Corporations act 2001 sect 459s company may not oppose application on certain grounds 1 in so far as an application for a company to be wound up in insolvency relies on a failure by the company to comply with a statutory demand, the company may not, without the leave of the court, oppose the application on a ground. It includes any commenced amendment affecting the legislation to that date. If an application to wind up a company is based on insolvency due to non payment of a. Supreme court corporations wa rules 2004 contents page v this printout is not an official version of the legislation 11. Guidelines for applicants winding up insolvent companies.
External administration part 1 and 2 external administration. Determining solvency of a company cash flow assessment confirmed as the most appropriate method. Introduction a quick glance at the court lists of either the supreme court or the federal court on any particular day will reveal that a large proportion of the corporations business of these courts is taken up with winding up applications. The recent case of emanouel v cube footwear pty ltd in the supreme court of queensland, concerned the application for winding up of a company which on the surface appeared solvent but whose liabilities far exceeded its total assets. Court held respondent had standing as a creditor in accordance with s 459p1b corporations act 2001 cth. Winding up proceedings based on an unsatisfied statutory demand about this information sheet. Supreme court corporations wa rules 2004 contents as at 01 jan 2020 version 02b001 page iii published on. In a number of insolvency provisions the corporations act employs the term contingent creditor or contingent claim. Care and diligencedirectors and other officers 1 a director or other officer of a corporation must exercise their powers and discharge their duties with the degree of care and diligence that a reasonable person would exercise if they. S 459p1 sets out the various entities entitled to make such an. Uniform civil procedure rules bulletin supreme court. Act a contingent creditor is given standing to apply to the court for a company to be wound up in insolvency.
The defendant, bean temple pty ltd, pay the plaintiff s costs of the application for. At first instance, gilmour j considered that certain transactions which the company relied upon to establish its solvency were ineffective to reduce its indebtedness. Australian capital territory corporations law rules 2000 subordinate law 2000 no 16 made under the supreme court act 1933 contents rule part 1preliminary 1 name of rules. Corporations act 2001 sect 459f when company taken to fail to comply with statutory demand 1 if, as at the end of the period for compliance with a statutory demand, the demand is still in effect and the company has not complied with it, the company is taken to fail to comply with the demand at the end of that period. Given this failure, there is an onus on the respondent to rebut the presumption of insolvency under s 459c2a. This will require court intervention, which ensures asic s intervention into private business affairs to. Guidelines for applicants winding up insolvent companies in the.
Current version for 5 april 2019 to date accessed 9 april 2020 at 23. View tlaw 402 week 11 and 12 external administration ah. Application for leave to apply for winding up in insolvency s. Deregistrationderegistration of companies dissolved under the state bank corporatisation act 1994 of south australia 1441. This information sheet has been prepared for litigants who intend to make a winding up application pursuant to s459p of the corporations act 2001 cth based on a company s failure to comply with a statutory demand.
The application relied upon a presumption of insolvency pursuant to s 459c2c of the act. Guidelines for applicants winding up insolvent companies in the supreme court of queensland corporations court section 459p corporations act 2001 cth the following procedure is provided as a guide only and does not constitute legal advice. Authorised version supreme court corporations rules 20. This is a hearing of an application made pursuant to section 459p and section 459q of the corporations act, for the respondent company, skafola pty ltd skafola to be wound up on the grounds of insolvency.
Some practice tips and pointers by paul cutler, barrister edmund barton chambers 1. In the supreme court of victoria not restricted at. Annexures to make any annexure conform to the regulations, you must 1. Corporations law rules 2000 act legislation register. Pursuant to s 35a6 of the federal court of australia act 1976 cth and s 440a2 of the corporations act 2001 cth, the plaintiff s application to wind up bean temple pty ltd be adjourned to 2 june 2017 before a registrar. Corporations act 2001 sect 459p who may apply for order. Corporations act 2001 sect 459a order that insolvent. How to provide additional information photocopied form 519 pages if there is insufficient space in any section of the form, you may photocopy the relevant page s and submit as part of this lodgement. Note under the corporations act, s 9, a reference to the act includes a reference to the corporations regulations. The applicant s costs of and incidental to the application be costs in the liquidation pursuant to section 5561b of the corporations act 2001.
