Corporations Rules 2003 Division 9

Division 9 – Remuneration of office-holders

Division 9 amended by:

Corporations Rules 2003 (South Australia) Amendment No. 3

Corporations Rules 2003 (South Australia) Amendment No. 4

9.1 Remuneration of receiver (s 425 (1) of the Corporations Act) —Form 16

(1) This Rule applies to an application by a receiver of property of a corporation for an order under subsection 425 (1) of the Corporations Act fixing the receiver’s remuneration.

Note 1 Under paragraph 425(2)(b) of the Corporations Act, the Court may exercise its power to make an order fixing the remuneration of a receiver appointed under an instrument even if the receiver has died, or has ceased to act, before the making of the order or the application for the order.

Note 2 The amendment to section 425 of the Corporations Act made by the Corporations Amendment (Insolvency) Act 2007 applies in relation to a receiver appointed on or after 31 December 2007 – See Corporations Act s 1480(5).

(2) At least 21 days before filing an originating process, or interlocutory process, seeking the order, the receiver must serve a notice in accordance with Form 16 of the receiver’s intention to apply for the order, and a copy of any affidavit on which the receiver intends to rely, on the following persons:

(a) the person who appointed the receiver;

(b) any creditor holding security over all or any of the same property of the corporation (except if the creditor is the person who appointed the receiver);

(d) any administrator of a deed of company arrangement executed by the corporation;

(e) if there is no person of the kind mentioned in paragraph (c) or (d):

(i) each of the 5 largest (measured by amount of debt) unsecured creditors of the corporation; and

(ii) each member of the corporation whose shareholding represents at least 10 per cent of the issued capital of the corporation.

(3) Within 21 days after the last service of the documents mentioned in subrule (2), any creditor or contributory, or any person mentioned in paragraph (2) (c), (d) or (e), may give to the receiver a notice of objection to the remuneration claimed, stating the grounds of objection.

(4) If the receiver does not receive a notice of objection within the period mentioned in subrule (3):

(a) the receiver may file an affidavit, made after the end of that period, in support of the originating process, or interlocutory process, seeking the order stating:

(i) the date, or dates, when the notice and affidavit required to be served under subrule (2) were served; and

(ii) that the receiver has not received any notice of objection to the remuneration claimed within the period mentioned in subrule (3); and

(b) the receiver may endorse the originating process, or interlocutory process, with a request that the application be dealt with in the absence of the public and without any attendance by, or on behalf of, the receiver; and

(5) If the receiver receives a notice of objection within the period mentioned in subrule (3), the receiver must serve a copy of the originating process, or interlocutory process, seeking the order on each creditor or contributory, or other person, who has given a notice of objection.

(6) An affidavit in support of the originating process, or interlocutory process, seeking the order must:

(a) include evidence of the matters mentioned in subsection 425(8) of the Corporations Act; and

(b) state the nature of the work performed or likely to be performed by the receiver; and

(d) include a summary of the receipts taken and payments made by the receiver; and

(e) state particulars of any objection of which the receiver has received notice; and

(f) if the receivership is continuing – give details of any matters delaying the completion of the receivership.

9.2 Determination by Court of Remuneration of Administrator (Corporations Act s 449E(1)(c) and (1A)(c)) – Form 16

(1) This rule applies to an application by the administrator of a company under administration, or of a deed of company arrangement, for an order under paragraph 449E(1)(c) or (1A)(c) of the Corporations Act determining the administrator’s remuneration.

(2) At least 21 days before filing an originating process, or interlocutory process, seeking the order, the administrator must serve a notice in accordance with Form 16 of the administrator’s intention to apply for the order, and a copy of any affidavit on which the administrator intends to rely, on the following persons:

(a) each creditor who was present, in person or by proxy at any meeting of creditors;

(b) each member of any committee of creditors or committee or inspection;

(c) if there is no committee of creditors or committee of inspection, and no meeting of creditors has been convened and held, each of the 5 largest (measured by amount of debt) creditors of the company;

(d) each member of the company whose shareholding represents at least 10% of the issue capital of the company.

(3) Within 21 days after the last service of the documents mentioned in subrule (2), any creditor or contributory may give to the administrator a notice of objection to the remuneration claimed, stating the grounds of objection.

