For applications filed on or after 1 July Steps to be taken in obtaining a winding up order under section 459P of the Corporations Act 2001

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1 Winding up guide For applications filed on or after 1 July 2012 Steps to be taken in obtaining a winding up order under section 459P of the Corporations Act 2001 This guide has been prepared for litigants who intend to make a winding up application based on a company's failure to comply with a statutory demand. As the party making the application (the applicant), you are responsible for making sure all your paperwork is in order. Although the Court's Registry staff can check your forms and other court papers for completeness (for example, they check for signatures, and that attachments are present and signed by an authorised person within your State or Territory) and give you information about the Court's procedures, they can not give you legal advice and they are not responsible for the accuracy of your documents. A full list of what Registry staff can and cannot provide is available on this website. When can I make an application for a winding up order? You can make an application for a winding up order if the debt remains unpaid 21 days after service of a statutory demand (section 459E(2) of the Corporations Act 2001). Where an application was made to set aside the statutory demand you can make an application for a winding up order if the debt remains unpaid after the applicable period set out in section 459F(2) has expired. How do I make a statutory demand? The requirements for making a statutory demand are set out in various sections of the Corporations Act The process for making a statutory demand is not supervised by the Federal Court - you should obtain legal advice to ensure that you are entitled to make a statutory demand. How do I make an application for a winding up order?

2 1. No more than 7 days before filing the application you need to arrange a search of the records maintained by the Australian Securities and Investments Commission (ASIC) in relation to the company that is the subject of your application. ASIC will give you a document with the results of the search. You may have to pay a fee to ASIC for the search. 2. Get a Corporations Form 2 and fill it out. Attach a copy of the statutory demand. This is the application. On this form you are called the applicant. You can get a copy of Corporations Form 2 from the Registry or download a copy from the Court's website. 3. Get a Form 59 and fill it out. Attach a copy of the ASIC search (which must not be more than 7 days old). This is the affidavit. You can get a copy of Form 59 and instructions on how to fill it out from the Registry or download copies from the Court's website. The affidavit must: (a) contain details of how and when the demand was served on the company; and (b) contain details of the failure of the company to comply with the demand (eg. if this is the case, that no reply from the company has been received); 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. A sample affidavit is set out in Note 2 of Schedule 3 of the Federal Court (Corporations) Rules. 4. The original application and affidavit must be delivered to the Federal Court. You can do this by bringing the documents to the Registry, or by posting or faxing them, or by sending them by the internet. This is called filing. More information about filing is available from the Registry and on the Court's website. The affidavit must not be more than 7 days old at the time of filing. Make sure you have a copy of the documents for yourself. If you file your application within three months of the date when the company failed to comply with the statutory demand, the Court will presume that the company is insolvent (section 459C(2)).

3 5. Pay the applicable filing fee. If you cannot afford this fee, you may be able to ask the Court to exempt you from having to pay it or to defer the time for its payment. You can get a form to ask the Court to either exempt or defer payment and information about the circumstances where an exemption or deferral can be given on the Exemptions and deferral of fees page or from the Registry. 6. If the documents are in the correct form Registry staff will stamp the original and the copies. The Registry will also write on the application the time and date when the matter will first be considered by the Court at a directions hearing. 7. Arrange for a stamped copy of the application and affidavit to be served on the company within 14 days of filing the application in the Court (section 465A) and not less than 5 days before the directions hearing date (rule 2.7). For more information about service see section 109X of the Corporations Act File an affidavit stating how and when the application was served on the company. Other compulsory steps to be taken before the directions hearing Notify ASIC of application 1. Get a copy of Form 519 under the Corporations Regulations and fill it out. The form is available online at ComLaw or you can get a copy from ASIC. 2. Lodge the Form 519 with ASIC no later than am on the next business day after filing of the application. 3. Get a copy of Form 59 and write how and when ASIC were notified of the application. Attach a copy of the Form 519. This is the affidavit proving notification. 4. File the affidavit before the first directions hearing. Obtain consent of person to act as liquidator 4. Obtain the agreement of a person to act as a liquidator if a winding up order is made. Get a copy of Corporations Form 8 and fill it out. This is the Consent to Act as Liquidator form.

