Rules of the Supreme Court (Corporations Law) Amendment Rules 2001

Rules of the Supreme Court (Corporations Law) Amendment Rules 2001

11 April 2001

We, the Honourable William John Ellis Cox, Companion of the Order of Australia, Chief Justice, and the Honourable Peter George Underwood, the Honourable Ewan Charles Crawford and the Honourable Peter Ethrington Evans, Puisne Judges of the Supreme Court of Tasmania, on the recommendation of the Rule Committee, make the following Rules of Court under the Supreme Court Civil Procedure Act 1932 .

1.   Short title

These Rules of Court may be cited as the Rules of the Supreme Court (Corporations Law) Amendment Rules 2001 .

2.   Commencement

These Rules of Court take effect on the day on which their making is notified in the Gazette.

3.   Principal Rules

In these Rules of Court, the Rules of the Supreme Court (Corporations Law) 2000 are referred to as the Principal Rules.

4.    Rule 18 amended (Notice of certain applications to be given to Commission)

Rule 18 of the Principal Rules is amended by omitting subrule (3) and substituting the following subrule:

(3)  Unless the Court otherwise orders, if a person makes an application under a provision of the Law mentioned in column 2 of the following table, the person must serve on the Commission, 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.

Column 1	Column 2	Column 3
Item	Provision	Description of application
1.	Section 480	For the release of a liquidator of a company and the deregistration of the company
2.	Subsection 482 (1)	For the stay of a compulsory winding up
3.	Subsection 509 (6)	For the deregistration of a company
4.	Subsection 536 (1)	For an inquiry into the conduct of a liquidator
5.	Subsection 601AH (2)	To reinstate the registration of a company
6.	Subsection 601CC (8)	To restore the name of an Australian body to the register
7.	Subsection 601CL (9)	To restore the name of a foreign company to the register
8.	Chapter 6, 6A, 6B, 6C, 6D or 7	Any application under these Chapters
9.	Subsections 1317S (2), (4) and (5)	For relief from liability for contravention of a civil penalty provision

5.    Rule 23 amended (Leave to creditor, contributory or officer to be heard)

Rule 23(1) of the Principal Rules is amended as follows:

(a) by omitting from paragraph (b) "corporation –" and substituting "corporation; or";

(b) by inserting the following paragraph after paragraph (b) :

(c) any other interested person –

6.    Rule 32 amended (Application of Part 5 )

Rule 32 of the Principal Rules is amended by omitting paragraph (a) and substituting the following paragraph:

(a) an application for an order under Part 2F.1 of the Law;

7.    Rule 43 amended (Appointment of provisional liquidator (s 472 of the Law) — Form 8)

Rule 43 of the Principal Rules is amended by omitting subrule (3) and substituting the following subrule:

(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.

8.    Rule 59 amended (Remuneration of receiver (s 425 (1) of the Law) —Form 16)

Rule 59(6) of the Principal Rules is amended by omitting paragraph (d) and substituting the following paragraphs:

(d) state particulars of any objection of which the receiver has received notice; and

(e) if the receivership is continuing — give details of any matters delaying the completion of the receivership.

9.    Rule 60 amended (Remuneration of administrator (s 449E (1) of the Law) — Form 16)

Rule 60 of the Principal Rules is amended as follows:

(a) by omitting subrule (2) and substituting the following subrule:

(2)  The administrator must not apply for the order until after the date of the meeting of creditors mentioned in paragraph 449E(1)(a) of the Law.

(b) by omitting from subrule (3)(b) "inspection" and substituting "creditors";

(c) by omitting paragraph (d) from subrule (7) and substituting the following paragraphs:

(d) state particulars of any objection of which the administrator has received notice; and

(e) if the administration is continuing — give details of any matters delaying the completion of the administration.

10.    Rule 61 amended (Remuneration of provisional liquidator (s 473 (2) of the Law) — Form 16)

Rule 61 of the Principal Rules is amended as follows:

(a) by omitting from subrule (3)(b) "inspection" first occurring and substituting "creditors";

(b) by omitting from subrule (3)(b) "inspection," and substituting "creditors,";

(c) by omitting paragraph (d) from subrule (7) and substituting the following paragraphs:

(d) state particulars of any objection of which the provisional liquidator has received notice; and

(e) 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.

11.    Rule 62 amended (Remuneration of liquidator (s 473 (3) of the Law) — Form 16)

Rule 62 of the Principal Rules is amended as follows:

(a) by omitting from subrule (2)(b) "the end of 28 days after";

(b) by omitting from subrule (3)(b) "inspection" and substituting "creditors";

(c) by omitting paragraph (d) from subrule (7) and substituting the following paragraphs:

(d) state particulars of any objection of which the liquidator has received notice; and

(e) if the winding up is continuing — give details of any matters delaying the completion of the winding up.

