3) For subsection 5(1) of the Corporations (Review Fees) Act 2003, fees are specified in relation to review dates for a company or registered scheme in the circumstances mentioned in column 2 of Part 2 of Schedule 1. Amount of fees (4) For subsection 6(1) of the Corporations (Review Fees) Act 2003, the amount of a review fee is: (a) if subregulation 5(2) applies to the fee—zero; and (b) if subregulation (5), (6) or (7) applies—the lesser of: (i) the amount specified in that subregulation; and (ii) $10 000. Note: Regulation 5 applies if the effect of a change of review date is that there will be 2 review dates for the company or scheme in a financial year.

(5) In the financial year starting on 1 July 2011, the amount of a review fee is the amount mentioned in column 3 of each item of Schedule 1 that relates to the company or registered scheme. [Subreg (5) am SLI 109 of 2011, reg 3 and Sch 1 item 1, with effect from 1 Jul 2011]

(6) In the financial year starting on 1 July 2012, or a subsequent 1 July, if the latest CPI number is greater than the earlier CPI number, the amount of a review fee is the amount worked out using the formula: previous indexable amount × latest CPI number earlier CPI number where: previous indexable amount is the amount of the review fee that was applicable immediately before that 1 July. [Subreg (6) am SLI 109 of 2011, reg 3 and Sch 1 item 2, with effect from 1 Jul 2011]

(7) In the financial year starting on 1 July 2012, or a subsequent 1 July, if the latest CPI number is not greater than the earlier CPI number, the amount of a review fee is the amount of the review fee that was applicable immediately before that 1 July. [Subreg (7) am SLI 109 of 2011, reg 3 and Sch 1 item 3, with effect from 1 Jul 2011]

(8) If, apart from this subregulation, the amount specified under subregulation (6) would be an amount of dollars and cents, the amount is to be rounded to the nearest whole dollar and, if the amount to be rounded is 50 cents, rounded down. 900

Corporations – Court Rules and Related Legislation 2017

Corporations (Review Fees) Regulations 2003 (Cth)

reg 5

(9) For this regulation: (a) if the Australian Statistician publishes a CPI number for a March quarter in substitution for a CPI number previously published by the Australian Statistician for that quarter, the publication of the later CPI number must be disregarded; and (b) if the Australian Statistician changes the reference base for the Consumer Price Index, then, after the change is made, regard must be had only to the CPI numbers published using the new reference base. (10) In this regulation: CPI number means the All Groups Consumer Price Index number (being the weighted average of the 8 Australian capital cities) published by the Australian Statistician. earlier CPI number is the CPI number for the March quarter 2 financial years before the relevant financial year begins. latest CPI number is the CPI number for the last March quarter before the relevant financial year begins. [Reg 4 am SLI 109 of 2011; subst SLI 58 of 2010, reg 3 and Sch 1 item 1, with effect from 26 Mar 2010; am SLI 200 of 2007; subst SR 370 of 2003, reg 3 and Sch 1 item 1, with effect from 1 Jan 2004]

5 No fee for second review date in a financial year (1) This regulation applies if: (a) a company or responsible entity of a registered scheme changes the review date for the company or scheme under section 345B of the Act; and (b) the effect of the change of review date is that there will be 2 review dates for the company or scheme in a financial year. (2) For subsection 6(1) of the Corporations (Review Fees) Act 2003, no review fee is prescribed for the second of the review dates mentioned in paragraph (1)(b). (3) In this regulation:

Corps (RF) Reg

financial year means a period of 12 months commencing on 1 July.

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901

Corporations (Review Fees) Regulations 2003 (Cth)

SCHEDULE 1 – REVIEW FEES (regulation 4)

Part 1 – Annual fees [Pt 1 heading subst SLI 200 of 2007, reg 3 and Sch 1 item 2, with effect from 1 Sep 2007]

Item 101 102 103 104 105 106 107 108

Company, registered scheme or person A public company, except a special purpose company or a small transferring financial institution A proprietary company, except a special purpose company A special purpose company A registered scheme A registered scheme that is being wound up A small transferring financial institution, except a special purpose company A company in liquidation A registered entity under the Australian Charities and Not-for-profits Commission Act 2012

Fee ($) 1 069.00 226.50 40.00 1 069.00 no fee 214.00 no fee no fee

[Pt 1 am SLI 125 of 2013, reg 4 and Sch 1 item 2, with effect from 1 Jul 2013; SLI 109 of 2011, reg 3 and Sch 1 items 4–8, with effect from 1 Jul 2011; SR 196 of 2004, reg 3 and Sch 1 item 1, with effect from 1 Jul 2004]

Part 1A – Upfront fees Item 101 102 103 104

Company, registered scheme or person A public company, except a special purpose company or a small transferring financial institution A proprietary company, except a special purpose company A special purpose company A registered scheme

Fee ($) 7 700 1 600 300 7 700

[Pt 1A insrt SLI 200 of 2007, reg 3 and Sch 1 item 3, with effect from 1 Sep 2007]

Part 2 – Late fees Item 201 202

Circumstance Fee ($) Paying a review fee mentioned in Part 1 or Part 1A after the date on which 65 the fee becomes due and payable, but within 1 month after that date Paying a review fee mentioned in Part 1 or Part 1A more than 1 month after 270 the date on which the fee becomes due and payable Note: For when a fee becomes due and payable, see subsection 1351(3) of the Act.

[Pt 2 am SLI 200 of 2007, reg 3 and Sch 1 items 4 and 5, with effect from 1 Sep 2007] [Sch 1 am SLI 125 of 2013; SLI 109 of 2011; SLI 200 of 2007; SR 196 of 2004; subst SR 370 of 2003, reg 3 and Sch 1 item 2, with effect from 1 Jan 2004]

902

Corporations – Court Rules and Related Legislation 2017

CORPORATIONS (NATIONAL GUARANTEE FUND LEVIES) ACT 2001 (CTH) Short title......................................................................................................................................... 905 Commencement.............................................................................................................................. 905 Definitions........................................................................................................................................ 905 Imposition of levies in respect of National Guarantee Fund...........................................................905 Amount of levy................................................................................................................................ 905 Transitional matters—implementation of the Corporations Act 2001..............................................905 Transitional matters—implementation of the Financial Services Reform Act 2001........................ 906

Corps (NGFL) Act

1 2 3 4 5 6 7

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903

Corporations (National Guarantee Fund Levies) Act 2001 (Cth) Table of Amending Legislation Principal legislation

Number

Date of gazettal/ assent/registration 28 Jun 2001

Date of commencement

Corporations (National Guarantee Fund Levies) Act 2001

54 of 2001

Date of commencement

108 of 2001

Date of gazettal/ assent/registration 17 Sep 2001

148 of 2007

24 Sep 2007

Sch 1: 22 Oct 2007

This legislation has been amended as follows: Amending legislation Number Corporations (National Guarantee Fund Levies) Amendment Act 2001 Corporations (National Guarantee Fund Levies) Amendment Act 2007

904

15 Jul 2001

Sch 1: 11 Mar 2002

Corporations – Court Rules and Related Legislation 2017

Corporations (National Guarantee Fund Levies) Act 2001 (Cth)

s6

Act 54 of 2001

An Act to impose levies in respect of the National Guarantee Fund, and for related matters [Assented to 28 June 2001] 1 Short title This Act may be cited as the Corporations (National Guarantee Fund Levies) Act 2001. 2 Commencement This Act commences at the same time as the Corporations Act 2001. 3 Definitions Expressions used in this Act that are defined in a provision of the Corporations Act 2001 that applies for the purposes of Division 4 of Part 7.5 of that Act (whether it also applies for other purposes) have the same meanings in this Act as they are given by that provision. [S 3 am Act 108 of 2001, s 3 and Sch 1 item 1, with effect from 11 Mar 2002]

4 Imposition of levies in respect of National Guarantee Fund The following levies are imposed by this Act: (a) any levy that is payable under section 889J of the Corporations Act 2001; (b) any levy that is payable under section 889K of the Corporations Act 2001. These levies relate to the situation in which the amount in the National Guarantee Fund is less than the minimum amount referred to in section 889I of the Corporations Act 2001. [S 4 am Act 108 of 2001, s 3 and Sch 1 items 2 and 3, with effect from 11 Mar 2002]

5 Amount of levy (1) A determination referred to in subsection 889J(1) of the Corporations Act 2001 must specify, or specify a method for determining, the amount of levy that is to be payable. The amount of levy imposed by paragraph 4(a) of this Act in relation to the determination is the amount specified in, or worked out in accordance with the method specified in, the determination. (2) A determination referred to in subsection 889K(1) of the Corporations Act 2001 must specify, or specify a method for determining, the amount of levy that is to be payable. The amount of levy imposed by paragraph 4(b) of this Act in relation to the determination is the amount specified in, or worked out in accordance with the method specified in, the determination.

(4) A determination referred to in subsection 889J(1) of the Corporations Act 2001 must not specify an amount of levy, or a method for determining the amount of levy, that results in the total amount in levies that becomes payable to the SEGC in a financial year exceeding 150% of the minimum amount in relation to the NGF on 1 July in the financial year. [Subs (4) insrt Act 148 of 2007, s 3 and Sch 1 item 1, with effect from 22 Oct 2007] [S 5 am Act 148 of 2007; subst Act 108 of 2001, s 3 and Sch 1 item 4, with effect from 11 Mar 2002]

6 Transitional matters—implementation of the Corporations Act 2001 (1) If, immediately before the commencement of this Act, an amount was payable by a person to a securities exchange under section 938 of the old Corporations Law of a State or Territory in this jurisdiction, a liability to pay a levy of the same amount, in respect of the same matter, to the Commonwealth is imposed on the person by this subsection on the commencement of this Act. The levy is payable to the operator of the financial market that was that securities exchange as agent for the Commonwealth. [Subs (1) am Act 108 of 2001, s 3 and Sch 1 item 5, with effect from 11 Mar 2002]

(2) If, immediately before the commencement of this Act, an amount was payable by a person to SEGC under section 940 of the old Corporations Law of a State or Territory in this jurisdiction, a liability to pay a ©

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(3) Different amounts or methods may be specified in the same determination (whether it is a determination referred to in subsection 889J(1) or a determination referred to in subsection 889K(1)) in relation to different classes of matters of things.

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Corporations (National Guarantee Fund Levies) Act 2001 (Cth)

levy of the same amount, in respect of the same matter, to the Commonwealth is imposed on the person by this subsection on the commencement of this Act. The levy is payable to SEGC as agent for the Commonwealth. (3) If, immediately before the commencement of this Act, an amount was payable by a person to a securities exchange under section 941 of the old Corporations Law of a State or Territory in this jurisdiction, a liability to pay a levy of the same amount, in respect of the same matter, to the Commonwealth is imposed on the person by this subsection on the commencement of this Act. The levy is payable to the operator of the financial market that was that securities exchange as agent for the Commonwealth. [Subs (3) am Act 108 of 2001, s 3 and Sch 1 item 5, with effect from 11 Mar 2002]

(4) [Repealed] [Subs (4) rep Act 108 of 2001, s 3 and Sch 1 item 6, with effect from 11 Mar 2002] [S 6 am Act 108 of 2001, s 3 and Sch 1 item 6, with effect from 11 Mar 2002]

7 Transitional matters—implementation of the Financial Services Reform Act 2001 A determination that, immediately before the commencement of item 1 of Schedule 1 to the Financial Services Reform Act 2001, had effect (including because of subsection 6(4) of this Act as then in force) for the purposes of subsection 5(1), (2) or (3) of this Act as then in force continues to have effect (and may be dealt with) after that commencement as if it were: (a) if the determination had effect for the purposes of subsection 5(1) or (2) of this Act as then in force—a determination for the purposes of subsection 5(1) of this Act as in force after that commencement; or (b) if the determination had effect for the purposes of subsection 5(3) of this Act as then in force—a determination for the purposes of subsection 5(2) of this Act as in force after the commencement. [S 7 insrt Act 108 of 2001, s 3 and Sch 1 item 7, with effect from 11 Mar 2002]

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CORPORATIONS (COMPENSATION ARRANGEMENTS LEVIES) ACT 2001 (CTH) Short title......................................................................................................................................... 909 Commencement.............................................................................................................................. 909 Definitions........................................................................................................................................ 909 .........................................................................................................................................................909 Imposition of levies in respect of compensation arrangements for financial services markets Amount of levy................................................................................................................................ 909 Transitional matters—implementation of the Corporations Act 2001..............................................909

Corps (CAL) Act

1 2 3 4 5 6

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Corporations (Compensation Arrangements Levies) Act 2001 (Cth) Table of Amending Legislation Principal legislation

Number

Corporations (Compensation Arrangements Levies) Act 2001

106 of 2001

Date of gazettal/ assent/registration 17 Sep 2001

There have been no further amendments to this legislation. Amending legislation Number Date of gazettal/ assent/registration

908

Date of commencement 11 Mar 2002

Date of commencement

Corporations – Court Rules and Related Legislation 2017

Corporations (Compensation Arrangements Levies) Act 2001 (Cth)

s6

Act 106 of 2001

An Act to impose levies in respect of compensation arrangements for financial services markets, and for related purposes [Assented to 17 September 2001] 1 Short title This Act may be cited as the Corporations (Compensation Arrangements Levies) Act 2001. 2 Commencement This Act commences on the commencement of item 1 of Schedule 1 to the Financial Services Reform Act 2001. 3 Definitions Expressions used in this Act that are defined in a provision of the Corporations Act 2001 that applies for the purposes of Division 3 of Part 7.5 of that Act (whether or not it also applies for other purposes) have the same meanings in this Act as they are given by that provision. 4 Imposition of levies in respect of compensation arrangements for financial services markets Any levy that is payable under section 883D of the Corporations Act 2001 is imposed by this Act. 5 Amount of levy Compensation rules referred to in subsection 883D(1) of the Corporations Act 2001 must specify, or specify a method for determining, the amount of levy that is to be payable. The amount of levy imposed by section 4 of this Act in a particular situation is the amount specified in, or worked out in accordance with the method specified in, the compensation rules.

Corps (CAL) Act

6 Transitional matters—implementation of the Corporations Act 2001 If, immediately before the commencement of this Act: (a) an amount of levy was payable to a securities exchange as agent for the Commonwealth under subsection 8(3) or (4) of the Corporations (Securities Exchanges Levies) Act 2001; or (b) an amount of levy was payable to a futures organisation as agent for the Commonwealth under subsection 6(1) or (2) of the Corporations (Futures Organisations Levies) Act 2001; then, on the commencement of this Act, that levy becomes payable, by force of this section, to the operator of the financial market that was that securities exchange or futures organisation (as the case may be), as agent for the Commonwealth.

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Part 1 – Preliminary 1 Short title......................................................................................................................................... 913 2 Commencement.............................................................................................................................. 913 Part 3 – Special transitional arrangements for ACT

Division 1 – Transitional Arrangements for the Former Corporations Law and ASIC Law 4 Definitions........................................................................................................................................ 914 5 Corresponding provision................................................................................................................. 916 6 Extinguishing rights and liabilities, and terminating proceedings, dealt with by new Corporations legislation................................................................................................................... 916 7 Court proceedings and orders.........................................................................................................917 Division 2 – Transitional Arrangements for the Former Co-Operative Scheme Legislation 8 Definitions........................................................................................................................................ 917 9 Winding up started before commencement.................................................................................... 918 10 Companies Liquidation Account...................................................................................................... 918 11 General............................................................................................................................................918 Part 4 – Functions of Commonwealth agencies in relation to transitional national scheme law matters 12 Definitions........................................................................................................................................ 918 13 Continuing functions of Commonwealth agencies under State and Territory national scheme laws................................................................................................................................................. 919

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Corps (RCT) Act

CORPORATIONS (REPEALS, CONSEQUENTIALS AND TRANSITIONALS) ACT 2001 (CTH) – (EXTRACTS)

Corporations (Repeals, Consequentials and Transitionals) Act 2001 (Cth) – (Extracts) Table of Amending Legislation Principal legislation

Number

Corporations (Repeals, Consequentials and Transitionals) Act 2001

55 of 2001

Date of gazettal/ assent/registration 28 Jun 2001

Date of commencement 15 Jul 2001

Amending legislation The extracts of this Act have been amended up to and including the Financial Sector Legislation Amendment Act (No 1) 2003 , Act 116 of 2003, date of assent 27 November 2003, date of commencement 15 Jul 2001.

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Part 1 – Preliminary

Act 55 of 2001

An Act to deal with matters consequential on the enactment of the Corporations Act 2001 and the Australian Securities and Investments Commission Act 2001, and for related purposes. [Assented to 28 June 2001] The Parliament of Australia enacts:

Part 1 – Preliminary 1 Short title This Act may be cited as the Corporations (Repeals, Consequentials and Transitionals) Act 2001. 2 Commencement (1) Subject to this section, this Act commences, or is taken to have commenced, at the same time as the Corporations Act 2001. (2) Schedules 1 and 2 commence, or are taken to have commenced, at the same time as the Corporations Act 2001. (3) Subject to subsections (4) to (10), Schedule 3 commences, or is taken to have commenced, at the same time as the Corporations Act 2001. (4) Items 65 and 67 of Schedule 3 commence on the later of: (a) the time when the Corporations Act 2001 commences; or (b) the time when Part 1 of Schedule 2 to the Financial Sector (Collection of Data—Consequential and Transitional Provisions) Act 2001 commences. (5) Item 146 of Schedule 3 commences on the later of: (a) the time when the Corporations Act 2001 commences; or (b) the time when section 10 of the Commonwealth Superannuation Board Act 2001 commences. (6) Item 191 of Schedule 3 commences on the later of: (a) the time when the Corporations Act 2001 commences; or (b) the time when Part 5 of the Financial Sector (Collection of Data) Act 2001 commences. (7) Items 296 to 302 of Schedule 3 commence on the later of: (a) the time when the Corporations Act 2001 commences; or (b) the time when Part 1 of the Interactive Gambling Act 2001 commences. (8) Item 438 of Schedule 3 commences at the same time as item 35 of Schedule 1 to the Privacy Amendment (Private Sector) Act 2000 commences. [Subs (8) am Act 116 of 2003, s 3 and Sch 4 item 1, with effect from 15 Jul 2001]

(9) Item 495 of Schedule 3 commences on the later of: (a) the time when the Corporations Act 2001 commences; or (b) the time when item 14 of Schedule 1 to the Superannuation Legislation (Commonwealth Employment) Repeal and Amendment Act 2001 commences. (10) Items 574 and 575 of Schedule 3 commence on the later of: (a) the time when the Corporations Act 2001 commences; or (b) the time when the definitions of debenture and interest in section 45 of the Workplace Relations (Registered Organisations) Act 2001 commence. (11) Subject to subsection (12), Schedule 4 commences, or is taken to have commenced, at the same time as the Corporations Act 2001. (12) If Parts 4 to 10 of the Administrative Review Tribunal Act 2001 have not commenced before the Corporations Act 2001 commences: (a) Schedule 4 to this Act does not commence; and (b) Schedule 5 to this Act commences at the same time as Parts 4 to 10 of the Administrative Review Tribunal Act 2001 commence. ©

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Corps (RCT) Act

s2

s2

Corporations (Repeals, Consequentials and Transitionals) Act 2001 (Cth) – (Extracts)

(13) If Parts 4 to 10 of the Administrative Review Tribunal Act 2001 have commenced before the Corporations Act 2001 commences, Schedule 5 to this Act does not commence. (14) Schedule 6 commences, or is taken to have commenced, at the same time as the Corporations Act 2001. [S 2 am Act 116 of 2003] [Editor’s Note: Part 2 is not reproduced.]

Part 3 – Special transitional arrangements for ACT DIVISION 1 – TRANSITIONAL ARRANGEMENTS FOR THE FORMER CORPORATIONS LAW AND ASIC LAW 4 Definitions In this Division: ACT means the Australian Capital Territory. ACT ASIC Law has the same meaning as ASIC Law of the Capital Territory had in the Corporations Act 1989 immediately before the relevant time. ACT ASIC Regulations has the same meaning as ASIC Regulations of the Capital Territory had in the Corporations Act 1989 immediately before the relevant time. ACT Corporations Law has the same meaning as Corporations Law of the Capital Territory had in the Corporations Act 1989 immediately before the relevant time. ACT Corporations Regulations has the same meaning as Corporations Regulations of the Capital Territory had in the Corporations Act 1989 immediately before the relevant time. ASIC means the Australian Securities and Investments Commission. carried over provision: (a) of the old ACT corporations legislation—means a provision of that legislation that: (i) was in force immediately before the relevant time; and (ii) corresponds to a provision of the new corporations legislation; and (b) of the old ACT ASIC legislation—means a provision of that legislation that: (i) was in force immediately before the relevant time; and (ii) corresponds to a provision of the new ASIC legislation. corresponds has a meaning affected by section 5. liability includes a duty or obligation. made includes issued, given or published. new ASIC Act means the Australian Securities and Investments Commission Act 2001. new ASIC legislation means: (a) the new ASIC Act; and (b) the new ASIC Regulations (as amended and in force from time to time) and any other regulations made under the new ASIC Act; and (c) the laws of the Commonwealth referred to in subparagraph (a)(ii) and (in relation to the ACT) subparagraph (b)(iii) of the definition of old ASIC legislation in subsection 254(1) of the new ASIC Act , being those laws as they apply after the relevant time; and (d) the preserved instruments. new ASIC Regulations means the old ASIC Regulations that, because of section 264 of the new ASIC Act, have effect as if they were made under section 251 of that Act. new Corporations Act means the Corporations Act 2001. new Corporations legislation means: (a) the new Corporations Act; and 914

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(b)

the new Corporations Regulations (as amended and in force from time to time) and any other regulations made under the new Corporations Act; and (c) the laws of the Commonwealth referred to (in relation to the ACT) in paragraph (c) of the definition of old corporations legislation in subsection 1371(1) of the new Corporations Act, being those laws as they apply after the relevant time; and (d) the preserved instruments.

new Corporations Regulations means the old Corporations Regulations that, because of section 1380 of the new Corporations Act, have effect as if they were made under section 1364 of that Act. old ACT ASIC Law means the ACT ASIC Law as in force from time to time before the relevant time. old ACT ASIC legislation means: (a) the old ACT ASIC Law and the old ACT ASIC Regulations, and any instruments made under that Law or those Regulations; and (b) the Corporations Act 1989, and any instruments made under that Act, as applying in relation to the old ACT ASIC Law and the old ACT ASIC Regulations from time to time before the relevant time; and (c) the laws of the Commonwealth as applying in relation to the old ACT ASIC Law and the old ACT ASIC Regulations from time to time before the relevant time as laws of, or for the government of, the ACT because of Part 8 of the Corporations Act 1989, and any instruments made under those laws as so applying. old ACT ASIC Regulations means the ACT ASIC Regulations as in force from time to time before the relevant time. old ACT Corporations Law means the ACT Corporations Law as in force from time to time before the relevant time. old ACT corporations legislation means: (a) the old ACT Corporations Law and the old ACT Corporations Regulations, and any instruments made under that Law or those Regulations; and (b) the Corporations Act 1989, and any instruments made under that Act, as applying in relation to the old ACT Corporations Law and the old ACT Corporations Regulations from time to time before the relevant time; and (c) the laws of the Commonwealth as applying in relation to the old ACT Corporations Law and the old ACT Corporations Regulations from time to time before the relevant time as laws of, or for the government of, the ACT because of Part 8 of the Corporations Act 1989, and any instruments made under those laws as so applying. old ACT Corporations Regulations means the ACT Corporations Regulations as in force from time to time before the relevant time. order, in relation to a court, includes any judgment, conviction or sentence of the court. pre-commencement right or liability means a right or liability, whether civil or criminal, other than a right or liability under an order made by a court before the relevant time or a liability referred to in subsection 1397(4) of the new Corporations Act, that: (a) was acquired, accrued or incurred under: (i) a carried over provision of the old ACT corporations legislation or the old ACT ASIC legislation; or (ii) a provision of the old ACT corporations legislation or the old ACT ASIC legislation that was no longer in force immediately before the relevant time; and (b) was in existence immediately before the relevant time. preserved instrument means: (a) in relation to the new corporations legislation—an instrument that, because of section 1399 of the new Corporations Act, has effect after the relevant time as if it were made under a provision of the new corporations legislation; and ©

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Corps (RCT) Act

Part 3 – Special transitional arrangements for ACT Division 1 – Transitional Arrangements for the Former Corporations Law and ASIC Law

s4

Corporations (Repeals, Consequentials and Transitionals) Act 2001 (Cth) – (Extracts) (b)

in relation to the new ASIC legislation—an instrument that, because of section 275 of the new ASIC Act, has effect after the relevant time as if it were made under a provision of the new ASIC legislation; and

provision of a law includes any portion of the law. relevant time means the time when the new Corporations Act, as originally enacted, commences. right includes an interest or status. 5 Corresponding provision (1) For the purposes of this Act, a provision (the old provision) of the old ACT corporations legislation or the old ACT ASIC legislation corresponds to a provision (the new provision) of the new corporations legislation or the new ASIC legislation (and vice versa) if: (a) the old provision and the new provision are substantially the same, unless the regulations specify that the 2 provisions do not correspond; or (b) the regulations specify that the 2 provisions correspond. (2) For the purposes of paragraph (1)(a), differences of all or any of the following kinds are not sufficient to mean that 2 provisions are not substantially the same: (a) differences in the numbering of the provisions; (b) differences of a minor technical nature (for example, differences in punctuation, or differences that are attributable to the correction of incorrect cross references); (c) the fact that one of the provisions refers to a corresponding previous law and the other does not; (d) the fact that: (i) the old provision allowed a court to exercise powers on its own motion but the new provision does not; or (ii) the old provision required a court to apply a criterion of public interest but the new provision requires a court to apply a criterion of justice and equity; or (iii) the new provision requires ASIC to take account of public interest but the old provision did not; (e) other differences that are attributable to the fact that the new corporations legislation and the new ASIC legislation apply as Commonwealth laws in the States and the internal Territories; (f) other differences of a kind prescribed by the regulations for the purposes of this paragraph. (3) Subsection (2) is not intended to otherwise limit the circumstances in which 2 provisions are, for the purposes of paragraph (1)(a), substantially the same. (4) The regulations may provide that: (a) a specified provision of the old ACT corporations legislation does, or does not, correspond to a specified provision of the new corporations legislation; or (b) a specified provision of the old ACT ASIC legislation does, or does not, correspond to a specified provision of the new ASIC legislation. 6 Extinguishing rights and liabilities, and terminating proceedings, dealt with by new Corporations legislation (1) If, by force of: (a) Chapter 10 of the new Corporations Act; or (b) Part 16 of the new ASIC Act; a person acquires, accrues or incurs a right or liability in substitution for a pre-commencement right or liability, the pre-commencement right or liability is cancelled at the relevant time. (2) A proceeding in a court that: (a) was started before the relevant time; and (b) was: (i) under a provision of the old ACT corporations legislation or the old ACT ASIC legislation; or (ii) brought as, or connected with, a prosecution for an offence against a provision of the old ACT corporations legislation or the old ACT ASIC legislation; and 916

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s8

(c) was a proceeding to which section 1383 of the new Corporations Act or section 267 of the new ASIC Act applies; and (d) had not been concluded or terminated before the relevant time; is terminated at the relevant time by force of this subsection. (3) If, by force of a Commonwealth Act (other than the new Corporations Act) referred to in sections 1393 to 1396 of the new Corporations Act, a person becomes liable to pay an amount that is the same as, and is in respect of the same matter as, an amount (the pre-commencement amount) that was payable by the person before the relevant time under a provision of the old ACT corporations legislation, the person’s liability to pay the pre-commencement amount is cancelled at the relevant time. (4) This section has effect despite anything in the Acts Interpretation Act 1901. 7 Court proceedings and orders (1) This section applies to a proceeding, whether criminal or civil, in relation to which all of the following paragraphs are satisfied: (a) the proceeding was started in a court before the relevant time; (b) the proceeding was: (i) under a provision of the old ACT corporations legislation or the old ACT ASIC legislation; or (ii) brought as, or connected with, a prosecution for an offence against a provision of the old ACT corporations legislation or the old ACT ASIC legislation; (c) the proceeding was not a proceeding to which section 1383 or 1384 of the new Corporations Act, or section 267 or 268 of the new ASIC Act, applies; (d) the proceeding had not been concluded or terminated before the relevant time. (2) Subject to subsection (3), a proceeding to which this section applies may be continued, and any order made by a court in such a proceeding may be appealed against, reviewed or enforced as if: (a) the Corporations Act 1989 and the Australian Securities and Investments Commission Act 1989 had not been repealed; and (b) the new corporations legislation and the new ASIC legislation had not come into operation. (3) Nothing in this Act, or in the Acts Interpretation Act 1901, operates to preserve the effect of an order to which subsection 1383(5) of the new Corporations Act, or subsection 267(5) of the new ASIC Act, applies and, at the relevant time, that order ceases to have effect as an order of the court by which it was made and any proceeding in relation to any such order is terminated by force of this subsection. (4) For the avoidance of doubt, Part 9 of the Corporations Act 1989 (which deals with the jurisdiction and procedure of courts) continues to have the same application to a proceeding to which this section applies as it did before the relevant time. (5) In this section: proceeding includes: (a) a proceeding by way of appeal against, or otherwise seeking review of, an order made by a court; and (b) a proceeding to enforce an order made by a court; and (c) any other proceeding in respect of a breach of an order made by a court.

DIVISION 2 – TRANSITIONAL ARRANGEMENTS FOR THE FORMER CO-OPERATIVE SCHEME LEGISLATION 8 Definitions In this Division: ACT means the Australian Capital Territory. Corporations Act commencement means the commencement of the Corporations Act 2001. Corporations Law commencement means 1 January 1991. Note: This is the day on which Chapter 5 of the Corporations Law commenced. ©

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Part 3 – Special transitional arrangements for ACT Division 2 – Transitional Arrangements for the Former Co-Operative Scheme Legislation

s8

Corporations (Repeals, Consequentials and Transitionals) Act 2001 (Cth) – (Extracts)

9 Winding up started before commencement (1) The provisions of the Corporations Act 2001 with respect to winding up do not apply to any body corporate whose winding up was started before the Corporations Law commencement. (2) If a body corporate’s winding up started before the Corporations Law commencement under a law in force in the ACT: (a) the body corporate is to be wound up in the same manner, and with the same incidents, as if the Companies Act 1981 had not been repealed and the Corporations Act 1989 had not been enacted; and (b) for the purposes of the winding up, the Companies Act 1981 applies, with such modifications as the circumstances require, as if a reference in that Act to the NCSC were, except in relation to a time before that commencement, a reference to the Australian Securities and Investments Commission. 10 Companies Liquidation Account (1) In this section: relevant money means: (a) money that, immediately before the Corporations Law commencement, stood to the credit of the Companies Liquidation Account established by section 428 of the Companies Act 1981; and (b) money that, after the Corporations Law commencement, was or is paid into the Companies Liquidation Account under provisions of the Companies Act 1981 that were taken to continue in force after the Corporations Law commencement for the purposes of windings up started before that commencement. (2) Relevant money is to be dealt with in accordance with section 427 of the Companies Act 1981. 11 General (1) If, immediately before the Corporations Act commencement, an Act repealed by Part 2 of Schedule 1 to this Act applied in the ACT to a matter, that Act: (a) continues to apply to that matter after that commencement despite its repeal; and (b) if that Act applied to that matter immediately before that commencement with particular modifications—it continues to apply to the matter with the same modifications. (2) For the purposes of subsection (1), if a company was dissolved before the Corporations Law commencement, the Companies Act 1981 is taken to have applied to the dissolution immediately before the Corporations Act commencement.

Part 4 – Functions of Commonwealth agencies in relation to transitional national scheme law matters 12 Definitions (1) In this Part: authority, in relation to the Commonwealth, includes: (a) a body corporate, or an unincorporated body, established for a public purpose by or in accordance with an Act; and (b) a court, tribunal or authority established by or in accordance with an Act; for example: (c) the Administrative Appeals Tribunal; and (d) the Australian Federal Police. non-federal proceeding means: (a) a proceeding in relation to which: (i) paragraphs 1383(1)(a), (b) and (d) of the Corporations Act 2001 are satisfied but paragraph 1383(1)(e) of that Act is not satisfied; or 918

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Pt 4 – Functions of Cth agencies in relation to transitional national scheme law matters paragraphs 267(1)(a), (b) and (d) of the Australian Securities and Investments Commission Act are satisfied but paragraph 267(1)(e) of that Act is not satisfied; or (b) an enforcement proceeding, or an appeal or review proceeding, in relation to an order of a court made before the commencement in relation to a proceeding that was: (i) under a provision of the old corporations legislation of a State or Territory in this jurisdiction; or (ii) brought as, or connected with, a prosecution for an offence against a provision of the old corporations legislation of a State or Territory in this jurisdiction; or (iii) under a provision of the old ASIC legislation of the Commonwealth, a State in this jurisdiction or the Northern Territory; or (iv) brought as, or connected with, a prosecution for an offence against a provision of the old ASIC legislation of the Commonwealth, a State in this jurisdiction or the Northern Territory; or (c) an enforcement proceeding, or an appeal or review proceeding, in relation to an order of a court made after the commencement in relation to a proceeding referred to in paragraph (a). (ii)

officer, in relation to the Commonwealth, includes: (a) a Minister; and (b) a person holding: (i) an office established by or under an Act; or (ii) an appointment made under an Act; or (iii) an appointment made by the Governor-General or a Minister but not under an Act; and (c) a person who is a member or officer of an authority of the Commonwealth; and (d) a person who is in the service or employment of the Commonwealth, or of an authority of the Commonwealth, or is employed or engaged under an Act; for example: (e) a member or special member of the Australian Federal Police; and (f) the Director of Public Prosecutions; and (g) the Ombudsman; and (h) the Privacy Commissioner; and (i) a Special Prosecutor. old ASIC legislation has the same meaning as in section 254 of the Australian Securities and Investments Commission Act 2001. old corporations legislation has the same meaning as in section 1371 of the Corporations Act 2001. transitional national scheme function or power means a function or power in relation to a non-federal proceeding that is expressed to be conferred by or under a law of a State or Territory in this jurisdiction. Note: Commonwealth authorities and officers may have such functions or powers under the State and Territory legislation dealing with the transition from the applied Corporations Law regime to the Corporations Act 2001.

13 Continuing functions of Commonwealth agencies under State and Territory national scheme laws (1) Commonwealth authorities and officers: (a) have the transitional national scheme functions and powers; and (b) have the functions and powers conferred on them by virtue of the operation of Part 3 of this Act (special transitional arrangements for the ACT). (2) A Commonwealth authority or officer: (a) is not subject to any directions in relation to the performance or exercise of a transitional national scheme function or power; and ©

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s 13

s 13

Corporations (Repeals, Consequentials and Transitionals) Act 2001 (Cth) – (Extracts) (b)

is not under a duty to perform or exercise a transitional national scheme function or power.

(3) Subsection (2) does not apply to the Australian Securities and Investments Commission. Note: Subsection 271(2) of the Australian Securities and Investments Commission Act 2001 deals with the performance and exercise of transitional national scheme functions by ASIC. [Editor’s Note: Part 5 and the Schedules of this Act are not reproduced.]

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1 2 3 3AA 3A 3B 4 5

Short title......................................................................................................................................... 924 Commencement.............................................................................................................................. 924 The Criminal Code.......................................................................................................................... 924 Application of the Criminal Code to regulations [Repealed]........................................................... 924 External Territories...........................................................................................................................924 Offshore installations....................................................................................................................... 924 Definitions........................................................................................................................................ 924 Regulations......................................................................................................................................924

SCHEDULE – THE CRIMINAL CODE

CHAPTER 1 – CODIFICATION Division 1 – 1.1 Codification...................................................................................................................................... 925

CHAPTER 2 – GENERAL PRINCIPLES OF CRIMINAL RESPONSIBILITY Part 2.1 – Purpose and application Division 2 – 2.1 Purpose........................................................................................................................................... 925 2.2 Application....................................................................................................................................... 925

Part 2.2 – The elements of an offence Division 3 – General 3.1 Elements..........................................................................................................................................925 3.2 Establishing guilt in respect of offences..........................................................................................925 Division 4 – Physical elements 4.1 Physical elements........................................................................................................................... 926 4.2 Voluntariness................................................................................................................................... 926 4.3 Omissions........................................................................................................................................ 926 Division 5 – Fault elements 5.1 Fault elements................................................................................................................................. 926 5.2 Intention...........................................................................................................................................927 5.3 Knowledge....................................................................................................................................... 927 5.4 Recklessness.................................................................................................................................. 927 5.5 Negligence.......................................................................................................................................927 5.6 Offences that do not specify fault elements....................................................................................927 Division 6 – Cases where fault elements are not required 6.1 Strict liability.................................................................................................................................... 927 6.2 Absolute liability...............................................................................................................................927

Part 2.3 – Circumstances in which there is no criminal responsibility Division 9 – Circumstances involving mistake or ignorance 9.1 Mistake or ignorance of fact (fault elements other than negligence)............................................. 928 9.2 Mistake of fact (strict liability).......................................................................................................... 928 9.3 Mistake or ignorance of statute law................................................................................................ 928 9.4 Mistake or ignorance of subordinate legislation..............................................................................928

Part 2.4 – Extensions of criminal responsibility Division 11 – 11.1 Attempt............................................................................................................................................ 929 11.2 Complicity and common purpose....................................................................................................930 11.2A Joint commission............................................................................................................................. 930 11.3 Commission by proxy...................................................................................................................... 931 11.4 Incitement........................................................................................................................................ 931 11.5 Conspiracy.......................................................................................................................................932 11.6 References in Acts to offences....................................................................................................... 933 ©

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CRIMINAL CODE ACT 1995 (CTH) – (EXTRACTS)

Criminal Code Act 1995 (Cth) – (Extracts) Part 2.5 – Corporate criminal responsibility Division 12 – 12.1 General principles........................................................................................................................... 933 12.2 Physical elements........................................................................................................................... 934 12.3 Fault elements other than negligence.............................................................................................934 12.4 Negligence.......................................................................................................................................934 12.5 Mistake of fact (strict liability).......................................................................................................... 935 12.6 Intervening conduct or event...........................................................................................................935

Part 2.6 – Proof of criminal responsibility Division 13 – 13.1 Legal burden of proof—prosecution................................................................................................935 13.2 Standard of proof—prosecution...................................................................................................... 935 13.3 Evidential burden of proof—defence...............................................................................................935 13.4 Legal burden of proof—defence..................................................................................................... 936 13.5 Standard of proof—defence............................................................................................................ 936 13.6 Use of averments............................................................................................................................ 936

Part 2.7 – Geographical jurisdiction Division 15 – Extended geographical jurisdiction 15.1 Extended geographical jurisdiction—category A.............................................................................936

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Table of Amending Legislation Table of Amending Legislation Number

Date of gazettal/ assent/registration

Date of commencement

Criminal Code Act 1995 12 of 1995 15 Mar 1995 1 Jan 1997 Amending legislation The extracts of this Act have been amended up to and including the Statute Law Revision Act (No 1) 2016, Act 4 of 2016, date of assent 11 Feb 2016, date of commencement 10 Mar 2016.