(4) If the administrator does not receive a notice of objection within the period mentioned in subrule (3);

(a) the administrator may file an affidavit, made after the end of that period, in support of the originating process, or interlocutory process, seeking the order stating

(i) the date, or dates, when the notice and affidavit required to be served under subrule (2) were served;

and

(ii) that the administrator has not received any notice of objection to the remuneration claimed within the period mentioned in subrule (3); and

(b) the administrator may endorse the originating process, or interlocutory process, with a request that the application be dealt with in the absence of the public and without any attendance by, or on behalf of, the administrator; and

(5) If the administrator receives a notice of objection within the period mentioned in subrule (3), the administrator must serve a copy of the originating process, or interlocutory process, seeking the order on each creditor or contributory who has given notice of objection.

(6) An affidavit in support of the originating process, or interlocutory process, seeking the order must:

(a) include evidence of the matters mentioned in subsection 449E(4) of the Corporations Act; and

(b) state the nature of the work performed or likely to be performed by the administrator; and

(d) include a summary of the receipts taken and payments made by the administrator; and

(e) state particulars of any objection of which the administrator has received notice; and

(f) if the administration is continuing – give details of any matters delaying the completion of the administration.

9.2A Review of Remuneration of Administrator (Corporations Act subsection 449E(2))

(1) This rule applies to an application for review of the amount of the remuneration of an administrator under subsection 449E(2) of the Corporations Act

Note The amendment to section 449E of the Corporations Act made by the Corporations Amendment (Insolvency) Act 2007 applies in relation to an administrator appointed on or after 31 December 2008 – see Corporations Act s 1480(6)

(2) The application may be made only after the remuneration has been determined under paragraph 449E(1)(a) or (b) or paragraph 449E(1A)(a) or (b) of the Corporations Act.

(3) At least 21 days before filing the originating process or the interlocutory process applying for a review, the plaintiff or applicant must serve a notice, in accordance with Form 16A, of intention to apply for the review and a copy of any affidavit on which the plaintiff or applicant intends to rely (other than an affidavit required by subrule (9)), on the following persons:

(a) if there is a committee of creditors or a committee of inspection – each member of the committee;

(b) if the remuneration of the administrator was determined by the creditors – each creditor who was present, in person or by proxy at the meeting of creditors at which the remuneration was determined;

(4) Within 21 days after the last service of the documents mentioned in subrule (3), any person on whom the notice has been served may serve on the plaintiff or applicant a notice:

(a) stating the person’s intention to appear at the hearing of the application for review; and

(b) setting out the issues that the person seeks to raise before the Court.

(5) A person mentioned in subrule (3) is entitled to be heard on the application for review, but only (unless the Court otherwise orders) if the person has served on the plaintiff or applicant a notice in accordance with subrule (4).

(6) If the plaintiff or applicant is served with a notice in accordance with subrule (4), the plaintiff or applicant must serve a copy of the originating process or interlocutory process applying for the review on each person who has served such a notice.

(7) The administrator must file an affidavit stating the following matters:

(a) the matters mentioned in subsection 449E(4) of the Corporations Act;

(b) the nature of the work performed or likely to be performed by the administrator;

(c) the amount of remuneration claimed by the administrator if that amount is different from the amount of remuneration that has been determined;

(d) a summary of the receipts taken and payments made by the administrator;

(e) particulars of any objection to the remuneration as determined, of which the administrator has received notice;

(f) if the administration is continuing – details of any matters delaying the completion of the administration.

(8) The affidavit mentioned in subrule (7) must annex a copy of the report that the administrator was required to prepare before remuneration was determined.

(9) The plaintiff or applicant must:

(a) file an affidavit stating whether any notice or notices under subrule (4) has or have been served; and

(b) annex or exhibit to the affidavit a copy of any such notice.”

9.3 Remuneration of provisional liquidator (s 473 (2) of the Corporations Act) — Form 16

(1) This Rule applies to an application by a provisional liquidator of a company for an order under subsection 473 (2) of the Corporations Act determining the provisional liquidator’s remuneration.

(2) The application must be made by interlocutory process in the winding up proceeding.

(3) At least 21 days before filing the interlocutory process seeking the order, the provisional liquidator must serve a notice in accordance with Form 16 of the provisional liquidator’s intention to apply for the order, and a copy of any affidavit on which the provisional liquidator intends to rely, on the following persons:

(a) any liquidator (except the provisional liquidator) of the company;

(b) each member of any committee of inspection or, if there is no committee of inspection, each of the 5 largest (measured by amount of debt) creditors of the company;

(4) Within 21 days after the last service of the documents mentioned in subrule (3), the liquidator, or any creditor or contributory, may give to the provisional liquidator a notice of objection to the remuneration claimed, stating the grounds of objection.

