Supreme Court (Corporations) (WA) Rules 2004



Schedule 1 Forms
[rule 1.6]
Form 1
rule 2.1
Document title

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)']

ACN or ARBN: [insert 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]

Form 2
rule 2.2
Originating process

[Title]

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, 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.]

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 officer] on [date] to [time and date].

    * Omit if not applicable


    Form 3
rule 2.2
Interlocutory process

[Title]

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:

. . . . . . . . . . . . . . . . . . . . .

Signature of applicant making this application or
applicant's legal practitioner

This interlocutory 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 officer] on [date] to [time and date].

* Omit if not applicable


Form 4
rule 2.9
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, 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

    Form 5
rule 2.10
Notice of intervention by the Commission

[Title]

The Australian Securities and Investments Commission, whose address for service is [address], intervenes in this proceeding.

Date:


. . . . . . . . . . . . . . . . . . . . .
Signed on behalf of the Commission
    Name of signatory: [name].

    Capacity of signatory: [capacity].


    Form 6
rule 3.4
Notice of hearing to approve compromise or arrangement

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


Form 7
rule 5.2
Affidavit accompanying statutory demand

[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', '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 affidavit 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 affidavit, e.g. 'I am authorised by the creditor(s) to make this affidavit on its/their behalf].

3 [State the source of the deponent's knowledge of the matters stated in the affidavit 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'].

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 affirmation] on [date]

OR

*Sworn/*affirmed by the abovenamed deponent at: [place of swearing or affirmation] this day of [month] [year]


. . . . . . . . . . . . . . . . . . . . .
Signature of deponent
    Before me:

    . . . . . . . . . . . . . . . . . . . . .

    Signature and designation of
    person before whom deponent
    swears or affirms affidavit

    * 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 8
rules 5.5 and 6.1
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.

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.

Date:


. . . . . . . . . . . . . . . . . . . . .
Signature of official liquidator
    * Omit if not applicable

    Schedule

    [description of hourly rate(s)]

    Form 9

rule 5.6
Notice of application for winding-up order

IN THE [name of Court] No. of [year]

[Name of company]

ACN: [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 . . . . . . . . *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 10
rule 5.10
Notice of application for winding-up order by substituted plaintiff

IN THE [name of Court] No. of [year]

[Name of company]

ACN: [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


Form 11
rule 5.11
Notice of winding-up order and of appointment of liquidator

IN THE [name of Court]

AT [location of Court]

IN THE MATTER OF [name of company to which the proceeding relates]

ACN: [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 12
rule 6.2
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]

ACN: [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 13
rule 7.6
Notice by creditor or contributory of objection to release
of liquidator

[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].


    Form 14
rule 7.8
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 affirmation] on [date]

OR

*Sworn/*affirmed by the abovenamed deponent at: [place of swearing or affirmation] this day of [month] [year].


. . . . . . . . . . . . . . . . . . . . .
Signature of deponent
    Before me:

    . . . . . . . . . . . . . . . . . . . . .
    Signature and designation of
    person before whom deponent
    swears or affirms affidavit

    * 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.


    Schedule B
    Number on list of contributoriesNameAddressCharacter in which included in the listUnpaid amount of callProportion of costs of applicationTotal amount payable

    Form 15

rule 7.9
Notice of application for leave to distribute a surplus

IN THE [name of Court and address]

APPLICATION NO:

IN THE MATTER OF [company name]

ACN: [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 16
rules 9.1, 9.2, 9.3, 9.4 and 9.5
Notice of intention to apply for remuneration

IN THE MATTER OF [company name]

ACN: [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 17
rule 11.3
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 . . . . . . . . *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

(b) *to produce at the examination the following books [specify books include in a schedule if necessary].

Date:


. . . . . . . . . . . . . . . . . . . . .
Principal 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 person].

    * Omit if not applicable


    Form 18
rule 12.2
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 . . . . . . . . *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

    Schedule

    [description of document(s)]

    Schedule 2 Matters outside the jurisdiction of a Master

[r. 16.1]
Item
Provision
Description of matter
Matters under the ASIC Act
1.s. 61Reference by the Commission to the Court of a question of Corporations Act arising at a hearing of the Commission
2.s. 70Request by the Commission for the Court to inquire into non-compliance by a person with an investigation
3.s. 201Request by Takeovers Panel for the Court to inquire into non-compliance by a person before the Panel
4.s. 219Request 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
5.ss. 206C, 206D and 206EApplication for order prohibiting a person from managing a corporation
6.Part 5.1Relating to arrangements and reconstructions
(ss. 410-415A)
7.s. 423Supervising controller of property of a corporation
8.s. 536Supervising liquidator
9.s. 598Application for order against person concerned with corporation
10.Chapter 6Relating to acquisition of shares
(ss. 602-742)
11.Part 9.4BRelating to civil consequences of contravening civil penalty provisions
(ss. 1317DA-1317S)
12.Part 9.5 except ss. 1318, 1319, 1322 and 1325Relating to powers of courts
(ss. 1318-1327)


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

[Note 2 amended in Gazette 6 Jul 2004 p. 2712.]


Note: This is not an authorised version. The only authorised version is the hardcopy (printed) version published under authority of the Government Printer, available from the State Law Publisher, 10 William St Perth W.A. 6000.