Division 15A [Proceedings
under the Cross-Border Insolvency Act 2008]
Division 15A inserted by Corporations
Rules 2003 (
Rule
15A.5 substituted by Corporations Rules 2003 (
15A.1 Application
of this Division and other rules of the Court
Unless
the Court otherwise orders:
(a) this Division applies
to a proceeding in the Court, under the Cross-Border Insolvency Act, involving
a debtor other than an individual; and
(b) the rules in the
other Divisions of these Rules, and the other rules of the Court, apply to a
proceeding in the Court under the Cross-Border Insolvency Act if they are
relevant and not inconsistent with this Division.
Note: See rule 1.5 for definitions of Cross-Border Insolvency Act and Model Law.
15A.2 Expressions
used in the Cross-Border Insolvency Act
(1) Unless the contrary intention appears, an expression
that is used in this Division and in the Cross-Border Insolvency Act, whether
or not a particular meaning is given to the expression by the Cross-Border
Insolvency Act, has the same meaning in this Division as it has in the
Cross-Border Insolvency Act.
Note: The
following expressions used in this Division (including in the notes to this
Division) are defined in the Model Law as having the following meanings:
establishment means any place of operations where the debtor
carries out a non‑transitory economic activity with human means and goods
or services.
foreign court
means a judicial or other authority competent to control or supervise a foreign
proceeding.
foreign main proceeding means a foreign proceeding taking place in the State
where the debtor has the centre of its main interests.
foreign non‑main proceeding means a foreign proceeding, other than a foreign
main proceeding, taking place in a State where the debtor has an establishment
within the meaning of subparagraph (f)
of the present article.
foreign proceeding means a collective judicial or administrative proceeding in a foreign
State, including an interim proceeding, pursuant to a law relating to
insolvency in which proceeding the assets and affairs of the debtor are subject
to control or supervision by a foreign court, for the purpose of reorganization
or liquidation.
foreign representative means a person or body, including one appointed on an
interim basis, authorized in a foreign proceeding to administer the
reorganization or the liquidation of the debtor’s assets or affairs or to act
as a representative of the foreign proceeding.
(2) This Division is to be interpreted in a manner which gives effect
to the Cross-Border Insolvency Act.
15A.3 Application
for recognition
(1) An application by a foreign representative for
recognition of a foreign proceeding under article 15 of the Model Law must
be made by filing an originating process in accordance with Form 2.
(2) The originating process must:
(a) be accompanied by the statements referred to
in article 15 of the Model Law and in section 13 of the Cross-Border
Insolvency Act; and
(b) name the foreign
representative as the plaintiff and the debtor as the defendant; and
(c) be accompanied by an affidavit verifying the
matters mentioned in paragraphs 2 and 3 of article 15 of the Model Law and in
section 13 of the Cross-Border Insolvency Act.
(3) When filing the originating process, the
foreign representative must file, but need not serve, an interlocutory process
seeking directions as to service, and the Court may give any directions about
service, and make any incidental orders, which it thinks just.
(4) The plaintiff must serve a copy of the
originating process and the other documents mentioned in subrule (2):
(a) unless the Court
otherwise orders, in accordance with subrule 2.7(1);
and
(b) on any other persons
the Court may direct at the hearing of the interlocutory process.
(5) A person who intends to appear before the Court at the hearing of
an application for recognition must file and serve the documents mentioned in
rule 2.9.
15A.4 Application
for provisional relief under article 19 of the Model Law
(1) Any application by the plaintiff for
provisional relief under article 19 of the Model Law must be made by filing
an interlocutory process in accordance with Form 3.
(2) Unless the Court otherwise orders, the interlocutory process and
any supporting affidavit must be served in accordance with subrule
2.7(2).
15A.5 Official
liquidator’s consent to act
If any
application is made for an order:
(a) under Article 19 or 21 of the Model Law to
entrust the administration or realisation of all or part of the debtor’s assets
to a person designated by the Court (other than the foreign representative); or
(b) under Article 21 to
entrust the distribution of all or part of the debtor’s assets to a person
designated by the Court (other than the foreign representative);
then,
unless the Court otherwise orders, the person must:
(c) be an official
liquidator; and
(d) have filed a Consent
to Act, in accordance with Form 19, which specifies an address for service for
a person within
15A.6 Notice
of filing of application for recognition
(1) Unless the Court otherwise orders, the
plaintiff in a proceeding mentioned in rule 15A.3 must:
(a) send a notice of the
filing of the application in accordance with Form 20 to each person whose
claim to be a creditor of the
defendant is known to the plaintiff; and
(b) publish a notice of
the filing of the application for recognition of a foreign proceeding in
accordance with Form 20, in accordance with rule 2.11.
