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 2001.
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?
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 20 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 20 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.
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)).
5. Pay the application fee. If you cannot afford this
fee you can ask the Court to waive it. Some people are
also exempt from paying fees (for example, if you have
been granted Legal Aid or are the holder of a health care
card). You can get a form to ask the Court to waive or
grant an exemption from the fee from the Registry or download
a copy from the Court's
website.
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 2001.
8. 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 10.30 am
on the next business day after filing of the application.
3. Get a copy of Form
20 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.
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. Publish the notice in a daily newspaper circulating
generally in the State or Territory where the company has
its principal or last known place of business.
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
20 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.
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;
• 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 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 Order 36 of the Federal Court Rules.
2 Section 470 refers to an 'office copy' of the order.
This is simply a photocopy.
