Australian Capital Territory Numbered Regulations

SUPREME COURT RULES (AMENDMENT) (NO. 35 OF 1993) - REG 32

“ Division 7A—Administration of a Company's Affairs
(Part 5.3A)

Applications under Part 5.3 A

“34A. (1) An application under Part 5.3A of the Corporations Law shall be made in accordance with Form 5.

“(2) Without limiting the generality of Order 75B, rule 9, the Court may direct that notice of an application within the scope of Part 5.3A of the Corporations Law be given by advertisement or otherwise to such persons as the Court determines, and may adjourn the application for that purpose.

“(3) As soon as practicable after filing an application that relates to a matter specified in Column 1 of the following table, and in any event not later than 7 days after the date of filing, the applicant shall serve a copy of the application on the person or persons specified opposite that kind of application in Column 2 of the table.

Column 1 Nature of application	Column 2 Persons to be served copy
Application for leave to enforce a charge if an administrator has been appointed (section 440B)	The administrator of the company concerned
Application for leave to take possession of property (section 440C)	The administrator of the company concerned
Application for 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 (section 440D)	The administrator of the company concerned
Application for leave to begin, or proceed with, enforcement process in relation to the property of a company (section 440F)	The administrator of the company concerned
Application to permit a court officer to take action, or to make a payment, which would be prohibited under subsection 440G (2)	The administrator of the company concerned
Application for leave to take enforcement action under a guarantee (section 440J)	(a)     The person who gave the guarantee concerned; and (b)     the administrator of the company concerned.
Application to limit powers of chargee in relation to charged property (section 441D)	The chargee, receiver or other person, to which the application properly relates
Application to limit powers of receiver etc. in relation to property used by company (section 441H)	The person who has entered into possession or assumed control of property or who exercises any other power in relation to the property, in respect of whom the application is made
Application for leave to dispose of— (a)     property of a company in administration which is subject to a charge; or (b)     property that is used or occupied by, or is in the possession of, a company in administration but of which someone else is the owner or lessor. (section 442C)	The chargee, owner or lessor of the property concerned
Application for relief of administrator from personal liability for rent (section 443B)	The owner or lessor of the property concerned
Application for extension of time for execution of deed of company arrangement (subsection 444B (2))	(a)     The company concerned (if it is not the applicant); and (b)     the administrator of the company (if he or she is not the applicant).
Application for leave to act inconsistently with deed of company arrangement (section 444C)	The administrator concerned
Application by a person bound by a deed of company arrangement to begin, or proceed with— (a)     a proceeding against the company or in relation to any of its property; or (b)     enforcement process in relation to the property of the company. (section 444E)	The administrator of the company concerned
Application for an order cancelling a variation of a deed of company arrangement (section 445B)	The administrator concerned
Application for an order terminating a deed of company arrangement (section 445D)	(a)     The administrator of the deed of company arrangement (if he or she is not the applicant); and (b)     the company concerned (if it is not the applicant).
Application for an order as to the application of Part 5.3A in respect of a particular company (section 447A)	(a)     If the company is in administration—the administrator of the company (if he or she is not the applicant); and (b)     if the company has executed a deed of company arrangement—the deed's administrator (if he or she is not the applicant).
Application for an order to protect interests of a company's creditors during an administration (section 447B)	(a)     The administrator of the company (if he or she is not the applicant); or (b)     the administrator of the deed of company arrangement concerned (if he or she is not the applicant).
Application for declaration as to whether administrator is validly appointed (section 447C)	(a)     The person who holds a purported appointment as administrator of the company, or the administrator of the deed of company arrangement (if he or she is not the applicant); and (b)     the company (if it is not the applicant).
Application for the determination, or review, of the remuneration of an administrator (section 449E)	The administrator of the company concerned or of the deed of arrangement of the company concerned, as the case may be (if he or she is not the applicant)

Court's power to limit rights of secured creditor or owner or lessor of property—subsection 444 F (1)

“34B. (1) An application for an order under subsection 444F (1) shall be accompanied by an affidavit that—

        (a)     annexes a copy of the proposed deed of company arrangement or of the executed deed of company arrangement, as the case may be;

        (b)     sets out the identity of the secured creditor or owner or lessor, as the case may be, of property to which the application relates;

        (c)     sets out the nature of the security or the interest in the property; and

        (d)     specifies the grounds (if any) on which it is said that the interests of the creditor, owner or lessor will be adequately protected by the terms of the deed.