(2) The Court may direct the plaintiff to publish a notice in
accordance with Form 20 in a daily newspaper circulating generally in any
State or Territory not described in rule 2.11.
15A.7 Notice
of order for recognition, withdrawal etc
(1) If the Court makes an order for recognition of
a foreign proceeding under article 17 of the Model Law, or makes any order
under article 19 or 21 of the Model Law, the plaintiff must, as soon as
practicable after the order is made, do all of the following:
(a) have the order
entered;
(b) serve a copy of the
entered order on the defendant;
(c) send a notice of the
making of the order in accordance with Form 21 to each person whose claim to be
a creditor of the defendant is known to the plaintiff;
(d) publish a notice of
the making of the order in accordance with Form 21, in accordance with
rule 2.11.
(2) The Court may direct the plaintiff to publish
the notice in accordance with Form 21 in a daily newspaper circulating
generally in any State or Territory not described in rule 2.11.
(3) If the application for recognition is
withdrawn or dismissed, the plaintiff must, as soon as practicable, do all of
the following:
(a) for a dismissal, have
the order of dismissal entered;
(b) serve a copy of the
entered order of dismissal or notice of the withdrawal, on the defendant;
(c) send a notice of the
dismissal or withdrawal in accordance with Form 22 to each person whose claim
to be a creditor of the defendant is known to the plaintiff;
(d) publish a notice of
the dismissal or withdrawal in accordance with Form 22, in accordance with
rule 2.11.
(4) The Court may direct the plaintiff to publish the notice in
accordance with Form 22 in a daily newspaper circulating generally in any
State or Territory not described in rule 2.11.
15A.8 Relief
after recognition
(1) If the Court has made an order for recognition
of a foreign proceeding, any application by the plaintiff for relief under
paragraph 1 of article 21 of the Model Law must be made by filing an
interlocutory process, and any supporting affidavit, in accordance with Form 3.
(2) Unless the Court otherwise orders, an
interlocutory process under subrule (1) and any
supporting affidavit must be served, in accordance with subrule 2.7(2),
but on the following persons:
(a) the defendant;
(b) any person that the
Court directed be served with the originating process by which the application
for recognition was made;
(c) any other person
that the Court directs.
(3) A person who intends to appear before the Court at the hearing of an
application under subrule (1) must file and
serve the documents mentioned in rule 2.9.
15A.9 Application
to modify or terminate an order for recognition or other relief
(1) This rule applies to:
(a) an application under
paragraph 4 of article 17 of the Model Law for an order modifying or
terminating an order for recognition of a foreign proceeding; and
(b) an application under
paragraph 3 of article 22 of the Model Law for an order modifying or
terminating relief granted under article 19 or 21 of the Model Law.
(2) An application mentioned in subrule (1) must be made by filing an interlocutory
process in accordance with Form 3.
(3) An interlocutory process for an application
under subrule (1) and any supporting affidavit
must be served on:
(a) for an application
under paragraph (1) (a) — the defendant and other persons who
were served with, or filed a notice of appearance in relation to, the
application for recognition; and
(b) for an application
under paragraph (1)(b) — the defendant and other persons who were
served with, or filed a notice of appearance in relation to, the application
for relief under article 19 or 21.
(4) Unless the Court otherwise orders, a plaintiff
who applies for an order under subrule (1) must:
(a) send a notice of the
filing of the application in accordance with Form 23 to each person whose
claim to be a creditor of the defendant is known to the plaintiff; and
(b) publish a notice of
the filing of the application in accordance with Form 23, in accordance
with rule 2.11.
(5) The Court may direct the applicant to publish
the notice in accordance with Form 23 in a daily newspaper circulating
generally in any State or Territory not described in rule 2.11.
(6) A person who intends to appear before the Court at the hearing of
an application under subrule (1) must file and
serve the documents mentioned in rule 2.9.