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Principal legislation

s1

Criminal Code Act 1995 (Cth) – (Extracts)

1 Short title This Act may be cited as the Criminal Code Act 1995. 2 Commencement (1) Subject to subsection (2), this Act commences on a day to be fixed by Proclamation. (2) If this Act does not commence under subsection (1) within the period of 5 years beginning on the day on which this Act receives the Royal Assent, it commences on the first day after the end of that period. 3 The Criminal Code (1) The Schedule has effect as a law of the Commonwealth. (2) The Schedule may be cited as the Criminal Code. 3A External Territories The Criminal Code extends to every external Territory. [S 3A insrt Act 43 of 1999, s 3 and Sch 1 item 1, with effect from 17 Dec 1999]

3B Offshore installations Unless the contrary intention appears, an installation (within the meaning of the Customs Act 1901) that is deemed by section 5C of the Customs Act 1901 to be part of Australia is also taken to be part of Australia for the purposes of the Criminal Code. [S 3B am Act 137 of 2000, s 3 and Sch 1 item 1A, with effect from 24 May 2001; insrt Act 43 of 1999, s 3 and Sch 1 item 1, with effect from 17 Dec 1999]

4 Definitions (1) Expressions used in the Code (or in a particular provision of the Code) that are defined in the Dictionary at the end of the Code have the meanings given to them in the Dictionary. (2) Definitions in the Code of expressions used in the Code apply to its construction except insofar as the context or subject matter otherwise indicates or requires. 5 Regulations The Governor-General may make regulations prescribing matters: (a) required or permitted by this Act to be prescribed; or (b) necessary or convenient to be prescribed for carrying out or giving effect to this Act. [S 5 insrt Act 137 of 2000, s 3 and Sch 1 item 1, with effect from 24 Nov 2000]

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SCHEDULE 1 – THE CRIMINAL CODE Section 3

CHAPTER 1 – CODIFICATION DIVISION 1 The only offences against laws of the Commonwealth are those offences created by, or under the authority of, this Code or any other Act. Note: Under subsection 38(1) of the Acts Interpretation Act 1901, Act means an Act passed by the Parliament of the Commonwealth.

CHAPTER 2 – GENERAL PRINCIPLES OF CRIMINAL RESPONSIBILITY Part 2.1 – Purpose and application DIVISION 2 2.1 Purpose The purpose of this Chapter is to codify the general principles of criminal responsibility under laws of the Commonwealth. It contains all the general principles of criminal responsibility that apply to any offence, irrespective of how the offence is created. 2.2 Application (1) This Chapter applies to all offences against this Code. (2) Subject to section 2.3, this Chapter applies on and after 15 December 2001 to all other offences. [Subs (2) subst Act 4 of 2000, s 3 and Sch 1 item 1, with effect from 29 Feb 2000; am Act 12 of 1998]

(3) Section 11.6 applies to all offences. [S 2.2 am Act 4 of 2000; Act 12 of 1998]

Editor’s Note: S 2.3 is not reproduced.

Part 2.2 – The elements of an offence DIVISION 3 – GENERAL 3.1 Elements (1) An offence consists of physical elements and fault elements. (2) However, the law that creates the offence may provide that there is no fault element for one or more physical elements. (3) The law that creates the offence may provide different fault elements for different physical elements. 3.2 Establishing guilt in respect of offences In order for a person to be found guilty of committing an offence the following must be proved: (a) the existence of such physical elements as are, under the law creating the offence, relevant to establishing guilt; (b) in respect of each such physical element for which a fault element is required, one of the fault elements for the physical element. Note 1: See Part 2.6 on proof of criminal responsibility. Note 2: See Part 2.7 on geographical jurisdiction. [S 3.2 am Act 137 of 2000, s 3 and Sch 1 items 2 and 3, with effect from 24 May 2001] ©

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1.1 Codification

s 3.2

Schedule 1 – The Criminal Code

DIVISION 4 – PHYSICAL ELEMENTS 4.1 Physical elements (1) A physical element of an offence may be: (a) conduct; or (b) a result of conduct; or (c) a circumstance in which conduct, or a result of conduct, occurs. [Subs (1) am Act 161 of 2001, s 3 and Sch 1 item 3, with effect from 21 Dec 2001]

(2) In this Code: conduct means an act, an omission to perform an act or a state of affairs. engage in conduct means: (a) do an act; or (b) omit to perform an act. [Def insrt Act 137 of 2000, s 3 and Sch 1 item 4, with effect from 24 Nov 2000] [S 4.1 am Act 161 of 2001; Act 137 of 2000]

4.2 Voluntariness (1) Conduct can only be a physical element if it is voluntary. (2) Conduct is only voluntary if it is a product of the will of the person whose conduct it is. (3) The following are examples of conduct that is not voluntary: (a) a spasm, convulsion or other unwilled bodily movement; (b) an act performed during sleep or unconsciousness; (c) an act performed during impaired consciousness depriving the person of the will to act. (4) An omission to perform an act is only voluntary if the act omitted is one which the person is capable of performing. (5) If the conduct constituting an offence consists only of a state of affairs, the state of affairs is only voluntary if it is one over which the person is capable of exercising control. (6) Evidence of self-induced intoxication cannot be considered in determining whether conduct is voluntary. (7) Intoxication is self-induced unless it came about: (a) involuntarily; or (b) as a result of fraud, sudden or extraordinary emergency, accident, reasonable mistake, duress or force. 4.3 Omissions An omission to perform an act can only be a physical element if: (a) the law creating the offence makes it so; or (b) the law creating the offence impliedly provides that the offence is committed by an omission to perform an act that there is a duty to perform by a law of the Commonwealth, a State or a Territory, or at common law. [S 4.3 am Act 6 of 2013, s 3 and Sch 1 item 1, with effect from 8 Mar 2013]

DIVISION 5 – FAULT ELEMENTS 5.1 Fault elements (1) A fault element for a particular physical element may be intention, knowledge, recklessness or negligence. (2) Subsection (1) does not prevent a law that creates a particular offence from specifying other fault elements for a physical element of that offence. [S 5.1 am Act 137 of 2000, s 3 and Sch 1 item 5, with effect from 24 May 2001]

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Part 2.2 – The elements of an offence Division 6 – Cases where Fault Elements are not Required

s 6.2

5.2 Intention (1) A person has intention with respect to conduct if he or she means to engage in that conduct. (2) A person has intention with respect to a circumstance if he or she believes that it exists or will exist. (3) A person has intention with respect to a result if he or she means to bring it about or is aware that it will occur in the ordinary course of events. A person has knowledge of a circumstance or a result if he or she is aware that it exists or will exist in the ordinary course of events. 5.4 Recklessness (1) A person is reckless with respect to a circumstance if: (a) he or she is aware of a substantial risk that the circumstance exists or will exist; and (b) having regard to the circumstances known to him or her, it is unjustifiable to take the risk. (2) A person is reckless with respect to a result if: (a) he or she is aware of a substantial risk that the result will occur; and (b) having regard to the circumstances known to him or her, it is unjustifiable to take the risk. (3) The question whether taking a risk is unjustifiable is one of fact. (4) If recklessness is a fault element for a physical element of an offence, proof of intention, knowledge or recklessness will satisfy that fault element. 5.5 Negligence A person is negligent with respect to a physical element of an offence if his or her conduct involves: (a) such a great falling short of the standard of care that a reasonable person would exercise in the circumstances; and (b) such a high risk that the physical element exists or will exist; that the conduct merits criminal punishment for the offence. 5.6 Offences that do not specify fault elements (1) If the law creating the offence does not specify a fault element for a physical element that consists only of conduct, intention is the fault element for that physical element. (2) If the law creating the offence does not specify a fault element for a physical element that consists of a circumstance or a result, recklessness is the fault element for that physical element. Note: Under subsection 5.4(4), recklessness can be established by proving intention, knowledge or recklessness. [S 5.6 am Act 137 of 2000, s 3 and Sch 1 item 6, with effect from 24 Nov 2000]

DIVISION 6 – CASES WHERE FAULT ELEMENTS ARE NOT REQUIRED 6.1 Strict liability (1) If a law that creates an offence provides that the offence is an offence of strict liability: (a) there are no fault elements for any of the physical elements of the offence; and (b) the defence of mistake of fact under section 9.2 is available. (2) If a law that creates an offence provides that strict liability applies to a particular physical element of the offence: (a) there are no fault elements for that physical element; and (b) the defence of mistake of fact under section 9.2 is available in relation to that physical element. (3) The existence of strict liability does not make any other defence unavailable. 6.2 Absolute liability (1) If a law that creates an offence provides that the offence is an offence of absolute liability: (a) there are no fault elements for any of the physical elements of the offence; and (b) the defence of mistake of fact under section 9.2 is unavailable. ©

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5.3 Knowledge

s 6.2

Schedule 1 – The Criminal Code

(2) If a law that creates an offence provides that absolute liability applies to a particular physical element of the offence: (a) there are no fault elements for that physical element; and (b) the defence of mistake of fact under section 9.2 is unavailable in relation to that physical element. (3) The existence of absolute liability does not make any other defence unavailable.

Part 2.3 – Circumstances in which there is no criminal responsibility Note:

This Part sets out defences that are generally available. Defences that apply to a more limited class of offences are dealt with elsewhere in this Code and in other laws.

Editor’s Note: Part 2.3 Divs 7 and 8 are not reproduced.

DIVISION 9 – CIRCUMSTANCES INVOLVING MISTAKE OR IGNORANCE 9.1 Mistake or ignorance of fact (fault elements other than negligence) (1) A person is not criminally responsible for an offence that has a physical element for which there is a fault element other than negligence if: (a) at the time of the conduct constituting the physical element, the person is under a mistaken belief about, or is ignorant of, facts; and (b) the existence of that mistaken belief or ignorance negates any fault element applying to that physical element. (2) In determining whether a person was under a mistaken belief about, or was ignorant of, facts, the tribunal of fact may consider whether the mistaken belief or ignorance was reasonable in the circumstances. 9.2 Mistake of fact (strict liability) (1) A person is not criminally responsible for an offence that has a physical element for which there is no fault element if: (a) at or before the time of the conduct constituting the physical element, the person considered whether or not facts existed, and is under a mistaken but reasonable belief about those facts; and (b) had those facts existed, the conduct would not have constituted an offence. (2) A person may be regarded as having considered whether or not facts existed if: (a) he or she had considered, on a previous occasion, whether those facts existed in the circumstances surrounding that occasion; and (b) he or she honestly and reasonably believed that the circumstances surrounding the present occasion were the same, or substantially the same, as those surrounding the previous occasion. Note: Section 6.2 prevents this section applying in situations of absolute liability. 9.3 Mistake or ignorance of statute law (1) A person can be criminally responsible for an offence even if, at the time of the conduct constituting the offence, he or she is mistaken about, or ignorant of, the existence or content of an Act that directly or indirectly creates the offence or directly or indirectly affects the scope or operation of the offence. (2) Subsection (1) does not apply, and the person is not criminally responsible for the offence in those circumstances, if the Act is expressly to the contrary effect. [Subs (2) subst Act 127 of 2004, s 3 and Sch 4 item 5, with effect from 28 Sept 2004] [S 9.3 am Act 127 of 2004]

9.4 Mistake or ignorance of subordinate legislation (1) A person can be criminally responsible for an offence even if, at the time of the conduct constituting the offence, he or she is mistaken about, or ignorant of, the existence or content of the subordinate legislation that directly or indirectly creates the offence or directly or indirectly affects the scope or operation of the offence. (2) Subsection (1) does not apply, and the person is not criminally responsible for the offence in those circumstances, if: 928

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Part 2.4 – Extensions of criminal responsibility Division 11

s 11.1

[Subs (2) am Act 126 of 2015, s 3 and Sch 1 item 81, with effect from 5 Mar 2016; Act 127 of 2004, s 3 and Sch 4 items 6 and 7, with effect from 28 Sept 2004; Act 140 of 2003, s 3 and Sch 1 item 16, with effect from 1 Jan 2005]

(3) In this section: available includes available by sale. subordinate legislation means an instrument of a legislative character made directly or indirectly under an Act, or in force directly or indirectly under an Act. [S 9.4 am Act 126 of 2015; Act 127 of 2004; Act 140 of 2003]

Part 2.4 – Extensions of criminal responsibility DIVISION 11 11.1 Attempt (1) A person who attempts to commit an offence commits the offence of attempting to commit that offence and is punishable as if the offence attempted had been committed. [Subs (1) am Act 4 of 2016, s 3 and Sch 4 item 355, with effect from 10 Mar 2016]

(2) For the person to be guilty, the person’s conduct must be more than merely preparatory to the commission of the offence. The question whether conduct is more than merely preparatory to the commission of the offence is one of fact. (3) For the offence of attempting to commit an offence, intention and knowledge are fault elements in relation to each physical element of the offence attempted. Note: Under section 3.2, only one of the fault elements of intention or knowledge would need to be established in respect of each physical element of the offence attempted.

(3A) Subsection (3) has effect subject to subsection (6A). [Subs (3A) insrt Act 137 of 2000, s 3 and Sch 1 item 7A, with effect from 24 May 2001]

(4) A person may be found guilty even if: (a) committing the offence attempted is impossible; or (b) the person actually committed the offence attempted. (5) A person who is found guilty of attempting to commit an offence cannot be subsequently charged with the completed offence. (6) Any defences, procedures, limitations or qualifying provisions that apply to an offence apply also to the offence of attempting to commit that offence. (6A) Any special liability provisions that apply to an offence apply also to the offence of attempting to commit that offence. [Subs (6A) insrt Act 137 of 2000, s 3 and Sch 1 item 7B, with effect from 24 May 2001]

(7) It is not an offence to attempt to commit an offence against section 11.2 (complicity and common purpose), section 11.2A (joint commission), section 11.3 (commission by proxy), section 11.5 (conspiracy to commit an offence) or section 135.4 (conspiracy to defraud). [Subs (7) am Act 3 of 2010, s 3 and Sch 4 item 1, with effect from 20 Feb 2010; Act 137 of 2000, s 3 and Sch 1 item 8, with effect from 24 May 2001] [S 11.1 am Act 4 of 2016; Act 3 of 2010; Act 137 of 2000]

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(a) the subordinate legislation is expressly to the contrary effect; or (b) [Repealed] (c) at the time of the conduct, the subordinate legislation: (i) has not been made available to the public (by means of the Register under the Legislation Act 2003 or otherwise); and (ii) has not otherwise been made available to persons likely to be affected by it in such a way that the person would have become aware of its contents by exercising due diligence.

s 11.2

Schedule 1 – The Criminal Code

11.2 Complicity and common purpose (1) A person who aids, abets, counsels or procures the commission of an offence by another person is taken to have committed that offence and is punishable accordingly. (2) For the person to be guilty: (a) the person’s conduct must have in fact aided, abetted, counselled or procured the commission of the offence by the other person; and (b) the offence must have been committed by the other person. (3) For the person to be guilty, the person must have intended that: (a) his or her conduct would aid, abet, counsel or procure the commission of any offence (including its fault elements) of the type the other person committed; or (b) his or her conduct would aid, abet, counsel or procure the commission of an offence and have been reckless about the commission of the offence (including its fault elements) that the other person in fact committed. (3A) Subsection (3) has effect subject to subsection (6). [Subs (3A) insrt Act 137 of 2000, s 3 and Sch 1 item 8A, with effect from 24 May 2001]

(4) A person cannot be found guilty of aiding, abetting, counselling or procuring the commission of an offence if, before the offence was committed, the person: (a) terminated his or her involvement; and (b) took all reasonable steps to prevent the commission of the offence. (5) A person may be found guilty of aiding, abetting, counselling or procuring the commission of an offence even if the other person has not been prosecuted or has not been found guilty. [Subs (5) am Act 3 of 2010, s 3 and Sch 4 item 2, with effect from 20 Feb 2010]

(6) Any special liability provisions that apply to an offence apply also for the purposes of determining whether a person is guilty of that offence because of the operation of subsection (1). [Subs (6) am Act 3 of 2010, s 3 and Sch 4 item 3, with effect from 20 Feb 2010; insrt Act 137 of 2000, s 3 and Sch 1 item 8B, with effect from 24 May 2001]

(7) If the trier of fact is satisfied beyond reasonable doubt that a person either: (a) is guilty of a particular offence otherwise than because of the operation of subsection (1); or (b) is guilty of that offence because of the operation of subsection (1); but is not able to determine which, the trier of fact may nonetheless find the person guilty of that offence. [Subs (7) insrt Act 127 of 2004, s 3 and Sch 4 item 1, with effect from 28 Sep 2004] [S 11.2 am Act 3 of 2010; Act 127 of 2004; Act 137 of 2000]

11.2A Joint commission Joint commission (1) If: (a) a person and at least one other party enter into an agreement to commit an offence; and (b) either: (i) an offence is committed in accordance with the agreement (within the meaning of subsection (2)); or (ii) an offence is committed in the course of carrying out the agreement (within the meaning of subsection (3)); the person is taken to have committed the joint offence referred to in whichever of subsection (2) or (3) applies and is punishable accordingly. Offence committed in accordance with the agreement (2) An offence is committed in accordance with the agreement if: (a) the conduct of one or more parties in accordance with the agreement makes up the physical elements consisting of conduct of an offence (the joint offence) of the same type as the offence agreed to; and 930

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Part 2.4 – Extensions of criminal responsibility Division 11

s 11.4

(b)

to the extent that a physical element of the joint offence consists of a result of conduct—that result arises from the conduct engaged in; and (c) to the extent that a physical element of the joint offence consists of a circumstance—the conduct engaged in, or a result of the conduct engaged in, occurs in that circumstance.

(3) An offence is committed in the course of carrying out the agreement if the person is reckless about the commission of an offence (the joint offence) that another party in fact commits in the course of carrying out the agreement. Intention to commit an offence (4) For a person to be guilty of an offence because of the operation of this section, the person and at least one other party to the agreement must have intended that an offence would be committed under the agreement. Agreement may be non-verbal etc. (5) The agreement: (a) may consist of a non-verbal understanding; and (b) may be entered into before, or at the same time as, the conduct constituting any of the physical elements of the joint offence was engaged in. Termination of involvement etc. (6) A person cannot be found guilty of an offence because of the operation of this section if, before the conduct constituting any of the physical elements of the joint offence concerned was engaged in, the person: (a) terminated his or her involvement; and (b) took all reasonable steps to prevent that conduct from being engaged in. Person may be found guilty even if another party not prosecuted etc. (7) A person may be found guilty of an offence because of the operation of this section even if: (a) another party to the agreement has not been prosecuted or has not been found guilty; or (b) the person was not present when any of the conduct constituting the physical elements of the joint offence was engaged in. Special liability provisions apply (8) Any special liability provisions that apply to the joint offence apply also for the purposes of determining whether a person is guilty of that offence because of the operation of this section. [S 11.2A insrt Act 3 of 2010, s 3 and Sch 4 item 4, with effect from 20 Feb 2010]

11.3 Commission by proxy A person who: (a) has, in relation to each physical element of an offence, a fault element applicable to that physical element; and (b) procures conduct of another person that (whether or not together with conduct of the procurer) would have constituted an offence on the part of the procurer if the procurer had engaged in it; is taken to have committed that offence and is punishable accordingly. [S 11.3 am Act 3 of 2010, s 3 and Sch 4 item 4, with effect from 20 Feb 2010]

11.4 Incitement (1) A person who urges the commission of an offence commits the offence of incitement. [Subs (1) am Act 4 of 2016, s 3 and Sch 4 item 355, with effect from 10 Mar 2016]

(2) For the person to be guilty, the person must intend that the offence incited be committed. (2A) Subsection (2) has effect subject to subsection (4A). [Subs (2A) insrt Act 137 of 2000, s 3 and Sch 1 item 8C, with effect from 24 May 2001]

(3) A person may be found guilty even if committing the offence incited is impossible. (4) Any defences, procedures, limitations or qualifying provisions that apply to an offence apply also to the offence of incitement in respect of that offence. ©

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Offence committed in the course of carrying out the agreement

s 11.4

Schedule 1 – The Criminal Code

(4A) Any special liability provisions that apply to an offence apply also to the offence of incitement in respect of that offence. [Subs (4A) insrt Act 137 of 2000, s 3 and Sch 1 item 8D, with effect from 24 May 2001]

(5) It is not an offence to incite the commission of an offence against section 11.1 (attempt), this section or section 11.5 (conspiracy). Penalty: (a) if the offence incited is punishable by life imprisonment—imprisonment for 10 years; or (b) if the offence incited is punishable by imprisonment for 14 years or more, but is not punishable by life imprisonment—imprisonment for 7 years; or (c) if the offence incited is punishable by imprisonment for 10 years or more, but is not punishable by imprisonment for 14 years or more—imprisonment for 5 years; or (d) if the offence is otherwise punishable by imprisonment—imprisonment for 3 years or for the maximum term of imprisonment for the offence incited, whichever is the lesser; or (e) if the offence incited is not punishable by imprisonment—the number of penalty units equal to the maximum number of penalty units applicable to the offence incited. Note: Under section 4D of the Crimes Act 1914, these penalties are only maximum penalties. Subsection 4B(2) of that Act allows a court to impose an appropriate fine instead of, or in addition to, a term of imprisonment. If a body corporate is convicted of the offence, subsection 4B(3) of that Act allows a court to impose a fine of an amount not greater than 5 times the maximum fine that the court could impose on an individual convicted of the same offence. Penalty units are defined in section 4AA of that Act. [S 11.4 am Act 4 of 2016; Act 137 of 2000]

11.5 Conspiracy (1) A person who conspires with another person to commit an offence punishable by imprisonment for more than 12 months, or by a fine of 200 penalty units or more, commits the offence of conspiracy to commit that offence and is punishable as if the offence to which the conspiracy relates had been committed. Note: Penalty units are defined in section 4AA of the Crimes Act 1914. [Subs (1) am Act 4 of 2016, s 3 and Sch 4 item 355, with effect from 10 Mar 2016]

(2) For the person to be guilty: (a) the person must have entered into an agreement with one or more other persons; and (b) the person and at least one other party to the agreement must have intended that an offence would be committed pursuant to the agreement; and (c) the person or at least one other party to the agreement must have committed an overt act pursuant to the agreement. (2A) Subsection (2) has effect subject to subsection (7A). [Subs (2A) insrt Act 137 of 2000, s 3 and Sch 1 item 8E, with effect from 24 May 2001]

(3) A person may be found guilty of conspiracy to commit an offence even if: (a) committing the offence is impossible; or (b) the only other party to the agreement is a body corporate; or (c) each other party to the agreement is at least one of the following: (i) a person who is not criminally responsible; (ii) a person for whose benefit or protection the offence exists; or (d) subject to paragraph (4)(a), all other parties to the agreement have been acquitted of the conspiracy. (4) A person cannot be found guilty of conspiracy to commit an offence if: (a) all other parties to the agreement have been acquitted of the conspiracy and a finding of guilt would be inconsistent with their acquittal; or (b) he or she is a person for whose benefit or protection the offence exists. (5) A person cannot be found guilty of conspiracy to commit an offence if, before the commission of an overt act pursuant to the agreement, the person: (a) withdrew from the agreement; and 932

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Part 2.5 – Corporate criminal responsibility Division 12 (b)

s 12.1

took all reasonable steps to prevent the commission of the offence.

(6) A court may dismiss a charge of conspiracy if it thinks that the interests of justice require it to do so. (7) Any defences, procedures, limitations or qualifying provisions that apply to an offence apply also to the offence of conspiracy to commit that offence. (7A) Any special liability provisions that apply to an offence apply also to the offence of conspiracy to commit that offence. (8) Proceedings for an offence of conspiracy must not be commenced without the consent of the Director of Public Prosecutions. However, a person may be arrested for, charged with, or remanded in custody or on bail in connection with, an offence of conspiracy before the necessary consent has been given. [S 11.5 am Act 4 of 2016; Act 137 of 2000]

11.6 References in Acts to offences (1) A reference in a law of the Commonwealth to an offence against a law of the Commonwealth (including this Code) includes a reference to an offence against section 11.1 (attempt), 11.4 (incitement) or 11.5 (conspiracy) of this Code that relates to such an offence. [Subs (1) am Act 137 of 2000, s 3 and Sch 1 item 9, with effect from 24 Nov 2000]

(2) A reference in a law of the Commonwealth (including this Code) to a particular offence includes a reference to an offence against section 11.1 (attempt), 11.4 (incitement) or 11.5 (conspiracy) of this Code that relates to that particular offence. [Subs (2) am Act 137 of 2000, s 3 and Sch 1 item 10, with effect from 24 Nov 2000]

(3) Subsection (1) or (2) does not apply if a law of the Commonwealth is expressly or impliedly to the contrary effect. [Subs (3) am Act 137 of 2000, s 3 and Sch 1 item 10, with effect from 24 Nov 2000]

(4) In (a) (b) (c) (d) (e)

particular, an express reference in a law of the Commonwealth to: an offence against, under or created by the Crimes Act 1914; or an offence against, under or created by a particular provision of the Crimes Act 1914; or an offence arising out of the first-mentioned law or another law of the Commonwealth; or an offence arising out of a particular provision; or an offence against, under or created by the Taxation Administration Act 1953;

does not mean that the first-mentioned law is impliedly to the contrary effect. Note: Sections 11.2 (complicity and common purpose), 11.2A (joint commission), and 11.3 (commission by proxy) of this Code operate as extensions of principal offences and are therefore not referred to in this section. [Subs (4) am Act 3 of 2010, s 3 and Sch 4 item 5, with effect from 20 Feb 2010; insrt Act 137 of 2000, s 3 and Sch 1 item 11, with effect from 24 Nov 2000] [S 11.6 am Act 3 of 2010; Act 137 of 2000]

Part 2.5 – Corporate criminal responsibility DIVISION 12 12.1 General principles (1) This Code applies to bodies corporate in the same way as it applies to individuals. It so applies with such modifications as are set out in this Part, and with such other modifications as are made necessary by the fact that criminal liability is being imposed on bodies corporate rather than individuals. (2) A body corporate may be found guilty of any offence, including one punishable by imprisonment. Note: Section 4B of the Crimes Act 1914 enables a fine to be imposed for offences that only specify imprisonment as a penalty.

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[Subs (7A) insrt Act 137 of 2000, s 3 and Sch 1 item 8F, with effect from 24 May 2001]

s 12.2

Schedule 1 – The Criminal Code

12.2 Physical elements If a physical element of an offence is committed by an employee, agent or officer of a body corporate acting within the actual or apparent scope of his or her employment, or within his or her actual or apparent authority, the physical element must also be attributed to the body corporate. 12.3 Fault elements other than negligence (1) If intention, knowledge or recklessness is a fault element in relation to a physical element of an offence, that fault element must be attributed to a body corporate that expressly, tacitly or impliedly authorised or permitted the commission of the offence. (2) The means by which such an authorisation or permission may be established include: (a) proving that the body corporate’s board of directors intentionally, knowingly or recklessly carried out the relevant conduct, or expressly, tacitly or impliedly authorised or permitted the commission of the offence; or (b) proving that a high managerial agent of the body corporate intentionally, knowingly or recklessly engaged in the relevant conduct, or expressly, tacitly or impliedly authorised or permitted the commission of the offence; or (c) proving that a corporate culture existed within the body corporate that directed, encouraged, tolerated or led to non-compliance with the relevant provision; or (d) proving that the body corporate failed to create and maintain a corporate culture that required compliance with the relevant provision. (3) Paragraph (2)(b) does not apply if the body corporate proves that it exercised due diligence to prevent the conduct, or the authorisation or permission. (4) Factors relevant to the application of paragraph (2)(c) or (d) include: (a) whether authority to commit an offence of the same or a similar character had been given by a high managerial agent of the body corporate; and (b) whether the employee, agent or officer of the body corporate who committed the offence believed on reasonable grounds, or entertained a reasonable expectation, that a high managerial agent of the body corporate would have authorised or permitted the commission of the offence. (5) If recklessness is not a fault element in relation to a physical element of an offence, subsection (2) does not enable the fault element to be proved by proving that the board of directors, or a high managerial agent, of the body corporate recklessly engaged in the conduct or recklessly authorised or permitted the commission of the offence. (6) In this section: board of directors means the body (by whatever name called) exercising the executive authority of the body corporate. corporate culture means an attitude, policy, rule, course of conduct or practice existing within the body corporate generally or in the part of the body corporate in which the relevant activities takes place. high managerial agent means an employee, agent or officer of the body corporate with duties of such responsibility that his or her conduct may fairly be assumed to represent the body corporate’s policy. 12.4 Negligence (1) The test of negligence for a body corporate is that set out in section 5.5. (2) If: (a) negligence is a fault element in relation to a physical element of an offence; and (b) no individual employee, agent or officer of the body corporate has that fault element; that fault element may exist on the part of the body corporate if the body corporate’s conduct is negligent when viewed as a whole (that is, by aggregating the conduct of any number of its employees, agents or officers). (3) Negligence may be evidenced by the fact that the prohibited conduct was substantially attributable to: (a) inadequate corporate management, control or supervision of the conduct of one or more of its employees, agents or officers; or 934

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Part 2.6 – Proof of criminal responsibility Division 13 (b)

s 13.3

failure to provide adequate systems for conveying relevant information to relevant persons in the body corporate.

(1) A body corporate can only rely on section 9.2 (mistake of fact (strict liability)) in respect of conduct that would, apart from this section, constitute an offence on its part if: (a) the employee, agent or officer of the body corporate who carried out the conduct was under a mistaken but reasonable belief about facts that, had they existed, would have meant that the conduct would not have constituted an offence; and (b) the body corporate proves that it exercised due diligence to prevent the conduct. (2) A failure to exercise due diligence may be evidenced by the fact that the prohibited conduct was substantially attributable to: (a) inadequate corporate management, control or supervision of the conduct of one or more of its employees, agents or officers; or (b) failure to provide adequate systems for conveying relevant information to relevant persons in the body corporate. 12.6 Intervening conduct or event A body corporate cannot rely on section 10.1 (intervening conduct or event) in respect of a physical element of an offence brought about by another person if the other person is an employee, agent or officer of the body corporate.

Part 2.6 – Proof of criminal responsibility DIVISION 13 13.1 Legal burden of proof—prosecution (1) The prosecution bears a legal burden of proving every element of an offence relevant to the guilt of the person charged. Note: See section 3.2 on what elements are relevant to a person’s guilt. (2) The prosecution also bears a legal burden of disproving any matter in relation to which the defendant has discharged an evidential burden of proof imposed on the defendant. (3) In this Code: legal burden, in relation to a matter, means the burden of proving the existence of the matter. 13.2 Standard of proof—prosecution (1) A legal burden of proof on the prosecution must be discharged beyond reasonable doubt. (2) Subsection (1) does not apply if the law creating the offence specifies a different standard of proof. 13.3 Evidential burden of proof—defence (1) Subject to section 13.4, a burden of proof that a law imposes on a defendant is an evidential burden only. (2) A defendant who wishes to deny criminal responsibility by relying on a provision of Part 2.3 (other than section 7.3) bears an evidential burden in relation to that matter. (3) A defendant who wishes to rely on any exception, exemption, excuse, qualification or justification provided by the law creating an offence bears an evidential burden in relation to that matter. The exception, exemption, excuse, qualification or justification need not accompany the description of the offence. (4) The defendant no longer bears the evidential burden in relation to a matter if evidence sufficient to discharge the burden is adduced by the prosecution or by the court. (5) The question whether an evidential burden has been discharged is one of law. (6) In this Code: evidential burden, in relation to a matter, means the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist. ©

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12.5 Mistake of fact (strict liability)

s 13.3

Schedule 1 – The Criminal Code

13.4 Legal burden of proof—defence A burden of proof that a law imposes on the defendant is a legal burden if and only if the law expressly: (a) specifies that the burden of proof in relation to the matter in question is a legal burden; or (b) requires the defendant to prove the matter; or (c) creates a presumption that the matter exists unless the contrary is proved. 13.5 Standard of proof—defence A legal burden of proof on the defendant must be discharged on the balance of probabilities. 13.6 Use of averments A law that allows the prosecution to make an averment is taken not to allow the prosecution: (a) to aver any fault element of an offence; or (b) to make an averment in prosecuting for an offence that is directly punishable by imprisonment.

Part 2.7 – Geographical jurisdiction [Pt 2.7 insrt Act 137 of 2000, s 3 and Sch 1 item 12 , with effect from 24 May 2001] [Editor’s Note: Pt 2.7 Div 14 is not reproduced.]

DIVISION 15 – EXTENDED GEOGRAPHICAL JURISDICTION 15.1 Extended geographical jurisdiction—category A (1) If a law of the Commonwealth provides that this section applies to a particular offence, a person does not commit the offence unless: (a) the conduct constituting the alleged offence occurs: (i) wholly or partly in Australia; or (ii) wholly or partly on board an Australian aircraft or an Australian ship; or (b) the conduct constituting the alleged offence occurs wholly outside Australia and a result of the conduct occurs: (i) wholly or partly in Australia; or (ii) wholly or partly on board an Australian aircraft or an Australian ship; or (c) the conduct constituting the alleged offence occurs wholly outside Australia and: (i) at the time of the alleged offence, the person is an Australian citizen; or (ii) at the time of the alleged offence, the person is a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory; or (d) all of the following conditions are satisfied: (i) the alleged offence is an ancillary offence; (ii) the conduct constituting the alleged offence occurs wholly outside Australia; (iii) the conduct constituting the primary offence to which the ancillary offence relates, or a result of that conduct, occurs, or is intended by the person to occur, wholly or partly in Australia or wholly or partly on board an Australian aircraft or an Australian ship. Note: The expression offence is given an extended meaning by subsections 11.2(1) and 11.2A(1), section 11.3 and subsection 11.6(1). [Subs (1) am Act 3 of 2010, s 3 and Sch 4 item 7, with effect from 20 Feb 2010; insrt Act 137 of 2000, s 3 and Sch 1 item 12, with effect from 24 May 2001] [S 15.1 am Act 3 of 2010; Act 137 of 2000]

Editor’s Note: Section 15.1(2)-(5) and ss 15.2-15.4 are not reproduced. Part 2.7 Div 16 is not reproduced. Remaining Chs 4-5 and 7-10 are not reproduced.

