The Corporations – Winding Up in Insolvency List (‘Winding Up List’) deals with the applications to wind up companies in insolvency and have a liquidator appointed on the grounds the company has failed to comply with a statutory demand (s 459F of the Corporations Act 2001 (Cth)) issued under s 459E of the Corporations Act 2001 (Cth).
Temporary coronavirus (COVID-19) measures
Due to the measures being taken in respect of coronavirus, the Winding Up List will be managed differently until further advised.
Please note due to the evolving nature of the coronavirus situation, the information below, including as to manner of appearance, may change at short notice. Practitioners are encouraged to check this webpage and the email correspondence sent by the Court for up to date information.
Appearances will be by telephone/videoconference as directed by the Court each week.
The main change will be that all appearances in the Winding Up List will be by telephone or videoconferencing until further notice.
In order to conduct the Winding Up List as efficiently as possible, all persons intending to appear will need to send an email to Winding Up Admin at the following email address by no later than 10:30 am on the Monday before hearing : firstname.lastname@example.org@spugnidniw . This will need to set out the name and direct contact telephone number (i.e.: preferably not going through a switchboard/receptionist/secretary) and an email address for the person who will be appearing. A list of the required information is set out below.
The plaintiff ’s solicitor is asked to assist the Court with this process, by communicating this information to all persons who have indicated to them (either formally through the filing of a notice of appearance , or informally) an intention to appear, and by providing telephone numbers and email addresses to Winding Up Admin.
All emails pursuant to this process are to be sent to Winding Up Admin via the email address set out above, not to the individual Judicial Officer’s associate.
Information required by email by 10:30 am the Monday before the hearing
All persons intending to appear in the Winding Up List should send an email to Winding Up Admin by 10:30am on the Monday before the hearing, setting out:
- Name of the person appearing & position (eg barrister /solicitor)
- A direct telephone number for the person appearing
- An email address for the person appearing
- Who the person appearing is representing
- How long the person appearing expects the hearing to take
- Whether the person will have internet access on the day of the hearing
Time of hearing
The originating process will continue to state the date of the hearing and the time of the hearing as 10:30am.
The daily hearing list will then continue to list all of the matters for that particular Winding Up List, but matters will be batched into approximate times. These times will not be published until the Daily List is published, and so all persons intending to appear will need to make sure they keep the particular day flexible so that they are available for the time of the hearing. We are not able to accommodate requests for specific times.
While we will do our best to adhere to those times, it will depend on whether certain matters take longer than anticipated, which is not usually known until the day.
Procedure for the hearing
The Associate will telephone/email all persons who have registered their contact details as per the above at or close to the time set out in the Daily List. Once all registered persons are on the call/conference, the hearing will be conducted by the Judicial Officer assigned to the Winding Up List that day. Depending on the length of the Winding Up List on any given day and judicial availability, there may be two Judicial Officers sitting simultaneously.
The Court expects to either conduct the telephone hearings from the courtroom(s) listed in the daily list or from chambers.
Queries should be directed to Winding Up Admin or to the Principal Registry .
For up to date information on the Court’s approach to coronavirus, see the Coronavirus information page.
Notices of Appearance
Any persons who intend to appear before the Court at the winding up hearing are required to file a notice of appearance and serve it on the plaintiff no later than 3 days beforehand (see r 2.9(1) of the Supreme Court (Corporations) Rules 2013).
Relevant Court Rules, Legislation and Regulations
Practitioners should review:
- Order 5 and other relevant sections of the Supreme Court (Corporations) Rules 2013;
- Chapter 5, Part 5.4 and other relevant sections of the Corporations Act 2001 (Cth); and
- Chapter 5, Part 5.6 and other relevant sections Corporations Regulations 2001 (Cth).
Orders are not made ‘on the papers’
Orders are not made ‘on the papers’ in the Winding Up List, as such appearances are required at the hearing. As previously noted, for the time being, most (if not all) appearances will be by telephone or video conference.
Appearances on behalf of companies
Companies are required under r 1.17 of the Supreme Court (General Civil Procedure) Rules 2015 to be represented by a solicitor, unless leave of the Court is granted.
Requirement to Advertise
Winding Up proceedings are required to be advertised on the ASIC Insolvency Notices website. There is no need to additionally advertise the proceeding in a daily newspaper.
Proceeding are required to be advertised, even if the proceeding as between the plaintiff and defendant has settled prior to the hearing.
Winding Up Checklists
The Court completes a checklist in relation to a winding up application to check whether all relevant documents have been filed and certain other requirements have been met.
Practitioners can obtain a copy of the checklist from RedCrest. Checklists are usually available by the Monday before the Wednesday hearing.
If practitioners are having difficulty obtaining the checklist they should contact the RedCrest service desk by email at email@example.com@tsercder or the Principal Registry on 03 8600 2000.
The checklist is intended only as a guide. It is not a substitute for legal advice or representation.
Fixed costs orders
If the proceeding results in the winding up of the defendant company and the plaintiff seeks its costs of the proceeding to be fixed at the hearing, the plaintiff should provide a short form bill of costs at or prior to the hearing and obtain the consent or non-opposition of the proposed liquidator to the amount of costs sought.
Authenticated orders are sent by the Principal Registry by email to the plaintiff and all parties who have filed a notice of appearance in the proceeding.
Principal Registry can be contacted on 03 8600 2000.
For enquiries directed to chambers please email firstname.lastname@example.org@spugnidniw
For other general enquiries please contact the Supreme Court Registry (03) 8600 2000. The Supreme Court Registry is open between the hours of 9:30 am to 4:00 pm Monday to Friday.