(5) If the provisional liquidator does not receive a notice of objection within the period mentioned in subrule (4):

(a) the provisional liquidator may file an affidavit, made after the end of that period, in support of the interlocutory process seeking the order stating:

(i) the the date, or dates, when the notice and affidavit required to be served under subrule (3) were served; and

(ii) that provisional liquidator has not received any notice of objection to the remuneration claimed within the period mentioned in subrule (4); and

(b) the provisional liquidator may endorse the interlocutory process with a request that the application be dealt with in the absence of the public and without any attendance by, or on behalf of, the provisional liquidator; and

(6) If the provisional liquidator receives a notice of objection within the period mentioned in subrule (4), the provisional liquidator must serve a copy of the interlocutory process seeking the order:

(a) on each creditor or contributory who has given a notice of objection; and

(b) on the liquidator (if any).

(7) An affidavit in support of the interlocutory process seeking the order must:

(a) state the nature of the work performed or likely to be performed by the provisional liquidator; and

(b) state the amount of remuneration claimed; and

(d) state particulars of any objection of which the provisional liquidator has received notice; and

(e) if the winding up proceeding has not been determined — give details of:

(i) any reasons known to the provisional liquidator why the winding up proceeding has not been determined; and

(ii) any reasons why the provisional liquidator’s remuneration should be determined before the determination of the winding up proceeding.

(8) The affidavit must also provide evidence of the matters mentioned in subsection 473(10) of the Corporations Act:

(a) to the extent that they may be relevant to a provisional liquidator; and

(b) as if references in that subsection to “liquidator” were references to “provisional liquidator”.

9.4 Determination by Court of Liquidator’s Remuneration (Corporations Act s 473(3)(b)(ii))

(1) This Rule applies to an application by a liquidator of a company for an order under subparagraph 473(3)(b)(ii) of the Corporations Act determining the liquidator’s remuneration.

Note The amendment to section 473 of the Corporations Act made by the Corporations Amendment (Insolvency) Act 2007 applies in relation to a liquidator appointed on or after 31 December 2007 – see Corporations Act s 1480(7)

(2) The application:

(a) must be made by interlocutory process in the winding up proceeding; and

(b) must not be made until after the end of 28 days after the date of the meeting of creditors mentioned in subsection 473 (4) of the Corporations Act.

(3) At least 21 days before filing the interlocutory process seeking the order, the liquidator must serve a notice in accordance with Form 16 of the liquidator’s intention to apply for the order, and a copy of any affidavit on which the liquidator intends to rely, on the following persons:

(a) each creditor who was present, in person or by proxy, at any meeting of creditors at which the remuneration of the liquidator was considered;

(b) each member of any committee of inspection;

(c) if there is no committee of inspection, and no meeting of creditors has been convened and held – each of the 5 largest (measured by amount of debt) creditors of the company;

(d) each member of the company whose shareholding represents at least 10 per cent of the issued capital of the company.

(4) Within 21 days after the last service of the documents mentioned in subrule (3), any creditor or contributory may give to the liquidator a notice of objection to the remuneration claimed, stating the grounds of objection.

(5) If the liquidator does not receive a notice of objection within the period mentioned in subrule (4):

(a) the liquidator may file an affidavit, made after the end of that period, in support of the interlocutory process seeking the order stating:

(i) the date, or dates, when the notice and affidavit required to be served under subrule (3) were served; and

(ii) that the liquidator has not received any notice of objection to the remuneration claimed within the period mentioned in subrule (4); and

(b) the liquidator may endorse the interlocutory process with a request that the application be dealt with in the absence of the public and without any attendance by, or on behalf of, the liquidator; and

(6) If the liquidator receives a notice of objection within the period mentioned in subrule (4), the liquidator must serve a copy of the interlocutory process seeking the order on each creditor or contributory who has given a notice of objection.

(7) An affidavit in support of the interlocutory process seeking the order must:

(a) include evidence of the matters mentioned in subsection 473(10) of the Corporations Act; and

(b) state the nature of the work performed or likely to be performed by the liquidator; and

(d) include a summary of the receipts taken and payments made by the liquidator; and

(e) state particulars of any objection of which the liquidator has received notice; and

(f) if the winding up is continuing – give details of any matters delaying the completion of the winding up.

9.4A Review of Remuneration of Liquidator (Corporations Act s473(5) and (6) and s 504(1)).