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INDEX References in this index are to provisions in the various Court Rules (listed by jurisdiction), related legislation, Supreme Court Practice Notes and Directions and the Takeovers Panel Rules for Proceedings. Editor’s Note The Supreme Court of South Australia has advised that “all practice directions made before 1 October 2014 are superseded by the Supreme Court Civil Supplementary Rules 2014”: see www.courts.sa.gov.au The Supreme Court Civil Rules 2006 and the Supreme Court Civil Supplementary Rules 2014 can be found at: www.legislation.sa.gov.au

SA Cr ................................................................... Corporations Supplementary Rules 2015 (South Australia) (SA) SA r ..................................................................... Corporations Rules 2003 (South Australia) (SA) TASPD.10 ........................................................... Tas Practice Directions Tas rule number .................................................. Supreme Court (Corporations) Rules 2008 (Tas) , refer to (Cth) rule number as adopted VICPN.10 ............................................................ Vic Practice Notes Vic rule number .................................................. Supreme Court (Corporations) Rules 2013 (Vic) WAPD.10 ............................................................. WA Practice Directions ©

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Abbreviations ACTPD.10 ........................................................... ACT Practice Directions ACT Schs 5, 6 Part or rule number ................... Court Procedures Rules 2006 (ACT) CCA section number ........................................... Criminal Code Act 1995 (Cth) CCALA section number ..................................... Corporations (Compensation Arrangements Levies) Act 2001 (Cth) CNGFLA section number ................................... Corporations (National Guarantee Fund Levies) Act 2001 (Cth) CRCTA section number ...................................... Corporations (Repeals, Consequentials and Transitionals) Act 2001 (Cth) CRFA section number ......................................... Corporations (Review Fees) Act 2003 (Cth) CRF reg number ................................................. Corporations (Review Fees) Regulations 2003 (Cth) Cth rule number .................................................. Federal Court (Corporations) Rules 2000 (Cth) FEDPN.10 ........................................................... Federal Court Practice Notes NSWPN.10 .......................................................... NSW Practice Notes NSW rule number ............................................... Supreme Court (Corporations) Rules 1999 (NSW) NTPD.10 ............................................................. NT Practice Directions NT rule number .................................................. Corporations Law Rules (NT) QLDPD.10 ........................................................... Qld Practice Directions Qld Sch 1A rule number .................................... Uniform Civil Procedure Rules 1999 (Qld)

INDEX

WA rule number .................................................. Supreme Court (Corporations) (WA) Rules 2004 (WA) TPPR paragraph number .................................... Takeovers Panel Procedural Rules TPPR rule number .............................................. Takeovers Panel Procedural Rules

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A ABN — see Australian Business Number (ABN) ACN — see Australian Company Number (ACN) Acquisition of shares and securities — see also Takovers Panel — see also Takeovers Panel Rules for Proceedings application for summons for appearance in relation to registration of transfer of interests ACT Sch 6 r 12.2(1) – (3) Cthr 12.2(1) – (3) NSWr 12.2(1) – (3) NTr 12.2(1) – (3) QldSch 1A r 12.2(1) – (3) SAr 12.2(1) – (3) Tas see Cth Vicr 12.2(1) – (3) WAr 12.2(1) – (3) generally ACT Sch 6 rr 12.1 – 12.3 Cth rr 12.1 – 12.3 NSW r 12.2(1) – (3) NT r 12.2(1) – (3) Qld Sch 1A rr 12.1 – 12.3 SA rr 12.1 – 12.3 Tas see Cth Vic rr 12.1 – 12.3 WA rr 12.2 – 12.3 issue of summons for appearance in relation to registration of transfer of interests, form of ACT Sch 6 r 12.2(3), Form 18 Cth r 12.2(4), Sch 1 Form 18 NSW r 12.2(4), Sch 1 Form 18 NT r 12.2(4), Sch 1 Form 18 Qld Sch 1A r 12.2(4), Form 18 SA r 12.2(4), Sch 1 Form 18 Tas see Cth Vic r 12.2(4), Sch 1 Form 18 WA r 12.2(4), Sch 1 Form 18 notification to Court and parties if proceeding commenced before end of takeover bid period ACT Sch 6 r 12.1B Cth r 12.1B NSW r 12.1B NT r 12.1B SA r 12.1B Tas see Cth Vic r 12.1B WA r 12.1B reference to Court of question of law arising in proceeding before Takeovers Panel ACT Sch 6 r 12.1A Cth r 12.1A ©

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NSW r 12.1A NT r 12.1A Qld Sch 1A r 12.1A SA r 12.1A Tas see Cth Vic r 12.1A WA r 12.1A service of originating process/application and supporting affidavit on ASIC, if non-party to proceeding under Ch 6, 6A, 6B, 6C, 6D or 7 of Corporations Act ACT Sch 6 r 12.1 Cth r 12.1 NSW r 12.1 NT r 12.1 Qld Sch 1A r 12.1 SA r 12.1 Tas see Cth Vic r 12.1 WA r 12.1 Administrator company under administration, of ACT Sch 6 r 9.2 Cth r 9.2 NSW r 9.2 NT r 9.2 Qld Sch 1A r 9.2 SA r 9.2 Tas see Cth Vic r 9.2 WA r 9.2 application for remuneration of receiver, role of, in ACT Sch 6 r 9.1 Cth r 9.1 NSW r 9.1 NT r 9.1 Qld Sch 1A r 9.1 SA r 9.1 Tas see Cth Vic r 9.1 WAr 9.2 deed of company arrangement, of ACT Sch 6 r 9.2 Cth r 9.2 NSW r 9.2 NT r 9.2 Qld Sch 1A r 9.2 SA r 9.2 Tas see Cth Vic r 9.2 WA r 9.2 application for remuneration of receiver, role of, in ACT Sch 6 r 9.1 939

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A

INDEX

Administrator — continued Cth r 9.1 NSW r 9.1 NT r 9.1 Qld Sch 1A r 9.1 SA r 9.1 Tas see Cth Vic r 9.1 WA r 9.1 remuneration of ACT Sch 6 r 9.2 Cth r 9.2 NSW r 9.2 NT r 9.2 Qld Sch 1A r 9.2 SA r 9.2 Tas see Cth Vic r 9.2 WA r 9.2 application for order fixing ACT Sch 6 r 9.2(1), (2) Cth r 9.2(1), (2) NSW r 9.2(1), (2) NT r 9.2(1), (2) Qld Sch 1A r 9.2(1), (2) SA r 9.2(1), (2) Tas see Cth Vic r 9.2(1), (2) WA r 9.2(1), (2) application for review of ACT Sch 6 r 9.2A Cth r 9.2A NSW r 9.2A Qld Sch 1A r 9.2A NT r 9.2A SA r 9.2A Tas see Cth Vic r 9.2A WA r 9.2A notice of intention to apply for order fixing ACT Sch 6 r 9.2(3), Form 16 Cth r 9.2(3), Sch 1 Form 16 NSW r 9.2(3), Sch 1 Form 16 NT r 9.2(3), Sch 1 Form 16 Qld Sch 1A r 9.2(3), Form 16 SA r 9.2(3), Sch 1 Form 16 Tas see Cth Vic r 9.2(3), Sch 1 Form 16 WA r 9.2(3), Sch 1 Form 16 notice of intention to apply for review of Cth Sch 1 Form 16A NSW Sch 1 Form 16A Qld Sch 1A r 9.2A, 9.4A Form 16 940

SA Sch 1 Form 16A notice of objection to claim for ACT Sch 6 r 9.2(4) Cth r 9.2(4) NSW r 9.2(4) NT r 9.2(4) QldSch 1A r 9.2(4) SA r 9.2(4) Tas see Cth Vic r 9.2(4) WA r 9.2(4) procedure if no objection to claim for ACT Sch 6 r 9.2(5) Cth r 9.2(5) NSW r 9.2(5) NT r 9.2(5) Qld Sch 1A r 9.2(5) SA r 9.2(5) Tas see Cth Vic r 9.2(5) WA r 9.2(5) procedure if objection to claim for ACT Sch 6 r 9.2(6) Cth r 9.2(6) NSW r 9.2(6) NT r 9.2(6) Qld Sch 1A r 9.2(6) SA r 9.2(6) Tas see Cth Vic r 9.2(6) WA r 9.2(6) Affidavits creditor, by ACT Sch 6 r 2.5, 5.2 Cth rr 2.5, 5.2 NSW rr 2.5, 5.2 NT rr 2.5, 5.2 Qld Sch 1A rr 2.5, 5.2 SA rr 2.5, 5.2 Tas see Cth Vic rr 2.5, 5.2 WA rr 2.5, 5.2 form of, generally ACT Sch 6 r 2.6 Cth r 2.6 NSW r 2.6 NT r 2.6 Qld Sch 1A r 2.6 SA r 2.6 Tas see Cth Vic r 2.6 WA r 2.6 in support application by liquidator for leave to disclaim contract, of Corporations – Court Rules and Related Legislation 2017

Affidavits — continued ACT Sch 6 r 10.2 Cth r 10.2 NSW r 10.2 NT r 10.2 Qld Sch 1A r 10.2 SA r 10.2 Tas see Cth Vic r 10.2 WA r 10.2 application for order for payment of call, of ACT Sch 6 r 7.8, Form 14 Cth r 7.8, Sch 1 Form 14 NSW r 7.8, Sch 1 Form 14 NT r 7.8, Sch 1 Form 14 Qld Sch 1A r 7.8, Form 14 SA r 7.8, Sch 1 Form 14 Tas see Cth Vic r 7.8, Sch 1 Form 14 WA r 7.8, Sch 1 Form 14 application for winding up order, of, ACT Sch 6 r 5.4(1) Cth r 5.4(1) NSW r 5.4(1) NT r 5.4(1) Qld Sch 1A r 5.4(1) SA r 5.4(1) Tas see Cth Vic r 5.4(1) WA r 5.4(1) application for winding up on ground of insolvency, of ACT Sch 6 r 5.4(2) Cth r 5.4(2), Sch 3 Note 2 NSW r 5.4(2), Sch 2 Note 2 NT r 5.4(2), Sch 2 Note 2 Qld Sch 1A r 5.4(2), Form 7A SA r 5.4(2) Tas see Cth Vic r 5.4(2), Sch 3 Note 2 WA r 5.4(2), Note 2 generally ACT Sch 6 r 2.4 Cth r 2.4, Sch 3 Note 2 NSW r 2.4, Sch 2 Note 2 NT r 2.4, Sch 2 Note 2 Qld Sch 1A r 2.4, Form 2, Part C SA r 2.4 Tas see Cth Vic r 2.4, Sch 3 Note 2 WA r 2.4, Note 2 statutory demand, of, ACT Sch 6 r 5.2, Form 7 ©

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Cth r 5.2, Sch 1 Form 7 NSW r 5.2, Sch 1 Form 7 NT r 5.2, Sch 1 Form 7 Qld Sch 1A r 5.2, Form 7 SA r 5.2, Sch 1 Form 7 Tas see Cth Vic r 5.2, Sch 1 Form 7 WA r 5.2, Sch 1 Form 7 Anton Piller orders — see Search orders Appeals act, omission or decision or administrator, receiver, liquidator etc, from ACT Sch 6 r 14.1 Cth r 14.1 NSW r 14.1 NT r 14.1 Qld Sch 1A r 14.1 SA r 14.1 Tas see Cth Vic r 14.1 WA r 14.1 Associate Judge, from Vicrr 16.3(b), 16.5 decision of futures exchange or futures association, from SAr 13.1 generally, under Corporations Act ACT Sch 6 r 14.1 Cth r 14.1 NSW rr 14.1, 16.1 NT rr 14.1, 16.3 Qld Sch 1A r 14.1 SA r 14.1 Tas see Cth Vic r 14.1 WA r 14.1 Master, from NTr 16.3 Registrar, from NSW r 16.1 NT r 16.3 Qld Sch 1A r 16.1(4) Appearance application for summons for, in relation to registration of transfer of interests ACT Sch 6 r 12.2 Cth r 12.2 NSW r 12.2 NT r 12.2 Qld Sch 1A r 12.2 SA r 12.2 Tas see Cth Vic r 12.2 WA r 12.2 appointment by Court of person to represent a class of creditors or contributories ACT Sch 6 r 2.13(5)(a) Cth r 2.13(5)(a) 941

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INDEX

A

INDEX

Appearance — continued NSW r 2.13(5)(a) NT r 2.13(5)(a) Qld Sch 1A r 2.13(5)(a) SA r 2.13(5)(a) Tas see Cth Vic r 2.13(5)(a) WA r 2.13(5)(a) issue of summons for, in relation to registration of transfer of interests, form of ACT Sch 6 r 12.2(3), Form 18 Cth r 12.2(4), Sch 1 Form 18 NSW r 12.2(4), Sch 1 Form 18 NT r 12.2(4), Sch 1 Form 18 Qld Sch 1A r 12.2(4), Form 18 SA r 12.2(4), Sch 1 Form 18 Tas see Cth Vic r 12.2(4), Sch 1 Form 18 WA r 12.2(4), Sch 1 Form 18 leave of Court to be heard in proceeding as non-party ACT Sch 6 r 2.13(1), (4) Cth r 2.13(1), (4) NSW r 2.13(1), (4) NT r 2.13(1), (4) Qld Sch 1A r 2.13(1), (4) SA r 2.13(1), (4) Tas see Cth Vic r 2.13(1), (4) WA r 2.13(1), (4) additional costs, order for ACT Sch 6 r 2.13(2) Cth r 2.13(2) NSW r 2.13(2) NT r 2.13(2) Qld Sch 1A r 2.13(2) SA r 2.13(2) Tas see Cth Vic r 2.13(2) WA r 2.13(2) notice of filing of ACT Sch 6 r 2.9(1)(a), (3) Cth r 2.9(1)(a), (3) NSW r 2.9(1)(a), (3) NT r 2.9(1)(a), (3) Qld Sch 1A r 2.9(1)(a), (3) SA r 2.9(1)(a), (3) Tas see Cth Vic r 2.9(1)(a), (3) WA r 2.9(1)(a), (3) form of ACT Sch 6 r 2.9(1)(a)(i), Form 4 942

Cth r 2.9(1)(a)(i), Sch 1 Form 4 NSW r 2.9(1)(a)(i), Sch 1 Form 4 NT r 2.9(1)(a)(i), Sch 1 Form 4 Qld Sch 1A r 2.9(1)(a)(i), Form 4 SA r 2.9(1)(a)(i), Sch 1 Form 4 Tas see Cth Vic r 2.9(1)(a)(i), Sch 1 Form 4 WA r 2.9(1)(a)(i), Sch 1 Form 4 grounds of opposition to application for winding up, inclusion of, in ACT Sch 6 r 2.9(2) Cth r 2.9(2) NSW r 2.9(2) NT r 2.9(2) Qld Sch 1A r 2.9(2) SA r 2.9(2) Tas see Cth Vic r 2.9(2) WA r 2.9(2) order of Court to add defendant/respondent to proceeding ACT Sch 6 r 2.13(3), (4) Cth r 2.13(3), (4) NSW r 2.13(3), (4) NT r 2.13(3), (4) Qld Sch 1A r 2.13(3), (4) SA r 2.13(3), (4) Tas see Cth Vic r 2.13(3), (4) WA r 2.13(3), (4) removal by Court of person appointed to represent a class of creditors or contributories ACT Sch 6 r 2.13(5)(b) Cth r 2.13(5)(b) NSW r 2.13(5)(b) NT r 2.13(5)(b) Qld Sch 1A r 2.13(5)(b) SA r 2.13(5)(b) Tas see Cth Vic r 2.13(5)(b) WA r 2.13(5)(b) Applicant — see Plaintiff ARBN — see Australian Registered Body Number (ARBN) Arrest warrant ACT Sch 6 r 11A.1, Form 17A Cth r 11A.01, Sch 1 Form 17A NSW r 11A.1, Form 17A NT r 11A.1, Sch 1 Form 17A Qld Sch 1A r 11A.01, Sch 1 Form 17A SA r 11A.1, Form 17A Tas see Cth Vic r 11A.01, Sch 1 Form 17A WA r 11A.1, Form 17A Corporations – Court Rules and Related Legislation 2017

ASIC — see Australian Securities and Investments Commission ASIC Act — see Australian Securities and Investments Commission Act 2001 (Cth) Asset preservation orders — see Freezing orders Associate Judge appeal from Vic rr 16.3(b), 16.5 no jurisdiction, where Vic r 16.4 powers of deal with matters within jurisdiction Vic r 16.3 exceptions Vic r 16.3(a) – (d) generally Vic rr 16.1 – 16.5, Sch 2 hear and determine application referred by Judge Vic r 16.1(3) inquiry and order in relation to meeting Vic r 16.6 not limited by powers of judicial registrars Vic r 16B.1 oppression process, in relation to Vic rr 16.7 – 16.9 refer matter to Judge Vic rr 16.2, 16.3(a) winding up process, in relation to Vic rr 16.7 – 16.9 Auditor report on accounts of liquidator, by ACT Sch 6 r 7.7 Cth r 7.7 NSW r 7.7 NT r 7.7 Qld Sch 1A r 7.7 SA r 7.7 Tas see Cth Vic r 7.7 WA r 7.7 lodgement with ASIC, of ACT Sch 6 r 7.7(2)(c) Cth r 7.7(2)(c) NSW r 7.7(2)(c) NT r 7.7(2)(c) Qld Sch 1A r 7.7(2)(c) SA r 7.7(2)(c) Tas see Cth Vic r 7.7(2)(c) WA r 7.7(2)(c) who may inspect ACT Sch 6 r 7.7(3) Cth r 7.7(3) NSW r 7.7(3) ©

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NT r 7.7(3) Qld Sch 1A r 7.7(3) SA r 7.7(3) Tas see Cth Vic r 7.7(3) WA r 7.7(3) Australian Business Number (ABN) “ABN”, ACT Sch 6 r 1.4 Cth r 1.4 NSW r 1.4 NT r 1.4 SA r 1.4 Tas see Cth Vic r 1.4 Australian Capital Territory Commonwealth agencies, functions of continuation of functions CRCTAs 13 definitions CRCTAs 12 former co-operative scheme legislation, transitional arrangements for Companies Liquidation Account CRCTAs 10 definitions CRCTAs 8 generally CRCTAs 11 winding up, commencement of, CRCTAs 9 former Corporations and ASIC law, transitional arrangements for corresponding provision CRCTAs 5 court proceedings and orders CRCTAs 7 definitions CRCTAs 4 proceedings, termination of CRCTAs 6 rights and liabilities, extinguishment of CRCTAs 6 Australian Company Number (ACN) “ACN” ACT Sch 6 r 1.4 Cth r 1.4 NSW r 1.4 NT r 1.4 Qld Sch 1A r 1.4 SA r 1.4 Tas see Cth Vic r 1.4 Australian Registered Body Number (ARBN) “ARBN” ACT Sch 6 r 1.4 Cth r 1.4 NSW r 1.4 NT r 1.4 Qld Sch 1A r 1.4 SA r 1.4 Tas see Cth Vic r 1.4 943

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A

INDEX

Australian Securities and Investments Commission application by liquidator for deregistration of company by ACT Sch 6 r 7.5 Cth r 7.5 NSW r 7.5 NT r 7.5 Qld Sch 1A r 7.5 SA r 7.5 Tas see Cth Vic r 7.5 WA r 7.5 application by, for Court to appoint another liquidator to fill vacancy ACT Sch 6 r 7.2(2)(a) Cth r 7.2(2)(a) NSW r 7.2(2)(a) NT r 7.2(2)(a) Qld Sch 1A r 7.2(2)(a) SA r 7.2(2)(a) Tas see Cth Vic r 7.2(2)(a) WA r 7.2(2)(a) order for examination or investigation of person ACT Sch 6 r 11.2(1)(a) Cth r 11.2(1)(a) NSW r 11.2(1)(a) NT r 11.2(1)(a) Qld Sch 1A r 11.2(1) SA r 11.2(1)(a) Tas see Cth Vic r 11.2(1)(a) WA r 11.2(1)(a) application by person authorised by, for order for examination or investigation of person ACT Sch 6 r 11.2(1)(b) Cth r 11.2(1)(b) NSW r 11.2(1)(b) NT r 11.2(1)(b) Qld Sch 1A r 11.2(1)(b) SA r 11.2(1)(b) Tas see Cth Vic r 11.2(1)(b) WA r 11.2(1)(b) “ASIC” ACT Sch 6 r 1.4 Cth r 1.4 NSW r 1.4 NT r 1.4 Qld Sch 1A r 1.4 SA r 1.4 Tas see Cth

Vic r 1.4 consent of, to inspect record or transcript of examination or investigation ACT Sch 6 r 11.8(1)(a) Cth r 11.8(1)(a) NSW r 11.8(1)(a) NT r 11.8(1)(a) Qld Sch 1A r 11.8(1)(a) SA r 11.8(1)(a) Tas see Cth Vic r 11.8(1)(a) WA r 11.8(1)(a) lodgement with, of auditor’s report on accounts of liquidator ACT Sch 6 r 7.7(2)(c) Cth r 7.7(2)(c) NSW r 7.7(2)(c) NT r 7.7(2)(c) Qld Sch 1A r 7.7(2)(c) SA r 7.7(2)(c) Tas see Cth Vic r 7.7(2)(c) WA r 7.7(2)(c) copy order approving compromise or arrangement in relation to Part 5.1 body ACT Sch 6 r 3.5(b) Cth r 3.5(b) NSW r 3.5(b) NT r 3.5(b) Qld Sch 1A r 3.5(b) SA r 3.5(b) Tas see Cth Vic r 3.5(b) WA r 3.5(b) liquidator’s memorandum of resignation ACT Sch 6 r 7.1(1) Cth r 7.1(1) NSW r 7.1(1) NT r 7.1(1) Qld Sch 1A r 7.1(1) SA r 7.1(1) Tas see Cth Vic r 7.1(1) WA r 7.1(1) notice of appointment of provisional liquidator ACT Sch 6 r 6.2(2)(a) Cth r 6.2(2)(a) NSW r 6.2(2)(a) NT r 6.2(2)(a) Qld Sch 1A r 6.2(2)(a) SA r 6.2(2)(a) Tas see Cth Vic r 6.2(2)(a) WA r 6.2(2)(a)

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Australian Securities and Investments Commission — continued notice of intervention in proceeding by ACT Sch 6 r 2.10, Form 5 Cth r 2.10, Sch 1 Form 5 NSW r 2.10, Sch 1 Form 5 NT r 2.10, Sch 1 Form 5 Qld Sch 1A r 2.10, Form 5 SA r 2.10, Sch 1 Form 5 Tas see Cth Vic r 2.10, Sch 1 Form 5 WA r 2.10, Sch 1 Form 5 notice to, of application for examination summons, if not party to ACT Sch 6 r 11.3(6) Cth r 11.3(6) NSW r 11.3(6) NT r 11.3(6) Qld Sch 1A r 11.3(6) SA r 11.3(6) Tas see Cth Vic r 11.3(6) WA r 11.3(6) certain applications under the Corporations Act ACT Sch 6 rr 2.8, 11.11 Cth rr 2.8, 11.11 NSW rr 2.8, 11.11 NT rr 2.8, 11.11 Qld Sch 1A rr 2.8, 11.11 SA rr 2.8, 11.11 Tas see Cth Vicrr 2.8, 11.11 WArr 2.8, 11.11 question of law arising at hearing of, reference to Court of ACT Sch 6 r 15.1 Cth r 15.1 NSW r 15.1 NT r 15.1 Qld Sch 1A rr 15.1, 15.2 SA r 15.1 Tas see Cth Vic r 15.1 WA r 15.1 records maintained by record of search of by plaintiff/applicant ACT Sch 6 rr 2.4(2), 2.4A(3)(b) Cth rr 2.4(2), 2.4A(3)(b) NSW rr 2.4(2), 2.4A(3)(b) NT rr 2.4(2), 2.4A(3)(b) Qld Sch 1A r 2.4A(3)(b) ©

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A

SA rr 2.4(2), 2.4A(3)(b) Tas see Cth Vic rr 2.4(2), 2.4A(3)(b) WA rr 2.4(2), 2.4A(3)(b) search of by plaintiff/applicant ACT Sch 6 r 2.4A(3)(a) Cth r 2.4A(3)(a) NSW r 2.4A(3)(a) NT r 2.4A(3)(a) SA r 2.4A(3)(a) Tas see Cth Vic r 2.4A(3)(a) WA r 2.4A(3)(a) reference to Court of question of law arising at hearing of, ACT Sch 6 r 15.1 Cth r 15.1 NSW r 15.1 NT r 15.1 Qld Sch 1A rr 15.1, 15.2 SA r 15.1 Tas see Cth Vic r 15.1 WA r 15.1 report to Court by, about conduct of liquidator ACT Sch 6 r 7.11(2) – (5) Cth r 7.11(2) – (5) NSW r 7.11(2) – (5) NT r 7.11(2) – (5) Qld Sch 1A r 7.11(2) – (5) SA r 7.11(2) – (5) Tas see Cth Vic r 7.11(2) – (5) WA r 7.11(2) – (5) voluntary winding up, where ACT Sch 6 r 7.11(2)(b) Cth r 7.11(2)(b) NSW r 7.11(2)(b) NT r 7.11(2)(b) Qld Sch 1A r 7.11(2)(b) SA r 7.11(2)(b) Tas see Cth Vic r 7.11(2)(b) WA r 7.11(2)(b) who may inspect ACT Sch 6 r 7.11(4) Cth r 7.11(4) NSW r 7.11(4) NT r 7.11(4) Qld Sch 1A r 7.11(4) SA r 7.11(4) Tas see Cth Vic r 7.11(4) WA r 7.11(4) winding up by Court, where 945

Index

INDEX

A

INDEX

Australian Securities and Investments Commission — continued ACT Sch 6 r 7.11(2)(a) Cth r 7.11(2)(a) NSW r 7.11(2)(a) NT r 7.11(2)(a) Qld Sch 1A r 7.11(2)(a) SA r 7.11(2)(a) Tas see Cth Vic r 7.11(2)(a) WA r 7.11(2)(a) right to inspect auditor’s report on liquidator ACT Sch 6 r 7.7(3) Cth r 7.7(3) NSW r 7.7(3) NT r 7.7(3) Qld Sch 1A r 7.7(3) SA r 7.7(3) Tas see Cth Vic r 7.7(3) WA r 7.7(3) record or transcript of examination or investigation ACT Sch 6 r 11.8(2) Cth r 11.8(2) NSW r 11.8(2) NT r 11.8(2) Qld Sch 1A r 11.8(2) SA r 11.8(2) Tas see Cth Vic r 11.8(2) WA r 11.8(2) report about conduct of liquidator ACT Sch 6 r 7.11(4) Cth r 7.11(4) NSW r 7.11(4) NT r 7.11(4) Qld Sch 1A r 7.11(4) SA r 7.11(4) Tas see Cth Vic r 7.11(4) WA r 7.11(4) service on, of application for examination summons, if non-party ACT Sch 6 r 11.3(6) Cth r 11.3(6) NSW r 11.3(6) NT r 11.3(6) Qld Sch 1A r 11.3(6) SA r 11.3(6) Tas see Cth 946

Vic r 11.3(6) WA r 11.3(6) certain applications under the Corporations Act ACT Sch 6 r 2.8 Cth r 2.8 NSW r 2.8 NT r 2.8 Qld Sch 1A r 2.8 SA r 2.8 Tas see Cth Vic r 2.8 WA r 2.8 copy documents seeking order to discharge examination summons ACT Sch 6 r 11.5(3)(b) Cth r 11.5(3)(b) NSW r 11.5(3)(b) NT r 11.5(3)(b) Qld Sch 1A r 11.5(3)(b) SA r 11.5(3)(b) Tas see Cth Vic r 11.5(3)(b) WA r 11.5(3)(b) originating process/application and supporting affidavit, on, if non-party to proceeding under Ch 6, 6A, 6B, 6C, 6D or 7 of Corporations Act ACT Sch 6 r 12.1 Cth r 12.1 NSW r 12.1 NT r 12.1 Qld Sch 1A r 12.1 SA r 12.1 Tas see Cth Vic r 12.1 WA r 12.1 Takeovers Panel proceedings, role of, in — see Takeovers Panel Rules for Proceedings Australian Securities and Investments Commission Act 2001 (Cth) application of Court rules to court proceeding under ACT Sch 6 r 1.3 Cth r 1.3 NSW r 1.3 NT r 1.3 Qld Sch 1A r 1.3 SA r 1.3 Tas see Cth Vic r 1.3 WA r 1.3 “ASIC Act” ACT Sch 6 r 1.5 Cth r 1.5 Corporations – Court Rules and Related Legislation 2017

INDEX

NSW r 1.5 NT r 1.5 SA r 1.5 Tas see Cth Vic r 1.5 WA r 1.5 powers of Associate Judge under Vic Sch 2 powers of Registrar under Cth Sch 2 Part 2 proceedings under application for inquiry ACT Sch 6 r 15.3 Cth r 15.3 NSW r 15.3 NT r 15.3 Qld Sch 1A r 15.3 SA r 15.3 Tas see Cth Vic r 15.3 WA r 15.2 Court may draw inferences Qld Sch 1A r 15.2 interlocutory process/application ACT Sch 6 r 2.2(1), Form 3 Cth r 2.2(4)(b)(i), Sch 1 Form 3 NSW r 2.2(4)(b)(i), Sch 1 Form 3 NT r 2.2(4)(b)(i), Sch 1 Form 3 Qld Sch 1A r 2.2(4)(b)(i), Form 3 SA r 2.2(4)(b)(i), Sch 1 Form 3 Tas see Cth Vic r 2.2(4)(b)(i), Sch 1 Form 3 WA r 2.2(4)(b)(i), Sch 1 Form 3 originating process/application ACT Sch 6 r 2.2(1), Form 2 Cth r 2.2(3)(b)(i), Sch 1 Form 2 NSW r 2.2(3)(b)(i), Sch 1 Form 2 NT r 2.2(3)(b)(i), Sch 1 Form 2 Qld Sch 1A r 2.2(3)(b)(i), Form 2 SA r 2.2(3)(b)(i), Sch 1 Form 2 Tas see Cth Vic r 2.2, Sch 1 Form 2, 2A WA r 2.2(3)(b)(i), Sch 1 Form 2 reference to Court of question of law arising at hearing of ASIC ACT Sch 6 r 15.1 Cth r 15.1 NSW r 15.1 NT r 15.1 Qld Sch 1A r 15.1 SA r 15.1 ©

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Tas see Cth Vic r 15.1 WA r 15.1 provision for court practice and procedure under, if inadequate ACT Sch 6 r 1.8(a) Cth r 1.8(a) NSW r 1.8(a) NT r 1.8(a) Qld Sch 1A r 1.8(a) SA r 1.8(a) Tas see Cth Vic r 1.8(a) WA r 1.8(a) rules made by Takeovers Panel under — see Takeovers Panel Rules for Proceedings time, extension and abridgement/shortening of ACT Sch 6 r 1.10 Cth r 1.10 NSW r 1.10 NT r 1.10 Qld Sch 1A r 1.10 SA r 1.10 Tas see Cth Vic r 1.10 WA r 1.10 B Bill of costs — see Costs Body — see also Body corporate — see also Part 5.1 body — see also Part 5.7 body “body” ACT Sch 6 r 1.4 Cth r 1.5 NSW r 1.4 NT r 1.4 Qld Sch 1A r 1.4 SA r 1.4 Tas see Cth Vic r 1.4 notice in relation to proof of publication of ACT Sch 6 r 2.12 Cth r 2.12 NSW r 2.12 NT r 2.12 Qld Sch 1A r 2.12 SA r 2.12 Tas see Cth Vic r 2.12 WA r 2.12 publication of ACT Sch 6 r 2.11 Cth r 2.11 NT r 2.11 947

Index

Australian Securities and Investments Commission Act 2001 (Cth) — continued

B

C

INDEX

Body — continued

Commission — see Australian Securities and Investments Commission Company — see also Corporation — see also Part 5.1 body — see also Part 5.7 body acquisition of shares and securities of — see Acquisition of shares and securities — see Securities — see Takeovers administrator of company under administration — see Administrator deed of company arrangement — see Administrator affidavit by, as creditor ACT Sch 6 r 2.5(b) Cth r 2.5(b) NSW r 2.5(b) NT r 2.5(b) Qld Sch 1A r 2.5(b) SA r 2.5(b) Tas see Cth, Vicr 2.5(b) WA r 2.5(b) application by, for order setting aside statutory demand served on ACT Sch 6 r 2.4A Cth r 2.4A NSW r 2.4A NT r 2.4A SA r 2.4A Tas see Cth Vic r 2.4A WA r 2.4A filing of ACT Sch 6 r 2.4A(2) Cth r 2.4A(2) NSW r 2.4A(2)

NT r 2.4A(2) SA r 2.4A(2) Tas see Cth Vic r 2.4A(2) WA r 2.4A(2) search of records maintained by ASIC ACT Sch 6 r 2.4A(3)(a) Cth r 2.4A(3)(a) NSW r 2.4A(3)(a) NT r 2.4A(3)(a) SA r 2.4A(3)(a) Tas see Cth Vic r 2.4A(3)(a) WA r 2.4A(3)(a) annexure of record of, to supporting affidavit ACT Sch 6 r 2.4A(3)(b)(i) Cth r 2.4A(3)(b)(i) NSW r 2.4A(3)(b)(i) NT r 2.4A(3)(b)(i) SA r 2.4A(3)(b)(i) Tas see Cth Vic r 2.4A(3)(b)(i) WA r 2.4A(3)(b)(i) filing or tender of record of ACT Sch 6 r 2.4A(3)(b)(ii) Cth r 2.4A(3)(b)(ii) NSW r 2.4A(3)(b)(ii) NT r 2.4A(3)(b)(ii) SA r 2.4A(3)(b)(ii) Tas see Cth Vic r 2.4A(3)(b)(ii) WA r 2.4A(3)(b)(ii) application by, for appointment of official liquidator as provisional liqidator Qld Sch 1A r 6.1(1) application for order that ASIC deregister ACT Sch 6 r 7.5 Cth r 7.5 NSW r 7.5 NT r 7.5 Qld Sch 1A r 7.5 SA r 7.5 Tas see Cth Vic r 7.5 WA r 7.5 “company” ACT Sch 6 r 1.4 Cth r 1.4 NSW r 1.4 NT r 1.4 Qld Sch 1A r 1.4 SA r 1.4 Tas see Cth Vic r 1.4

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Qld Sch 1A r 2.11 SA r 2.11 Tas see Cth Vic r 2.11 WA r 2.11 Body corporate — see also Corporation “body corporate” ACT Sch 6 r 1.4 Cth r 1.4 NSW r 1.4 NT r 1.4 Qld Sch 1A r 1.4 SA r 1.4 Tas see Cth Vic r 1.4 C

Company — continued compromises and arrangements in relation to Part 5.1 bodies ACT Sch 6 rr 3.1 – 3.5 Cth rr 3.1 – 3.5 NSW rr 3.1 – 3.5 NT rr 3.1 – 3.5 Qld Sch 1A rr 3.1 – 3.5 SA rr 3.1 – 3.5 Tas see Cth Vic rr 3.1 – 3.5 WA rr 3.1 – 3.5 creditor, as ACT Sch 6 r 2.5(b) Cth r 2.5(b) NSW r 2.5(b) NT r 2.5(b) Qld Sch 1A r 2.5(b) SA r 2.5(b) Tas see Cth Vic r 2.5(b) WA r 2.5(b) liquidator of — see Liquidator meeting of members of, to identify proposed compromise or arrangement in relation to Pt 5.1 body ACT Sch 6 r 3.3(2)(a) Cth r 3.3(2)(a) NSW r 3.3(2)(a) NT r 3.3(2)(a) Qld Sch 1A r 3.3(2)(a) SA r 3.3(2)(a) Tas see Cth Vic r 3.3(2)(a) WA r 3.3(2)(a) official liquidator of — see Liquidator — see Official liquidator provisional liquidator of — see Liquidator — see Provisional liquidator remuneration of office-holders ACT Sch 6 rr 9.1 – 9.5 Cth rr 9.1 – 9.5 NSW rr 9.1 – 9.5 NT rr 9.1 – 9.5 Qld Sch 1A rr 9.1 – 9.5 SA rr 9.1 – 9.5 Tas see Cth Vic rr 9.1 – 9.5 WA rr 9.1 – 9.5 report about affairs of, to liquidator ACT Sch 6 r 7.3 Cth r 7.3 NSW r 7.3 ©

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C

NT r 7.3 Qld Sch 1A r 7.3 SA r 7.3 Tas see Cth Vic r 7.3 WA r 7.3 costs and expenses of ACT Sch 6 r 7.3(2) Cth r 7.3(2) NSW r 7.3(2) NT r 7.3(2) Qld Sch 1A r 7.3(2) SA r 7.3(2) Tas see Cth Vic r 7.3(2) WA r 7.3(2) report to Court by liquidator, about any default in ACT Sch 6 r 7.3(3) Cth r 7.3(3) NSW r 7.3(3) NT r 7.3(3) Qld Sch 1A r 7.3(3) SA r 7.3(3) Tas see Cth Vic r 7.3(3) WA r 7.3(3) special manager in relation to — see Special manager takeover of — see Acquisition of shares and securities — see Takeovers winding up of — see Winding up — see Winding up in insolvency Compromises and arrangements — see Part 5.1 body Contributory application by, for appointment of official liquidator as provisional liquidator QldSch 1A r 6.1(1) Court to appoint another liquidator to fill vacancy ACT Sch 6 r 7.2(2)(a) Cth r 7.2(2)(a) NSW r 7.2(2)(a) NT r 7.2(2)(a) Qld Sch 1A r 7.2(2)(a) SA r 7.2(2)(a) Tas see Cth Vic r 7.2(2)(a) WA r 7.2(2)(a) examination or investigation of person ACT Sch 6 r 11.2(1)(c), (2) Cth r 11.2(1)(c), (2) NSW r 11.2(1)(c), (2) 949

Index

INDEX

C

INDEX

Contributory — continued NT r 11.2(1)(c), (2) Qld Sch 1A r 11.2(1)(c), (2) SA r 11.2(1)(c), (2) Tas see Cth Vic r 11.2(1)(c), (2) WA r 11.2(1)(c), (2) application for remuneration of office-holders, role of, in ACT Sch 6 rr 9.1 – 9.5 Cth rr 9.1 – 9.5 NSW rr 9.1 – 9.5 NT rr 9.1 – 9.5 Qld Sch 1A rr 9.1 – 9.5 SA rr 9.1 – 9.5 Tas see Cth Vic rr 9.1 – 9.5 WA rr 9.1 – 9.5 availability of copy documents for service for inspection on, in winding up proceedings ACT Sch 6 r 5.7 Cth r 5.7 NSW r 5.7 NT r 5.7 Qld Sch 1A r 5.7 SA r 5.7 Tas see Cth Vic r 5.7 WA r 5.7 leave of Court to be heard in proceeding, as non-party ACT Sch 6 r 2.13(1)(a), (4) Cth r 2.13(1)(a), (4) NSW r 2.13(1)(a), (4) NT r 2.13(1)(a), (4) Qld Sch 1A r 2.13(1)(a), (4) SA r 2.13(1)(a), (4) Tas see Cth Vic r 2.13(1)(a), (4) WA r 2.13(1)(a), (4) additional costs, direction or order of Court if ACT Sch 6 r 2.13(2) Cth r 2.13(2) NSW r 2.13(2) NT r 2.13(2) Qld Sch 1A r 2.13(2) SA r 2.13(2) Tas see Cth Vic r 2.13(2) WA r 2.13(2) objection by, to release of liquidator ACT Sch 6 r 7.6, Form 13 Cth r 7.6, Sch 1 Form 13 950

