Australian Capital Territory Numbered Regulations Australian Capital Territory Numbered Regulationsinsert
Part 6.15A Proceedings under the Cross-Border Insolvency Act
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.
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.
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).
(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).
(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.
15A.4 Application for provisional relief under Model Law, art 19
(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).
(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 the relief sought in an application under the Model Law, article 15 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) then, unless the court otherwise orders, the person must—
(a) be an official liquidator; and
(b) 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).
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 accordance with rule 2.11.
Note See approved form 20 (Notice of filing of application for recognition of foreign proceeding).
(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 rule 2.11.
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).
(d) publish the notice of the making of the order in accordance with rule 2.11.
(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 rule 2.11.
(3) If the application for recognition is dismissed or withdrawn, 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 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).
(d) publish the notice of the dismissal or withdrawal in accordance with rule 2.11.
(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 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 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).
(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.
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).
(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).
(b) publish the notice of filing the application in accordance with rule 2.11.
(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 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.