(1) This rule applies to an application for review of the amount of the remuneration of a liquidator under subsection 473(5) or (6) or 504(1) of the Corporations Act.

Note The amendment to section 504 of the Corporations Act made by the Corporations Amendment (Insolvency) Act 2007 applies in relation to a liquidator appointed on or after 31 December 2007 – see Corporations Act s 1480(7)

(2) The application may only be made after remuneration has been determined under paragraph 473(3)(a) or subparagraph 473(3)(b)(i), or fixed under subsections 495(1) or 499(3), of the Corporations Act.

(3) At least 21 days before filing the originating process or interlocutory process applying for a review, the plaintiff or applicant must serve a notice, in accordance with Form 16A, of intention to apply for the review and a copy of any affidavit on which the plaintiff or applicant intends to rely (other than an affidavit required by subrule(9)), on the following persons:

(a) if there is a committee of inspection – each member of the committee;

(b) if the remuneration of the liquidator was determined or fixed by the creditors – each creditor who was present, in person or by proxy, at the meeting of creditors at which the remuneration was determined or fixed;

(4) Within 21 days after the last service of the documents mentioned in subrule (3), any person on whom the notice has been served may serve on the plaintiff or applicant a notice;

(a) stating the person’s intention to appear at the hearing of the application for review; and

(b) setting out the issues that the person seeks to raise before the Court.

(7) The liquidator must file an affidavit stating the following matters:

(a) for an application under subsections 473(5) or (6) of the Corporations Act – the matters mentioned in subsection 473(10) of the Corporations Act;

(b) for an application under subsection 504(1) of the Corporations Act – the matters mentioned in subsection 504(2) of the Corporations Act;

(d) the amount of remuneration claimed by the liquidator if that amount is different from the amount of remuneration that has been determined or fixed.

(e) a summary of the receipts taken and payments made by the liquidator;

(f) particulars of any objection to the remuneration as determined or fixed of which the liquidator has received notice;

(g) if the winding up is continuing – details of any matters delaying the completion of the winding up.

(8) The affidavit under subrule (7) must annex a copy of the report that the liquidator was required to prepare before remuneration was determined or fixed.

Note For the requirement to prepare a report, see subsections 473(11), 473(12), 495(5), 499(6) and 499(7) of Corporations Act.

(9) The plaintiff or applicant must:

(a) file an affidavit stating whether any notice or notices under subrule (4) has or have been served; and

(b) annex or exhibit to the affidavit a copy of any such notice.

9.5 Remuneration of special manager (s 484 (2) of the Corporations Act) — Form 16

(1) This Rule applies to an application by a special manager of the property or business of a company for an order under subsection 484 (2) of the Corporations Act fixing the special manager’s remuneration.

(2) The application must be made by interlocutory process in the winding up proceeding.

(3) At least 21 days before filing the interlocutory process seeking the order, the special manager must serve a notice in accordance with Form 16 of the special manager’s intention to apply for the order, and a copy of any affidavit on which the special manager intends to rely, on the following persons:

(a) the liquidator of the company;

(b) each member of any committee of inspection or, if there is no committee of inspection, each of the 5 largest (measured by amount of debt) creditors of the company;

(4) Within 21 days after the last service of the documents mentioned in subrule (3), the liquidator, or any creditor or contributory, may give to the special manager a notice of objection to the remuneration claimed, stating the grounds of objection.

(5) If the special manager does not receive a notice of objection within the period mentioned in subrule (4):

(a) the special manager may file an affidavit, made after the end of that period, in support of the interlocutory process seeking the order stating:

(i) the date, or dates, when the notice and affidavit required to be served under subrule (3) were served; and

(ii) that the special manager has not received any notice of objection to the remuneration claimed within the period mentioned in subrule (4); and

(b) the special manager may endorse the interlocutory process with a request that the application be dealt with in the absence of the public and without any attendance by, or on behalf of, the special manager; and

(6) If the special manager receives a notice of objection within the period mentioned in subrule (4), the special manager must serve a copy of the interlocutory process seeking the order:

(a) on each creditor or contributory who has given a notice of objection; and

(b) on the liquidator.

(7) The affidavit in support of the interlocutory process seeking the order must:

(a) state the nature of the work performed or likely to be performed by the special manager; and

(b) state the amount of remuneration claimed; and

(d) state particulars of any objection of which the special manager has received notice; and

(e) if the special management is continuing — give details of any matters delaying the completion of the special management.