NSW r 7.6, Sch 1 Form 13 NT r 7.6, Sch 1 Form 13 Qld Sch 1A r 7.6, Form 13 SA r 7.6, Sch 1 Form 13 Tas see Cth Vic r 7.6, Sch 1 Form 13 WA r 7.6, Sch 1 Form 13 order of Court to add as defendant/respondent to proceeding ACT Sch 6 r 2.13(3), (4) Cth r 2.13(3), (4) NSW r 2.13(3), (4) NT r 2.13(3), (4) Qld Sch 1A r 2.13(3), (4) SA r 2.13(3), (4) Tas see Cth Vic r 2.13(3), (4) WA r 2.13(3), (4) representative of class, as appointment by Court ACT Sch 6 r 2.13(5)(a) Cth r 2.13(5)(a) NSW r 2.13(5)(a) NT r 2.13(5)(a) Qld Sch 1A r 2.13(5)(a) SA r 2.13(5)(a) Tas see Cth Vic r 2.13(5)(a) WA r 2.13(5)(a) removal by Court ACT Sch 6 r 2.13(5)(b) Cth r 2.13(5)(b) NSW r 2.13(5)(b) NT r 2.13(5)(b) Qld Sch 1A r 2.13(5)(b) SA r 2.13(5)(b) Tas see Cth Vic r 2.13(5)(b) WA r 2.13(5)(b) Corporation — see also Company — see also Corporation property acquisition of shares and securities of — see Acquisition of shares and securities — see Securities — see Takeovers administrator of — see Administrator affidavit by, as creditor ACT Sch 6 r 2.5(a) Cth r 2.5(a) NSW r 2.5(a) NT r 2.5(a) Qld Sch 1A r 2.5(a) SA r 2.5(a) Tas see Cth Vic r 2.5(a) WA r 2.5(a) Corporations – Court Rules and Related Legislation 2017

Corporation — continued application for order in relation to breaches etc by person concerned with ACT Sch 6 r 11.11 Cth r 11.11 NSW r 11.11 NT r 11.11 Qld Sch 1A r 11.11 SA r 11.11 Tas see Cth Vic r 11.11 WA r 11.11 claims of, Court-directed inquiry about ACT Sch 6 r 2.14 Cth r 2.14 NSW r 2.14 NT r 2.14 Qld Sch 1A r 2.14 SA r 2.14 Tas see Cth Vic r 2.14 WA r 2.14 “corporation” ACT Sch 6 r 1.4 Cth r 1.4 NSW r 1.4 NT r 1.4 Qld Sch 1A r 1.4 SA r 1.4 Tas see Cth Vic r 1.4 creditor, as, ACT Sch 6 r 2.5(a) Cth r 2.5(a) NSW r 2.5(a) NT r 2.5(a) Qld Sch 1A r 2.5(a) SA r 2.5(a) Tas see Cth Vic r 2.5(a) WA r 2.5(a) debts of, Court-directed inquiry about ACT Sch 6 r 2.14 Cth r 2.14 NSW r 2.14 NT r 2.14 Qld Sch 1A r 2.14 SA r 2.14 Tas see Cth Vic r 2.14 WA r 2.14 examinable affairs of — see also Examinations ACT Sch 6 rr 11.1 – 11.11 ©

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C

Cth rr 11.1 – 11.11 NSW rr 11.1 – 11.11 NT rr 11.1 – 11.11 Qld Sch 1A rr 11.1 – 11.11 SA rr 11.1 – 11.11 Tas see Cth, Vicrr 11.1 – 11.11 WA r 11.1 – 11.11 leave of Court to be heard in proceeding, as non-party ACT Sch 6 r 2.13(1)(a), (b), (4) Cth r 2.13(1)(a), (b), (4) NSW r 2.13(1)(a), (b), (4) NT r 2.13(1)(a), (b), (4) Qld Sch 1A r 2.13(1)(a), (b), (4) SA r 2.13(1)(a), (b), (4) Tas see Cth, Vicr 2.13(1)(a), (b), (4) WA r 2.13(1)(a), (b), (4) additional costs, direction or order of Court if ACT Sch 6 r 2.13(2) Cth r 2.13(2) NSW r 2.13(2) NT r 2.13(2) Qld Sch 1A r 2.13(2) SA r 2.13(2) Tas see Cth, Vicr 2.13(2) WA r 2.13(2) liabilities of, Court-directed inquiry about ACT Sch 6 r 2.14 Cth r 2.14 NSW r 2.14 NT r 2.14 Qld Sch 1A r 2.14 SA r 2.14 Tas see Cth Vic r 2.14 WA r 2.14 liquidator of — see Liquidator official liquidator of — see Liquidator — see Official liquidator order of Court to add as defendant/respondent to proceeding ACT Sch 6 r 2.13(3), (4) Cth r 2.13(3), (4) NSW r 2.13(3), (4) NT r 2.13(3), (4) Qld Sch 1A r 2.13(3), (4) SA r 2.13(3), (4) Tas see Cth Vic r 2.13(3), (4) WA r 2.13(3), (4) provisional liquidator of — see Liquidator — see Provisional liquidator receiver of property of — see Receiver special manager in relation to — see Special manager 951

Index

INDEX

C

Corporation — continued takeover of — see Acquisition of shares and securities — see Takeovers winding up of — see Winding up — see Winding up in insolvency Corporation property Court-appointed receivers and other controllers of — see also Receiver complaint to Court about act or omission of ACT Sch 6 r 4.1 Cth r 4.1 NSW r 4.1 NT r 4.1 Qld Sch 1A r 4.1 SA r 4.1 Tas see Cth Vic r 4.1 WA r 4.1 Corporations Act 2001 (Cth) “Corporations Act” Cth r 1.5 NSW r 1.5 NT r 1.5 SA r 1.5 Tas see Cth Vic r 1.5 WA r 1.5 expressions/terms used in ACT Sch 6 r 1.4 Cth r 1.4 NSW r 1.4 NT r 1.4 Qld Sch 1A r 1.4 SA r 1.4 Tas see Cth Vic r 1.4 WA r 1.4 proceedings under acquisition of shares and securities — see Acquisition of shares and securities — see Securities — see Takeovers appeals to Court ACT Sch 6 r 14.1 Cth r 14.1 NSW rr 14.1, 16.1 NT rr 14.1, 16.3 Qld Sch 1A r 14.1 SA r 14.1 Tas see Cth Vic r 14.1 WA r 14.1 appearance, notice of ACT Sch 6 r 2.9, Form 4 952

INDEX

Cth r 2.9, Sch 1 Form 4 NSW r 2.9, Sch 1 Form 4 NT r 2.9, Sch 1 Form 4 Qld Sch 1A r 2.9, Form 4 SA r 2.9, Sch 1 Form 4 Tas see Cth Vic r 2.9, Sch 1 Form 4, 4A WA r 2.9, Sch 1 Form 4 application for order setting aside statutory demand ACT Sch 6 r 2.4A Cth r 2.4A NSW r 2.4A NT r 2.4A Qld Sch 1A r 2.4A SA r 2.4A Tas see Cth Vic r 2.4A WA r 2.4A application of other Court rules to proceeding under ACT Sch 6 r 1.3 Cth r 1.3 NSW r 1.3 NT r 1.3 Qld Sch 1A r 1.3 SA r 1.3 Tas see Cth Vic r 1.3 WA r 1.3 appointment by Court of representative of class ACT Sch 6 r 2.13(5)(a) Cth r 2.13(5)(a) NSW r 2.13(5)(a) NT r 2.13(5)(a) Qld Sch 1A r 2.13(5)(a) SA r 2.13(5)(a) Tas see Cth Vic r 2.13(5)(a) WA r 2.13(5)(a) complaint about Court-appointed receiver or controller of corporation property ACT Sch 6 r 4.1 Cth r 4.1 NSW r 4.1 NT r 4.1 Qld Sch 1A r 4.1 SA r 4.1 Tas see Cth Vic r 4.1 WA r 4.1 compromises and arrangements in relation to Part 5.1 bodies — see Part 5.1 bodies defendant/respondent, addition of Corporations – Court Rules and Related Legislation 2017

Corporations Act 2001 (Cth) — continued ACT Sch 6 r 2.13(3), (4) Cth r 2.13(3), (4) NSW r 2.13(3), (4) NT r 2.13(3), (4) Qld Sch 1A r 2.13(3), (4) SA r 2.13(3), (4) Tas see Cth Vic r 2.13(3), (4) WA r 2.13(3), (4) examinations and orders — see Examinations fixing of hearing ACT Sch 6 r 2.3 Cth r 2.3 NSW r 2.3 NT r 2.3 Qld Sch 1A r 2.3 SA r 2.3 Tas see Cth Vic r 2.3 WA r 2.3 forms and documents — see Forms and documents generally ACT Sch 6 rr 2.1 – 2.15 Cth rr 2.1 – 2.15 NSW rr 2.1 – 2.15 NT rr 2.1 – 2.15 Qld Sch 1A rr 2.1 – 2.15 SA rr 2.1 – 2.15 Tas see Cth, Vicrr 2.1 – 2.15 WA rr 2.1 – 2.15 inquiry about corporation’s debts, claims or liabilities ACT Sch 6 r 2.14 Cth r 2.14 NSW r 2.14 NT r 2.14 Qld Sch 1A rr 2.1 – 2.15 SA r 2.14 Tas see Cth Vic r 2.14 WA r 2.14 interlocutory process/application ACT Sch 6 r 2.2(1), Form 3 Cth r 2.2(1)(b), (2), (4), Sch 1 Form 3 NSW r 2.2(1)(b), (2), (4), Sch 1 Form 3 NT r 2.2(1)(b), (2), (4), Sch 1 Form 3 Qld Sch 1A r 2.2(1)(b), (2), (4), Form 3 SA r 2.2(1)(b), (2), (4), Sch 1 Form 3 Tas see Cth Vic r 2.2(1)(b), (2), (4), Sch 1 Form 3 ©

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WA r 2.2(1)(b), (2), (4), Sch 1 Form 3 service of ACT Sch 6 r 2.7(2) Cth r 2.7(2) NSW r 2.7(2) NT r 2.7(2) Qld Sch 1A r 2.7(2) SA r 2.7(2) Tas see Cth Vic r 2.7(2) WA r 2.7(2) intervention in, by ASIC ACT Sch 6 r 2.10 Cth r 2.10 NSW r 2.10 NT r 2.10 Qld Sch 1A r 2.10 SA r 2.10 Tas see Cth Vic r 2.10 WA r 2.10 leave granted by Court to persons to be heard as non-party ACT Sch 6 r 2.13(1), (4) Cth r 2.13(1), (4) NSW r 2.1(1), (4) NT r 2.1(1), (4) Qld Sch 1A r 2.13(1), (4) SA r 2.2(1)(b), (2), (4) Tas see Cth Vic r 2.2(1)(b), (2), (4) WA r 2.2(1)(b), (2), (4) additional costs if ACT Sch 6 r 2.13(2) Cth r 2.13(2) NSW r 2.1(2) NT r 2.1(2) Qld Sch 1A r 2.13(2) SA r 2.13(2) Tas see Cth Vic r 2.13(2) WA r 2.13(2) liquidators, in relation to — see Liquidator — see Official liquidator — see Provisional liquidator meetings ordered by Court ACT Sch 6 r 2.15 Cth r 2.15 NSW r 2.15 NT r 2.15 Qld Sch 1A r 2.15 SA r 2.15 Tas see Cth Vic r 2.15 WA r 2.15 953

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Corporations Act 2001 (Cth) — continued notice of appearance ACT Sch 6 r 2.9, Form 4 Cth r 2.9, Sch 1 Form 4 NSW r 2.9, Sch 1 Form 4 NT r 2.9, Sch 1 Form 4 Qld Sch 1A r 2.9, Form 4 SA r 2.9, Sch 1 Form 4 Tas see Cth Vic r 2.9, Sch 1 Form 4, 4A WA r 2.9, Sch 1 Form 4 notice of certain applications to ASIC ACT Sch 6 r 2.8 Cth r 2.8 NSW r 2.8 NT r 2.8 Qld Sch 1A r 2.8 SA r 2.8 Tas see Cth Vic r 2.8 WA r 2.8 notices, publication of ACT Sch 6 rr 2.11, 2.12 Cth rr 2.11, 2.12 NSW r 2.12 NT rr 2.11, 2.12 Qld Sch 1A rr 2.11, 2.12 SA rr 2.11, 2.12 Tas see Cth, Vicrr 2.11, 2.12 WA rr 2.11, 2.12 order by Court to add defendant/respondent ACT Sch 6 r 2.13(3), (4) Cth r 2.13(3), (4) NSW r 2.13(3), (4) NT r 2.13(3), (4) Qld Sch 1A r 2.13(3), (4) SA r 2.13(3), (4) Tas see Cth Vic r 2.13(3), (4) WA r 2.13(3), (4) originating process/application ACT Sch 6 r 2.2(1), Form 2 Cth r 2.2(1)(a), (3), Sch 1 Form 2, 2A NSW r 2.2(1)(a), (3), Sch 1 Form 2 NT r 2.2(1)(a), (3), Sch 1 Form 2 Qld Sch 1A r 2.2(1)(a), (3), Form 2 SA r 2.2(1)(a), (3), Sch 1 Form 2 Tas see Cth Vic r 2.2, Sch 1 Form 2, 2A WA r 2.2(1)(a), (3), Sch 1 Form 2 powers of Associate Judge/Master/Registrar ACT Sch 5, Pt 5.2 Cth rr 16.1 – 16.2, Sch 2 Part 1 954

NT rr 16.1 – 16.3 Qld Sch 1A rr 16.1 – 16.2, Sch 1B SA rr 16.1 – 16.3 Vic rr 16.1 – 16.10 WA r 16.1, Sch 2 provision for court practice and procedure under, if inadequate ACT Sch 6 r 1.8(a) Cth r 1.8(a) NSW r 1.8(a) NT r 1.8(a) Qld Sch 1A r 1.8(a) SA r 1.8(a) Tas see Cth Vic r 1.8(a) WA r 1.8(a) publication of notices ACT Sch 6 r 2.11 Cth r 2.11 NT r 2.11 Qld Sch 1A r 2.11 SA r 2.11 Tas see Cth Vic r 2.11 WA r 2.11 proof of ACT Sch 6 r 2.12 Cth r 2.12 NSW r 2.12 NT r 2.12 Qld Sch 1A r 2.12 SA r 2.12 Tas see Cth Vicr 2.12 WA r 2.12 removal by Court of person appointed as representative of class ACT Sch 6 r 2.13(5)(b) Cth r 2.13(5)(b) NSW r 2.13(5)(b) NT r 2.13(5)(b) Qld Sch 1A r 2.13(5)(b) SA r 2.13(5)(b) Tas see Cth Vic r 2.13(5)(b) WA r 2.13(5)(b) remuneration of office-holders — see Remuneration of office-holders representative of class, appointment and removal of ACT Sch 6 r 2.13(5) Cth r 2.13(5) NSW r 2.13(5) NT r 2.13(5) Qld Sch 1A r 2.13(5) Corporations – Court Rules and Related Legislation 2017

Corporations Act 2001 (Cth) — continued SA r 2.13(5) Tas see Cth Vic r 2.13(5) WA r 2.13(5) special managers — see Special manager takeovers — see Acquisition of shares and securities — see Takeovers — see Takeovers Panel Rules for Proceedings time, extension and abridgement/shortening of ACT Sch 6 r 1.10 Cth r 1.10 NSW r 1.10 NT r 1.10 Qld Sch 1A r 1.10 SA r 1.10 Tas see Cth Vic r 1.10 WA r 1.10 title of documents ACT Sch 6 r 2.1, Form 1 Cth r 2.1, Sch 1 Form 1 NSW r 2.1, Sch 1 Form 1 NT r 2.1, Sch 1 Form 1 Qld Sch 1A r 2.1, Form 1 SA r 2.1, Sch 1 Form 1 Tas see Cth Vic r 2.1, Sch 1 Form 1 WA r 2.1, Sch 1 Form 1 winding up of company under — see Winding up — see Winding up in insolvency Corporations (Compensation Arrangements Levies) Act 2001 citation CCALAs 1 commencement CCALAs 2 definitions CCALAs 3 levies amount of CCALAs 5 imposition of CCALAs 4 transitional matters CCALAs 6 Corporations List Practice Notes NSW Supreme Court [NSWPN.20] Corporations Law Rules (NT) acquisition of shares and securities NTrr 12.1 – 12.3 appeal to Court, from act, omission or decision of administrator, receiver or liquidator NT r 14.1 direction, decision or order of Master or Registrar ©

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NT r 16.3 application of Cross-Border Insolvency Act NT r 1.3(1)(b) other Court rules NT rr 1.3(2), (3), 12.1A, 15.1, 16.1, 16.3 these rules NT r 1.3(1) citation NT r 1.1 commencement NT r 1.2 compromises and arrangements in relation to Part 5.1 bodies NT rr 3.1 – 3.5 definitions expressions used in Corporations Act NT r 1.4 for these rules NT rr 1.5, 5.5(1), 5.11(5), 7.3(4), 7.11(5), 11.1 examinations and orders NT rr 11.1 – 11.11 forms precedents NT r 2.1, Sch 1 Forms 1 – 18 references to NT r 1.6(b) substantial compliance with NT r 1.7 liquidators NT rr 7.1 – 7.11, 9.3, 9.4 Master, powers of direct application for hearing by Registrar NT r 16.2 generally NT r 16.1 refer proceeding to Judge NT r 16.1 powers of Court appeals, in NT rr 14.1, 16.3 direct application or issue to Master NT r 16.1(5) refer proceeding back to Master or Registrar NT rr 16.1(4), 16.2(3) give directions about practice and procedure NT r 1.8 proceedings generally NT rr 2.1 – 2.15 under ASIC Act NT rr 15.1 – 15.3 provisional liquidators NT rr 6.1 – 6.2, 9.3 955

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Corporations Law Rules (NT) — continued receivers and other controllers of corporation property NT r 4.1 references to rules and forms NT r 1.6 Registrar, powers of generally NT r 16.2(1) refer proceeding to Judge NT r 16.2(2) remuneration of office-holders NT rr 9.1 – 9.5 securities NT rr 12.1 – 12.3 special managers NT rr 8.1 – 8.3, 9.5 takeovers NT rr 12.1 – 12.3 time calculation of NT r 1.9 extension and abridgement of NT r 1.10 winding up proceedings (including oppression proceedings) NT rr 5.1 – 5.11, 10.1 – 10.3, 16.1 – 16.3 Corporations (National Guarantee Fund Levies) Act 2001 citation CNGFLAs 1 commencement CNGFLAs 2 definitions CNGFLAs 3 levies amount of CNGFLAs 5 imposition of CNGFLAs 4 transitional matters Corporations Act 2001, implementation of CNGFLAs 6 Financial Services Reform Act 2001 implementation of CNGFLAs 7 Corporations Regulations 2001 (Cth) application of, to meetings ordered by Court ACT Sch 6 r 2.15 Cth r 2.15 NSW r 2.15 NT r 2.15 Qld Sch 1A r 2.15 SA r 2.15 Tas see Cth Vic r 2.15 WA r 2.15 “Corporations Regulations” ACT Sch 6 r 1.5 956

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Cth r 1.5 NSW r 1.5 NT r 1.5 SA r 1.5 Tas see Cth Vic r 1.5 WA r 1.5 proceedings under interlocutory process/application ACT Sch 6 r 2.2(4), Form 3 Cth r 2.2(4), Sch 1 Form 3 NSW r 2.2(4), Sch 1 Form 3 NT r 2.2(4), Sch 1 Form 3 Qld Sch 1A r 2.2(4), Form 3 SA r 2.2(4), Sch 1 Form 3 Tas see Cth Vic r 2.2(4), Sch 1 Form 3 WA r 2.2(4), Sch 1 Form 3 originating process/application ACT Sch 6 r 2.2(3), Form 2 Cth r 2.2(3), Sch 1 Form 2 NSW r 2.2(3), Sch 1 Form 2 NT r 2.2(3), Sch 1 Form 2 Qld Sch 1A r 2.2(3), Form 2 SA r 2.2(3)(b), Sch 1 Form 2 Tas see Cth Vic r 2.2, Sch 1 Form 2, 2A WA r 2.2(3), Sch 1 Form 2 Corporations (Repeals, Consequentials and Transitionals) Act 2001 Australian Capital Territory, transitional arrangements for — see Australian Capital Territory citation CRCTAs 1 commencement CRCTAs 2 Corporations (Review Fees) Act 2003 citation CRFAs 1 commencement CRFAs 2 Crown, application to CRFAs 3 definitions CRFAs 4 regulations for CRFAs 8 review fee amount of CRFAs 6 imposition of CRFAs 5 liability to pay CRFAs 7 “review fee” CRFAs 4 Corporations (Review Fees) Regulations 2003 citation CRFreg 1 commencement CRFreg 2 definitions CRFreg 3 review fees CRFreg 4, Sch 1 second review date CRFreg 5 Corporations Rules 2003 (SA) acquisition of shares and securities SA rr 12.1 – 12.3 Corporations – Court Rules and Related Legislation 2017

Corporations Rules 2003 (SA) — continued appeal to Court, from act, omission or decision of administrator, receiver or liquidator SAr 14.1 decision of futures exchange or futures association SAr 13.1 application of Cross-Border Insolvency Act SA r 1.3(1)(b) other rules of the Court SA rr 1.3(2), (3), 12.1A, 15.1, 15.2, 16.1 these rules SA r 1.3(1) citation SA r 1.1 commencement SA r 1.2 compromises and arrangements in relation to Part 5.1 bodies SA rr 3.1 – 3.5 definitions expressions used in Corporations Act SA r 1.4 for these rules SA rr 1.5, 5.5(1), 5.11(5), 7.3(4), 7.11(5), 11.1 examinations and orders SA rr 11.1 – 11.11 forms precedents SA Sch 1 Forms 1 – 18 references to SA r 1.6(b) substantial compliance with SA r 1.7 futures industry SA rr 13.1 – 13.2 liquidators consent to act SA r 15A.5 SA rr 7.1 – 7.11, 9.3, 9.4 Master direction by Judge for hearing by SA r 16.3 powers of SA rr 16.1 – 16.3 powers of Court appeals, in SA r 14.1 direct matter to be heard by Master SA r 16.3 give directions about practice and procedure SA r 1.8 proceedings ©

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generally SA rr 2.1 – 2.15 under ASIC Act SA rr 15.1 – 15.3 under Federal Courts (State Jurisdiction) Act SA r 17.1 provisional liquidators SA rr 6.1 – 6.2, 9.3 receivers and other controllers of corporation property SA r 4.1 references to rules and forms SA r 1.6 remuneration of office-holders SA rr 9.1 – 9.5 securities SA rr 12.1 – 12.3 special managers SA r 8.1 – 8.3, 9.5 takeovers SA rr 12.1 – 12.3 time calculation of SA r 1.9 extension and abridgement of SA r 1.10 winding up proceedings (including oppression proceedings) SA rr 5.1 – 5.11, 10.1 – 10.3, 16.1 – 16.3 Costs additional, if Court grants leave to person to be heard as non-party ACT Sch 6 r 2.13(2) Cth r 2.13(2) NSW r 2.13(2) NT r 2.13(2) Qld Sch 1A r 2.13(2) SA r 2.13(2) Tas see Cth Vic r 2.13(2) WA r 2.13(2) application for, after conclusion of winding up proceeding Vic r 17.6 bill of costs attendance at taxation of Vic r 17.7(5) liquidator’s request not met Vic r 17.2(2) lodgement with Costs Court by liquidator Vic r 17.3(1) notice by Costs Court of appointment to tax Vic r 17.3(2) request by liquidator for Vic rr 17.1, 17.2(1), Sch 1 Form 18A 957

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Costs — continued service on liquidator Vic r 17.7(2) short form bills Vic r 17.7 submission to liquidator Vic rr 17.1, 17.7 who may be represented on taxation of Vic r 17.3(3) bill of taxation liquidator’s certificate as to special terms of remuneration Vic r 17.4 lodgment Vic r 17.3 request Vic r 17.2 disbursements Vic r 17.7 liquidator’s certificate as to special terms of remuneration Vic r 17.4 no allowance for performance by others of liquidator’s or special manager’s duties in winding up Vic r 17.5(1) professional services of solicitor-liquidator, of Vic r 17.5(2) report to liquidator about company’s affairs, of ACT Sch 6 r 7.3(2) Cth r 7.3(2) NSW r 7.3(2) NT r 7.3(2) Qld Sch 1A r 7.3(2) SA r 7.3(2) Tas see Cth Vic r 7.3(2) WA r 7.3(2) security given by special manager, of ACT Sch 6 r 8.2(2) Cth r 8.2(2) NSW r 8.2(2) NT r 8.2(2) Qld Sch 1A r 8.2(2) SA r 8.2(2) Tas see Cth Vic r 8.2(2) WA r 8.2(2) taxation of Vic rr 17.1 – 17.4, 17.7(5) winding up application, of Vic r 17.7 958

limitation of plaintiff’s right to claim taxed costs Vic r 17.7(6) liquidator’s notice disputing Vic r 1.7.7(3) plaintiff to file documents with Court Vic r 17.7(4) service of documents on liquidator Vic r 17.7(2) what plaintiff may claim Vic r 17.7(1) winding up proceedings, costs SA Cr 5.1, 5.2, 5.3, 5.6, 5.7 Court Procedure Rules 2006 (ACT), Part 3.4 “Corporations Act and ASIC Act” acquisition of shares and securities ACT Sch 6 rr 12.1 – 12.3 appeal to Court, from act, omission or decision of administrator, receiver or liquidator ACTSch 6 r 14.1 application of Cross-Border Insolvency Act ACT Sch 6 r 1.3(1)(b) Federal Court Rules ACT Sch 6 rr 12.1A, 15.1 other rules of the Court ACT Sch 6 r 1.3(2), (3) these rules ACT r 3270, Sch 6 r 1.3(1) compromises and arrangements in relation to Part 5.1 bodies ACT Sch 6 rr 3.1 – 3.5 definitions terms used in Corporations Act ACT Sch 6 r 1.4 for these rules ACT Sch 6 rr 1.5, 5.5(3), 5.11(5), 7.3(4), 7.11(5), 11.1 examinations and orders ACT Sch 6 rr 11.1 – 11.11 forms precedents ACT Sch 6 Forms 1–18 references to ACT Sch 6 r 1.6 substantial compliance with ACT Sch 6 r 1.7 liquidators ACT Sch 6 rr 7.1 – 7.11, 9.3, 9.4 name of rules ACT Sch 6 r 1.1 powers of Court appeals, in ACT Sch 6 r 14.1 Corporations – Court Rules and Related Legislation 2017

Court Procedure Rules 2006 (ACT), Part 3.4 ““Corporations Act and ASIC Act” — continued give directions about practice and procedure ACT Sch 6 r 1.8 proceedings generally ACT Sch 6 rr 2.1 – 2.15 under ASIC Act ACT Sch 6 rr 15.1 – 15.3 provisional liquidators ACT Sch 6 rr 6.1 – 6.2, 9.3 receivers and other controllers of corporation property ACT Sch 6 r 4.1 references to rules ACT Sch 6 r 1.6 Registrar, jurisdiction of under ASIC Act ACT Sch 5, Part 5.3 under Corporations Act ACT Sch 5, Part 5.2 remuneration of office-holders ACT Sch 6 rr 9.1 – 9.5 securities ACT Sch 6 rr 12.1 – 12.3 special managers ACT Sch 6 rr 8.1 – 8.3, 9.5 takeovers ACT Sch 6 rr 12.1 – 12.3 time calculation of ACT Sch 6 r 1.9 extension and shortening of ACT Sch 6 r 1.10 winding up proceedings (including oppression proceedings) ACT Sch 6 rr 5.1 – 5.11, 10.1 – 10.3 Creditor affidavit by ACT Sch 6 r 2.5 Cth r 2.5 NSW r 2.5 NT r 2.5 Qld Sch 1A r 2.5 SA r 2.5 Tas see Cth Vic r 2.5 WA r 2.5 accompanying statutory demand relating to debt owed by company ACT Sch 6 r 5.2, Form 7 Cth r 5.2, Sch 1 Form 7 NSW r 5.2, Sch 1 Form 7 ©

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NT r 5.2, Sch 1 Form 7 Qld Sch 1A r 5.2, Form 7 SA r 5.2, Sch 1 Form 7 Tas see Cth Vic r 5.2, Sch 1 Form 7 WA r 5.2, Sch 1 Form 7 application by, for appointment of official liquidator as provisional liquidator Qld Sch 1A r 6.1(1) Court to appoint another liquidator to fill vacancy ACT Sch 6 r 7.2(2)(a) Cth r 7.2(2)(a) NSW r 7.2(2)(a) NT r 7.2(2)(a) Qld Sch 1A r 7.2(2)(a) SA r 7.2(2)(a) Tas see Cth Vic r 7.2(2)(a) WA r 7.2(2)(a) examination or investigation of person ACT Sch 6 r 11.2(1)(c), (2) Cth r 11.2(1)(c), (2) NSW r 11.2(1)(c), (2) NT r 11.2(1)(c), (2) Qld Sch 1A r 11.2(1)(c), (2) SA r 11.2(1)(c), (2) Tas see Cth Vic r 11.2(1)(c), (2) WA r 11.2(1)(c), (2) application for remuneration of office-holders, role of, in ACT Sch 6 rr 9.1 – 9.5 Cth rr 9.1 – 9.5 NSW rr 9.1 – 9.5 NT rr 9.1 – 9.5 Qld Sch 1A rr 9.1 – 9.5 SA rr 9.1 – 9.5 Tas see Cth Vic rr 9.1 – 9.5 WA rr 9.1 – 9.5 availability of copy documents for service for inspection on, in winding up proceedings ACT Sch 6 r 5.7 Cth r 5.7 NSW r 5.7 NT r 5.7 Qld Sch 1A r 5.7 SA r 5.7 Tas see Cth Vic r 5.7 WA r 5.7 leave of Court to be heard in proceeding as non-party 959

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Creditor — continued ACT Sch 6 r 2.13(1)(a), (b), (4) Cth r 2.13(1)(a), (b), (4) NSW r 2.13(1)(a), (b), (4) NT r 2.13(1)(a), (b), (4) Qld Sch 1A r 2.13(1)(a), (b), (4) SA r 2.13(1)(a), (b), (4) Tas see Cth Vic r 2.13(1)(a), (b), (4) WA r 2.13(1)(a), (b), (4) additional costs, direction or order of Court if ACT Sch 6 r 2.13(2) Cth r 2.13(2) NSW r 2.13(2) NT r 2.13(2) Qld Sch 1A r 2.13(2) SA r 2.13(2) Tas see Cth Vic r 2.13(2) WA r 2.13(2) objection by, to release of liquidator ACT Sch 6 r 7.6, Form 13 Cth r 7.6, Sch 1 Form 13 NSW r 7.6, Sch 1 Form 13 NT r 7.6, Sch 1 Form 13 Qld Sch 1A r 7.6, Form 13 SA r 7.6, Sch 1 Form 13 Tas see Cth Vic r 7.6, Sch 1 Form 13 WA r 7.6, Sch 1 Form 13 order of Court to add as defendant/respondent to proceeding ACT Sch 6 r 2.13(3), (4) Cth r 2.13(3), (4) NSW r 2.13(3), (4) NT r 2.13(3), (4) Qld Sch 1A r 2.13(3), (4) SA r 2.13(3), (4) Tas see Cth Vic r 2.13(3), (4) WA r 2.13(3), (4) Part 5.1 body, of approval by Court of compromises and arrangements ACT Sch 6 rr 3.1 – 3.5 Cth rr 3.1 – 3.5 NSW rr 3.1 – 3.5 NT rr 3.1 – 3.5 Qld Sch 1A rr 3.1 – 3.5 SA rr 3.1 – 3.5 Tas see Cth Vic rr 3.1 – 3.5 WA rr 3.1 – 3.5 960

representative of class, as appointment by Court ACT Sch 6 r 2.13(5)(a) Cth r 2.13(5)(a) NSW r 2.13(5)(a) NT r 2.13(5)(a) Qld Sch 1A r 2.13(5)(a) SA r 2.13(5)(a) Tas see Cth Vic r 2.13(5)(a) WA r 2.13(5)(a) removal by Court ACT Sch 6 r 2.13(5)(b) Cth r 2.13(5)(b) NSW r 2.13(5)(b) NT r 2.13(5)(b) Qld Sch 1A r 2.13(5)(b) SA r 2.13(5)(b) Tas see Cth Vic r 2.13(5)(b) WA r 2.13(5)(b) Criminal Code — see Criminal Code Act 1995 Criminal Code Act 1995 citation CCAs 1 commencement CCAs 2 Criminal Code codification CCASch 1.1 criminal responsibility — see Criminal responsibility Schedule CCAs 3 definitions CCAs 4 external Territories, application to CCAs 3A offshore installations, application to CCAs 3B regulations CCAs 5 Cross-Border Insolvency Act 2008 (Cth) application of other rules of the Court ACT Sch 6 r 15A.1(b) Cth r 15A.1(b) NSW r 15A.1(b) NT r 15A.1(b) SA r 15A.1(b) Tas see Cth Vic r 15A.1(b) WA r 15A.1(b) these rules ACT Sch 6 r 15A.1(a) Cth r 15A.1(a) NSW r 15A.1(a) NT r 15A.1(a) SA r 15A.1(a) Tas see Cth Vic r 15A.1(a) WA r 15A.1(a) expressions used Corporations – Court Rules and Related Legislation 2017

INDEX

ACT Sch 6 r 15A.2 Cth r 15A.2 NSW r 15A.2 NT r 15A.2 SA r 15A.2 Tas see Cth Vic r 15A.2 WA r 15A.2 Model Law application for provisional relief ACT Sch 6 r 15A.4 Cth r 15A.4 NSW r 15A.4 NT r 15A.4 SA r 15A.4 Tas see Cth Vic r 15A.4 WA r 15A.4 Article 19 ACT Sch 6 r 15A.4 Cth r 15A.4 NSW r 15A.4 NT r 15A.4 SA r 15A.4 Tas see Cth Vic r 15A.4 WA r 15A.4 foreign proceeding, recognition of ACT Sch 6 rr 15A.3, 15A.6 – 15A.9 Cth rr 15A.3, 15A.6 – 15A.9 NSW rr 15A.3, 15A.6 – 15A.9 NT rr 15A.3, 15A.6 – 15A.9 SA rr 15A.3, 15A.6 – 15A.9 Tas see Cth Vic rr 15A.3, 15A.6 – 15A.9 WA rr 15A.3, 15A.6 – 15A.9 official liquidator’s consent to act ACT Sch 6 r 15A.5 Cth r 15A.5 NSW r 15A.5 NT r 15A.5 SA r 15A.5 Tas see Cth Vic r 15A.5 WA r 15A.5 Cross-border insolvency cooperation Practice Notes Federal Court [FEDPN.20] NSW Supreme Court [NSWPN.40] NT Supreme Court [NTPD.70] Tasmanian Supreme Court [TASPD.50] ©

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WA Supreme Court [WAPD.30] D Damages undertaking by plaintiff, in relation to appointment of provisional liquidator ACT Sch 6 r 6.1(3) Cth r 6.1(4) NSW r 6.1(4) NT r 6.1(4) Qld Sch 1A r 6.1(4) SA r 6.1(4) Tas see Cth Vic r 6.1(4) WA r 6.1(4) Debts affidavit accompanying statutory demand relating to ACT Sch 6 r 5.2, Form 7 Cth r 5.2, Sch 1 Form 7 NSW r 5.2, Sch 1 Form 7 NT r 5.2, Sch 1 Form 7 Qld Sch 1A r 5.2, Form 7 SA r 5.2, Sch 1 Form 7 Tas see Cth Vic r 5.2, Sch 1 Form 7 WA r 5.2, Sch 1 Form 7 corporation, of or affecting, Court-directed inquiry into ACT Sch 6 r 2.14 Cth r 2.14 NSW r 2.14 NT r 2.14 Qld Sch 1A r 2.14 SA r 2.14 Tas see Cth Vic r 2.14 WA r 2.14 winding up proceedings and — see Winding up — see Winding up in insolvency Defendant — see also Respondent “defendant” ACT Sch 6 r 1.5 Cth r 1.5 NSW r 1.5 NT r 1.5 SA r 1.5 Tas see Cth Vic r 1.5 WA r 1.5 order by Court to add person as ACT Sch 6 r 2.13(3), (4) Cth r 2.13(3), (4) NSW r 2.13(3), (4) NT r 2.13(3), (4) 961

Index

Cross-Border Insolvency Act 2008 (Cth) — continued

D

E

INDEX

Defendant — continued

Examinations application for order for examination or investigation of person ACT Sch 6 r 11.2(1), (2) Cth r 11.2(1), (2) NSW r 11.2(1), (2) NT r 11.2(1), (2) Qld Sch 1A r 11.2(1), (2) SA r 11.2(1), (2) Tas see Cth Vic r 11.2(1), (2) WA r 11.2(1), (2) ASIC, by ACT Sch 6 r 11.2(1)(a) Cth r 11.2(1)(a) NSW r 11.2(1)(a) NT r 11.2(1)(a) Qld Sch 1A r 11.2(1)(a) SA r 11.2(1)(a) Tas see Cth Vic r 11.2(1)(a) WA r 11.2(1)(a) contributory or creditor, by ACT Sch 6 r 11.2(1)(c) Cth r 11.2(1)(c) NSW r 11.2(1)(c) NT r 11.2(1)(c) Qld Sch 1A r 11.2(1)(c) SA r 11.2(1)(c) Tas see Cth Vic r 11.2(1)(c) WA r 11.2(1)(c) other aggrieved person, by ACT Sch 6 r 11.2(1)(d) Cth r 11.2(1)(d) NSW r 11.2(1)(d) NT r 11.2(1)(d) Qld Sch 1A r 11.2(1)(d) SA r 11.2(1)(d) Tas see Cth