This form is used to notify asic that an application has been made to the court to have a company wound up. Corporations act 2001 sect 459s company may not oppose. An application fee, australian proprietary company, 519g notification of application to wind up company under s. In the supreme court of victoria not restricted at melbourne.
Determining solvency of a company cash flow assessment. Tlaw 402 week 11 and 12 external administration ah. Any changes that have already been made by the team appear in the content and are referenced with annotations. Accounting standards made under section 32 of the corporations act 1989 1442.
Statutory demands the meaning of debt in s 459e of the. On an application under section 459p, the court may order that an insolvent company be wound up in insolvency. We appear in court for bankruptcy and insolvency matters in the federal and supreme courts. Supreme court corporations wa rules 2004 contents as at 01 jan 2020 version 02b001 page iii. Statutory demands the meaning of debt in s 459e of the corporations act 2001 cth posted on november 9, 2015 by karin ottesen section 459e of the corporations act 2001 cth permits the service of a creditor s statutory demand on a company where the demand relates to a debt that is owing, due and payable by the company to the. Aitken whyte lawyers brisbane, queensland law firm dedicated to providing expert advice on debt recovery, insolvency, bankruptcy laws. Corporations winding up winding up in insolvency statutory demands other cases where the applicant seeks that the respondents be wound up in insolvency under s 459p of. Notification of application to wind up company under s. Corporations act 2001 notification of court action relating.
In lieu of adding s 489f into the corporations act, this paper will advocate the law reform to take place in the form of amending ss 459a and 459p of the corporations act. Corporations act 2001 sect 459p who may apply for order under section 459a 1 any one or more of the following may apply to the court for a company to be wound up in insolvency. Corporations law amendment no 3 rules 2003 under the supreme court act 1970 published in gazette no 197 of 19 december 2003, page 177 page 1. Supreme court corporations rules 1999 nsw legislation. Corporations act 2001 sect 180 care and diligence civil obligation only. Division 11a warrants corporations act s 486b and part 5. A contingent creditor may apply for an order to wind up a company on grounds of insolvency s 459p. Supreme court of queensland supreme court library queensland. An example of the affidavit in support of an application for winding. Corporations act 2001 sect 459c presumptions to be made in certain proceedings 1 this section has effect for the purposes of. Affidavit in support of application for winding up ss 459p, 462, 464 of the corporations act 5. Standing as a creditor in accordance with s 459p1b. Mar 02, 2014 standing examined with reference to bona fides of the appellant s asserted counter claim and circumstances surrounding the failure of appellant to take steps to advance asserted counterclaim or demonstrate solvency. We would like to show you a description here but the site wont allow us.
The affidavit material sets out the facts on which the application is based. Please include the company name and acn in the subject line of your email. Corporate pty ltd skm or the defendant on the basis. Section offence or contravention table 180 failure to exercise due care and diligence table 1. Corporations act 2001 sect 459c presumptions to be made in. Guidelines for applicants winding up insolvent companies in. An act to make provision in relation to corporations and financial products and services, and for other purposes. Corporations act 2001 federal register of legislation. King furniture australia v higgs 2011 nswsc 234 at 72 9 corporations regulations 2001, schedule 2, form 509h. S 459p1 sets out the various entities entitled to make such an application, and they include.
Purpose, this form is used to notify asic that an application has been made to the. Online lodgement, not applicable, paper lodgement, download form 519 pdf 148 kb. Application for leave to apply for windingup in insolvency corporations act s. This demand is called a creditors statutory demand and is issued using form 509h. Corporations act 2001 sect 459a order that insolvent company be wound up in insolvency on an application under section 459p, the court may order that an insolvent company be. Opposing applications to wind up a company in insolvency. The fact that a matter satisfies all procedural requirements.
Corporations act 2001 sect 459f when company taken to. Affidavit in support of application for windingup corporations act s. Section 459p describes the persons who have standing to apply to the. An application has been made under section 459p of the. There are outstanding changes not yet made by the legislation. Corporations act 2001 sect 459h determination of application where there is a dispute or offsetting claim 1 this section applies where, on an application under section 459g, the court is satisfied of either or both of the following.