SUPREME COURT (CORPORATIONS) RULES 1999 - SCHEDULE 2

SUPREME COURT (CORPORATIONS) RULES 1999 - SCHEDULE 2

SCHEDULE 2 – Notes to these Rules

(rules 2.2, 2.4 and 5.4)

Note 1--see rule 2.2 (Form 2 Part C)

C. APPLICATION FOR WINDING UP ON GROUND OF INSOLVENCY

1 The plaintiff relies on failure by the defendant to comply with a statutory demand. A copy of the demand, marked A, is attached to this originating process.

2 The demand was [or The demand and an accompanying affidavit were] served by X.Y. who delivered it [or them] to the registered office of the defendant at [insert address] on [insert date] [or, if service was by post, who posted *it/*them by ordinary prepaid post to the registered office of the defendant at [insert address] on [insert date]]. [If applicable, A copy of the accompanying affidavit, marked B, is attached to this originating process.]

3 The defendant failed to pay the amount of the debt demanded [or the total of the debts demanded] or to secure or compound for that *amount/*total to the plaintiff's reasonable satisfaction within 21 days after the demand was served on the defendant [or within 7 days after [insert date] when an application by the defendant under section 459G of the Corporations Act was finally determined or otherwise disposed of] [or if the period for compliance with the demand was extended by order within the period specified in the order of the [insert name of Court] on [insert date of order or, if more than one order, the date of the last such order] as the period for compliance with the demand. A copy of the order, marked C, is attached to this originating process.]

[If the demand was varied by order under subsection 459H (4) of the Corporations Act]

4 The demand was varied by order of the [insert name of Court] on [insert date of order]. A copy of the order, marked D [or as the case may be], is attached to this originating process.

* Omit if not applicable

Note 2--see rule 2.4 and rule 5.4 (2) (Affidavit in support)

*AFFIDAVIT IN SUPPORT/*AFFIDAVIT IN SUPPORT OF APPLICATION FOR WINDING UP IN INSOLVENCY

I, [name] of [address and occupation], *say on oath/*affirm [or *make oath and say/*solemnly and sincerely declare and affirm]:

1 I am the above-named plaintiff [or if the applicant is a corporation, I am *a/*the director of the above-named plaintiff which is registered or taken to be registered in [specify State or Territory]. I am duly authorised to make this affidavit on its behalf]. Now produced and shown to me and marked A is a copy of the originating process to be filed in the proceeding.

2 Annexed to this affidavit is a current and historical extract of the records maintained by the Australian Securities and Investments Commission with respect to the defendant.

3 [Where the defendant is registered or taken to be registered in another State or a Territory, state any facts--apart from the defendant's principal place of business--which bear upon jurisdiction being exercised in New South Wales rather than in another State or Territory.]

4 The following facts are within my own personal knowledge save as otherwise stated.

5 The defendant was on [state date of statutory demand or other relevant date] indebted to the plaintiff in the sum of $[amount] for [state concisely the consideration, for example, goods sold and delivered etc] which sum was then due and payable.

6 The demand, a copy of which is attached to the originating process, was signed by or on behalf of the plaintiff. I served the demand [or the demand and the accompanying affidavit] as referred to in the originating process [or X.Y. has been instructed to make an affidavit of service of the demand [or the demand and the accompanying affidavit]].

7 The matters stated in the originating process concerning the demand and failure of the defendant to comply with it are true and correct.

8 The sum demanded remains due and payable by the defendant to me [or the plaintiff].

Sworn, etc

* Omit if not applicable