Vic r 11.2(1)(d) WA r 11.2(1)(d) person authorised by ASIC, by ACT Sch 6 r 11.2(1)(b) Cth r 11.2(1)(b) NSW r 11.2(1)(b) NT r 11.2(1)(b) Qld Sch 1A r 11.2(1)(b) SA r 11.2(1)(b) Tas see Cth Vic r 11.2(1)(b) WA r 11.2(1)(b) default in relation to application of rule about ACT Sch 6 r 11.10(1) Cth r 11.10(1) NSW r 11.10(1) NT r 11.10(1) Qld Sch 1A r 11.10(1) SA r 11.10(1) Tas see Cth Vic r 11.10(1) WA r 11.10(1) issue by Court of warrant for arrest ACT Sch 6 r 11.10(2)(a) Cth r 11.10(2)(a) NSW r 11.10(2)(a) NT r 11.10(2)(a) Qld Sch 1A r 11.10(2)(a) SA r 11.10(2)(a) Tas see Cth Vic r 11.10(2)(a) WA r 11.10(2)(a) other orders Court thinks just or necessary ACT Sch 6 r 11.10(2)(b) Cth r 11.10(2)(b) NSW r 11.10(2)(b) NT r 11.10(2)(b) Qld Sch 1A r 11.10(2)(b) SA r 11.10(2)(b) Tas see Cth Vic r 11.10(2)(b) WA r 11.10(2)(b) “examination summons” ACT Sch 6 r 11.1 Cth r 11.1 NSW r 11.1 NT r 11.1 Qld Sch 1A r 11.1 SA r 11.1 Tas see Cth Vic r 11.1 WA r 11.1 examination summons — see Examination summons

962

Corporations – Court Rules and Related Legislation 2017

Qld Sch 1A r 2.13(3), (4) SA r 2.13(3), (4) Tas see Cth Vic r 2.13(3), (4) WA r 2.13(3), (4) Disbursements — see Costs Discovery Practice notes Federal Court [FEDPN.30] Documents — see Forms and documents E

Examinations — continued transcript of examination authentication of ACT Sch 6 r 11.7 Cth r 11.7 NSW r 11.7 NT r 11.7 Qld Sch 1A r 11.7 SA r 11.7 Tas see Cth Vic r 11.7 WA r 11.7 inspection of ACT Sch 6 r 11.8 Cth r 11.8 NSW r 11.8 NT r 11.8 Qld Sch 1A r 11.8 SA r 11.8 Tas see Cth Vic r 11.8 WA r 11.8 consent of liquidator or ASIC, with ACT Sch 6 r 11.8(1)(a) Cth r 11.8(1)(a) NSW r 11.8(1)(a) NT r 11.8(1)(a) Qld Sch 1A r 11.8(1)(a) SA r 11.8(1)(a) Tas see Cth Vic r 11.8(1)(a) WA r 11.8(1)(a) leave of court, by ACT Sch 6 r 11.8(1)(b) Cth r 11.8(1)(b) NSW r 11.8(1)(b) NT r 11.8(1)(b) Qld Sch 1A r 11.8(1)(b) SA r 11.8(1)(b) Tas see Cth Vic r 11.8(1)(b) WA r 11.8(1)(b) transcript of examination held in public ACT Sch 6 r 11.9 Cth r 11.9 NSW r 11.9 NT r 11.9 Qld Sch 1A r 11.9 SA r 11.9 Tas see Cth Vic r 11.9 WA r 11.9 application by person examined for copy of ©

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E

ACT Sch 6 r 11.9(2) Cth r 11.9(2) NSW r 11.9(2) NT r 11.9(2) Qld Sch 1A r 11.9(2) SA r 11.9(2) Tas see Cth Vic r 11.9(2) WA r 11.9(2) entitlement to, of person examined ACT Sch 6 r 11.9(2) Cth r 11.9(2) NSW r 11.9(2) NT r 11.9(2) Qld Sch 1A r 11.9(2) SA r 11.9(2) Tas see Cth Vic r 11.9(2) WA r 11.9(2) Principal Registrar/Prothonotary/Registrar to provide copy ACT Sch 6 r 11.9(3) Cth r 11.9(3) NSW r 11.9(3) NT r 11.9(3) Qld Sch 1A r 11.9(3) SA r 11.9(3) Tas see Cth Vic r 11.9(3) WA r 11.9(3) written record of examination directions by Court for filing of ACT Sch 6 r 11.6 Cth r 11.6 NSW r 11.6 NT r 11.6 Qld Sch 1A r 11.6 SA r 11.6 Tas see Cth Vic r 11.6 WA r 11.6 inspection of ACT Sch 6 r 11.8 Cth r 11.8 NSW r 11.8 NT r 11.8 Qld Sch 1A r 11.8 SA r 11.8 Tas see Cth Vic r 11.8 WA r 11.8 consent of liquidator or ASIC, with ACT Sch 6 r 11.8(1)(a) Cth r 11.8(1)(a) NSW r 11.8(1)(a) 963

Index

INDEX

E

INDEX

Examinations — continued NT r 11.8(1)(a) Qld Sch 1A r 11.8(1)(a) SA r 11.8(1)(a) Tas see Cth Vic r 11.8(1)(a) WA r 11.8(1)(a) leave of court, by ACT Sch 6 r 11.8(1)(b) Cth r 11.8(1)(b) NSW r 11.8(1)(b) NT r 11.8(1)(b) Qld Sch 1A r 11.8(1)(b) SA r 11.8(1)(b) Tas see Cth Vic r 11.8(1)(b) WA r 11.8(1)(b) written record of examination held in public ACT Sch 6 r 11.9 Cth r 11.9 NSW r 11.9 NT r 11.9 Qld Sch 1A r 11.9 SA r 11.9 Tas see Cth Vic r 11.9 WA r 11.9 application by person examined for copy of ACT Sch 6 r 11.9(2) Cth r 11.9(2) NSW r 11.9(2) NT r 11.9(2) Qld Sch 1A r 11.9(2) SA r 11.9(2) Tas see Cth Vic r 11.9(2) WA r 11.9(2) entitlement to, of person examined ACT Sch 6 r 11.9(2) Cth r 11.9(2) NSW r 11.9(2) NT r 11.9(2) Qld Sch 1A r 11.9(2) SA r 11.9(2) Tas see Cth Vic r 11.9(2) WA r 11.9(2) Principal Registrar/Prothonotary/Registrar to provide copy ACT Sch 6 r 11.9(3) Cth r 11.9(3) NSW r 11.9(3) NT r 11.9(3) 964

Qld Sch 1A r 11.9(3) SA r 11.9(3) Tas see Cth Vic r 11.9(3) WA r 11.9(3) Examination summons application for issue of ACT Sch 6 r 11.3 Cth r 11.3 NSW r 11.3 NT r 11.3 Qld Sch 1A r 11.3 SA r 11.3 Tas see Cth Vic r 11.3 WA r 11.3 draft examination summons ACT Sch 6 r 11.3(3)(b) Cth r 11.3(3)(b) NSW r 11.3(3)(b) NT r 11.3(3)(b) Qld Sch 1A r 11.3(3)(b) SA r 11.3(3)(b) Tas see Cth Vic r 11.3(3)(b) WA r 11.3(3)(b) filing of ACT Sch 6 r 11.3(1), (4) Cth r 11.3(1), (4) NSW r 11.3(1), (4) NT r 11.3(1), (4) Qld Sch 1A r 11.3(1), (4) SA r 11.3(1), (4) Tas see Cth Vic r 11.3(1), (4) WA r 11.3(1), (4) notice to ASIC of, where necessary ACT Sch 6 r 11.3(6) Cth r 11.3(6) NSW r 11.3(6) NT r 11.3(6) Qld Sch 1A r 11.3(6) SA r 11.3(6) Tas see Cth Vic r 11.3(6) WA r 11.3(6) notice to liquidator of, where necessary ACT Sch 6 r 11.3(5) Cth r 11.3(5) NSW r 11.3(5) NT r 11.3(5) Qld Sch 1A r 11.3(5) SA r 11.3(5) Tas see Cth Vic r 11.3(5) Corporations – Court Rules and Related Legislation 2017

INDEX

WA r 11.3(5) other than by liquidator ACT Sch 6 r 11.3(5) Cth r 11.3(5) NSW r 11.3(5) NT r 11.3(5) Qld Sch 1A r 11.3(5), (7) SA r 11.3(5) Tas see Cth Vic r 11.3(5) WA r 11.3(5) other than by ASIC ACT Sch 6 r 11.3(6) Cth r 11.3(6) NSW r 11.3(6) NT r 11.3(6) Qld Sch 1A r 11.3(6) SA r 11.3(6) Tas see Cth Vic r 11.3(6) WA r 11.3(6) who may inspect supporting affidavit ACT Sch 6 r 11.3(7) Cth r 11.3(7) NSW r 11.3(7) NT r 11.3(7) Qld Sch 1A r 11.3(7) SA r 11.3(7) Tas see Cth Vic r 11.3(7) WA r 11.3(7) discharge of application for ACT Sch 6 r 11.5(1), (2) Cth r 11.5(1), (2) NSW r 11.5(1), (2) NT r 11.5(1), (2) Qld Sch 1A r 11.5(1), (2 SA r 11.5(1), (2) Tas see Cth Vic r 11.5(1), (2) WA r 11.5(1), (2) process for ACT Sch 6 r 11.5(2), (3) Cth r 11.5(2), (3) NSW r 11.5(2), (3) NT r 11.5(2), (3) Qld Sch 1A r 11.5(2), (3) SA r 11.5(2), (3) Tas see Cth Vic r 11.5(2), (3) WA r 11.5(2), (3) ©

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“examination summons” ACT Sch 6 r 11.1 Cth r 11.1 NSW r 11.1 NT r 11.1 Qld Sch 1A r 11.1 SA r 11.1 Tas see Cth Vic r 11.1 WA r 11.1 form of ACT Sch 6 r 11.3(3), Form 17 Cth r 11.3(8), Sch 1 Form 17 NSW r 11.3(8), Sch 1 Form 17 NT r 11.3(8), Sch 1 Form 17 Qld Sch 1A r 11.3(8), Form 17 SA r 11.3(8), Form 17 Tas see Cth Vic r 11.3(8), Sch 1 Form 17 WA r 11.3(8), Form 17 Practice Notes Federal Court [FEDPN.65] service of ACT Sch 6 r 11.4 Cth r 11.4 NSW r 11.4 NT r 11.4 Qld Sch 1A r 11.4 SA r 11.4 Tas see Cth Vic r 11.4 WA r 11.4 Expert witnesses Practice notes Federal Court [FEDPN.40] NSW Supreme Court [NSWPN.30] , [NSWPN.50] , [NSWPN.60] F Federal Court (Corporations) Rules 2000 (Cth) acquisition of shares and securities Cth rr 12.1 – 12.3 appeal to Court from act, omission or decision of administrator, receiver or liquidator Cth r 14.1 application of Cross-Border Insolvency Act Cth r 1.3(1)(b) other rules of the Court Cth rr 1.3(2), (3), 12.1A these rules Cth r 1.3(1) citation Cth r 1.1 commencement 965

Index

Examination summons — continued

F

F

INDEX

Federal Court (Corporations) Rules 2000 (Cth) — continued Cth r 1.2 compromises and arrangements in relation to Pt 5.1 bodies Cth rr 3.1 – 3.5 definitions expressions used in Corporations Act Cth r 1.4 for these rules Cth rr 1.5, 5.5(1), 5.11(5), 7.3(4), 7.11(5), 11.1 examinations and orders Cth rr 11.1 – 11.11 forms precedents Cth Sch 1 Forms 1 – 23 references to Cth r 1.6(b) substantial compliance with Cth r 1.7 liquidators Cth rr 7.1 – 7.11, 9.3, 9.4 powers of Court appeals, in Cth r 14.1 give directions about practice and procedure Cth r 1.8 proceedings generally Cth rr 2.1 – 2.15, [FEDPN.10] under ASIC Act Cth rr 15.1 – 15.3 provisional liquidators Cth rr 6.1 – 6.2, 9.3 receivers and other controllers of corporation property Cth r 4.1 references to rules and forms Cth r 1.6 Registrar, powers of Cth rr 16.1 – 16.2, Sch 2 remuneration of office-holders Cth rr 9.1 – 9.5 securities Cth rr 12.1 – 12.3 special managers Cth rr 8.1 – 8.3, 9.5 takeovers Cth rr 12.1 – 12.3 time calculation of Cth r 1.9 966

extension and abridgement of Cth r 1.10 winding up proceedings (including oppression proceedings) Cth rr 5.1 – 5.11, 10.1 – 10.3, Sch 3 Note 2 Federal Court of Australia affidavits in, general form of — see also Affidavits Cth r 2.6 appeal to, from act, omission or decision of administrator, receiver, liquidator etc filing of affidavit by respondent Cth r 14.1(5) process for commencement of Cth r 14.1(1) service Cth r 14.1(4) time for filing of process Cth r 14.1(2), (3) appearance in, notice of Cth r 2.9, Sch 1 Form 4 application to, of Federal Court (Corporations) Rules 2000 Cth rr 1.3(1), 2.15 other rules of the Court Cth rr 1.3(2), (3), 1.10 applications to acquisition of shares and securities, in relation to — see Acquistion of shares and securities — see Takeovers approval of compromise or arrangement in relation to Part 5.1 body, for Cth rr 3.1 – 3.5 examinations, in relation to — see Examinations — see Examinations summons generally Cth r 2.2, 2.4, 2.4A, 2.6, 2.7, 2.8(3), 2.9 inquiry under ASIC Act Cth r 15.3 oppression proceedings, in relation to — see Winding up — see Winding up in insolvency review of decision, direction or act of Registrar Cth r 16.1(3) winding up proceedings, in relation to — see Winding up — see Winding up in insolvency complaint to, about Court-appointed receiver or controller of corporation property Cth r 4.1 hearing, fixing of Cth r 2.3 Corporations – Court Rules and Related Legislation 2017

Federal Court of Australia — continued inquiry into debts, claims or liabilities of a corporation, by Cth r 2.14 interlocutory process Cth r 2.2(1), (2), (4) form of Cth r 2.2(4), Sch 1 Form 3 service of Cth r 2.7(2) meetings ordered by Cth r 2.15 notification to, if proceeding commenced before end of takeover bid period Cth r 12.1B originating process Cth r 2.2(1), (3) form of Cth r 2.2(3), Sch 1 Form 2 service of Cth r 2.7(1) powers of appoint representative of class Cth r 2.13(5)(a) direct inquiry into debts, claims or liabilities of corporation Cth r 2.14 give directions about practice and procedure Cth r 1.8 grant leave to be heard, as non-party Cth r 2.13(1), (2), (4) additional costs, if Cth r 2.13(2) order addition of defendant Cth r 2.13(3) remove representative of class Cth r 2.13(5)(b) review of decision, direction or act of Registrar Cth r 16.1(2) Practice Notes cross-border insolvency cooperation [FEDPN.20] discovery [FEDPN.30] ex parte application for substituted services for bankruptcy and examination summonses [FEDPN.65] expert witnesses [FEDPN.40] freezing orders [FEDPN.50] interlocutory process and pleadings in corporations matters [FEDPN.10] New South Wales District Registry – Administrative Notice NSW 2, ©

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F

Corporations matters [FEDPN.70] Queensland District Registry Qld 3 – Administrative Notice, bankruptcy [FEDPN.90] Queensland District Registry – Administrative Notice, Corporations matters [FEDPN.80] schemes of arrangement [FEDPN.25] search orders [FEDPN.60] Victorian District Registry – Administrative Notice Vic 1, bankruptcy [FEDPN.100] Western Australian District Registry – Administrative Notice WA 1, corporations [FEDPN.110] proceedings in, generally Cth rr 2.1 – 2.15 reference by, back to Registrar Cth r 16.2(2) reference to, of question of law arising at hearing of ASIC under ASIC Act Cth r 15.1 question of law arising in proceeding before Takeovers Panel Cth r 12.1A reference to, by Registrar Cth r 16.2 Registrar, powers of exercise powers of Court under ASIC Act Cth r 16.1(1)(b), Sch 2 Part 2 under Corporations Act Cth r 16.1(1)(a), Sch 2 Part 1 refer to Court or Judge Cth r 16.2(1) reject documents for filing Cth r 1.7(2) Federal Courts (State Jurisdiction) Act 1999 form for initiating proceedings under NSW r 17.1 SA r 17.1 Vic r 16A.1 Financial services and markets — see Acquistion of shares and securities — see Securities — see Takeovers Forms and documents affidavit accompanying statutory demand ACT Sch 6 r 5.2, Form 7 Cth r 5.2, Sch 1 Form 7 NSW r 5.2, Sch 1 Form 7 NT r 5.2, Sch 1 Form 7 Qld Sch 1A r 5.2, Form 7 SA r 5.2, Sch 1 Form 7 Tas see Cth Vic r 5.2, Sch 1 Form 7 WA r 5.2, Sch 1 Form 7 967

Index

INDEX

F

INDEX

Forms and documents — continued affidavit in support of application for order for payment of call ACT Sch 6 r 7.8, Form 14 Cth r 7.8, Sch 1 Form 14 NSW r 7.8, Sch 1 Form 14 NT r 7.8, Sch 1 Form 14 Qld Sch 1A r 7.8, Form 14 SA r 7.8, Sch 1 Form 14 Tas see Cth Vic r 7.8, Sch 1 Form 14 WA r 7.8, Sch 1 Form 14 arrest warrant ACT Sch 6 r 11A.1(3), Form 17A Cth r 11A.01(3), Sch 1 Form 17A NSW r 11A.1(3), Sch 1 Form 17A NT r 11A.1(3), Sch 1 Form 17A Qld Sch 1A r 11A.1(3), Form 17A SA r 11A.1(3), Sch 1 Form 17A Tas see Cth Vic r 11A.01(3), Sch 1 Form 17A WA r 11A.1(3), Sch 1 Form 17A consent of official liquidator ACTSch 6 rr 5.5(2), 6.6(1), Form 8 Cth rr 5.5(2), 6.1(2), Sch 1 Form 8 NSW rr 5.5(2), 6.1(2), Sch 1 Form 8 NT rr 5.5(2), 6.1(2), Sch 1 Form 8 Qld Sch 1A rr 5.5(2), 6.1(2), Form 8 SA rr 5.5(2), 6.1(2), Sch 1 Form 8 Tas see Cth Vic rr 5.5(2), 6.1(2), Sch 1 Form 8 WA rr 5.5(2), 6.1(2), Sch 1 Form 8 consent of provisional liquidator ACT Sch 6 rr 5.5(2), 6.6(1), Form 8 Cth rr 5.5(2), 6.1(2), Sch 1 Form 8 NSW rr 5.5(2), 6.1(2), Sch 1 Form 8 NT rr 5.5(2), 6.1(2), Sch 1 Form 8 Qld Sch 1A rr 5.5(2), 6.1(2), Form 8 SA rr 5.5(2), 6.1(2), Sch 1 Form 8 Tas see Cth Vic rr 5.5(2), 6.1(2), Sch 1 Form 8 WA rr 5.5(2), 6.1(2), Sch 1 Form 8 consent to act as designated person ACT Sch 6 r 15A.5(b), Form 19 Cth r 15A.5(b), Sch 1 Form 19 NSW r 15A.5(b), Sch 1 Form 19 NT r 15A.5(b), Sch 1 Form 19 SA r 15A.5(b), Sch 1 Form 19 Tas see Cth Vic r 15A.5(b), Sch 1 Form 19 WA r 15A.5(b), Sch 1 Form 19 document title ACT Sch 6 r 2.1, Form 1 968

Cth r 2.1, Sch 1 Form 1 NSW r 2.1, Sch 1 Form 1 NT r 2.1, Sch 1 Form 1 Qld Sch 1A r 2.1, Form 1 SA r 2.1, Sch 1 Form 1 Tas see Cth Vic r 2.1, Sch 1 Form 1 WA r 2.1, Sch 1 Form 1 interlocutory process/application ACT Sch 6 rr 2.2(1), 15A.4(1), 15A.8(1), 15A.9(2), Form 3 Cth rr 2.2(1), (2), (4), 15A.4(1), 15A.8(1), 15A.9(2), Sch 1 Form 3 NSW rr 2.2(1), (2), (4), 15A.4(1), 15A.8(1), 15A.9(2), Sch 1 Form 3 NT rr 2.2(1), (2), (4), 15A.4(1), 15A.8(1), 15A.9(2), Sch 1 Form 3 Qld Sch 1A r 2.2(1), (2), (4), Form 3 SA rr 2.2(1), (2), (4), 15A.4(1), 15A.8(1), 15A.9(2), Sch 1 Form 3 Tas see Cth Vic rr 2.2(1), (2), (4), 15A.4(1), 15A.8(1), 15A.9(2), Sch 1 Form 3 WA rr 2.2(1), (2), (4), 15A.4(1), 15A.8(1), 15A.9(2), Sch 1 Form 3 notice by creditor or contributory of objection to release of liquidator ACT Sch 6 r 7.6(1), Form 13 Cth r 7.6(1), Sch 1 Form 13 NSW r 7.6(1), Sch 1 Form 13 NT r 7.6(1), Sch 1 Form 13 Qld Sch 1A r 7.6(1), Form 13 SA r 7.6(1), Sch 1 Form 13 Tas see Cth Vic r 7.6(1), Sch 1 Form 13 WA r 7.6(1), Sch 1 Form 13 notice of appearance ACT Sch 6 r 2.9, Form 4 Cth r 2.9, Sch 1 Form 4 NSW r 2.9, Sch 1 Form 4 NT r 2.9, Sch 1 Form 4 Qld Sch 1A r 2.9, Form 4 SA r 2.9, Sch 1 Form 4 Tas see Cth Vic r 2.9, Sch 1 Form 4, 4A WA r 2.9, Sch 1 Form 4 notice of appearance before Takeovers Panel TPPRrr 3.1, 4, Annexure A notice of application for leave to distribute surplus ACT Sch 6 r 7.9(2), Form 15 Cth r 7.9, Sch 1 Form 15 NSW r 7.9(2), Sch 1 Form 15 NT r 7.9, Sch 1 Form 15 Qld Sch 1A r 7.9(2), Form 15 Corporations – Court Rules and Related Legislation 2017

Forms and documents — continued SA r 7.9(2), Sch 1 Form 15 Tas see Cth Vic r 7.9(2), Sch 1 Form 15 WA r 7.9(2), Sch 1 Form 15 notice of application for winding up order ACT Sch 6 r 5.6(1), Form 9 Cth r 5.6(2), Sch 1 Form 9 NSW r 5.6(2), Sch 1 Form 9 NT r 5.6, Sch 1 Form 9 Qld Sch 1A r 5.6(2), Form 9 SA r 5.6(2), Sch 1 Form 9 Tas see Cth Vic r 5.6(2), Sch 1 Form 9 WA r 5.6(2), Sch 1 Form 9 notice of application for winding up order by substituted plaintiff ACT Sch 6 r 5.10(1), Form 10 Cth r 5.10(2), Sch 1 Form 10 NSW r 5.10(2), Sch 1 Form 10 NT r 5.10(2), Sch 1 Form 10 Qld Sch 1A r 5.10(2), Form 10 SA r 5.10(2), Sch 1 Form 10 Tas see Cth Vic r 5.10(2), Sch 1 Form 10 WA r 5.10(2), Sch 1 Form 10 notice of appointment of provisional liquidator ACT Sch 6 r 6.2(3), Form 12 Cth r 6.2(4), Sch 1 Form 12 NSW r 6.2(4), Sch 1 Form 12 NT r 6.2(4), Sch 1 Form 12 Qld Sch 1A r 6.2(4), Form 12 SA r 6.2(4), Sch 1 Form 12 Tas see Cth Vic r 6.2(4), Sch 1 Form 12 WA r 6.2(4), Sch 1 Form 12 notice of dismissal or withdrawal of application for recognition of foreign proceeding ACT Sch 6 r 15A.7(3)(c), (d), (4), Form 22 Cth r 15A.7(3)(c), (d), (4), Sch 1 Form 22 NSW r 15A.7(3)(c), (d), (4), Sch 1 Form 22 NT r 15A.7(3)(c), (d), (4), Sch 1 Form 22 SA r 15A.7(3)(c), (d), (4), Sch 1 Form 22 Tas see Cth Vic r 15A.7(3)(c), (d), (4), Sch 1 Form 22 WA r 15A.7(3)(c), (d), (4), Sch 1 Form 22 notice of filing of application for recognition of foreign proceeding ACT Sch 6 r 15A.6(1), (2), Form 20 Cth r 15A.6(1), (2), Sch 1 Form 20 NSW r 15A.6(1), (2), Sch 1 Form 20 NT r 15A.6(1), (2), Sch 1 Form 20 SA r 15A.6(1), (2), Sch 1 Form 20 ©

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Tas see Cth Vic r 15A.6(1), (2), Sch 1 Form 20 WA r 15A.6(1), (2), Sch 1 Form 20 notice of filing of application to modify or terminate an order for recognition or other relief ACT Sch 6 r 15A.9(4), (5), Form 23 Cth r 15A.9(4), (5), Sch 1 Form 23 NSW r 15A.9(4), (5), Sch 1 Form 23 NT r 15A.9(4), (5), Sch 1 Form 23 SA r 15A.9(4), (5), Sch 1 Form 23 Tas see Cth Vic r 15A.9(4), (5), Sch 1 Form 23 WA r 15A.9(4), (5), Sch 1 Form 23 notice of hearing to approve proposed compromise or arrangement in relation to Part 5.1 body ACT Sch 6 r 3.4(3), Form 6 Cth r 3.4, Sch 1 Form 6 NSW r 3.4(3), Sch 1 Form 6 NT r 3.4(3), Sch 1 Form 6 Qld Sch 1A r 3.4(3), Form 6 SA r 3.4(3), Sch 1 Form 6 Tas see Cth Vic r 3.4(3), Sch 1 Form 6 WA r 3.4(3), Sch 1 Form 6 notice of intention to apply for remuneration ACT Sch 6 rr 9.1(2), 9.2(3), 9.3(3), 9.4(3), 9.5(3), Form 16 Cth rr 9.1(2), 9.2(3), 9.3(3), 9.4(3), 9.5(3), Sch 1 Form 16 NSW rr 9.1(2), 9.2(3), 9.3(3), 9.4(3), 9.5(3), Sch 1 Form 16 NT rr 9.1(2), 9.2, 9.3, 9.4, 9.5, Sch 1 Form 16 Qld Sch 1A rr 9.1, 9.2, 9.3, 9.4, 9.5, Form 16 SA rr 9.1, 9.2, 9.3, 9.4, 9.5, Sch 1 Form 16 Tas see Cth Vic rr 9.1(2), 9.2(3), 9.3(3), 9.4(3), 9.5(3), Sch 1 Form 16 WA rr 9.1(2), 9.2(3), 9.3(3), 9.4(3), 9.5(3), Sch 1 Form 16 notice of intention to apply for review of remuneration ACT Sch 6 r 9.2A(3), 9.4A(3), Form 16AA Cth rr 9.2A(3), 9.4A(3), Sch 1 Form 16A NSW rr 9.2A(3), 9.4A(3), Sch 1 Form 16A Qld Sch 1A r 9.2A(3), 9.4A(3), Form 16A NT rr 9.2A(3), 9.4A(3), Sch 1 Form 16A SA rr 9.2A(3), 9.4A(3), Sch 1 Form 16A Tas see Cth Vic rr 9.2A(3), 9.4A(3), Sch 1 Form 16A WA rr 9.2A(3), 9.4A(3), Sch 1 Form 16A notice of intervention by ASIC ACT Sch 6 r 2.10(1), Form 5 969

Index

INDEX

H

INDEX

Forms and documents — continued Cth r 2.10(1), Sch 1 Form 5 NSW r 2.10(1), Sch 1 Form 5 NT r 2.10(1), Sch 1 Form 5 SA r 2.10(1), Sch 1 Form 5 Tas see Cth Vic r 2.10(1), Sch 1 Form 5 WA r 2.10(1), Sch 1 Form 5 notice of intervention by Commission Qld Sch 1A r 2.10(1), Form 5 notice of making of order under the Cross-Border Insolvency Act 2008 ACT Sch 6 r 15A.7(1)(c), (1)(d), (2), Form 21 Cth r 15A.7(1)(c), (1)(d), (2), Sch 1 Form 21 NSW r 15A.7(1)(c), (1)(d), (2), Sch 1 Form 21 NT r 15A.7(1)(c), (1)(d), (2), Sch 1 Form 21 SA r 15A.7(1)(c), (1)(d), (2), Sch 1 Form 21 Tas see Cth Vic r 15A.7(1)(c), (1)(d), (2), Sch 1 Form 21 WA r 15A.7(1)(c), (1)(d), (2), Sch 1 Form 21 notice of winding up order and of appointment of liquidator ACT Sch 6 r 5.11(3), Form 11 Cth r 5.11(4), Sch 1 Form 11 NSW r 5.11(4), Sch 1 Form 11 NT r 5.11(4), Sch 1 Form 11 Qld Sch 1A r 5.11(4), Form 11 SA r 5.11(4), Sch 1 Form 11 Tas see Cth Vic r 5.11(4), Sch 1 Form 11 WA r 5.11(4), Sch 1 Form 11 originating process/application ACT Sch 6 rr 2.2(1), 15A.3(1), Form 2 Cth rr 2.2(1), (3), 15A.3(1), Sch 1 Form 2 NSW rr 2.2(1), (3), 15A.3(1), Sch 1 Form 2 NT rr 2.2(1), (3), 15A.3(1), Sch 1 Form 2 Qld Sch 1A r 2.2(1), (3), Form 2 SA rr 2.2(1), (3), 15A.3(1), Sch 1 Form 2 Tas see Cth Vic rr 2.2(1), (3), 15A.3(1), Sch 1 Form 2 WA rr 2.2(1), (3), 15A.3(1), Sch 1 Form 2 summons for appearance in relation to registration of transfer of interests ACT Sch 6 r 12.2(3), Form 18 Cth r 12.2(4), Sch 1 Form 18 NSW r 12.2(4), Sch 1 Form 18 NT r 12.2(4), Sch 1 Form 18 Qld Sch 1A r 12.2(4), Form 18 SA r 12.2(4), Sch 1 Form 18 Tas see Cth Vic r 12.2(4), Sch 1 Form 18 970

WA r 12.2(4), Sch 1 Form 18 summons for examination ACT Sch 6 r 11.3(3), Form 17 Cth r 11.3(8), Sch 1 Form 17 NSW r 11.3(8), Sch 1 Form 17 NT r 11.3(8), Sch 1 Form 17 Qld Sch 1A r 11.3(8), Form 17 SA r 11.3(8), Sch 1 Form 17 Tas see Cth Vic r 11.3(8), Sch 1 Form 17 WA r 11.3(8), Sch 1 Form 17 Takeovers Panel proceedings, in — see Takeovers Panel Rules for Proceedings Freezing orders Practice Notes ACT Supreme Court [ACTPD.20] Federal Court [FEDPN.50] NSW Supreme Court [NSWPN.80] NT Supreme Court [NTPD.40] Queensland Supreme Court [QLDPD.40] , [QLDPD.50] Tasmanian Supreme Court [TASPD.30] Victorian Supreme Court [VICPN.90] WA Supreme Court [WAPD.20] Futures industry appeal against decision of futures exchange or futures association SA r 13.1 proceeding against futures organisation to establish claim against fidelity fund SA r 13.2 H Hearing defendant/respondent at, order by Court to add ACTSch 6 r 2.13(3) Cth r 2.13(3) NSW r 2.13(3) NT r 2.13(3) Qld Sch 1A r 2.13(3) SA r 2.13(3) Tas see Cth Vic r 2.13(3) WA r 2.13(3) fixing of ACT Sch 6 r 2.3 Cth r 2.3 NSW r 2.3 NT r 2.3 Qld Sch 1A r 2.3 SA r 2.3 Tas see Cth Vic r 2.3 WA r 2.3 leave to be heard as non-party Corporations – Court Rules and Related Legislation 2017

INDEX

ACT Sch 6 r 2.13(1), (2), (4) Cth r 2.13(1), (2), (4) NSW r 2.13 (1), (2), (4) NT r 2.13(1), (2), (4) Qld Sch 1A r 2.13(1), (2), (4) SA r 2.13(1), (2), (4) Tas see Cth Vic r 2.13(1), (2), (4) WA r 2.13(1), (2), (4) notice of appearance at ACT Sch 6 r 2.9, Form 4 Cth r 2.9, Sch 1 Form 4 NSW r 2.9, Sch 1 Form 4 NT r 2.9, Sch 1 Form 4 Qld Sch 1A r 2.9, Form 4 SA r 2.9, Sch 1 Form 4 Tas see Cth Vic r 2.9, Sch 1 Form 4, 4A WA r 2.9, Sch 1 Form 4 publication of notice of, about application for amalgamation of two or more Part 5.1 bodies ACT Sch 6 r 3.4(2), (3), Form 6 Cth r 3.4(2), (3), Sch 1 Form 6 NSW r 3.4(2), (3), Sch 1 Form 6 NT r 3.4(2), (3), Sch 1 Form 6 Qld Sch 1A r 3.4(2), (3), Form 6 SA r 3.4(2), (3), Sch 1 Form 6 Tas see Cth Vic r 3.4(2), (3), Sch 1 Form 6 WA r 3.4(2), (3), Sch 1 Form 6 application for approval of compromise or arrangement in relation to Part 5.1 body, ACT Sch 6 r 3.4(2), (3), Form 6 Cth r 3.4(2), (3), Sch 1 Form 6 NSW r 3.4(2), (3), Sch 1 Form 6 NT r 3.4(2), (3), Sch 1 Form 6 Qld Sch 1A r 3.4(2), (3), Form 6 SA r 3.4(2), (3), Sch 1 Form 6 Tas see Cth Vic r 3.4(2), (3), Sch 1 Form 6 WA r 3.4(2), (3), Sch 1 Form 6 application for order about reconstruction of Part 5.1 body ACT Sch 6 r 3.4(2), (3), Form 6 Cth r 3.4(2), (3), Sch 1 Form 6 NSW r 3.4(2), (3), Sch 1 Form 6 NT r 3.4(2), (3), Sch 1 Form 6 Qld Sch 1A r 3.4(2), (3), Form 6 SA r 3.4(2), (3), Sch 1 Form 6 Tas see Cth Vic r 3.4(2), (3), Sch 1 Form 6 ©

2017 THOMSON REUTERS

WA r 3.4(2), (3), Sch 1 Form 6 representative of class at appointment by Court of ACT Sch 6 r 2.13(5)(a) Cth r 2.13(5)(a) NSW r 2.13(5)(a) NT r 2.13(5)(a) Qld Sch 1A r 2.13(5)(a) SA r 2.13(5)(a) Tas see Cth Vic r 2.13(5)(a) WA r 2.13(5)(a) removal of, by Court ACT Sch 6 r 2.13(5)(b) Cth r 2.13(5)(b) NSW r 2.13(5)(b) NT r 2.13(5)(b) Qld Sch 1A r 2.13(5)(b) SA r 2.13(5)(b) Tas see Cth Vic r 2.13(5)(b) WA r 2.13(5)(b) Takeovers Panel, before — see Takeovers Panel Rules for Proceedings I Insolvency winding up of company in — see Winding up — see Winding up in insolvency J Judicial Registrar Powers Associate Judges not limited by powers Vic r 16B.1 L Liquidator — see also Official liquidator — see also Provisional liquidator accounts of special manager’s receipts and payments included in ACT Sch 6 r 8.3(2) Cth r 8.3(2) NSW r 8.3(2) NT r 8.3(2) Qld Sch 1A r 8.3(2) SA r 8.3(2) Tas see Cth Vic r 8.3(2) WA r 8.3(2) application by appointment of special manager, for ACT Sch 6 r 8.1 971

Index

Hearing — continued

L

L

INDEX

Liquidator — continued Cth r 8.1 NSW r 8.1 NT r 8.1 Qld Sch 1A r 8.1 SA r 8.1 Tas see Cth Vic r 8.1 WA r 8.1 distribution of surplus with special leave of Court, for ACT Sch 6 r 7.9 Cth r 7.9 NSW r 7.9 NT r 7.9 Qld Sch 1A r 7.9 SA r 7.9 Tas see Cth Vic r 7.9 WA r 7.9 notice of application ACT Sch 6 r 7.9(2), (3), Form 15 Cth r 7.9(2), (3), Sch 1 Form 15 NSW r 7.9(2), (3), Sch 1 Form 15 NT r 7.9(2), (3), Sch 1 Form 15 Qld Sch 1A r 7.9(2), (3), Form 15 SA r 7.9(2), (3), Sch 1 Form 15 Tas see Cth Vic r 7.9(2), (3), Sch 1 Form 15 WAr 7.9(2), (3), Sch 1 Form 15 order determining remuneration of, for ACT Sch 6 r 9.4 Cth r 9.4 NSW r 9.4 NT r 9.4 Qld Sch 1A r 9.4 SA r 9.4 Tas see Cth Vic r 9.4 WA r 9.4 order for release of, and deregistration by ASIC of company, for ACT Sch 6 r 7.5 Cth r 7.5 NSW r 7.5 NT r 7.5 Qld Sch 1A r 7.5 SA r 7.5 Tas see Cth Vic r 7.5 WA r 7.5 order for release of, for ACT Sch 6 r 7.5 972

