Australian Capital Territory Numbered Regulations Australian Capital Territory Numbered Regulations“36. (1) This rule applies to an application for a winding up order under section 462, on or after 23 June 1993.
“(2) On filing and serving an application, the applicant shall also file and serve—
(a) an affidavit made not earlier than 7 days before the application is filed, setting out the prescribed information, which may be in accordance with Form 128; and
(b) an affidavit made not earlier than 7 days before the application is filed, setting out—
(i) any other material facts to be relied on by the applicant in support of the application; and
(ii) the grounds of the application and a reference to the provision or provisions of section 461 on which the applicant relies.
“(3) If an application is made on a ground provided for by paragraph 461 (a), the affidavit referred to in paragraph (2) (a) shall—
(a) include a statement whether, at the date of the application, the company is able to pay all its debts as and when they become due and payable; and
(b) annex the most recent accounts of the company that are lodged with the Commission.
“(4) The affidavit referred to in paragraph (2) (b) shall be made by a person who can depose of his or her own knowledge to at least some of the grounds relied on for the winding up of the company.
“(5) Subject to subrule (6), at the same time as filing the application and any affidavit in support, the applicant may lodge a nomination in accordance with Form 88 of an official liquidator who will be appointed as liquidator (unless the Court is satisfied that some other official liquidator should be appointed) if an order for the winding up of the company is made.
“(6) Subrule (5) applies to a voluntary winding up occurring under Part 5.5 of the Corporations Law, if for the purposes of winding up the affairs and distributing the property of the company, a person has been nominated to be liquidator—
(a) by the company at its meeting; or
(b) by the creditors of the company at their meeting.
“(7) As soon as is practicable after filing the application and any affidavit in support, and in any event not later than 14 days after the date of filing, the applicant (unless it is the company) shall serve on the company, in a manner permitted by section 220—
(a) a signed and sealed copy of the application;
(b) the affidavits on which it relies; and
(c) any nomination of a liquidator under subrule (5).
“(8) Unless the Court orders to the contrary, notice of an application in accordance with Form 93 shall be published in the manner prescribed by rule 104 not earlier than 3 days after the date a copy of the application was served on the company and not later than 7 days before the day appointed for directions under Order 2A, rule 8.
“(9) If the Court thinks fit, it may hear and determine an application for the winding up of a company on the day appointed for directions under Order 2A, rule 8, or a day subsequently appointed for directions in the proceedings.
“(10) If the company to which a winding up application relates intends to appear on the day appointed for directions or on the hearing of a winding up application, and to oppose the application, it shall—
(a) file a notice of appearance in accordance with Form 79, specifying the grounds of opposition and an affidavit verifying those grounds in accordance with Form 93A; and
(b) serve a copy of the notice of appearance and affidavit on the applicant, not later than 2 days before the day appointed for directions or the day of the hearing, as the case may be.
“(11) A person (other than the company to which a winding up application relates) who intends to appear on the day appointed for directions, or on the hearing of a winding up application, shall—
(a) file—
(i) a notice of appearance in accordance with Form 79, specifying any grounds of opposition to the application; and
(ii) if he or she opposes the application—an affidavit verifying the grounds of opposition in accordance with Form 93A; and
(b)
serve a copy of the notice of appearance and affidavit on the applicant not
later than 2 days before the day appointed for directions or the day of the
hearing, as the case may be.
[See footnote (1) to this Order]
“(12) At the first directions hearing or at any subsequent directions hearing, the Court may direct the applicant or its solicitors to prepare and file a list in accordance with Form 80 of the names and addresses of persons who have given notice of their intention to appear in the proceedings.
“(13) Without limiting any right of inspection otherwise available under Order 66, rule 11, a person who is or claims to be a contributory, member, creditor or officer of a company, and who makes application in a form approved by the Registrar, shall—
(a) be permitted by the Registrar to inspect an application to wind up the company, and any affidavits in relation to the application that are in the Registrar's custody; and
(b) on payment of the prescribed fee—be provided with a copy of those documents.
“(14) Nothing in this rule shall restrict any power of the Court to appoint more than one liquidator and to declare whether anything that is required by the Corporations Law to be done by the liquidator is to be done by all, or by any one or more, of the persons appointed.
“(15) An application to which this rule applies may not be discontinued without the leave of the Court.
“36A. (1) An affidavit verifying that a debt is due, for the purposes of subsection 459E (3), shall—
(a) be in accordance with Form 93B;
(b) contain the statement headed ‘Important Note' set out in the form; and
(c) not state a proceedings number.
“(2) An affidavit under this rule shall not be filed with the Court unless winding up proceedings have been commenced in the matter to which the affidavit relates.
“(3) Unless the Court orders to the contrary, an affidavit under this rule shall be made by a person who can depose to his or her own knowledge of the indebtedness of the company.
“(4) For the purposes of subsection 459E (3), an affidavit in support of a statutory demand that complies with the rules of a Supreme Court of a State or Territory is taken to be an affidavit that complies with this rule.
“36B. An application under subsection 459G (1) shall be made in accordance with Form 5 and 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 459H setting
aside the demand.
[See footnote (2) to this Order]
“36C. (1) An application by a person described in subsection 459P (2) for leave to bring a winding up application shall be made in accordance with Form 5.
“(2) An application for leave shall be accompanied by an affidavit—
(a) setting out the prescribed information; and
(b) specifying the material facts on which the applicant relies, for the purposes of subsection 459P (3), to establish a prima facie case that the company is insolvent.
“(3) As soon as practicable after filing the application and affidavit, and in any event not later than 14 days after the date of filing, the applicant shall serve a copy of the application and the affidavit on the company to which the application relates.
