Corporations Information Sheet 2

Winding up checklist 

 

In the matter of: ________________________________________________

 

Corporations Act Corporations Rules
PRESUMPTION OF INSOLVENCY 459C  
FAILURE TO COMPLY WITH STATUTORY DEMAND 459Q  
Correct form
459E(2)(e)
Form 509H (Regs)
 
Debt/s $2,000 or more
9; 459E(1)  
Requires debt to be paid, or secured within 21 days after demand served
459E(2)(c)  
Signed by or on behalf of creditor
459E(2)(f)  
Affidavit in support of demand
   
Verifies that debt, or total of the amounts of the debts, is due and payable by the company; and
459E(3)(a)  
Complies with Form 7
459E (3) 5.2(a)
Deponent authorised to swear
459E (3) 5.2(b)
No reference to Court or proceeding number
459E (3) 5.2(c)
OTHER PRESUMPTION OF INSOLVENCY 459C  
WINDING UP FOR FAILURE TO COMPLY WITH STATUTORY DEMAND
Date of presumption of insolvency in issue: Yes/No
If yes, relevant dates are:
459C(2)  
Title in accordance with Form 1
  2.1
Originating process in accordance with Form 2
  2.2(3)
Sets out particulars of service of the demand on the company and failure to comply with the demand
459Q(a) Form 2, Part C
Attaches copy of demand and any order made under 459H(4)
459Q(b)  
Capacity of applicant:
459P(1); 462; 464  
Leave required?
459P(2) 5.3
OTHER GROUNDS FOR WINDING UP 461, 464  
AFFIDAVIT IN SUPPORT
Deponent authorised to swear
  5.4(1); 2.5
Made within 7 days before the originating process was filed.
  5.4(4)
Annexes result of ASIC search carried out no earlier than 7 days before the originating process was filed.
  2.4(2)
Verifies the facts in support of application for winding up
  2.4(1)
(a) If the application is made in reliance on a failure by the company to comply with a statutory demand:
Verifies service of demand on company; and
Verifies failure of company to comply with demand; and
Verifies that the debt, or the total of the amounts of the debts, is due and payable by the company OR
459Q 5.4(2)
(b) If the application is made under para. 461(1)(a) of the Corporations Act:
states whether the company is able to pay all its debts as and when they become due and payable; and
refers to the company's most recent balance sheet and profit and loss statement as an annexure or exhibit to the affidavit, or explain their absence
  5.4(3)
LIQUIDATOR'S CONSENT   Form 8
Liquidator's consent served at least 1 day before hearing
  5.5(3)(b)
Includes hourly rates
  Form 8
AFFIDAVIT OF SERVICE OF ORIGINATING PROCESS
Annexes copy of originating process
   
Originating process served within 14 days of filing
465A  
Originating process served more than 5 days before hearing
  2.7(1)
 

        Affidavits in support served more than 5 days before hearing

 

    Annexes Affidavit of service of the statutory demand( only if not served by person making affidavit in support of application for winding up)

 

 

109X; 459E

2.7(1)

Manner of service permitted by s109X
109X  
AFFIDAVIT OF LODGMENT OF NOTICE AT ASIC
Annexes copy of notice as lodged
465A(a)  
Notice lodged no later than 10.30am next business day after filing application
470(1)(a)  
AFFIDAVIT/MEMORANDUM OF PUBLICATION OF NOTICE OF APPLICATION
Made by the person or the person's legal practitioner
  2.12(2)(a)
States date of publication
  2.12(2)(a)
Copy of notice annexed
  2.12(2)(a)
Notice complies with Form 9
  5.6(2)(a)
(Reg 5.4.01A)
Notice published more than 3 days after service of originating process and more than 7 days prior to hearing
465A 5.6(2)(b)
Published in the prescribed manner - ASIC Insolvency Notices website
465A (Regs 5.6.75)
PERSON INTENDING TO OPPOSE APPLICATION OR PETITION
Notice of Appearance (Form 4)
  2.9(1)(a)(i)
Notice of the grounds on which the person opposes the application
465C(a) 2.9(2)
Affidavit verifying matters stated in the notice.
465C(b)  

Notice and affidavit served not later than 3 days before the date fixed for hearing

Adjournment Notification - Affidavit of proof of written notification of any adjourned court date.

Costs Orders: Fixed costs plus any costs reserved on adjournment allowed under schedule 3, item s 1.1 and 13.1 of the Federal Court Rules 2011.

  2.9(1)(b)(i); 2.9(3)
ORDER MADE WITHIN 6 MONTHS OF FILING (or within time as extended) 459R