Cth r 7.5 NSW r 7.5 NT r 7.5 Qld Sch 1A r 7.5 SA r 7.5 Tas see Cth Vic r 7.5 WA r 7.5 payment of call, for ACT Sch 6 r 7.8, Form 14 Cth r 7.8, Sch 1 Form 14 NSW r 7.8, Sch 1 Form 14 NT r 7.8, Sch 1 Form 14 Qld Sch 1A r 7.8, Form 14 SA r 7.8, Sch 1 Form 14 Tas see Cth Vic r 7.8, Sch 1 Form 14 WA r 7.8, Sch 1 Form 14 consent of, to inspect record or transcript of examination ACT Sch 6 r 11.8(1)(a) Cth r 11.8(1)(a) NSW r 11.8(1)(a) NT r 11.8(1)(a) Qld Sch 1A r 11.8(1)(a) SA r 11.8(1)(a) Tas see Cth Vic r 11.8(1)(a) WA r 11.8(1)(a) filing of certificate and copy of settled list of contributories by ACT Sch 6 r 7.4 Cth r 7.4 NSW r 7.4 NT r 7.4 Qld Sch 1A r 7.4 SA r 7.4 Tas see Cth Vic r 7.4 WA r 7.4 filling vacancy in office of ACT Sch 6 r 7.2 Cth r 7.2 NSW r 7.2 NT r 7.2 Qld Sch 1A r 7.2 SA r 7.2 Tas see Cth Vic r 7.2 WA r 7.2 generally ACT Sch 6 rr 7.1 – 7.11 Cth rr 7.1 – 7.11 NSW rr 7.1 – 7.11 NT rr 7.1 – 7.11 Corporations – Court Rules and Related Legislation 2017

INDEX

Qld Sch 1A rr 7.1 – 7.11 SA rr 7.1 – 7.11 Tas see Cth Vic rr 7.1 – 7.11 WA rr 7.1 – 7.11 inquiry into conduct of complaint to court, process for ACT Sch 6 r 7.11(1) Cth r 7.11(1) NSW r 7.11(1) NT r 7.11(1) Qld Sch 1A r 7.11(1) SA r 7.11(1) Tas see Cth Vic r 7.11(1) WA r 7.11(1) report to Court by ASIC ACT Sch 6 r 7.11(2), (3), (4) Cth r 7.11(2), (3), (4) NSW r 7.11(2), (3), (4) NT r 7.11(2), (3), (4) Qld Sch 1A r 7.11(2), (3), (4) SA r 7.11(2), (3), (4) Tas see Cth Vic r 7.11(2), (3), (4) WA r 7.11(2), (3), (4) “liquidator” ACT Sch 6 rr 5.5(3), 5.11(5), 7.3(4), 7.11(5) Cth rr 5.5(1), 5.11(5), 7.3(4), 7.11(5) NSW rr 5.5(1), 5.11(5), 7.3(4), 7.11(5) NT rr 5.5(1), 5.11(5), 7.3(4), 7.11(5) Qld Sch 1A rr 5.5(1), 5.11(5), 7.3(4), 7.11(5) SA rr 5.5(1), 5.11(5), 7.3(4), 7.11(5) Tas see Cth Vic rr 5.5(1), 5.11(5), 7.3(4), 7.11(5) WA rr 5.5(1), 5.11(5), 7.3(4), 7.11(5) notice of winding up order and appointment of ACT Sch 6 r 5.11, Form 11 Cth r 5.11, Sch 1 Form 11 NSW r 5.11, Sch 1 Form 11 NT r 5.11, Sch 1 Form 11 Qld Sch 1A r 5.11, Form 11 SA r 5.11, Sch 1 Form 11 Tas see Cth Vic r 5.11, Sch 1 Form 11 WA r 5.11, Sch 1 Form 11 official liquidator — see Official liquidator powers delegated to, by Court ACT Sch 6 r 7.10 Cth r 7.10 NSW r 7.10 NT r 7.10 ©

2017 THOMSON REUTERS

Qld Sch 1A r 7.10 SA r 7.10 Tas see Cth Vic r 7.10 WA r 7.10 provisional liquidator — see Provisional liquidator registered liquidator appointment of another, if vacancy ACT Sch 6 r 7.2(1)(b), (2) Cth r 7.2(1)(b), (2) NSW r 7.2(1)(b), (2) NT r 7.2(1)(b), (2) Qld Sch 1A r 7.2(1)(b), (2) SA r 7.2(1)(b), (2) Tas see Cth Vic r 7.2(1)(b), (2) WA r 7.2(1)(b), (2) “registered liquidator” ACT Sch 6 r 1.4 Cth r 1.4 NSW r 1.4 NT r 1.4 Qld Sch 1A r 1.4 SA r 1.4 Tas see Cth Vic r 1.4 release of application for order for ACT Sch 6 r 7.5 Cth r 7.5 NSW r 7.5 NT r 7.5 Qld Sch 1A r 7.5 SA r 7.5 SA Cr 7.1 Tas see Cth Vic r 7.5 WA r 7.5 notice of objection to, by creditor or contributory ACT Sch 6 r 7.6, Form 13 Cth r 7.6, Sch 1 Form 13 NSW r 7.6, Sch 1 Form 13 NT r 7.6, Sch 1 Form 13 Qld Sch 1A r 7.6, Form 13 SA r 7.6, Sch 1 Form 13 Tas see Cth Vic r 7.6, Sch 1 Form 13 WA r 7.6, Sch 1 Form 13 release of, and deregistration of company by ASIC application for order for ACT Sch 6 r 7.5 Cth r 7.5

Index

Liquidator — continued

L

973

L

INDEX

Liquidator — continued NSW r 7.5 NT r 7.5 Qld Sch 1A r 7.5 SA r 7.5 Tas see Cth Vic r 7.5 WA r 7.5 notice of objection to release, by creditor or contributory ACT Sch 6 r 7.6, Form 13 Cth r 7.6, Sch 1 Form 13 NSW r 7.6, Sch 1 Form 13 NT r 7.6, Sch 1 Form 13 Qld Sch 1A r 7.6, Form 13 SA r 7.6, Sch 1 Form 13 Tas see Cth Vic r 7.6, Sch 1 Form 13 WA r 7.6, Sch 1 Form 13 remuneration of ACT Sch 6 r 9.4 Cth r 9.4 NSW r 9.4 NT r 9.4 Qld Sch 1A r 9.4 SA r 9.4 SA Cr 7.2 Tas see Cth Vic r 9.4 WA r 9.4 application for order determining ACT Sch 6 r 9.4(1), (2), (7) Cth r 9.4(1), (2), (7) NSW r 9.4(1), (2), (7) NT r 9.4(1), (2), (7) Qld Sch 1A r 9.4(1), (2), (7) SA r 9.4(1), (2), (7) Tas see Cth Vic r 9.4(1), (2), (7) WA r 9.4(1), (2), (7) application for review of ACT Sch 6 r 9.4A, Form 16A Cth r 9.4A, Sch 1 Form 16A NSW r 9.4A, Sch 1 Form 16A NT r 9.4A, Sch 1 Form 16A Qld Sch 1A r 9.4A, Form 16A SA r 9.4A, Sch 1 Form 16A Tas see Cth Vic r 9.4A, Sch 1 Form 16A WA r 9.4A, Sch 1 Form 16A notice of intention to apply for order determining ACT Sch 6 r 9.4(3), Form 16 974

Cth r 9.4(3), Sch 1 Form 16 NSW r 9.4(3), Sch 1 Form 16 NT r 9.4(3), Sch 1 Form 16 Qld Sch 1A r 9.4(3), Form 16 SA r 9.4(3), Sch 1 Form 16 Tas see Cth Vic r 9.4(3), Sch 1 Form 16 WA r 9.4(3), Sch 1 Form 16 notice of objection to claim for ACT Sch 6 r 9.4(4) Cth r 9.4(4) NSW r 9.4(4) NT r 9.4(4) Qld Sch 1A r 9.4(4) SA r 9.4(4) Tas see Cth Vic r 9.4(4) WA r 9.4(4) procedure if no objection to claim for ACT Sch 6 r 9.4(5) Cth r 9.4(5) NSW r 9.4(5) NT r 9.4(5) Qld Sch 1A r 9.4(5) SA r 9.4(5) Tas see Cth Vic r 9.4(5) WA r 9.4(5) procedure if objection to claim for ACT Sch 6 r 9.4(6) Cth r 9.4(6) NSW r 9.4(6) NT r 9.4(6) Qld Sch 1A r 9.4(6) SA r 9.4(6) Tas see Cth Vic r 9.4(6) WA r 9.4(6) remuneration of other office-holders, role of, in application for ACT Sch 6 rr 9.1, 9.3, 9.5 Cth rr 9.1, 9.3, 9.5 NSW rr 9.1, 9.3, 9.5 NT rr 9.1, 9.3, 9.5 Qld Sch 1A rr 9.1, 9.3, 9.5 SA rr 9.1, 9.3, 9.5 Tas see Cth Vic rr 9.1, 9.3, 9.5 WA rr 9.1, 9.3, 9.5 report about company’s affairs to ACT Sch 6 r 7.3 Cth r 7.3 NSW r 7.3 NT r 7.3 Qld Sch 1A r 7.3 Corporations – Court Rules and Related Legislation 2017

Liquidator — continued SA r 7.3 Tas see Cth Vic r 7.3 WA r 7.3 costs and expenses of ACT Sch 6 r 7.3(2) Cth r 7.3(2) NSW r 7.3(2) NT r 7.3(2) Qld Sch 1A r 7.3(2) SA r 7.3(2) Tas see Cth Vic r 7.3(2) WA r 7.3(2) report to Court by, about any default in ACT Sch 6 r 7.3(3) Cth r 7.3(3) NSW r 7.3(3) NT r 7.3(3) Qld Sch 1A r 7.3(3) SA r 7.3(3) Tas see Cth Vic r 7.3(3) WA r 7.3(3) report on accounts of auditor’s obligations ACT Sch 6 r 7.7(2) Cth r 7.7(2) NSW r 7.7(2) NT r 7.7(2) Qld Sch 1A r 7.7(2) SA r 7.7(2) Tas see Cth Vic r 7.7(2) WA r 7.7(2) liquidator’s obligations to auditor ACT Sch 6 r 7.7(1) Cth r 7.7(1) NSW r 7.7(1) NT r 7.7(1) Qld Sch 1A r 7.7(1) SA r 7.7(1) Tas see Cth Vic r 7.7(1) WA r 7.7(1) order by Court for ACT Sch 6 r 7.7(1) Cth r 7.7(1) NSW r 7.7(1) NT r 7.7(1) Qld Sch 1A r 7.7(1) SA r 7.7(1) ©

2017 THOMSON REUTERS

L

Tas see Cth Vic r 7.7(1) WA r 7.7(1) who may inspect ACT Sch 6 r 7.7(3) Cth r 7.7(3) NSW r 7.7(3) NT r 7.7(3) Qld Sch 1A r 7.7(3) SA r 7.7(3) Tas see Cth Vic r 7.7(3) WA r 7.7(3) resignation of ACT Sch 6 r 7.1 Cth r 7.1 NSW r 7.1 NT r 7.1 Qld Sch 1A r 7.1 SA r 7.1 Tas see Cth Vic r 7.1 WA r 7.1 role of, in application for remuneration of provisional liquidator ACT Sch 6 r 9.3 Cth r 9.3 NSW r 9.3 NT r 9.3 Qld Sch 1A r 9.3 SA r 9.3 Tas see Cth Vic r 9.3 WA r 9.3 receiver ACT Sch 6 r 9.1 Cth r 9.1 NSW r 9.1 NT r 9.1 Qld Sch 1A r 9.1 SA r 9.1 Tas see Cth Vic r 9.1 WA r 9.1 special manager ACT Sch 6 r 9.5 Cth r 9.5 NSW r 9.5 NT r 9.5 Qld Sch 1A r 9.5 SA r 9.5 Tas see Cth Vic r 9.5 WA r 9.5 special manager — see also Special manager 975

Index

INDEX

M

INDEX

Liquidator — continued account of receipts and payments by, to liquidator ACT Sch 6 r 8.3 Cth r 8.3 NSW r 8.3 NT r 8.3 Qld Sch 1A r 8.3 SA r 8.3 Tas see Cth Vic r 8.3 WA r 8.3 application by liquidator for appointment of ACT Sch 6 r 8.1 Cth r 8.1 NSW r 8.1 NT r 8.1 Qld Sch 1A r 8.1 SA r 8.1 Tas see Cth Vic r 8.1 WA r 8.1 M Mareva orders — see Freezing orders Master appeal from NTr 16.3 jurisdiction of NT r 16.1 SA rr 16.1 – 16.3 WA r 16.1, Sch 2 powers of deal with matters within jurisdiction NT r 16.1(1) direct application for hearing by Registrar NT r 16.2 exercise of Court’s jurisdiction by WA r 16.1(1), (4), (7), Sch 2 generally NT r 16.1 SA rr 16.1 – 16.3 hear and determine application referred by Judge SA r 16.3 orders of WA r 16.1(6) refer matter to Judge NT r 16.1(2) WA r 16.1(2) reference of matter to/back to, by Judge NT r 16.1(4) SA r 16.3 976

WA r 16.1(3), (5) winding up process, in relation to SA rr 16.1 – 16.3 O Office-holders — see also Administrator — see also Liquidator — see also Provisional liquidator — see also Receiver — see also Special manager remuneration of, generally ACT Sch 6 rr 9.1 – 9.5 Cth rr 9.1 – 9.5 NSW rr 9.1 – 9.5 NT rr 9.1 – 9.5 Qld Sch 1A rr 9.1 – 9.5 SA rr 9.1 – 9.5 Tas see Cth Vic rr 9.1 – 9.5 WA rr 9.1 – 9.5 Officer of a corporation affidavits by, if corporation is a creditor ACT Sch 6 r 2.5(a) Cth r 2.5(a) NSW r 2.5(a) NT r 2.5(a) Qld Sch 1A r 2.5(a) SA r 2.5(a) Tas see Cth Vic r 2.5(a) WA r 2.5(a) availability of copy documents for service for inspection on, in winding up proceeding ACT Sch 6 r 5.7 Cth r 5.7 NSW r 5.7 NT r 5.7 Qld Sch 1A r 5.7 SA r 5.7 Tas see Cth Vic r 5.7 WA r 5.7 defendant/respondent, as, order by Court to be added ACT Sch 6 r 2.13(3), (4) Cth r 2.13(3), (4) NSW r 2.13(3), (4) NT r 2.13(3), (4) Qld Sch 1A r 2.13(3), (4) SA r 2.13(3), (4) Tas see Cth Vic r 2.13(3), (4) WA r 2.13(3), (4) leave by Court to be heard in proceeding as non-party ACT Sch 6 r 2.13(1)(a), (2), (4) Corporations – Court Rules and Related Legislation 2017

INDEX

Cth r 2.13(1)(a), (2), (4) NSW r 2.13(1)(a), (2), (4) NT r 2.13(1)(a), (2), (4) Qld Sch 1A r 2.13(1)(a), (2), (4) SA r 2.13(1)(a), (2), (4) Tas see Cth Vic r 2.13(1)(a), (2), (4) WA r 2.13(1)(a), (2), (4) additional costs, if ACT Sch 6 r 2.13(2) Cth r 2.13(2) NSW r 2.13(2) NT r 2.13(2) Qld Sch 1A r 2.13(2) SA r 2.13(2) Tas see Cth Vic r 2.13(2) WA r 2.13(2) “officer” Vic r 1.4 “officer, in relation to a body corporate” ACT Sch 6 r 1.4 Cth r 1.4 NT r 1.4 SA r 1.4 Tas see Cth “officer, in relation to an entity” Qld Sch 1A r 1.4 Official liquidator — see also Liquidator application for appointment of, as provisional liquidator ACT Sch 6 r 6.1(1) Cth r 6.1(1) NSW r 6.1(1) NT r 6.1(1) Qld Sch 1A r 6.1(1) SA r 6.1(1) Tas see Cth Vic r 6.1(1) WA r 6.1(1) appointment of another, if vacancy ACT Sch 6 r 7.2(1)(a), (2) Cth r 7.2(1)(a), (2) NSW r 7.2(1)(a), (2) NT r 7.2(1)(a), (2) Qld Sch 1A r 7.2(1)(a), (2) SA r 7.2(1)(a), (2) Tas see Cth Vic r 7.2(1)(a), (2) WA r 7.2(1)(a), (2) consent of, to act as liquidator ACT Sch 6 rr 5.5(1), 6.1(1), Form 8 ©

2017 THOMSON REUTERS

Cth rr 5.5, 6.1(1), (2), Sch 1 Form 8 NSW rr 5.5, 6.1(1), (2), Sch 1 Form 8 NT rr 5.5, 6.1(1), (2), Sch 1 Form 8 Qld Sch 1A rr 5.5, 6.1(1), (2), Form 8 SA rr 5.5, 6.1(1), (2), Sch 1 Form 8 Tas see Cth Vic rr 5.5, 6.1(1), (2), Sch 1 Form 8 WA rr 5.5, 6.1(1), (2), Sch 1 Form 8 notice of appointment of, as provisional liquidator ACT Sch 6 r 6.2, Form 12 Cth r 6.2, Sch 1 Form 12 NSW r 6.2, Sch 1 Form 12 NT r 6.2, Sch 1 Form 12 Qld Sch 1A r 6.1(1), Form 12 SA r 6.2, Sch 1 Form 12 Tas see Cth Vic r 6.2, Sch 1 Form 12 WA r 6.2, Sch 1 Form 12 “official liquidator” ACT Sch 6 r 1.4 Cth r 1.4 NSW r 1.4 NT r 1.4 Qld Sch 1A r 1.4 SA r 1.4 Tas see Cth Vic r 1.4 Oppression proceedings filing of documents, time for Vic r 16.10 powers of Associate Judge in relation to process Vic r 16.7 – 16.9 where winding up sought — see also Winding up ACT Sch 6 rr 5.1 – 5.11 Cth rr 5.1 – 5.11 NSW rr 5.1 – 5.11 NT rr 5.1 – 5.11 Qld Sch 1A rr 5.1 – 5.11 SA rr 5.1 – 5.11 Tas see Cth Vic rr 5.1 – 5.11 WA rr 5.1 – 5.11 P Part 5.1 body compromises and arrangements in relation to application for order about amalgamation of two or more Part 5.1 bodies ACT Sch 6 r 3.4(1), (2) Cth r 3.4(1), (2) NSW r 3.4(1), (2) NT r 3.4(1), (2) Qld Sch 1A r 3.4(1), (2) 977

Index

Officer of a corporation — continued

P

P

INDEX

Part 5.1 body — continued SA r 3.4(1), (2) Tas see Cth Vic r 3.4(1), (2) WA r 3.4(1), (2) application for order about reconstruction of Part 5.1 body ACT Sch 6 r 3.4(1), (2) Cth r 3.4(1), (2) NSW r 3.4(1), (2) NT r 3.4(1), (2) Qld Sch 1A r 3.4(1), (2) SA r 3.4(1), (2) Tas see Cth Vic r 3.4(1), (2) WA r 3.4(1), (2) application for order approving ACTSch 6 rr 3.1, 3.4(1), (2) Cthrr 3.1, 3.4(1), (2) NSWrr 3.1, 3.4(1), (2) NTrr 3.1, 3.4(1), (2) QldSch 1A rr 3.1, 3.4(1), (2) SArr 3.1, 3.4(1), (2) Tas see Cth Vicrr 3.1, 3.4(1), (2) WArr 3.1, 3.4(1), (2) copy of order approving compromise, arrangement, reconstruction or amalgamation authentication of NT r 3.5(a) SA r 3.5(a) Vic r 3.5(a) lodgement with ASIC ACT Sch 6 r 3.5(b) Cth r 3.5(b) NSW r 3.5(b) NT r 3.5(b) Qld Sch 1A r 3.5(b) SA r 3.5(b) Tas see Cth Vic r 3.5(b) WA r 3.5(b) sealing of ACT Sch 6 r 3.5(a) Cth r 3.5(a) NSW r 3.5(a) Qld Sch 1A r 3.5(a) SA r 3.5(a) Tas see Cth WA r 3.5(a) service on any person appointed to administer 978

AC TSch 6 r 3.5(c) Cth r 3.5(c) NSW r 3.5(c) NT r 3.5(c) Qld Sch 1A r 3.5(c) SA r 3.5(c) Tas see Cth Vic r 3.5(c) WA r 3.5(c) generally ACT Sch 6 rr 3.1 – 3.5 Cth rr 3.1 – 3.5 NSW rr 3.1 – 3.5 NT rr 3.1 – 3.5 Qld Sch 1A rr 3.1 – 3.5 SA rr 3.1 – 3.5 Tas see Cth Vic rr 3.1 – 3.5 WA rr 3.1 – 3.5 meeting of class of holders of convertible securities ACT Sch 6 r 3.3(3) Cth r 3.3(3) NSW r 3.3(3) NT r 3.3(3) Qld Sch 1A r 3.3(3) SA r 3.3(3) Tas see Cth Vic r 3.3(3) WA r 3.3(3) meeting of members ACT Sch 6 r 3.3(2) Cth r 3.3(2) NSW r 3.3(2) NT r 3.3(2) Qld Sch 1A r 3.3(2) SA r 3.3(2) Tas see Cth Vic r 3.3(2) WA r 3.3(2) nomination of chairperson for meeting before hearing ACT Sch 6 r 3.2 Cth r 3.2 NSW r 3.2 NT r 3.2 Qld Sch 1A r 3.2 SA r 3.2 Tas see Cth Vic r 3.2 WA r 3.2 notice of hearing of application ACT Sch 6 r 3.4(3), Form 6 Cth r 3.4(3), Sch 1 Form 6 NSW r 3.4(3), Sch 1 Form 6 Corporations – Court Rules and Related Legislation 2017

Part 5.1 body — continued NT r 3.4(3), Sch 1 Form 6 Qld Sch 1A r 3.4(3), Form 6 SA r 3.4(3), Sch 1 Form 6 Tas see Cth Vic r 3.4(3), Sch 1 Form 6 WA r 3.4(3), Sch 1 Form 6 order for meetings to identify scheme ACT Sch 6 r 3.3(1) Cth r 3.3(1) NSW r 3.3(1) NT r 3.3(1) Qld Sch 1A r 3.3(1) SA r 3.3(1) Tas see Cth Vic r 3.3(1) WA r 3.3(1) “Part 5.1 body” ACT Sch 6 r 1.4 Cth r 1.4 NSW r 1.4 NT r 1.4 Qld Sch 1A r 1.4 SA r 1.4 Tas see Cth Vic r 1.4 Part 5.7 body “Part 5.7 body” ACT Sch 6 r 1.4 Cth r 1.4 NSW r 1.4 NT r 1.4 Qld Sch 1A r 1.4 SA r 1.4 Tas see Cth Vic r 1.4 winding up of, application of rules to ACT Sch 6 r 10.3 Cth r 10.3 NSW r 10.3 NT r 10.3 Qld Sch 1A r 10.3 SA r 10.3 Tas see Cth Vic r 10.3 WA r 10.3 Plaintiff appearance before Associate Judge/Master/Principal Registrar/Registrar in winding up proceeding, by ACT Sch 6 r 5.9 Cth r 5.9 NSW r 5.9 ©

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NT r 5.9 Qld Sch 1A r 5.9 SA r 5.9 Tas see Cth Vic r 5.9 WA r 5.9 “applicant” ACT Sch 6 r 1.5 Cth r 1.5 NSW r 1.5 NT r 1.5 Qld Sch 1A r 1.5 SA r 1.5 Tas see Cth Vic r 1.5 WA r 1.5(1) damages undertaking by, in relation to appointment of provisional liquidator ACT Sch 6 r 6.1(3) Cth r 6.1(4) NSW r 6.1(4) NT r 6.1(4) Qld Sch 1A r 6.1(4) SA r 6.1(4) Tas see Cth Vic r 6.1(4) WA r 6.1(4) order for substitution of, in winding up proceeding ACT Sch 6 r 5.10 Cth r 5.10 NSW r 5.10 NT r 5.10 Qld Sch 1A r 5.10 SA r 5.10 Tas see Cth Vic r 5.10 WA r 5.10 “plaintiff” ACT Sch 6 r 1.5 Cth r 1.5 NSW r 1.5 NT r 1.5 SA r 1.5 Tas see Cth Vic r 1.5 WA r 1.5 Principal Registrar — see also Prothonotary — see also Registrar fixing of hearing by WA r 2.3 provision of copy of transcript/written record of public examination, by WA r 11.9(3) 979

Index

INDEX

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INDEX

Prothonotary — see also Principal Registrar — see also Registrar fixing of hearing by Vic r 2.3 provision of copy of transcript /written record of public examination, by Vic r 11.9(3) Provisional liquidator — see also Liquidator application for appointment of official liquidator as ACT Sch 6 r 6.1(1) Cth r 6.1(1) NSW r 6.1(1) NT r 6.1(1) Qld Sch 1A r 6.1(1) SA r 6.1(1) Tas see Cth Vic r 6.1(1) WA r 6.1(1) consent of liquidator ACT Sch 6 r 6.1(1), Form 8 Cth r 6.1(2), Sch 1 Form 8 NSW r 6.1(2), Sch 1 Form 8 NT r 6.1(2), Sch 1 Form 8 Qld Sch 1A r 6.1(2), Form 8 SA r 6.1(2), Sch 1 Form 8 Tas see Cth Vic r 6.1(2), Sch 1 Form 8 WA r 6.1(2), Sch 1 Form 8 damages undertaking by plaintiff, in relation to appointment of ACT Sch 6 r 6.1(3) Cth r 6.1(4) NSW r 6.1(4) NT r 6.1(4) Qld Sch 1A r 6.1(4) SA r 6.1(4) Tas see Cth Vic r 6.1(4) WA r 6.1(4) generally ACT Sch 6 rr 6.1 – 6.2 Cth rr 6.1 – 6.2 NSW rr 6.1 – 6.2 NT rr 6.1 – 6.2 Qld Sch 1A rr 6.1 – 6.2 SA rr 6.1 – 6.2 Tas see Cth Vic rr 6.1 – 6.2 WA rr 6.1 – 6.2 order for appointment as ACT Sch 6 r 6.1(2) Cth r 6.1(3) NSW r 6.1(3) NT r 6.1(3)

Qld Sch 1A r 6.1(3) SA r 6.1(3) Tas see Cth Vic r 6.1(3) WA r 6.1(3) notice of ACT Sch 6 r 6.2(3), Form 12 Cth r 6.2(4), Sch 1 Form 12 NSW r 6.2(4), Sch 1 Form 12 NT r 6.2(4), Sch 1 Form 12 Qld Sch 1A r 6.2(4), Form 12 SA r 6.2(4), Sch 1 Form 12 Tas see Cth Vic r 6.2(4), Sch 1 Form 12 WA r 6.2(4), Sch 1 Form 12 remuneration of ACT Sch 6 r 9.3 Cth r 9.3 NSW r 9.3 NT r 9.3 Qld Sch 1A r 9.3 SA r 9.3 Tas see Cth Vic r 9.3 WA r 9.3 application for order determining ACT Sch 6 r 9.3(1), (2), (7) Cth r 9.3(1), (2), (7) NSW r 9.3(1), (2), (7) NT r 9.3(1), (2), (7) Qld Sch 1A r 9.3(1), (2), (7) SA r 9.3(1), (2), (7) Tas r 61(1), (2), (7) see Cth Vic r 9.3(1), (2), (7) WA r 9.3(1), (2), (7) notice of intention to apply for order determining ACT Sch 6 r 9.3(3), Form 16 Cth r 9.3(3), Sch 1 Form 16 NSW r 9.3(3), Sch 1 Form 16 NT r 9.3(3), Sch 1 Form 16 Qld Sch 1A r 9.3(3), Form 16 SA r 9.3(3), Sch 1 Form 16 Tas see Cth Vic r 9.3(3), Sch 1 Form 16 WA r 9.3(3), Sch 1 Form 16 notice of objection to claim for ACT Sch 6 r 9.3(4) Cth r 9.3(4) NSW r 9.3(4) NT r 9.3(4) Qld Sch 1A r 9.3(4) SA r 9.3(4) Tas see Cth Vic r 9.3(4)

980

Corporations – Court Rules and Related Legislation 2017

Provisional liquidator — continued WA r 9.3(4) procedure if no objection to claim for ACT Sch 6 r 9.3(5) Cth r 9.3(5) NSW r 9.3(5) NT r 9.3(5) Qld Sch 1A r 9.3(5) SA r 9.3(5) Tas see Cth Vic r 9.3(5) WA r 9.3(5) procedure if objection to claim for ACT Sch 6 r 9.3(6) Cth r 9.3(6) NSW r 9.3(6) NT r 9.3(6) Qld Sch 1A r 9.3(6) SA r 9.3(6) Tas see Cth Vic r 9.3(6) WA r 9.3(6) role of, in remuneration of receiver ACT Sch 6 r 9.1 Cth r 9.1 NSW r 9.1 NT r 9.1 Qld Sch 1A r 9.1 SA r 9.1 Tas see Cth Vic r 9.1 WA r 9.1 Publication notice of application for order for winding up, of ACT Sch 6 r 5.6, Form 9 Cth r 5.6, Sch 1 Form 9 NSW r 5.6, Sch 1 Form 9 NT r 5.6, Sch 1 Form 9 Qld Sch 1A r 5.6, Form 9 SA r 5.6, Sch 1 Form 9 Tas see Cth Vic r 5.6, Sch 1 Form 9 WA r 5.6, Sch 1 Form 9 notice of appointment of provisional liquidator, of ACT Sch 6 r 6.2(3), (4), Form 12 Cth r 6.2(3), (4), Sch 1 Form 12 NSW r 6.2(3), (4), Sch 1 Form 12 NT r 6.2(3), (4), Sch 1 Form 12 Qld Sch 1A r 6.2(3), (4), Form 12 SA r 6.2(3), (4), Sch 1 Form 12 Tas see Cth Vic r 6.2(3), (4), Sch 1 Form 12 ©

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WA r 6.2(3), (4), Sch 1 Form 12 notice of hearing about, of application for order about amalgamation of two or more Part 5.1 bodies ACT Sch 6 r 3.4(2), (3), Form 6 Cth r 3.4(2), (3), Sch 1 Form 6 NSW r 3.4(2), (3), Sch 1 Form 6 NT r 3.4(2), (3), Sch 1 Form 6 Qld Sch 1A r 3.4(2), (3), Form 6 SA r 3.4(2), (3), Sch 1 Form 6 Tas see Cth Vic r 3.4(2), (3), Sch 1 Form 6 WA r 3.4(2), (3), Sch 1 Form 6 application for approval of compromise or arrangement in relation to Part 5.1 body, ACT Sch 6 r 3.4(2), (3), Form 6 Cth r 3.4(2), (3), Sch 1 Form 6 NSW r 3.4(2), (3), Sch 1 Form 6 NT r 3.4(2), (3), Sch 1 Form 6 Qld Sch 1A r 3.4(2), (3), Form 6 SA r 3.4(2), (3), Sch 1 Form 6 Tas see Cth Vic r 3.4(2), (3), Sch 1 Form 6 WA r 3.4(2), (3), Sch 1 Form 6 application for order about reconstruction of Part 5.1 body ACT Sch 6 r 3.4(2), (3) Cth r 3.4(2), (3), Sch 1 Form 6 NSW r 3.4(2), (3), Sch 1 Form 6 NT r 3.4(2), (3), Sch 1 Form 6 Qld Sch 1A r 3.4(2), (3), Form 6 SA r 3.4(2), (3), Sch 1 Form 6 Tas see Cth Vic r 3.4(2), (3), Sch 1 Form 6 WA r 3.4(2), (3), Sch 1 Form 6 notice of intention of substituted plaintiff to apply for winding up order, of ACT Sch 6 r 5.10(1), Form 10 Cth r 5.10(2), Sch 1 Form 10 NSW r 5.10(2), Sch 1 Form 10 NT r 5.10(2), Sch 1 Form 10 Qld Sch 1A r 5.10(2), Form 10 SA r 5.10(2), Sch 1 Form 10 Tas see Cth Vic r 5.10(2), Sch 1 Form 10 WA r 5.10(2), Sch 1 Form 10 notice of order for winding up and appointment of liquidator, of ACT Sch 6 r 5.11(3), (4), Form 11 Cth r 5.11(3), (4), Sch 1 Form 11 NSW r 5.11(3), (4), Sch 1 Form 11 NT r 5.11(3), (4), Sch 1 Form 11 Qld Sch 1A r 5.11(3), (4), Form 11 SA r 5.11(3), (4), Sch 1 Form 11 Tas see Cth 981

Index

INDEX

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INDEX

Publication — continued Vic r 5.11(3), (4), Sch 1 Form 11 WA r 5.11(3), (4), Sch 1 Form 11 notices in relation to body, of ACT Sch 6 r 2.11 Cth r 2.11 NT r 2.11 Qld Sch 1A r 2.11 SA r 2.11 Tas see Cth Vic r 2.11 WA r 2.11 proof of, in relation to any matter published in connection with proceeding ACT Sch 6 r 2.12 Cth r 2.12 NSW r 2.12 NT r 2.12 Qld Sch 1A r 2.12 SA r 2.12 Tas see Cth Vic r 2.12 WA r 2.12 R Receiver receiver of corporation property, complaint to Court about act or omission of ACT Sch 6 r 4.1 Cth r 4.1 NSW r 4.1 NT r 4.1 Qld Sch 1A r 4.1 SA r 4.1 Tas see Cth Vic r 4.1 WA r 4.1 remuneration of ACT Sch 6 r 9.1 Cth r 9.1 NSW r 9.1 NT r 9.1 Qld Sch 1A r 9.1 SA r 9.1 Tas see Cth Vic r 9.1 WA r 9.1 application for order fixing ACT Sch 6 r 9.1(1), (6) Cth r 9.1(1), (6) NSW r 9.1(1), (6) NT r 9.1(1), (6) Qld Sch 1A r 9.1(1), (6) 982

SA r 9.1(1), (6) Tas see Cth Vic r 9.1(1), (6) WA r 9.1(1), (6) notice of intention to apply for order fixing ACT Sch 6 r 9.1(2), Form 16 Cth r 9.1(2), Sch 1 Form 16 NSW r 9.1(2), Sch 1 Form 16 NT r 9.1(2), Sch 1 Form 16 Qld Sch 1A r 9.1(2), Form 16 SA r 9.1(2) Sch 1 Form 16 Tas see Cth Vic r 9.1(2), Sch 1 Form 16 WA r 9.1(2), Sch 1 Form 16 notice of objection to claim for ACT Sch 6 r 9.1(3) Cth r 9.1(3) NSW r 9.1(3) NT r 9.1(3) Qld Sch 1A r 9.1(3) SA r 9.1(3) Tas see Cth Vic r 9.1(3) WA r 9.1(3) procedure if no objection to claim for ACT Sch 6 r 9.1(4) Cth r 9.1(4) NSW r 9.1(4) NT r 9.1(4) Qld Sch 1A r 9.1(4) SA r 9.1(4) Tas see Cth Vic r 9.1(4) WA r 9.1(4) procedure if objection to claim for ACT Sch 6 r 9.1(5) Cth r 9.1(5) NSW r 9.1(5) NT r 9.1(5) Qld Sch 1A r 9.1(5) SA r 9.1(5) Tas see Cth Vic r 9.1(5) WA r 9.1(5) Records — see also Transcripts examination held in public, of application by person examined for copy of ACT Sch 6 r 11.9(2) Cth r 11.9(2) NSW r 11.9(2) NT r 11.9(2) Qld Sch 1A r 11.9(2) SA r 11.9(2) Tas see Cth Vic r 11.9(2) Corporations – Court Rules and Related Legislation 2017

INDEX

WA r 11.9(2) entitlement to ACT Sch 6 r 11.9(1), (2) Cth r 11.9(1), (2) NSW r 11.9(1), (2) NT r 11.9(1), (2) Qld Sch 1A r 11.9(1), (2) SA r 11.9(1), (2) Tas see Cth Vic r 11.9(1), (2) WA r 11.9(1), (2) Principal Registrar/Prothonotary/Registrar to provide copy ACT Sch 6 r 11.9(3) Cth r 11.9(3) NSW r 11.9(3) NT r 11.9(3) Qld Sch 1A r 11.9(3) SA r 11.9(3) Tas see Cth Vic r 11.9(3) WA r 11.9(3) examination, of consent of liquidator or ASIC to inspect ACT Sch 6 r 11.8(1)(a) Cth r 11.8(1)(a) NSW r 11.8(1)(a) NT r 11.8(1)(a) Qld Sch 1A r 11.8(1)(a) SA r 11.8(1)(a) Tas see Cth Vic r 11.8(1)(a) WA r 11.8(1)(a) ASIC’s right to inspect ACT Sch 6 r 11.8(2) Cth r 11.8(2) NSW r 11.8(2) NT r 11.8(2) Qld Sch 1A r 11.8(2) SA r 11.8(2) Tas see Cth Vic r 11.8(2) WA r 11.8(2) directions by Court for filing of ACT Sch 6 r 11.6 Cth r 11.6 NSW r 11.6 NT r 11.6 Qld Sch 1A r 11.6 SA r 11.6 Tas see Cth Vic r 11.6 ©