4 5. File the consent in the Court prior to the directions hearing. 6. Serve a copy of the consent on the company at least 1 day before the directions hearing. Publish notice of application 1. Get a copy of Corporations Form 9 and fill it out. This is the Notice of Application for a Winding Up Order. 2. Go to the Insolvency Notices page of ASIC website. Follow the instructions on that page or in its drop down menus to register (if you are not already registered) and to lodge the notice. The publication must take place at least 3 days after the application was served on the company and at least 7 days before the directions hearing. 3. Get a Form 59 and fill it out annexing a copy of the published notice. This is the affidavit proving publication. 4. File the affidavit before the first directions hearing. How to fill in your application Please read all of these notes before completing the application form. These instructions assume that you are not represented by a lawyer. Heading In the spaces provided insert : your full name the full name of each respondent. Paragraph A Write: This application is made under section 459P of the Corporations Act.

5 It is an application for [insert name of company] to be wound up in insolvency relying on failure by the company to comply with a statutory demand. Then, in the space provided write the orders that you want the Court to make. Use a separate numbered paragraph for each order. Some standard orders for a winding up application are: [Insert name of company] be wound up by this Court under the provisions of the Corporations Act. [Insert name of liquidator] of [insert name of firm], an official liquidator, be appointed the liquidator of the corporation. The plaintiff's costs (including reserved costs, if any) be taxed and reimbursed out of the property of the corporation in accordance with section 466(2) of the Corporations Act. Date and signature The application must be signed and dated. Paragraph before the words "Notice to Defendant(s)" This paragraph is completed by the Registry staff when you file the application. Defendant details In the space provided after the words "Notice to Defendant(s)", write the address of each defendant. Paragraph C This part of the Form asks you to write details of how and when the statutory demand was served on the company and the facts of the failure to comply with the demand. You should consider completing Part C as shown in Note 1 of Schedule 3 to the Rules. The next set of instructions in the form refers to the documents that must be attached to the form. You must: attach a copy of the statutory demand;

6 attach a copy of any order made under subsection 459H(4) varying the demand because of a dispute or offsetting claim. The next paragraph refers to the affidavit. You do not have to add anything here. Paragraph D The first part of this paragraph is completed by the Registry staff when you file the application. The next sentence should be completed as follows: This originating process is filed by [insert your full name]. Cross out or delete any extra words. Paragraph E In the next space provided write the address to which the Court or the respondent can deliver or send letters or documents to you. The address must be in the State or Territory where the proceeding was commenced. The address must be a street address and cannot be a Post Office Box. This is called your address for service. Then cross out or delete the words: *It is not intended to serve a copy of this originating process on any person. Then write the name of defendant(s). If time for service of the application on the company has been abridged (ie. shortened) write details of the: Judge or Court officer that made the order time and date by which a copy of the application is to be served; in the spaces provided. Other compulsory steps to be taken if a winding up order

7 is made Notify liquidator 1. Contact the liquidator and inform them that the winding up order has been made no later than the day after the day the winding up order is made. Notify ASIC 2. Within 2 business days of the making of the order lodge with ASIC a notice of the making of the order which states the date on which the order was made and of the name and address of the liquidator. You can use Form 519 to do this. The form is available online at ComLaw or you can get a copy from ASIC. 3. Within 7 days of the entry 1 of the winding up order lodge a copy 2 of the order with ASIC. 4. Within 7 days of entry of the winding up order serve a copy of the order on the company and any other person if the Court directs you do so. 5. Within 7 days of entry of the winding up order deliver a copy of the order to the liquidator together with a statement that the order has been served on the company. NOTES: 1 Section 470 refers to 'passing and entering' of a winding up order. The procedures for arranging entry of an order are set out in Division 39.4 of the Federal Court Rules Section 470 refers to an 'office copy' of the order. This is simply a photocopy.