12.    Rule 63 amended (Remuneration of special manager (s 484 (2) of the Law) — Form 16)

Rule 63 of the Principal Rules is amended as follows:

(a) by omitting from subrule (3)(b) "inspection" first occurring and substituting "creditors";

(b) by omitting from subrule (3)(b) "inspection," and substituting "creditors,";

(c) by omitting paragraph (d) from subrule (7) and substituting the following paragraphs:

(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.

13.    Rule 68 amended (Application for examination or investigation under s 411(9)(b), s 423 or s 536 (3) of the Law)

Rule 68 of the Principal Rules is amended as follows:

(a) by omitting from subrule (1) "section 411 or 423" and substituting "paragraph 411(9)(b), section 423";

(b) by omitting from subrule (3) "section 411 or 423" and substituting "paragraph 411(9)(b), section 423".

14.    Rule 69 amended (Application for examination summons (s 596A, s 596B of the Law) — Form 17)

Rule 69 of the Principal Rules is amended as follows:

(a) by omitting subrule (2) and substituting the following subrule:

(2)  The application need not name the person whose examination is sought as a respondent to the application.

(b) by omitting from subrule (8) "is to be" and substituting "must be".

15.    Part 12: Heading amended

Part 12 of the Principal Rules is amended by omitting "ACQUISITION OF SHARES (CHAPTER 6 OF THE LAW) AND SECURITIES (CHAPTER 7 OF THE LAW)" from the heading to that Part and substituting "TAKEOVERS, ACQUISITIONS OF SHARES, &C. (CHAPTERS 6 TO 6D OF THE LAW) AND SECURITIES (CHAPTER 7 OF THE LAW)".

16.    Rule 78 substituted

Rule 78 of the Principal Rules is rescinded and the following rule is substituted:

78.   Service on Commission in relation to proceedings under Chapter 6, 6A, 6B, 6C, 6D or 7 of the Law

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

17.    Part 15: Heading amended

Part 15 of the Principal Rules is amended by omitting "ASC LAW" from the heading to that Part and substituting "ASIC LAW".

18.    Rule 84 amended (Reference to Court of question of law arising at hearing of Commission (s 61 of the ASIC Law))

Rule 84 of the Principal Rules is amended by omitting "ASC Law" and substituting "ASIC Law".

19.    Rule 85 amended (Reference to Court of question of law arising at hearing of Corporations and Securities Panel (s 196 of the ASIC Law))

Rule 85 of the Principal Rules is amended by omitting "ASC Law" and substituting "ASIC Law".

20.    Rule 86 amended (Application for inquiry (s 70, s 201, s 219 of the ASIC Law))

Rule 86 of the Principal Rules is amended by omitting "ASC Law" and substituting "ASIC Law".

21.    Part 16 inserted

After rule 86 of the Principal Rules , the following Part is inserted:

PART 16 - Proceedings under the Federal Courts (State Jurisdiction) Act 1999

87.   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.

22.    Schedule 1 amended (Forms)

Schedule 1 to the Principal Rules is amended as follows:

(a) by omitting Forms 2 and 3 and substituting the following Forms:

Form 2 - Originating process

Form 3 - Interlocutory process

(b) by omitting Form 17 and substituting the following Form:

Form 17 - Summons for examination

23.   Substitutions

Each of the provisions of the Principal Rules specified in Column 1 of Schedule 1 is amended by omitting "ASC Law," on the number of occurrences specified in Column 2 of that Schedule and substituting "ASIC Law,".

SCHEDULE 1 - Substitutions

Rule 23

W. J. E. Cox

Chief Justice

P. G. Underwood

Puisne Judge

E. C. Crawford

Puisne Judge

P. E. Evans

Puisne Judge

Countersigned,

I. G. Ritchard

Registrar

Displayed and numbered in accordance with the Rules Publication Act 1953.

Notified in the Gazette on 25 April 2001

These Rules of Court are administered in the Department of Justice and Industrial Relations.

EXPLANATORY NOTE

(This note is not part of the rule)

These Rules of Court amend the Rules of the Supreme Court (Corporations Law) 2000 in respect of the following matters:

(a) the provision to the Commission of notice of certain applications;

(b) leave of the Court to be heard in proceedings;

(c) applications for the winding up of companies;

(d) orders appointing provisional liquidators of companies;

(e) applications for orders fixing remuneration of receivers, administrators, liquidators and special managers;

(f) applications for orders for the examination or investigation of certain persons;

(g) applications for examination summons;

(h) service on the Commission in relation to proceedings under Chapter 6, 6A, 6B, 6C, 6D or 7 of the Law;

(i) the form for initiating proceedings for relief;

(j) certain forms;

(k) the correction of out dated references to ASC Law by substituting references to ASIC Law.