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WA r 11.6 leave of Court to inspect ACT Sch 6 r 11.8(1)(b) Cth r 11.8(1)(b) NSW r 11.8(1)(b) NT r 11.8(1)(b) Qld Sch 1A r 11.8(1)(b) SA r 11.8(1)(b) Tas see Cth Vic r 11.8(1)(b) WA r 11.8(1)(b) investigation, of consent of liquidator or ASIC to inspect ACT Sch 6 r 11.8(1)(a) Cth r 11.8(1)(a) NSW r 11.8(1)(a) NT r 11.8(1)(a) Qld Sch 1A r 11.8(1)(a) SA r 11.8(1)(a) Tas see Cth Vic r 11.8(1)(a) WA r 11.8(1)(a) leave of Court to inspect ACT Sch 6 r 11.8(1)(b) Cth r 11.8(1)(b) NSW r 11.8(1)(b) NT r 11.8(1)(b) Qld Sch 1A r 11.8(1)(b) SA r 11.8(1)(b) Tas see Cth Vic r 11.8(1)(b) WA r 11.8(1)(b) maintained by ASIC record of search of, by plaintiff/applicant ACT Sch 6 rr 2.4(2), 2.4A(3)(b) Cth rr 2.4(2), 2.4A(3)(b) NSW rr 2.4(2), 2.4A(3)(b) NT rr 2.4(2), 2.4A(3)(b) Qld Sch 1A r 2.4(2) SA rr 2.4(2), 2.4A(3)(b) Tas see Cth Vic rr 2.4(2), 2.4A(3)(b) WA rr 2.4(2), 2.4A(3)(b) search of, by plaintiff/applicant ACT Sch 6 r 2.4A(3)(a) Cth r 2.4A(3)(a) NSW r 2.4A(3)(a) NT r 2.4A(3)(a) SA r 2.4A(3)(a) Tas see Cth Vic r 2.4A(3)(a) WA r 2.4A(3)(a) Registered scheme application of rules to winding up of ACT Sch 6 r 10.3

Index

Records — continued

R

983

S

INDEX

Registered scheme — continued Cth r 10.3 NSW r 10.3 NT r 10.3 Qld Sch 1A r 10.3 SA r 10.3 Tas see Cth Vic r 10.3 WA r 10.3 Registrar appeal from NSW r 16.1 NT r 16.3 Qld Sch 1A r 16.1 fixing of hearing by Cth r 2.3 NSW r 2.3 NT r 2.3 Qld Sch 1A r 2.3 SA r 2.3 Tas see Cth powers of, ACT Sch 5 Pts 5.2, 5.3 Cth rr 16.1 – 16.2, Sch 2 Part 1 NT r 16.2 Qld Sch 1A rr 16.1, 16.2, Sch 1B provision of copy of transcript/written record of public examination, by ACT Sch 6 r 11.9(3) Cth r 11.9(3) NSW r 11.9(3) NT r 11.9(3) Qld Sch 1A r 11.9(3) SA r 11.9(3) Tas see Cth Vic r 11.9(3) WA r 11.9(3) review of decision of Qld Sch 1A r 16.1(4) Representative action appointment by Court of creditor or contributory to represent class ACT Sch 6 r 2.13(5)(a) Cth r 2.13(5)(a) NSW r 2.13(5)(a) NT r 2.13(5)(a) Qld Sch 1A r 2.13(5)(a) SA r 2.13(5)(a) Tas see Cth Vic r 2.13(5)(a) WA r 2.13(5)(a) removal by Court of person appointed to represent class 984

ACT Sch 6 r 2.13(5)(b) Cth r 2.13(5)(b) NSW r 2.13(5)(b) NT r 2.13(5)(b) Qld Sch 1A r 2.13(5)(b) SA r 2.13(5)(b) Tas see Cth Vic r 2.13(5)(b) WA r 2.13(5)(b) Respondent — see also Defendant “respondent” ACT Sch 6 r 1.5 Cth r 1.5 NSW r 1.5 NT r 1.5 SA r 1.5 Tas see Cth Vic r 1.5 WA r 1.5 S Schemes of arrangement Practice Notes Federal Court [FEDPN.25] Victoria [VICPN.130] Search orders Practice Notes ACT Supreme Court [ACTPD.10], [ACTPD.30] Federal Court [FEDPN.60] NSW Supreme Court [NSWPN.70] NT Supreme Court [NTPD.50] Queensland Supreme Court [QLDPD.50] Tasmanian Supreme Court [TASPD.40] Victorian Supreme Court [VICPN.80] WA Supreme Court [WAPD.20] Securities — see also Acquisition of shares and securities — see also Takeovers application for orders relating to refusal to register transfer or transmission of securities ACT Sch 6 r 12.3 Cth r 12.3 NSW r 12.3 NT r 12.3 Qld Sch 1A r 12.3 SA r 12.3 Tas see Cth Vic r 12.3 WA r 12.3 meeting of class of holders of convertible, about proposed compromise or arrangement in relation to Pt 5.1 body ACT Sch 6 r 3.3(3) Cth r 3.3(3) Corporations – Court Rules and Related Legislation 2017

Securities — continued NSW r 3.3(3) NT r 3.3(3) Qld Sch 1A r 3.3(3) SA r 3.3(3) Tas see Cth Vic r 3.3(3) WA r 3.3(3) Shares acquisition of — see Acquisition of shares and securities — see Takeovers Special manager application by liquidator for appointment of ACT Sch 6 r 8.1(1), (2) Cth r 8.1(1), (2) NSW r 8.1(1), (2) NT r 8.1(1), (2) Qld Sch 1A r 8.1(1), (2) SA r 8.1(1), (2) Tas see Cth Vic r 8.1(1), (2) WA r 8.1(1), (2) generally ACT Sch 6 rr 8.1 – 8.3 Cth rr 8.1 – 8.3 NSW rr 8.1 – 8.3 NT rr 8.1 – 8.3 Qld Sch 1A rr 8.1 – 8.3 SA rr 8.1 – 8.3 Tas see Cth Vic rr 8.1 – 8.3 WA rr 8.1 – 8.3 receipts and payments to give to liquidator ACT Sch 6 r 8.3 Cth r 8.3 NSW r 8.3 NT r 8.3 Qld Sch 1A r 8.3 SA r 8.3 Tas see Cth Vic r 8.3 WA r 8.3 remuneration of ACT Sch 6 r 9.5 Cth r 9.5 NSW r 9.5 NT r 9.5 Qld Sch 1A r 9.5 SA r 9.5 Tas see Cth Vic r 9.5 WA r 9.5 application for order fixing ©

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ACT Sch 6 r 9.5(1), (2), (7) Cth r 9.5(1), (2), (7) NSW r 9.5(1), (2), (7) NT r 9.5(1), (2), (7) Qld Sch 1A r 9.5(1), (2), (7) SA r 9.5(1), (2), (7) Tas see Cth Vic r 9.5(1), (2), (7) WA r 9.5(1), (2), (7) notice of intention to apply for order fixing ACT Sch 6 r 9.5(3), Form 16 Cth r 9.5(3), Sch 1 Form 16 NSW r 9.5(3), Sch 1 Form 16 NT r 9.5(3), Sch 1 Form 16 Qld Sch 1A r 9.5(3), Form 16 SA r 9.5(3), Sch 1 Form 16 Tas see Cth Vic r 9.5(3), Sch 1 Form 16 WA r 9.5(3), Sch 1 Form 16 notice of objection to claim for ACT Sch 6 r 9.5(4) Cth r 9.5(4) NSW r 9.5(4) NT r 9.5(4) Qld Sch 1A r 9.5(4) SA r 9.5(4) Tas see Cth Vic r 9.5(4) WA r 9.5(4) procedure if no objection to claim for ACT Sch 6 r 9.5(5) Cth r 9.5(5) NSW r 9.5(5) NT r 9.5(5) Qld Sch 1A r 9.5(5) SA r 9.5(5) Tas see Cth Vic r 9.5(5) WA r 9.5(5) procedure if objection to claim for ACT Sch 6 r 9.5(6) Cth r 9.5(6) NSW r 9.5(6) NT r 9.5(6) Qld Sch 1A r 9.5(6) SA r 9.5(6) Tas see Cth Vic r 9.5(6) WA r 9.5(6) security given by costs of ACT Sch 6 r 8.2(2) Cth r 8.2(2) NSW r 8.2(2) NT r 8.2(2) 985

Index

INDEX

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INDEX

Special manager — continued Qld Sch 1A r 8.2(2) SA r 8.2(2) Tas see Cth Vic r 8.2(2) WA r 8.2(2) Court direction may vary amount of ACT Sch 6 r 8.2(1) Cth r 8.2(1) NSW r 8.2(1) NT r 8.2(1) Qld Sch 1A r 8.2(1) SA r 8.2(1) Tas see Cth Vic r 8.2(1) WA r 8.2(1) Statutory demand affidavit accompanying, in relation to debts owed by a company ACT Sch 6 r 5.2, Form 7 Cth r 5.2, Sch 1 Form 7 NSW r 5.2, Sch 1 Form 7 NT r 5.2, Sch 1 Form 7 Qld Sch 1A r 5.2, Form 7 SA r 5.2, Sch 1 Form 7 Tas see Cth Vic r 5.2, Sch 1 Form 7 WA r 5.2, Sch 1 Form 7 affidavit in reliance on non-compliance with ACT Sch 6 r 5.4(2) Cth r 5.4(2), Sch 3 Note 2 NSW r 5.4(2), Sch 2 Note 2 NT r 5.4(2), Sch 2 Note 2 Qld Sch 1A r 5.4(2), Form 7A SA r 5.4(2) Tas see Cth Vic r 5.4(2), Sch 3 Note 2 WA r 5.4(2), Note 2 application to set aside ACT Sch 6 r 2.4A Cth r 2.4A NSW r 2.4A NT r 2.4A Qld Sch 1A r 2.4A SA r 2.4A Tas see Cth Vic r 2.4A WA r 2.4A “statutory demand” ACT Sch 6 r 1.4 Cth r 1.4 NSW r 1.4 NT r 1.4 986

Qld Sch 1A r 1.4 SA r 1.4 Tas see Cth Vic r 1.4 Supreme Court (Corporations) Rules 1999 (NSW) acquisition of shares and securities NSW rr 12.1 – 12.3 appeal to Court NSW rr 14.1, 16.1 application of Cross-Border Insolvency Act NSW r 1.3(1)(b) other rules of the Court NSW r 1.3(2), (3) these rules NSW r 1.3(1) Uniform Civil Procedure Rules NSW rr 12.1A, 15.1, 16.1(2), (3) citation NSW r 1.1 commencement NSW r 1.2 definitions expressions used in Corporations Act NSW r 1.4 for these rules NSW rr 1.5, 5.5(1), 5.11(5), 7.3(4), 7.11(5), 11.1 examinations and orders NSWrr 11.1 – 11.11 forms precedents NSW Sch 1 Forms 1– 23 references to NSW r 1.6(b) substantial compliance with NSW r 1.7 liquidators NSW rr 7.1 – 7.11, 9.3, 9.4 powers of Court appeals, in NSW r 14.1 give directions about practice and procedure NSW r 1.8 proceedings generally NSW rr 2.1–2.15 under ASIC Act NSW rr 15.1 – 15.3 under Federal Courts (State Jurisdiction) Act NSW r 17.1 provisional liquidators NSW rr 6.1 – 6.2, 9.3 Corporations – Court Rules and Related Legislation 2017

Supreme Court (Corporations) Rules 1999 (NSW) — continued receivers and other controllers of corporation property NSW r 4.1 references to rules and forms NSW r 1.6 Registrar, appeal from NSW r 16.1 remuneration of office-holders NSW rr 9.1 – 9.5 securities NSW rr 12.1 – 12.3 special managers NSWrr 8.1 – 8.3, 9.5 takeovers NSW rr 12.1 – 12.3 application of Uniform Civil Procedure Rules NSW r 12.1A time calculation of NSW r 1.9 extension and abridgement of NSW r 1.10 winding up proceedings (including oppression proceedings) NSW rr 5.1 – 5.11, 10.1 – 10.3, Sch 2 Note 2 Supreme Court (Corporations) Rules 2008 (Tas) — see Federal Court (Corporations) Rules 2000 (as adopted) commencement Tas r 2 form for initiating proceeding Tas r 5 interpretation Tas r 3 legislation rescinded Tas r 6 rules adopted Tas r 4 short title Tas r 1 Supreme Court (Corporations) Rules 2003 (Vic) acquisition of shares and securities Vic rr 12.1 – 12.3 appeal to Court Vic rr 14.1, 16.5 application of Cross-Border Insolvency Act Vic r 1.3(1)(b) other rules of the Court Vic r 1.3(2), (3), 12.1A, 15.1, 16.3(b), 16.5(1) ©

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these rules Vic r 1.3(1) Associate Judge appeal from Vic rr 16.3(b), 16.5 general powers of Vic rr 16.1 – 16.5, Sch 2 inquiry and order by, as to meetings Vic r 16.6 winding up and oppression proceedings, role in, of Vic rr 16.7 – 16.9 authorising provision Vic r 1.1(2) citation Vic r 1.1(1) commencement Vic r 1.2(2) costs — see also Costs Vic rr 17.1 – 17.7 definitions expressions used in Corporations Act Vic r 1.4 for these rules Vic rr 1.5, 5.5(1), 5.11(5), 7.3(4), 7.11(5), 11.1 examinations and orders Vic rr 11.1 – 11.11 forms precedents Vic Sch 1 Forms 1 – 19 references to Vic r 1.6(b) substantial compliance with Vic r 1.7 liquidators Vic rr 7.1 – 7.11, 9.3, 9.4 object of Vic r 1.1(2) powers of Court appeals, in Vic r 14.1 give directions about practice and procedure Vic r 1.8 proceedings generally Vic rr 2.1, 2.15 under ASIC Act Vic rr 15.1 – 15.3 under Federal Courts (State Jurisdiction) Act Vic r 16A.1 provisional liquidators Vic rr 6.1 – 6.2, 9.3 receivers and other controllers of corporation property 987

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Supreme Court (Corporations) Rules 2003 (Vic) — continued Vic r 4.1 references to rules and forms Vic r 1.6 remuneration of office-holders Vic rr 9.1 – 9.5 revocation by Vic r 1.2(3) securities Vic rr 12.1 – 12.3 special managers Vic rr 8.1 – 8.3, 9.5 takeovers Vic rr 12.1 – 12.3 time calculation of Vic r 1.9 extension and abridgement of Vic r 1.10 winding up proceedings (including oppression proceedings) Vic rr 5.1 – 5.11, 10.1 – 10.3, 16.7 – 16.10, Sch 3 Note 2 Supreme Court (Corporations) (WA) Rules 2004 (WA) acquisition of shares and securities WA rr 12.1 – 12.3 appeal to Court WA r 14.1 application of Cross-Border Insolvency Act WA r 1.3(1)(b) other rules of the Court WA r 1.3(2), (3), 12.1A, 15.1 these rules WA r 1.3(1) citation WA r 1.1 commencement WAr 1.2 definitions expressions used in Corporations Act WA r 1.4 for these rules WA rr 1.5, 5.5(1), 5.11(5), 7.3(4), 7.11(5), 11.1 examinations and orders WA rr 11.1 – 11.11 financial services and markets WA rr 12.1 – 12.3 forms precedents 988

WA Sch 1 Forms 1 – 18 references to WA r 1.6(b) substantial compliance with WA r 1.7 liquidators WA rr 7.1 – 7.11, 9.3, 9.4 Masters, jurisdiction of WA r 16.1, Sch 2 order in relation to breaches etc by person concerned with corporation WA r 11.11 powers of Court appeals, in WA r 14.1 give directions about practice and procedure WA r 1.8 proceedings generally WA rr 2.1 – 2.15 under ASIC Act WA rr 15.1 – 15.2 provisional liquidators WA rr 6.1 – 6.2, 9.3 receivers and other controllers of corporation property WA r 4.1 references to rules and forms WA r 1.6 remuneration of office-holders WA rr 9.1 – 9.5 special managers WA rr 8.1 – 8.3, 9.5 takeovers WA rr 12.1 – 12.3 time calculation of WA r 1.9 extension and abridgement of WA r 1.10 winding up proceedings (including oppression proceedings) WA rr 5.1 – 5.11, 10.1 – 10.3, Note 2 Supreme Court of New South Wales affidavits in, general form of — see also Affidavits NSW r 2.6 appeal to, from act, omission or decision of administrator, receiver, liquidator etc filing of affidavit by respondent NSW r 14.1(5) process for commencement of NSW r 14.1(1) service NSW r 14.1(4) Corporations – Court Rules and Related Legislation 2017

Supreme Court of New South Wales — continued time for filing of process NSW r 14.1(2), (3) appeal to, from Registrar in relation to winding up order NSW r 16.1 appearance in, notice of NSW r 2.9, Sch 1 Form 4 application to, of other rules of the Court NSW rr 1.3(2), (3), 1.10 Supreme Court (Corporations) Rules 1999 NSW rr 1.3(1), 2.15 applications to acquisition of shares and securities, in relation to — see Acquisition of shares and securities — see Takeovers appeal from Registrar NSW r 16.1 approval of compromise or arrangement in relation to Part 5.1 body, for NSW rr 3.1 – 3.5 examinations, in relation to — see Examinations — see Examination summons generally NSW rr 2.2, 2.4, 2.4A, 2.6, 2.7, 2.8(3), 2.9, 17.1 inquiry under ASIC Act NSW r 15.3 oppression proceedings, in relation to — see Winding up — see Winding up in insolvency winding up proceedings, in relation to — see Winding up — see Winding up in insolvency complaint to, about Court-appointed receiver or controller of corporation property NSW r 4.1 hearing, fixing of NSW r 2.3 inquiry into debts, claims or liabilities of a corporation, by NSW r 2.14 interlocutory process NSW r 2.2(1), (2), (4) form of NSW r 2.2(4), Sch 1 Form 3 service of NSW r 2.7(2) meetings ordered by NSW r 2.15 ©

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notification to, if proceeding commenced before end of takeover bid period NSW r 12.1B originating process NSW r 2.2(1), (3), Sch 2 Note 1 form of NSW r 2.2(3), Sch 1 Form 2 service of NSW r 2.7(1) powers of appoint representative of class NSW r 2.13(5)(a) direct inquiry into debts, claims or liabilities of corporation NSW r 2.14 give directions about practice and procedure NSW r 1.8 grant leave to be heard, as non-party NSW r 2.13(1), (2), (4) additional costs, if NSW r 2.13(2) order addition of defendant NSW r 2.13(3) remove representative of class NSW r 2.13(5)(b) Practice Notes Commercial and Technology and Construction Lists [NSWPN.10] Corporations List [NSWPN.20] cross-border insolvency cooperation [NSWPN.40] expert evidence in the Equity Division [NSWPN.30] freezing orders [NSWPN.80] joint conferences of expert witnesses [NSWPN.60] search orders [NSWPN.70] single expert witnesses [NSWPN.50] proceedings in generally NSW rr 2.1 – 2.15 under Federal Courts (State Jurisdiction) Act NSW r 17.1 reference to question of law arising at hearing of ASIC under ASIC Act NSW r 15.1 question of law arising in proceeding before Takeovers Panel, of NSW r 12.1A Registrar appeal from NSW r 16.1 989

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Supreme Court of Queensland affidavits in, general form of — see also Affidavits Qld Sch 1A r 2.6 appeal to, from act, omission or decision of administrator, receiver, liquidator etc filing of affidavit by respondent Qld Sch 1A r 14.1(5) process for commencement of Qld Sch 1A r 14.1(1) service Qld Sch 1A r 14.1(4) time for filing of process Qld Sch 1A r 14.1(2), (3) appeal to, from Registrar Qld Sch 1A r 16.1(3), (4) appearance in, notice of Qld Sch 1A r 2.9, Form 4 application to, of other rules of the Court Qld Sch 1A rr 1.3(2), (3), 1.10 Uniform Civil Procedure Rules 1999, Ch 23 Qld Sch 1A r 1.3(1), 2.15 applications to acquisition of shares and securities, in relation to — see Acquisition of shares and securities — see Takeovers appeal from Registrar Qld Sch 1A r 16.1 approval of compromise or arrangement in relation to Part 5.1 body, for Qld Sch 1A rr 3.1 – 3.5 examinations, in relation to — see Examinations — see Examination summons generally Qld Sch 1A rr 2.2, 2.4, 2.6, 2.7, 2.8(3), 2.9 inquiry under ASIC Act Qld Sch 1A r 15.3 oppression proceedings, in relation to — see Winding up — see Winding up in insolvency winding up proceedings, in relation to — see Winding up — see Winding up in insolvency complaint to, about Court-appointed receiver or controller of corporation property Qld Sch 1A r 4.1 hearing, fixing of Qld Sch 1A r 2.3 inquiry into debts, claims or liabilities of a corporation, by Qld Sch 1A r 2.14 interlocutory application

Qld Sch 1A r 2.2(1), (2), (4) form of Qld Sch 1A r 2.2(4), Form 3 service of Qld Sch 1A r 2.7(2) meetings ordered by Qld Sch 1A r 2.15 originating application Qld Sch 1A r 2.2(1), (3) form of Qld Sch 1A r 2.2(3), Form 2 service of Qld Sch 1A r 2.7(1) powers of appoint representative of class Qld Sch 1A r 2.13(5)(a) direct inquiry into debts, claims or liabilities of corporation QldSch 1A r 2.14 give directions about practice and procedure Qld Sch 1A r 1.8 grant leave to be heard, as non-party Qld Sch 1A r 2.13(1), (2), (4) additional costs, if Qld Sch 1A r 2.13(2) order addition of respondent Qld Sch 1A r 2.13(3) remove representative of class Qld Sch 1A r 2.13(5)(b) Practice notes Anton Piller orders — see search orders Applications Jurisdiction [QLDPD.25] asset preservation — see freezing orders Commercial List [QLDPD.20] direct access briefing [QLDPD.70] expert evidence [QLDPD.30] freezing orders [QLDPD.40] Mareva orders — see freezing orders search orders [QLDPD.50] Trial division administrative arrangements [QLDPD.10] written submissions, filing of [QLDPD.60] proceedings in, generally Qld Sch 1A rr 2.1 – 2.15 reference to question of law arising at hearing of ASIC under ASIC Act Qld Sch 1A r 15.1 question of law arising in proceeding before Takeovers Panel, of Qld Sch 1A r 12.1A Registrar, by Qld Sch 1A r 16.2 Registrar appeal from

990

Corporations – Court Rules and Related Legislation 2017

Supreme Court of Queensland — continued Qld Sch 1A r 16.1 reference by Qld Sch 1A r 16.2 Supreme Court of South Australia affidavits in, general form of — see also Affidavits SA r 2.6 appeal to, from act, omission or decision of administrator, receiver, liquidator etc SA r 14.1 from decision of futures exchange or futures association SA r 13.1 appearance in, notice of SA r 2.9, Sch 1 Form 4 applicaion to, of other rules of the Court SA rr 1.3(2), (3), 1.10 Corporation Rules 2003 (SA) SA rr 1.3(1), 2.15 applications to acquisition of shares and securities, in relation to — see Acquisition of shares and securities — see Takeovers approval of compromise or arrangement in relation to Part 5.1 body, for SA rr 3.1 – 3.5 examinations, in relation to — see Examinations — see Examination summons generally SA rr 2.2, 2.4, 2.4A, 2.6, 2.7, 2.8(3), 2.9 inquiry under ASIC Act SA r 15.3 oppression proceedings, in relation to — see Winding up — see Winding up in insolvency winding up proceedings, in relation to — see Winding up — see Winding up in insolvency complaint to, about Court-appointed receiver or controller of corporation property SA r 4.1 hearing, fixing of SAr 2.3 inquiry into debts, claims or liabilities of a corporation, by SA r 2.14 interlocutory process SA r 2.2(1), (2), (4) form of ©

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SA r 2.2(4), Sch 1 Form 3 service of SA r 2.7(2) leave by, to bring proceeding to establish claim against fidelity fund of futures organisation SA r 13.2 Master direction by Judge for hearing by SA r 16.3 powers of SA rr 16.1 – 16.3 meetings ordered by SA r 2.15 notification to, if proceeding commenced before end of takeover bid period SA r 12.1B originating process SA r 2.2(1), (3) form of SA r 2.2(3), Sch 1 Form 2 service of SA r 2.7(1) powers of appoint representative of class SA r 2.13(5)(a) direct inquiry into debts, claims or liabilities of corporation SA r 2.14 give directions about practice and procedure SA r 1.8 grant leave to be heard, as non-party SA r 2.13(1), (2), (4) additional costs, if SA r 2.13(2) order addition of defendant SA r 2.13(3) remove representative of class SA r 2.13(5)(b) proceedings in generally SA rr 2.1 – 2.15 under ASIC Act SA rr 15.1 – 15.3 under Federal Courts (State Jurisdiction) Act SA r 17.1 reference to, of question of law arising at hearing of ASIC under ASIC Act SA r 15.1 question of law arising at hearing of Corporations and Securities Panel, from SA r 15.2 question of law arising in proceeding before Takeovers Panel, from 991

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SA r 12.1A Supreme Court of Tasmania Note Tas rr 3–5 — see Federal Court of Australia (as adopted) Practice Directions cross-border insolvency [TASPD.50] examinations under Corporations Act [TASPD.20] freezing orders [TASPD.30] insolvency practitioner’s fees [TASPD.10] schemes of arrangement [TASPD.60] search orders [TASPD.40] Supreme Court of the Australian Capital Territory affidavits in, general form of — see also Affidavits ACTSch 6 r 2.6, Sch 1 appeal to, from act, omission or decision of administrator, receiver, liquidator etc filing of affidavit by respondent ACT Sch 6 r 14.1(5) process for commencement of ACT Sch 6 r 14.1(1) service ACT Sch 6 r 14.1(4) time for filing of process ACT Sch 6 r 14.1(2), (3) appearance in, notice of ACT Sch 6 r 2.9, Form 4 application to, of Court Procedures Rules, Sch 6 ACT Sch 6 rr 1.3(1), 2.15 other provisions of Court Procedure Rules ACT Sch 6 rr 1.3(2), (3), 1.10 applications to acquisition of shares and securities, in relation to — see Acquisition of shares and securities — see Takeovers approval of compromise or arrangement in relation to Part 5.1 body, for ACT Sch 6 rr 3.1 – 3.5 examinations, in relation to — see Examinations — see Examination summons generally ACT Sch 6 rr 2.2, 2.4, 2.4A, 2.6, 2.7, 2.8(3), 2.9 inquiry under ASIC Act ACT Sch 6 r 15.3 oppression proceedings, in relation to — see Winding up — see Winding up in insolvency

winding up proceedings, in relation to — see Winding up — see Winding up in insolvency complaint to, about Court-appointed receiver or controller of corporation property ACT Sch 6 r 4.1 hearing, fixing of ACT Sch 6 r 2.3 inquiry into debts, claims or liabilities of a corporation, by ACT Sch 6 r 2.14 interlocutory process ACT Sch 6 r 2.2(1), (2), (4) form of ACT Sch 6 r 2.2(1), Form 3 service of ACT Sch 6 r 2.7(2) meetings ordered by ACT Sch 6 r 2.15 notification to, if proceeding commenced before end of takeover bid period ACT Sch 6 r 12.1B originating process ACT Sch 6 r 2.2(1), (3) form of ACT Sch 6 r 2.2(1), Form 2 service of ACTSch 6 r 2.7(1) powers of appoint representative of class ACT Sch 6 r 2.13(5)(a) direct inquiry into debts, claims or liabilities of corporation ACT Sch 6 r 2.14 give directions about practice and procedure ACT Sch 6 r 1.8 grant leave to be heard, as non-party ACT Sch 6 r 2.13(1), (2), (4) additional costs, if ACT Sch 6 r 2.13(2) order addition of defendant ACT Sch 6 r 2.13(3) remove representative of class ACT Sch 6 r 2.13(5)(b) Practice Directions Anton Pillar orders [ACTPD.10] , [ACTPD.30] freezing orders [ACTPD.20] proceedings in generally ACT Sch 6 rr 2.1 – 2.15 reference to, of question of law arising at hearing of ASIC under ASIC Act ACT Sch 6 r 15.1

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Supreme Court of the Australian Capital Territory — continued question of law arising in proceeding before Takeovers Panel ACT Sch 6 r 12.1A Registrar, jurisdiction of under ASIC Act ACT Sch 5 Pt 5.3 under Corporations Act ACT Sch 5 Pt 5.2 Supreme Court of the Northern Territory affidavits in, general form of — see also Affidavits NT r 2.6 appeal to, from act, omission or decision of administrator, receiver, liquidator etc filing of affidavit by respondent NT r 14.1(5) process for commencement of NT r 14.1(1) service NT r 14.1(4) time for filing of process NT r 14.1(2), (3) appeal to, from Master or Registrar NT r 16.3 appearance in, notice of NT r 2.9, Sch 1 Form 4 application to, of Corporations Law Rules NT rr 1.3(1), 2.15 other rules of the Court NTrr 1.3(2), (3), 1.10, 16.3(2) applications to acquisition of shares and securities, in relation to — see Acquisition of shares and securities — see Takeovers approval of compromise or arrangement in relation to Part 5.1 body, for NT rr 3.1 – 3.5 examinations, in relation to — see Examinations — see Examination summons generally NT rr 2.2, 2.4, 2.4A, 2.6, 2.7, 2.8(3), 2.9 inquiry under ASIC Act NT r 15.3 oppression proceedings, in relation to — see Winding up — see Winding up in insolvency winding up proceedings, in relation to — see Winding up — see Winding up in insolvency ©

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complaint to, about Court-appointed receiver or controller of corporation property NT r 4.1 hearing, fixing of NT r 2.3 inquiry into debts, claims or liabilities of a corporation, by NT r 2.14 interlocutory process NT r 2.2(1), (2), (4) form of NT r 2.2(4), Sch 1 Form 3 service of NT r 2.7(2) Master appeal from NT r 16.3 general powers of NT r 16.1 meetings ordered by NT r 2.15 notification to, if proceeding commenced before end of takeover bid period NT r 12.1B originating process NT r 2.2(1), (3) form of NT r 2.2(3), Sch 1 Form 2 service of NT r 2.7(1) powers of appoint representative of class NT r 2.13(5)(a) direct inquiry into debts, claims or liabilities of corporation NT r 2.14 give directions about practice and procedure NT r 1.8 grant leave to be heard, as non-party NT r 2.13(1), (2), (4) additional costs, if NT r 2.13(2) order addition of defendant NT r 2.13(3) remove representative of class NT r 2.13(5)(b) Practice Directions cross-border insolvency [NTPD.70] expert reports [NTPD.60], [NTPD.120] freezing orders [NTPD.40] insolvency practitioner’s fees [NTPD.30] liquidator’s appointment [NTPD.20], [NTPD.90] liquidator’s remuneration [NTPD.100], [NTPD.110] 993

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INDEX

search orders [NTPD.50] winding up orders [NTPD.10] , [NTPD.80] proceedings in generally NT rr 2.1 – 2.15 reference to, of proceeding, by Master or Registrar NT rr 16.1(2), 16.2(2) question of law arising at hearing of ASIC under ASIC Act NT r 15.1 question of law arising in proceeding before Takeovers Panel NT r 12.1A Registrar appeal from NT r 16.3 powers of NTr 16.2 Supreme Court of Victoria affidavits in, general form of — see also Affidavits Vic r 2.6 appeal to, from act, omission or decision of administrator, receiver, liquidator etc filing of affidavit by respondent Vic r 14.1(5) process for commencement of Vic r 14.1(1) service Vic r 14.1(4) time for filing of process Vic r 14.1(2), (3) appeal to, from Associate Judge Vic rr 16.3(b), 16.5 appearance in, notice of Vic r 2.9, Sch 1 Form 4, 4A application to, of other rules of the Court Vic rr 1.3(2), (3), 1.10, 16.5(1) Supreme Court (Corporations) Rules 2013 Vic rr 1.3(1), 2.15 applications to acquisition of shares and securities, in relation to — see Acquisition of shares and securities — see Takeovers appeal from Associate Judge Vic r 16.5 approval of compromise or arrangement in relation to Part 5.1 body, for Vic rr 3.1 – 3.5

examinations, in relation to — see Examinations — see Examination summons generally Vic rr 2.2, 2.4, 2.4A, 2.6, 2.7, 2.8(3), 2.9 inquiry under ASIC Act Vic r 15.3 oppression proceedings, in relation to — see Winding up — see Winding up in insolvency winding up proceedings, in relation to — see Winding up — see Winding up in insolvency Associate Judge appeal from Vic r 16.5 general powers of Vic r 16.1 – 16.5, Sch 2 inquiry and order by, as to meetings Vic r 16.6 powers in relation to winding up and oppression Vic rr 16.7 – 16.9 complaint to, about Court-appointed receiver or controller of corporation property Vic r 4.1 hearing, fixing of Vic r 2.3 inquiry into debts, claims or liabilities of a corporation, by Vic r 2.14 interlocutory process Vic r 2.2(1), (2), (4) form of Vic r 2.2(4), Sch 1 Form 3 service of Vic r 2.7(2) meetings ordered by Vic r 2.15 notification to, if proceeding commenced before end of takeover bid period Vic r 12.1B originating process Vic r 2.2(1), (3), Sch 3 Note 1 form of Vic r 2.2(3), Sch 1 Form 2 service of Vic r 2.7(1) originating process RedCrest (Corporations), r 2.2 form of, r 2.2, 15A.3. Sch 1 Form 2A powers of appoint representative of class Vic r 2.13(5)(a)

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Supreme Court of Victoria — continued direct inquiry into debts, claims or liabilities of corporation Vic r 2.14 give directions about practice and procedure Vic r 1.8 grant leave to be heard, as non-party Vic r 2.13(1), (2), (4) additional costs, if Vic r 2.13(2) order addition of defendant Vic r 2.13(3) remove representative of class Vicr 2.13(5)(b) Practice Notes s 588FF Corporations Act applications [VICPN.100] citation of authorities and legislation [VICPN.70] cooperation with foreign courts [VICPN.30] coordination agreements [VICPN.30] Commercial Court [VICPN.10], [VICPN.20], [VICPN.30], [VICPN.50], [VICPN.110], [VICPN.130], [VICPN.140] cross-border insolvency [VICPN.30] freezing orders [VICPN.90] insurance list [VICPN.110] Judge-managed list [VICPN.110], [VICPN.120] Judges-in-Charge [VICPN.120] Notice to the Profession [VICPN.100], [VICPN.110], [VICPN.120], [VICPN.130], [VICPN.140] oppressive conduct [VICPN.40] RedCrest Electronic Case Management System [VICPN.20] schemes of arrangement [VICPN.130] search orders [VICPN.80] specialist lists [VICPN.120] structure of Trial Division[VICPN.60] proceedings in generally Vic rr 2.1 – 2.15 under Federal Courts (State Jurisdiction) Act Vic r 16A.1 reference to, of question of law arising at hearing of ASIC under ASIC Act Vic r 15.1 question of law arising in proceeding before Takeovers Panel Vic r 12.1A ©

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Supreme Court of Western Australia affidavits in, general form of WA r 2.6 appeal to, from act, omission or decision of administrator, receiver, liquidator etc filing of affidavit by respondent WA r 14.1(5) process for commencement of WA r 14.1(1) service WA r 14.1(4) time for filing of process WA r 14.1(2), (3) appearance in, notice of WA r 2.9, Sch 1 Form 4 application to, of other rules of the Court WA r 1.3(2), (3), 1.10 Supreme Court (Corporations) (WA) Rules 2004 WA r 1.3(1), 2.15 applications to acquisition of shares and securities, in relation to — see Acquisition of shares and securities — see Takeovers approval of compromise or arrangement in relation to Part 5.1 body, for WA rr 3.1 – 3.5 examinations, in relation to — see Examinations — see Examination summons generally WA rr 2.2, 2.4, 2.4A, 2.6, 2.7, 2.8(3), 2.9 inquiry under ASIC Act WA r 15.2 oppression proceedings, in relation to — see Winding up — see Winding up in insolvency winding up proceedings, in relation to — see Winding up — see Winding up in insolvency complaint to, about Court-appointed receiver or controller of corporation property WA r 4.1 hearing, fixing of WA r 2.3 inquiry into debts, claims or liabilities of a corporation, by WA r 2.14 interlocutory process WA r 2.2(1), (2), (4) form of WA r 2.2(4), Sch 1 Form 3 service of WA r 2.7(2) 995

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Supreme Court of Western Australia — continued Master, jurisdiction of WA r 16.1, Sch 2 meetings ordered by WA r 2.15 notification to, if proceeding commenced before end of takeover bid period WA r 12.1B originating process WA r 2.2(1), (3), Note 1 form of WA r 2.2(3), Sch 1 Form 2 service of WA r 2.7(1) powers of appoint representative of class WA r 2.13(5)(a) direct inquiry into debts, claims or liabilities of corporation WA r 2.14 give directions about practice and procedure WA r 1.8 grant leave to be heard, as non-party WA r 2.13(1), (2), (4) additional costs, if WA r 2.13(2) order addition of defendant WA r 2.13(3) remove representative of class WA r 2.13(5)(b) Practice Notes corporations [WAPD.10] cross-border insolvency [WAPD.30] freezing and search orders [WAPD.20] proceedings in generally WA rr 2.1 – 2.15 reference to, of question of law arising at hearing of ASIC under ASIC Act WA r 15.1 question of law arising in proceeding before Takeovers Panel WA r 12.1A