“(2) As soon as practicable after filing the application and affidavit, and in any event not later than 7 days after the date of filing, the applicant shall serve a copy of the application and affidavit on any creditor, owner or lessor of property to which the application relates.

Application to avoid or validate a deed of company arrangement—section 445 G

“34C. (1) A person (other than the administrator of a deed of company arrangement) who intends to file an application under section 445G for an order avoiding the deed of company arrangement, shall give written notice of the proposed application to the administrator not later than the day before the application is filed—

        (a)     by hand delivery; or

        (b)     by express post addressed to the administrator.

“(2) An application for an order under subsection 445G (1) shall be accompanied by an affidavit—

        (a)     stating any material facts relied on by the applicant in support of the application;

        (b)     identifying the grounds on which it is said that the Court should make an order under subsection 445G (2); and

        (c)     if the application is for an order avoiding the deed—annexing a copy of the notice required under subrule (1).

“(3) As soon as practicable after filing an application and affidavit, and in any event not later than 7 days after the date of filing, the applicant shall serve a copy of the application and affidavit on—

        (a)     if the administrator of the deed of company arrangement is not the applicant—the administrator; and

        (b)     the Commission.

Application by administrator for directions—section 447 D

“34D. (1) An application to the Court under section 447D shall indicate the matter in respect of which the administrator seeks directions from the Court.

“(2) An application shall be accompanied by an affidavit setting out any matters known to the applicant and material to the application.

Supervision of administrator of company or deed of company arrangement—section 447 E

“34E. (1) An application for an order under subsection 447E (1) shall be accompanied by an affidavit—

        (a)     stating any material facts relied upon by the applicant in support of the application; and

        (b)     identifying the grounds on which it is said that the Court should make an order under section 447E.

“(2) As soon as practicable after filing an application and affidavit, and in any event not later than 7 days after the date of filing, the applicant shall serve a copy of the application and affidavit on—

        (a)     the administrator of the company or of the deed of company arrangement, as the case may be; and

        (b)     the Commission.

Removal of administrator—section 449 B

“34F. (1) An application for an order under subsection 449B shall be accompanied by an affidavit—

        (a)     stating any material facts relied upon by the applicant in support of the application; and

        (b)     identifying the grounds on which it is said that the Court should make an order under section 449B.

“(2) As soon as practicable after filing an application and affidavit, and in any event within 7 days after the date of filing, the applicant shall serve a copy of the application and affidavit on—

        (a)     the administrator of the company or of the deed of company arrangement concerned; and

        (b)     the Commission.

Vacancy in office of administrator of a company or of administrator of a deed of company arrangement—sections 449 C and 449D

“34G. (1) This rule applies to an application—

        (a)     under section 449C—for an order that a person be appointed as administrator of a company; or

        (b)     under section 449D—for an order that a person be appointed as administrator of a deed of company arrangement.

“(2) At the same time as filing an application, the applicant shall lodge a nomination in accordance with Form 92A of a person who (unless the Court is satisfied that some other person should be appointed) will be appointed—

        (a)     as administrator of the company, if an order under section 449C is made; or

        (b)     as administrator of the deed of company arrangement, if an order under section 449D is made.

“(3) Within 14 days of filing the application, the applicant shall file a written acknowledgment in accordance with Form 92B, signed by the person nominated under subrule (2).

“(4) The applicant shall publish a notice of the application in accordance with Form 92C, in the manner prescribed by rule 104, not later than 7 days before the date on which the application is to be heard.”.

Address for service in winding up applications