“(4) If the Court grants leave under subsection 459P (2) to an applicant to bring a winding up application—
(a) an application in accordance with Form 93C may be filed in the proceedings in which leave to bring the winding up application was granted; and
(b) the winding up proceedings shall otherwise proceed under rule 37.
“37. (1) This rule applies to an application under section 459P for a winding up order.
“(2) An application that relies on a failure to comply with a statutory demand may be made in accordance with Form 93C and shall set out the matters referred to in paragraph 459Q (a) and have attached the documents referred to in paragraph 459Q (b).
“(3) An application that does not rely on a failure to comply with a statutory demand may be made in accordance with Form 93C and shall specify the grounds on which the applicant relies to allege that the company is insolvent. [See footnote (3) to this Order]
“(4) On filing and serving an application referred to in subrule (2), the applicant shall also file and serve—
(a) an affidavit made not earlier than 7 days before the application is filed, setting out the prescribed information, which may be in accordance with Form 128; and
(b) if the debt is not a judgment debt—an affidavit in or substantially in accordance with Form 94 setting out—
(i) a statement of the debt alleged and details of how and when it was incurred; and
(ii) a statement that the debt is due and payable to the applicant.
“(5) On filing and serving an application referred to in subrule (3), the applicant shall also file and serve an affidavit setting out the material facts relied on in support of the application.
“(6) Unless the Court orders to the contrary, an affidavit referred to in paragraph (4) (b) or subrule (5) shall be—
(a) made by a person who can depose to the indebtedness of the company, or to the facts relied on in support of the application, as the case may be, to his or her own knowledge; and
(b) served on the company, with the copy of the application.
“(7) At the same time that the application and any affidavit in support is filed, the applicant may lodge a nomination in accordance with Form 88 of an official liquidator who, if an order for the winding up of the company is made, and unless the Court is satisfied that some other official liquidator should be appointed, will be appointed as liquidator.
“(8) As soon as is practicable after filing the application and any affidavit in support, and in any event not later than 14 days after the date of filing, the applicant (unless it is the company) shall serve on the company concerned a copy of any affidavits on which it relies, and any nomination of a liquidator under subrule (7), in a manner permitted by section 220.
“(9) Unless the Court orders to the contrary, notice of an application in accordance with Form 93 shall be published in the manner prescribed by rule 104 not earlier than 3 days after the date a copy of the application was served on the company and not later than 7 days before the day appointed for directions under Order 2A, rule 8.
“(10) If the Court thinks fit, it may hear and determine an application for the winding up of a company on the day appointed for directions under Order 2A, rule 8 or a day subsequently appointed for directions in the proceedings.
“(11) If the company to which a winding up application relates intends to appear on the day appointed for directions or on the hearing of a winding up application, and to oppose the application, it shall—
(a) file a notice of appearance in accordance with Form 79, specifying the grounds of opposition and an affidavit verifying those grounds in accordance with Form 93A; and
(b) serve a copy of the notice of appearance and affidavit on the applicant, not later than 2 days before the day appointed for directions or the day of the hearing, as the case may be.
“(12) A person (other than the company to which a winding up application relates) who intends to appear on the day appointed for directions, or on the hearing of a winding up application, shall—
(a) file—
(i) a notice of appearance in accordance with Form 79, specifying any grounds of opposition to the application; and
(ii) if he or she opposes the application—an affidavit verifying the grounds of opposition in accordance with Form 93A; and
(b)
serve a copy of the notice of appearance and affidavit on the applicant not
later than 2 days before the day appointed for directions or the day of the
hearing, as the case may be.
[See footnote (4) to this Order]
“(13) At the first directions hearing or at any subsequent directions hearing, the Court may direct the applicant or its solicitors to prepare and file a list in accordance with Form 80 of the names and addresses of persons who have given notice of their intention to appear in the proceedings.
“(14) Without limiting any right of inspection otherwise available under Order 66, rule 11, a person who is or claims to be a contributory, member, creditor or officer of a company, and who makes application in a form approved by the Registrar, shall—
(a) be permitted by the Registrar to inspect an application to wind up the company and any affidavits in relation to the application that are in the Registrar's custody; and
(b) on payment of the prescribed fee—be provided with a copy of those documents.
“(15) An application may not be discontinued without the leave of the Court.
“(16) Nothing in this rule shall restrict any power of the Court to appoint more than one liquidator and to declare whether anything that is required by the Corporations Law to be done by the liquidator is to be done by all, or by any one or more, of the persons appointed.
“38. (1) Subject to subrule (2), the applicant shall file either before or at the hearing of an application under section 459P or 462—
(a) an affidavit—
(i) if the company is not the applicant—proving service on the company of the application and any affidavits in support of the application;
(ii) stating that a notice of the making of the winding up application was lodged with the Commission in compliance with paragraph 470 (1) (a), and annexing a copy of that notice as lodged; and
(iii) proving publication of notice of the application in compliance with subrule 36 (8) or 37 (9), as the case may be, and annexing a copy of that notice as published;
(b) an affidavit, made not earlier than 3 days before the day of the final hearing of the application, stating that a search of the company records maintained by the Commission was undertaken not earlier than 3 days before the date on which that affidavit is made, and stating whether or not the search disclosed—
(i) that an administrator had been appointed to the company, and, if so, stating details of that appointment; and
(ii) that a winding up application was pending or a winding up order had been made against the company, and, if so, stating details of that application or order; and
(c) if the application relies on a failure to comply with a statutory demand—an affidavit in accordance with Form 95, made not earlier than 3 days before the date of the final hearing of the application.
“(2) If the applicant seeks the determination of the application at a directions hearing, he or she shall file the documents referred to in subrule (1) either before or at the directions hearing.”.