996

Supreme Courts — see Supreme Court of each jurisdiction T Takeovers — see also Takeovers Panel — see also Takeovers Panel Procedural Rules — see also Takeovers Panel Rules for Proceedings application for summons for appearance of person in relation to registration of transfer of interests ACT Sch 6 r 12.2 Cth r 12.2 NSW r 12.2 NT r 12.2 Qld Sch 1A r 12.2 SA r 12.2 Tas see Cth Vic r 12.2 WA r 12.2 generally ACT Sch 6 rr 12.1 – 12.3 Cth rr 12.1 – 12.3 NSW rr 12.1 – 12.3 NT rr 12.1 – 12.3 Qld Sch 1A rr 12.1 – 12.3 SA rr 12.1 – 12.3 Tas see Cth Vic rr 12.1 – 12.3 WA rr 12.1 – 12.3 issue of summons for appearance of person in relation to transfer of interests, Form of ACT Sch 6 r 12.2(3), Form 18 Cth r 12.2(4), Sch 1 Form 18 NSW r 12.2(4), Sch 1 Form 18 NT r 12.2(4), Sch 1 Form 18 Qld Sch 1A r 12.2(4), Form 18 SA r 12.2(4), Sch 1 Form 18 Tas see Cth Vic r 12.2(4), Sch 1 Form 18 WA r 12.2(4), Sch 1 Form 18 notification to Court and parties if proceeding commenced before end of takeover bid period ACT Sch 6 r 12.1B Cth r 12.1B NSW r 12.1B NT r 12.1B SA r 12.1B Tas see Cth Vic r 12.1B WA r 12.1B reference to Court of question of law arising in proceeding before Takeovers Panel ACT Sch 6 r 12.1A Corporations – Court Rules and Related Legislation 2017

Takeovers — continued Cth r 12.1A NSW r 12.1A NT r 12.1A Qld Sch 1A r 12.1A SA r 12.1A Tas see Cth Vic r 12.1A WA r 12.1A service of originating process/application and supporting affidavit on ASIC, if non-party to proceeding under Ch 6, 6A, 6B, 6C, 6D or 7 of Corporations Act ACT Sch 6 r 12.1 Cth r 12.1 NSW r 12.1 NT r 12.1 Qld Sch 1A r 12.1 SA r 12.1 Tas see Cth Vic r 12.1 WA r 12.1 Takeovers Panel — see also Takeovers — see also Takeovers Panel Procedural Rules — see also Takeovers Panel Rules for Proceedings contact details, [TPPR.1] powers of amend Takeovers Panel Rules for Proceedings TPPR, [TPPR.1] generally — see Takeovers Panel Rules for Proceedings give directions as supplement to Takeovers Panel Rules for Proceedings TPPR r 1.2.1 invite non-party to proceedings to make submission TPPR r 2.2 invite person to become party to proceedings TPPR r 2.2 waive or excuse failure by person to comply with Takeovers Panel Rules for Proceedings TPPR r 2.1 proceedings before — see Takeovers Panel Procedural Rule, Takeovers Panel Rules for Proceedings reference of matter by Court to, for review TPPR r 9.1 reference to Court of question of law arising in proceeding before ACT Sch 6 r 12.1A Cth r 12.1A ©

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T

NSW r 12.1A NT r 12.1A Qld Sch 1A r 12.1A SA r 12.1A Tas see Cth Vic r 12.1A WA r 12.1A TPPR r 9.1 rules made by — see Takeovers Panel Procedural Rule — see Takeovers Panel Rules for Proceedings Takeovers Panel Procedural Rules application, TPPR r 3 applications copy to ASIC, TPPR [TPPR.1], r 2.2.2 client legal privilege claim, TPPR r 2.3.2 definition [TPPR.10] form, TPPR r 3.1.1 Notice of Appearance, TPPR r 3.1.1 orders for, TPPR r 8.1.1 precedent [TPPR.12] review of ASIC decision, TPPR r 3.2.2 review of a Panel decision, TPPR r 3.1.1 withdrawal, TPPR r 3.4.1 commencement [TPPR.01] court referrals [TPPR.9] decision date, TPPR r 7.1.1 definitions [TPPR.10] directions compliance, TPPR r 1.2.3 inconsistency with rules, TPPR r 1.2.2 Panel may give, TPPR r 1.2.1 requests for, TPPR r 2.3.1 documents applications, TPPR r 2.2.2 client legal privilege claims, TPPR r 2.3.2 copies to ASIC and others, TPPR r 2.2.3 date and time requirements TPPR r 2.2.4 drafts from Panel, TPPR r 2.4.1 form requirements, TPPR r 2.1 provision to Panel, TPPR r 2.2.1 withholding information or, TPPR r 2.3.1 excusing non-compliance, TPPR r 1.2.2 executive definition [TPPR.10] role [TPPR.10] executive assistance [TPPR.01] information request for withholding, TPPR r 2.3.1 legal representation, TPPR r 4.3.1 notes to [TPPR.1] Notice of Appearance applications and, TPPR r 3.1.1 definition [TPPR.10] 997

Index

INDEX

T

INDEX

Takeovers Panel Procedural Rules — continued precedent [TPPR.11] undertakings in, TPPR r 4.2.1 withdrawal of, TPPR r 4.1.2 objectives [TPPR.1] orders application for, TPPR r 8.1.1 parties becoming a, TPPR r 4.1.1 definition [TPPR.10] interested persons, TPPR r 4.1.1 withdrawal of Notice of Appearance, TPPR r 4.1.2 registration [TPPR.01] review of ASIC decision application for, TPPR r 3.2.2 de novo consideration, TPPR r 3.2.1 findings of fact and reasons, TPPR r 3.2.3 review of Panel decision consent of President, TPPR r 3.3.2 de novo consideration, TPPR r 3.3.1 sourcing information conference, TPPR r 6.4 evidence, TPPR r 6.3 preliminary submissions, TPPR r 6.1.1 submissions, TPPR r 6.2 withdrawal of applications, TPPR r 3.4.1 Takeovers Panel Rules for Proceedings additional application “additional application” TPPR r 3.1.1 contents of TPPR r 3.1.1 lodgement of TPPR r 2.2.1 application for review of decision by ASIC TPPR r 3.2 accompanying documents TPPR r 3.2.2 lodgement by ASIC of documents relating to decision under review TPPR r 3.2.3 lodgement of TPPR r 2.2.1 application initiating proceeding compliance by, with TPPR r 2.1 contents of TPPR r 2.1 lodgement of TPPR r 2.2.1 “original application” TPPR r 2.1

parties on whom to serve copies of TPPR rr 2.2; – 2.3 compliance with application initiating proceeding, by TPPR r 2.1 Takeovers Panel may waive or excuse failure by person in TPPR r 1.2.2 conduct of proceeding before Takeovers Panel application for interim order TPPR r 3.3.2 briefs TPPRr 6.2.1 powers of Takeovers Panel generally TPPRr 1.2.1 preliminary submissions TPPR r 6.1 referral by Court for review, where TPPR r 9.1 referral of question of law to Court TPPR r 9.1 specific rules for TPPR r 1.2.2 time periods TPPR r 2.2.4 conferences allocation of time to parties in TPPRr 6.4.2 evidence or submissions at TPPR r 6.4.1 method and form of TPPR r 6.4 request to Takeovers Panel to hold conference TPPR r 6.4.1 confidential information TPPR [TPPR.11] continued operation [TPPR.01] definitions in TPPR r 10.2 directions by Takeovers Panel as supplement to TPPR r 1.2 disclosure of information confidential correspondence TPPR r 2.2.3 general rule TPPR r 2.3.1 confidential information generally TPPR r 2.3.1 non-party, to TPPR r 2.2.3 request to withhold TPPR r 2.3.1 documents generally contents of TPPR r 2.1

998

Corporations – Court Rules and Related Legislation 2017

INDEX

lodgement of TPPR r 2.2.1 evidence affidavit TPPR r 6.3.1 conference, at TPPR r 6.4.1 documentary TPPR r 6.3.1 documents deemed by Takeovers Panel as lodged TPPR r 2.2.1 form of TPPR r 6.3.1 generally TPPR r 6.3.1 oral sworn testimony TPPR r 6.3.1 public information TPPR r 6.3.1 representations to Takeovers Panel TPPR r 6.3.1 request by party for witness summons TPPR r 6.3.1 signed statement TPPR r 6.3.1 statutory declaration TPPR r 6.3.1 interpretation TPPR r 10.2 legal representation, leave for, where TPPR r 4.3.1 lodgement and delivery of documents generally TPPR r 2.2.1 electronic documents TPPR r 2.2.1 notice of appearance form of TPPR 4.1, [TPPR.11] lodgement of TPPR r 3.1 object of TPPR r 1.1 party to proceedings invitation by Takeovers Panel to become TPPR r 4.1 notice of appearance by TPPR r 3.1, [TPPR.11] “party to proceedings” TPPR r 10.2 withdrawal as ©

2017 THOMSON REUTERS

TPPR r 3.4 power of Takeovers Panel to amend TPPR r 1.2 preface to TPPR r 1 publicity TPPR r 3.1 repeal [TPPR.1] request for consent to apply for review TPPR r 3.3 contents of TPPR rr 3.2.2, 3.3 submissions by non-party to proceedings invitation by Takeovers Panel to make TPPR r 4.1 submissions other than applications TPPR r 6.1, 6.2 contents of TPPR r 6.1 undertakings TPPR r 4.2 withdrawal as party request for consent of Takeovers Panel to TPPR r 3.4.1 Taxation of costs — see Costs Time abridgement/shortening of ACT Sch 6 r 1.10 Cth r 1.10 NSW r 1.10 NT r 1.10 Qld Sch 1A r 1.10 SA r 1.10 Tas see Cth Vic r 1.10 WA r 1.10 calculation of ACT Sch 6 r 1.9 Cth r 1.9 NSW r 1.9 NT r 1.9 Qld Sch 1A r 1.9 SA r 1.9 Tas see Cth Vic r 1.9 WA r 1.9 extension of ACT Sch 6 r 1.10 Cth r 1.10 NSW r 1.10 NT r 1.10 Qld Sch 1A r 1.10 SA r 1.10 Tas see Cth Vic r 1.10

Index

Takeovers Panel Rules for Proceedings — continued

T

999

T

Time — continued

INDEX

WA r 1.10 Transcripts — see also Records examination held in public, of application by person examined for copy of ACT Sch 6 r 11.9(2) Cth r 11.9(2) NSW r 11.9(2) NT r 11.9(2) Qld Sch 1A r 11.9(2) SA r 11.9(2) Tas see Cth Vic r 11.9(2) WA r 11.9(2) entitlement to ACT Sch 6 r 11.9 Cth r 11.9 NSW r 11.9 NT r 11.9 Qld Sch 1A r 11.9 SA r 11.9 Tas see Cth Vic r 11.9 WA r 11.9 Principal Registrar/Prothonotary/Registrar to provide copy ACT Sch 6 r 11.9(3) Cth r 11.9(3) NSW r 11.9(3) NT r 11.9(3) Qld Sch 1A r 11.9(3) SA r 11.9(3) Tas see Cth Vic r 11.9(3) WA r 11.9(3) examination, of authentication of ACT Sch 6 r 11.7 Cth r 11.7 NSW r 11.7 NT r 11.7 Qld Sch 1A r 11.7 SA r 11.7 Tas see Cth Vic r 11.7 WA r 11.7 ASIC’s right to inspect ACT Sch 6 r 11.8(2) Cth r 11.8(2) NSW r 11.8(2) NT r 11.8(2) Qld Sch 1A r 11.8(2) SA r 11.8(2)

Tas see Cth Vic r 11.8(2) WA r 11.8(2) consent of liquidator or ASIC to inspect ACT Sch 6 r 11.8(1)(a) Cth r 11.8(1)(a) NSW r 11.8(1)(a) NT r 11.8(1)(a) Qld Sch 1A r 11.8(1)(a) SA r 11.8(1)(a) Tas see Cth Vic r 11.8(1)(a) WA r 11.8(1)(a) leave by Court to inspect ACT Sch 6 r 11.8(1)(b) Cth r 11.8(1)(b) NSW r 11.8(1)(b) NT r 11.8(1)(b) Qld Sch 1A r 11.8(1)(b) SA r 11.8(1)(b) Tas see Cth Vic r 11.8(1)(b) WA r 11.8(1)(b) investigations, of ASIC’s right to inspect ACT Sch 6 r 11.8(2) Cth r 11.8(2) NSW r 11.8(2) NT r 11.8(2) Qld Sch 1A r 11.8(2) SA r 11.8(2) Tas see Cth Vic r 11.8(2) WA r 11.8(2) consent of liquidator or ASIC to inspect ACT Sch 6 r 11.8(1)(a) Cth r 11.8(1)(a) NSW r 11.8(1)(a) NT r 11.8(1)(a) Qld Sch 1A r 11.8(1)(a) SA r 11.8(1)(a) Tas see Cth Vic r 11.8(1)(a) WA r 11.8(1)(a) leave of Court to inspect ACTSch 6 r 11.8(1)(b) Cthr 11.8(1)(b) NSWr 11.8(1)(b) NTr 11.8(1)(b) QldSch 1A r 11.8(1)(b) SAr 11.8(1)(b) Tas see Cth Vicr 11.8(1)(b) WAr 11.8(1)(b)

1000

Corporations – Court Rules and Related Legislation 2017

INDEX

Uniform Civil Procedure Rules 1999 (Qld), Chapter 23 “Proceedings under Corporations Act or ASIC Act” acquisition of shares and securities Qld Sch 1A rr 12.1 – 12.3 appeal to Court Qld Sch 1A rr 14.1, 16.1 application of other rules of the Court Qld Sch 1A r 1.3(2), (3) these rules Qld r 995, Sch 1A r 1.3(1) Uniform Civil Procedure Rules Qld Sch 1A r 12.1A definitions expressions used in Corporations Act Qld Sch 1A r 1.4 for these rules Qld Sch 1A rr 1.5, 5.5(1), 5.11(5), 7.3(4), 7.11(5), 11.1 examinations and orders Qld Sch 1A rr 11.1 – 11.11 forms precedents Qld Sch 1A Forms 1–18 references to Qld Sch 1A r 1.6(b) substantial compliance with Qld Sch 1A r 1.7 liquidators Qld Sch 1A rr 7.1 – 7.11, 9.3, 9.4 notes in text Qld Sch 1A r 1.2 powers of Court appeals, in Qld Sch 1A r 14.1 exercisable by Registrar Qld Sch 1A r 16.1, Sch 1B give directions about practice and procedure Qld Sch 1A r 1.8 proceedings generally Qld Sch 1A rr 2.1 – 2.15 under ASIC Act Qld Sch 1A rr 15.1 – 15.3 provisional liquidators Qld Sch 1A rr 6.1 – 6.2, 9.3 receivers and other controllers of corporation property Qld Sch 1A r 4.1 references to rules and forms Qld Sch 1A r 1.6 Registrar ©

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powers of Qld Sch 1A rr 16.1, 16.2, Sch 1B reference by, to Court Qld Sch 1A r 16.2 remuneration of office-holders QldSch 1A rr 9.1 – 9.5 securities Qld Sch 1A rr 12.1 – 2.3 short title Qld Sch 1A r 1.1 special managers Qld Sch 1A rr 8.1 – 8.3, 9.5 takeovers Qld Sch 1A rr 12.1 – 12.3 time calculation of Qld Sch 1A r 1.9 extension and abridgement of Qld Sch 1A r 1.10 winding up proceedings (including oppression proceedings) Qld Sch 1A rr 5.1 – 5.11, 10.1 – 10.3 W Warrant ACT Sch 6 r 11A.1, Form 17A Cth r 11A.01, Sch 1 Form 17A NSW r 11A.1, Form 17A NT r 11A.1, Sch 1 Form 17A Qld Sch 1A r 11A.1, Sch 1 Form 17A SA r 11A.01, Sch 1 Form 17A Tas see Cth Vic r 11A.01, Sch 1 Form 17A WA r 11A.1, Form 17A Winding up affidavits in support of applications relating to — see Affidavits appearance before Associate Judge/Master/PrincipalRegistrar/Registrar ACT Sch 6 r 5.9 Cth r 5.9 NSW r 5.9 NT r 5.9 Qld Sch 1A r 5.9 SA rr 5.9, 16.1 Tas Note r 5 and Tas see Cth Vic rr 5.9, 16.7 – 16.10 WA r 5.9 application by liquidator for order determining value or debt or claims ACT Sch 6 r 10.1 Cth r 10.1 NSW r 10.1 NT r 10.1 Qld Sch 1A r 10.1 1001

Index

U

W

W

INDEX

Winding up — continued SA r 10.1 Tas Note r 5 and see Cth Vic r 10.1 WA r 10.1 application for order for generally ACT Sch 6 rr 5.1 – 5.10 Cth rr 5.1 – 5.10 NSW rr 5.1 – 5.10 NT rr 5.1 – 5.10 Qld Sch 1A rr 5.1 – 5.10 SA rr 5.1 – 5.10 Tas Note r 5 and see Cth Vic rr 5.1 – 5.10 WA rr 5.1 – 5.10 discontinuance of ACT Sch 6 r 5.8 Cth r 5.8 NSW r 5.8 NT r 5.8 Qld Sch 1A r 5.8 SA r 5.8 Tas Note r 5 and see Cth Vic r 5.8 WA r 5.8 notice of ACT Sch 6 r 5.6, Form 9 Cth r 5.6, Sch 1 Form 9 NSW r 5.6, Sch 1 Form 9 Qld Sch 1A r 5.6, Form 9 SA r 5.6, Sch 1 Form 9 Tas see Cth Vic r 5.6, Sch 1 Form 9 WA r 5.6, Sch 1 Form 9 notice of intention of substituted plaintiff of ACT Sch 6 r 5.10, Form 10 Cth r 5.10, Sch 1 Form 10 NSW r 5.10, Sch 1 Form 10 NT r 5.10, Sch 1 Form 10 Qld Sch 1A r 5.10, Form 10 SA r 5.10, Sch 1 Form 10 Tas see Cth Vic r 5.10, Sch 1 Form 10 WA r 5.10, Sch 1 Form 10 application of rules to proceedings for ACT Sch 6 rr 5.1, 10.3 Cth rr 5.1, 10.3 NSW rr 5.1, 10.3 NT rr 5.1, 10.3 Qld Sch 1A rr 5.1, 10.3 SA rr 5.1, 10.3 Tas Note r 5 and see Cth 1002

Vic rr 5.1, 10.3 WA rr 5.1, 10.3 appointment of liquidator — see Liquidator complaint to Court about conduct of liquidator ACT Sch 6 r 7.11(1) Cth r 7.11(1) NSW r 7.11(1) NT r 7.11(1) Qld Sch 1A r 7.11(1) SA r 7.11(1) Tas Note r 5 and see Cth Vic r 7.11(1) WA r 7.11(1) consent of official liquidator to act as liquidator of company ACT Sch 6 r 5.5, Form 8 Cth r 5.5, Sch 1 Form 8 NSW r 5.5, Sch 1 Form 8 NT r 5.5, Sch 1 Form 8 Qld Sch 1A r 5.5, Form 8 SA r 5.5, Sch 1 Form 8 Tas see Cth Vic r 5.5, Sch 1 Form 8 WA r 5.5, Sch 1 Form 8 consent to act as provisional liquidator of company ACT Sch 6 r 6.1, Form 8 Cth r 6.1, Sch 1 Form 8 NSW r 6.1, Sch 1 Form 8 NT r 6.1, Sch 1 Form 8 Qld Sch 1A r 6.1, Form 8 SA r 6.1, Sch 1 Form 8 Tas see Cth Vic r 6.1, Sch 1 Form 8 WA r 6.1, Sch 1 Form 8 copy of documents filed to be available for service for inspection ACT Sch 6 r 5.7 Cth r 5.7 NSW r 5.7 NT r 5.7 Qld Sch 1A r 5.7 SA r 5.7 Tas Note r 5 and see Cth Vic r 5.7 WA r 5.7 costs application to set aside SA Cr 5.7 discretion SA Cr 5.6 fixed at time of order SA Cr 5.2 method of fixing SA Cr 5.1 Corporations – Court Rules and Related Legislation 2017

Winding up — continued Variation SA Cr 5.3 determination of value of debts or claims ACT Sch 6 r 10.1 Cth r 10.1 NSW r 10.1 NT r 10.1 Qld Sch 1A r 10.1 SA r 10.1 Tas Note r 5 and see Cth Vic r 10.1 WA r 10.1 discontinuance of application for ACT Sch 6 r 5.8 Cth r 5.8 NSW r 5.8 NT r 5.8 Qld Sch 1A r 5.8 SA r 5.8 Tas Note r 5 and see Cth Vic r 5.8 WA r 5.8 filing by liquidator of certificate and copy of settled list of contributories ACT Sch 6 r 7.4 Cth r 7.4 NSW r 7.4 NT r 7.4 Qld Sch 1A r 5.8 SA r 7.4 Tas Note r 5 and see Cth Vic r 7.4 WA r 7.4 filling vacancy in office of liquidator ACT Sch 6 r 7.2(1), (2) Cth r 7.2(1), (2) NSW r 7.2(1), (2) NT r 7.2(1), (2) Qld Sch 1A r 7.2(1), (2) SA r 7.2(1), (2) Vic r 7.2(1), (2) WA r 7.2(1), (2) generally ACT Sch 6 rr 5.1 – 5.11, 10.1 – 10.3 Cth rr 5.1 – 5.11, 10.1 – 10.3 NSW rr 5.1 – 5.11, 10.1 – 10.3 NT rr 5.1 – 5.11, 10.1 – 10.3 Qld Sch 1A rr 5.1 – 5.11, 10.1 – 10.3 SA rr 5.1 – 5.11, 10.1 – 10.3 Tas Note r 5 and see Cth Vic rr 5.1 – 5.11, 10.1 – 10.3, 16.7 – 16.10 WA rr 5.1 – 5.11, 10.1 – 10.3 ©

2017 THOMSON REUTERS

W

inquiry into conduct of liquidator in ACT Sch 6 r 7.11 Cth r 7.11 NSW r 7.11 NT r 7.11 Qld Sch 1A r 7.11 SA r 7.11 Tas Note r 5 and see Cth Vic r 7.11 WA r 7.11 insolvency, in — see Winding up in insolvency liquidator — see Liquidator — see Official Liquidator — see Provisional liquidator lump sum adjudication SA Cr 5.4, 5.5 notice of appearance to oppose application for ACT Sch 6 r 2.9(2), Form 4 Cth r 2.9(2), Sch 1 Form 4 NSW r 2.9(2), Sch 1 Form 4 NT r 2.9(2), Sch 1 Form 4 Qld Sch 1A r 2.9(2), Form 4 SA r 2.9(2), Sch 1 Form 4 Tas see Cth Vic r 2.9(2), Sch 1 Form 4, 4A WA r 2.9(2), Sch 1 Form 4 notice of application for ACT Sch 6 r 5.6(1), Form 9 Cth r 5.6(2)(a), Sch 1 Form 9 NSW r 5.6(2)(a), Sch 1 Form 9 Qld Sch 1A r 5.6(2)(a), Form 9 SA r 5.6(2)(a), Sch 1 Form 9 Tas see Cth Vic r 5.6(2)(a), Sch 1 Form 9 WA r 5.6(2)(a), Sch 1 Form 9 notice of order for ACT Sch 6 r 5.11(3), (4), Form 11 Cth r 5.11(3), (4), Sch 1 Form 11 NSW r 5.11(3), (4), Sch 1 Form 11 NT r 5.11(3), (4), Sch 1 Form 11 Qld Sch 1A r 5.11(3), (4), Form 11 SA r 5.11(3), (4), Sch 1 Form 11 Tas see Cth Vic r 5.11(3), (4), Sch 1 Form 11 WA r 5.11(3), (4), Sch 1 Form 11 appointment of liquidator under ACT Sch 6 r 5.11(1) Cth r 5.11(1) NSW r 5.11(1) NT r 5.11(1) Qld Sch 1A r 5.11(1) SA r 5.11(1) Tas see Cth Vic r 5.11(1) WA r 5.11(1) 1003

Index

INDEX

W

INDEX

Winding up — continued official liquidator — see Liquidator — see Official liquidator opposition to application for ACT Sch 6 r 2.9(2) Cth r 2.9(2) NSW r 2.9(2) NT r 2.9(2) Qld Sch 1A r 2.9(2) SA r 2.9(2) Tas Note r 5 and see Cth Vic r 2.9(2) WA r 2.9(2) Part 5.7 bodies, of ACT Sch 6 r 10.3 Cth r 10.3 NSW r 10.3 NT r 10.3 Qld Sch 1A r 10.3 SA r 10.3 Tas Note r 5 and see Cth Vic r 10.3 WA r 10.3 powers of Associate Judge/Master in relation to process for SA rr 16.1 – 16.3 Vic r 16.7 – 16.10 WA r 16.1 proceedings generally ACT Sch 6 rr 5.1 – 5.11, 10.1 – 10.3 Cth rr 5.1 – 5.11, 10.1 – 10.3 NSW rr 5.1 – 5.11, 10.1 – 10.3 NT rr 5.1 – 5.11, 10.1 – 10.3 Qld Sch 1A rr 5.1 – 5.11, 10.1 – 10.3 SA rr 5.1 – 5.11, 10.1 – 10.3, 16.1 – 16.3 Tas Note r 5 and see Cth Vic rr 5.1 – 5.11, 10.1 – 10.3, 16.7 – 16.10 WA rr 5.1 – 5.11, 10.1 – 10.3 provisional liquidator — see Liquidator — see Provisional liquidator reference to Court by liquidator for determination of value of debts or claims ACT Sch 6 r 10.1 Cth r 10.1 NSW r 10.1 NT r 10.1 Qld Sch 1A r 10.1 SA r 10.1 Tas Note r 5 and see Cth Vic r 10.1 WA r 10.1 registered schemes, of, application of rules to ACT Sch 6 r 10.3 1004

Cth r 10.3 NSW r 10.3 NT r 10.3 Qld Sch 1A r 10.3 SA r 10.3 Tas Note r 5 and see Cth Vic r 10.3 WA r 10.3 remuneration of office-holders ACT Sch 6 rr 9.1 – 9.5 Cth rr 9.1 – 9.5 NSW rr 9.1 – 9.5 NT rr 9.1 – 9.5 Qld Sch 1A rr 9.1 – 9.5 SA rr 9.1 – 9.5 Tas Note r 5 and see Cth Vic rr 9.1 – 9.5 WA rr 9.1 – 9.5 report to Court by ASIC about conduct of liquidator ACT Sch 6 r 7.11 Cth r 7.11 NSW r 7.11 NT r 7.11 Qld Sch 1A r 7.11 SA r 7.11 Tas Note r 5 and see Cth Vic r 7.11 WA r 7.11 special manager — see Special manager substitution of plaintiff/applicant ACT Sch 6 r 5.10, Form 10 Cth r 5.10, Sch 1 Form 10 NSW r 5.10, Sch 1 Form 10 NT r 5.10, Sch 1 Form 10 Qld Sch 1A r 5.10, Form 10 SA r 5.10, Sch 1 Form 10 Tas see Cth Vic r 5.10, Sch 1 Form 10 WA r 5.10, Sch 1 Form 10 voluntary complaint to Court about conduct of liquidator ACT Sch 6 r 7.11(1)(b) Cth r 7.11(1)(b) NSW r 7.11(1)(b) NT r 7.11(1)(b) Qld Sch 1A r 7.11(1)(b) SA r 7.11(1)(b) Tas see Cth Vic r 7.11(1)(b) WA r 7.11(1)(b) filling vacancy in office of liquidator ACT Sch 6 r 7.2(1)(b), (2) Cth r 7.2(1)(b), (2) Corporations – Court Rules and Related Legislation 2017

INDEX

NSW r 7.2(1)(b), (2) NT r 7.2(1)(b), (2) Qld Sch 1A r 7.2(1)(b), (2) SA r 7.2(1)(b), (2) Tas see Cth Vic r 7.2(1)(b), (2) WA r 7.2(1)(b), (2) reference to Court by liquidator for determination of value of debts or claims ACT Sch 6 r 10.1(b) Cth r 10.1(b) NSW r 10.1(b) NT r 10.1(b) Qld Sch 1A r 10.1(b) SA r 10.1(b) Tas see Cth Vic r 10.1(b) WA r 10.1(b) report to Court by ASIC about conduct of liquidator ACT Sch 6 r 7.11(2)(b), (3), (4) Cth r 7.11(2)(b), (3), (4) NSW r 7.11(2)(b), (3), (4) NT r 7.11(2)(b), (3), (4) Qld Sch 1A r 7.11(2)(b), (3), (4) SA r 7.11(2)(b), (3), (4) Tas see Cth Vic r 7.11(2)(b), (3), (4) Winding up in insolvency — see also Winding up affidavit in support of application for ACT Sch 6 r 5.4(2) Cth r 5.4(2), Sch 3 Note 2 NSW r 5.4(2), Sch 2 Note 2 NT r 5.4(2), Sch 2 Note 2 Qld Sch 1A r 5.4(2), Form 7A SA r 5.4(2) Tas Note r 5 and see Cth Vic r 5.4(2), Sch 3 Note 2 WA r 5.4(2), Note 2 application for leave to apply for order for ACT Sch 6 r 5.3 Cth r 5.3 NSW r 5.3 NT r 5.3 Qld Sch 1A r 5.3 SA r 5.3 Tas Note r 5 and see Cth Vic r 5.3 WA r 5.3 application for order for ACT Sch 6 r 2.2 Cth r 2.2, Sch 3 Note 1 ©

2017 THOMSON REUTERS

NSW r 2.2, Sch 2 Note 1 NT r 2.2, Sch 2 Note 1 Qld Sch 1A r 2.2 SA r 2.2 Tas Note r 5 and see Cth Vic r 2.2, Sch 3 Note 1 WA r 2.2, Note 1 Words and phrases ABN ACT Sch 6 r 1.4 Cth r 1.4 NSW r 1.4 NT r 1.4 SA r 1.4 Tas see Cth Vic r 1.4 ACN ACT Sch 6 r 1.4 Cth r 1.4 NSW r 1.4 NT r 1.4 Qld Sch 1A r 1.4 SA r 1.4 Tas see Cth Vic r 1.4 Act Cth r 1.3 Tas see Cth additional application TPPR r 3.1 applicant ACT Sch 6 r 1.5 Cth r 1.5 NSW r 1.5 NT r 1.5 Qld Sch 1A r 1.5 SA r 1.5 Tas see Cth Vic r 1.5 WA r 1.5(1) ARBN ACT Sch 6 r 1.4 Cth r 1.4 NSW r 1.4 NT r 1.4 Qld Sch 1A r 1.4 SA r 1.4 Tas see Cth Vic r 1.4 ASIC ACT Sch 6 r 1.4 Cth r 1.4 NSW r 1.4 Qld Sch 1A r 1.4 NT r 1.4

Index

Winding up — continued

W

1005

W

INDEX

Words and phrases — continued SA r 1.4 Tas see Cth Vic r 1.4 ASIC Act ACT Sch 6 r 1.5 Cth r 1.5 NSW r 1.5 NT r 1.5 SA r 1.5 Tas see Cth Vic r 1.5 WA r 1.5(1) TPPR r 10.2 ASX TPPR r 10.2 body ACT Sch 6 r 1.4 Cth r 1.4 NSW r 1.4 NT r 1.4 Qld Sch 1A r 1.4 SA r 1.4 Tas see Cth Vic r 1.4 body corporate ACT Sch 6 r 1.4 Cth r 1.4 NSW r 1.4 NT r 1.4 Qld Sch 1A r 1.4 SA r 1.4 Tas see Cth Vic r 1.4 books ACT Sch 6 r 1.4 Cth r 1.4 NSW r 1.4 NT r 1.4 Qld Sch 1A r 1.4 SA r 1.4 Tas see Cth Vic r 1.4 brief TPPR r 6.2 Business Day TPPR r 10.2 company ACT Sch 6 r 1.4 Cth r 1.4 NSW r 1.4 NT r 1.4 Qld Sch 1A r 1.4 1006

SA r 1.4 Tas see Cth Vic r 1.4 corporation ACT Sch 6 r 1.4 Cth r 1.4 NSW r 1.4 NT r 1.4 Qld Sch 1A r 1.4 SA r 1.4 Tas see Cth Vic r 1.4 Corporations Act Cth r 1.5 NSW r 1.5 NT r 1.5 SA r 1.5 Tas see Cth Vic r 1.5 WA r 1.5(1) Corporations List Judge Vic r 1.5 Corporations Regulations Cth r 1.5 NSW r 1.5 NT r 1.5 SA r 1.5 Tas see Cth Vic r 1.5 WA r 1.5(1) Cross-Border Insolvency Act ACT Sch 6 r 1.5 Cth r 1.5 NSW r 1.5 NT r 1.5 SA r 1.5 Tas see Cth Vic r 1.5 WA r 1.5 daily newspaper ACT Sch 6 r 1.4 Cth r 1.4 NSW r 1.4 NT r 1.4 Qld Sch 1A r 1.4 SA r 1.4 Tas see Cth Vic r 1.4 defendant ACT Sch 6 r 1.5 Cth r 1.5 NSW r 1.5 NT r 1.5 SA r 1.5 Tas see Cth Corporations – Court Rules and Related Legislation 2017

INDEX

Vic r 1.5 WA r 1.5(1) examination summons ACT Sch 6 r 11.1 Cth r 11.1 NSW r 11.1 NT r 11.1 Qld Sch 1A r 11.1 Tas see Cth Vic r 11.1 WA r 11.1 foreign company NSW r 1.4 Qld r 1.4 Vic r 1.4 foreign country ACT Sch 6 r 1.4 Cth r 1.4 NT r 1.4 SA r 1.4 Tas see Cth futures broker Cth r 1.4 NT r 1.4 SA r 1.4 Tas see Cth Gazette Cth r 1.4 NT r 1.4 SA r 1.4 Tas see Cth Gazette notice Vic r 1.4 interlocutory application Qld Sch 1A r 1.5(1) interlocutory process ACT Sch 6 r 1.5 Cth r 1.5 NSW r 1.5 NT r 1.5 SA r 1.5 Tas see Cth Vic r 1.5 WA r 1.5(1) liquidator ACT Sch 6 rr 5.5(3), 5.11(5), 7.3(4), 7.11(5) Cth rr 5.5(1), 5.11(5), 7.3(4), 7.11(5) NSW rr 5.5(1), 5.11(5), 7.3(4), 7.11(5) NT rr 5.5(1), 5.11(5), 7.3(4), 7.11(5) Qld Sch 1A rr 5.5(1), 5.11(5), 7.3(4), 7.11(5) SA rr 5.5(1), 5.11(5), 7.3(4), 7.11(5) Tas see Cth ©

2017 THOMSON REUTERS

Vic rr 5.5(1), 5.11(5), 7.3(4), 7.11(5) WA rr 5.5(1), 5.11(5), 7.3(4), 7.11(5) Model Law ACT Sch 6 r 1.5 Cth r 1.5 NSW r 1.5 NT r 1.5 SA r 1.5 Tas see Cth Vic r 1.5 WA r 1.5 officer Vic r 1.4 officer, in relation to a body corporate ACT Sch 6 r 1.4 Cth r 1.4 NT r 1.4 Qld Sch 1A r 1.4 SA r 1.4 Tas see Cth officer, in relation to an entity Qld Sch 1A r 1.4 official liquidator ACTSch 6 r 1.4 Cthr 1.4 NSWr 1.4 NTr 1.4 QldSch 1A r 1.4 SAr 1.4 Tas see Cth Vicr 1.4 original application TPPR r 3.1 originating application Qld Sch 1A r 1.5 originating process ACT Sch 6 r 1.5 Cth r 1.5 NSW r 1.5 NT r 1.5 SA r 1.5 Tas see Cth Vic r 1.5 WA r 1.5(1) Panel TPPR r 10.2 Part 5.1 body ACT Sch 6 r 1.4 Cth r 1.4 NSW r 1.4 NT r 1.4 Qld Sch 1A r 1.4 SA r 1.4 Tas see Cth Vic r 1.4

Index

Words and phrases — continued

W

1007

W

INDEX

Words and phrases — continued Part 5.7 body ACT Sch 6 r 1.4 Cth r 1.4 NSW r 1.4 NT r 1.4 Qld Sch 1A r 1.4 SA r 1.4 Tas see Cth Vic r 1.4 party to proceedings TPPR r 10.2 plaintiff ACT Sch 6 r 1.5 Cth r 1.5 NSW r 1.5 NT r 1.5 SA r 1.5 Tas see Cth Vic r 1.5 WA r 1.5(1) Redcrest Vic r 1.5 Redcrest Corporations List Vic r 1.5 references to rules ACT Sch 6 r 1.6 references to rules and forms Cth r 1.6 NSW r 1.6 NT r 1.6 Qld Sch 1A r 1.6 SA r 1.6 Tas see Cth Vic r 1.6 WA r 1.6 register ACT Sch 6 r 1.4 Cth r 1.4 NSW r 1.4 NT r 1.4 Qld Sch 1A r 1.4 SA r 1.4 Tas see Cth Vic r 1.4

1008

registered liquidator ACT Sch 6 r 1.4 Cth r 1.4 NSW r 1.4 NT r 1.4 Qld Sch 1A r 1.4 SA r 1.4 Tas see Cth Vic r 1.4 registered office ACTSch 6 r 1.4 Cthr 1.4 NSWr 1.4 NTr 1.4 QldSch 1A r 1.4 SAr 1.4 Tas see Cth Vicr 1.4 respondent ACT Sch 6 r 1.5 Cth r 1.5 NSW r 1.5 NT r 1.5 Qld Sch 1A r 1.5 SA r 1.5 Tas see Cth Vic r 1.5 WA r 1.5(1) sitting members TPPRr 5 sitting Panel TPPR r 5.1.2 sitting President TPPR r 5.1.2 statutory demand ACT Sch 6 r 1.4 Cth r 1.4 NSW r 1.4 NT r 1.4 Qld Sch 1A r 1.4 SA r 1.4 Tas see Cth Vic r 1.4 the court Qld Sch 1A r 1.5

Corporations – Court Rules and Related Legislation 2017