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Practice Note No. SC EQ 4

Practice Note SC Eq 4 - Corporations List


Date:
12/18/2018



    Introduction

    1. This Practice Note relates to the structure and operation of the Corporations List in the Equity Division.
      2. All proceedings and applications in the Corporations List (except those in the Corporations Registrar’s List) will be case managed by the Corporations List Judge with the aim of achieving a speedy resolution of the real issues in the proceedings. There will also be a Corporations Duty Judge available at all times to hear any urgent applications in Corporations Matters.

      Commencement

      3. This Practice Note was issued on 18 December 2018 and commences on 18 December 2018. It replaces former Practice Note SC Eq 4 issued on 10 May 2011.

      Application

      4. This Practice Note applies to new and existing Corporations Matters in the Equity Division.

      Definitions

      5. In this Practice Note:
          Corporations Judges means the List Judge and each other Judge of the Equity Division for the time being listed to hear Corporations Matters

          Corporations List means the List administered by the List Judge

          Corporations Matters include any proceedings or applications pursuant to or in respect of any matter relating to the Corporations Act 2001 (Cth), the Australian Securities and Investments Commission Act 2001 (Cth), the Cross-Border Insolvency Act 2008 (Cth) or the Supreme Court (Corporations) Rules 1999 and any proceedings or applications relating to other incorporated bodies such as co-operatives and incorporated associations

          List Judge means the Corporations List Judge

          Corporations Registrar includes the Registrar in Equity and a Deputy or Assistant Registrar

          Corporations Registrar’s List means the List into which matters referred to in paragraph 11 of this Practice Note are entered

          Rules means the Supreme Court (Corporations) Rules

          Statutory Demand cases means applications under s 459G of the Corporations Act 2001 (Cth).

      Corporations Judges

      6. The List Judge and at least one other Judge of the Equity Division will be listed on a continuing basis to hear Corporations matters exclusively (the Corporations Judges).

      7. The identity of the Corporations Judges and the dates upon which they are listed to hear Corporations matters will be notified on the Court’s Corporations Matters webpage at www.lawlink.nsw.gov.au/sc (click on Practice and Procedure on the left-hand side menu and then click the Corporations Matters link).

      Corporations Duty Judge

      8. A Corporations Judge will be available as the Corporations Duty Judge to deal with urgent applications in Corporations Matters.

      9. Contact should be made in the first instance with the Associate to the List Judge (or the Acting List Judge in the List Judge’s absence) by telephone or email (email is preferable during court hours, as the Associate can deal with emails while in court). The Associate will indicate which Corporations Judge should be approached.

      Entry into the Lists

      10. All Corporations Matters, except those mentioned in paragraph 11, will be made returnable before the List Judge in the Corporations List on Mondays.

      11. Statutory Demand cases and matters wholly within the delegated powers of the Registrar under s 13 of the Civil Procedure Act (see Schedule 1 to this Practice Note) will be returnable in the Corporations Registrar’s List on any Monday through Thursday.

      12. Any matter to be entered in the Corporations Registrar’s List must include the words “Corporations Registrar’s List” prominently on the front sheet of any Originating Process or Interlocutory Process.

      Schemes of Arrangement

      13. In any proposed applications under Part 5.1 of the Corporations Act 2001 and any other matters in which it is considered commercially important to obtain definite hearing dates before filing, contact may be made with the Associate to the List Judge for those dates.

      Process and Affidavits

      14. The form of Originating Process, Interlocutory Process and affidavits in Corporations Matters are as provided for in the Rules.

      Case Management

      15. The List Judge will case manage matters in the Corporations List on Monday of each week with the aim of ensuring the speedy resolution of the real issues between the parties. Interlocutory applications will be listed at 9:45 am for the purpose of calling through the matters in that list and, if appropriate, allocating a hearing time on that day before one of the Corporations Judges. Directions will be listed from 10 am.

      16. When matters in the Corporations List, other than those matters to be heard on Mondays, are ready for the allocation of a hearing date the List Judge will fix the matter for hearing and make the Usual Order for Hearing in Annexure A to Practice Note SC Eq 1 unless the matter would be more efficiently and cost effectively prepared for hearing by making some modifications to the Usual Order for Hearing.

      17. Where a matter is placed in the Corporations List on Monday solely for the allocation of a hearing date, the parties, acting together, may, instead of appearing, forward to the List Judge’s Associate by 12 noon on Friday:
          any agreed directions for the hearing (which should include or adopt in substance the Usual Order for Hearing);
          an agreed estimate of the time required;
          the mutually available dates during the following three months of all legal representatives who are to appear, and
          the email addresses of all legal representatives.

          The List Judge will then allocate hearing dates in Chambers instead of requiring attendance in Court. Dates so allocated will be notified to the legal representatives by email, usually within three working dates. This procedure will be appropriate only where the parties are agreed that the matter is ready for hearing and on the directions to be made.

      18. All matters in the Corporations Registrar’s List will be conducted in the Online Court unless excluded by the Online Court Protocol (Corporations List) set out in Schedule 3 to this Practice Note.

      19. The Court’s expectation of Practitioners appearing in Corporations Matters includes that:
          (i) Agreement will be reached on a timetable for the preparation of matters for trial and/or mediation and/or reference out and Consent Orders will be handed up during the directions hearing;
          (ii) If there is slippage in an agreed timetable, further agreement will be reached without the need for the intervention of the Court and Consent Orders will be filed with the List Judge;

          (iii) Requests for Court intervention in relation to timetabling will only be sought rarely when, for good reason, agreement has proved to be impossible;

          (iv) Trial Counsel will be briefed at the earliest possible time;

          (v) Careful review of the case will be made as early as practicable for the purpose of informing the Court of its suitability for mediation, for reference out of all or some of the issues, and/or for the use of a single expert, or a Court appointed expert or the use of an appropriate concurrent expert evidence process;

          (vi) Agreement will be reached on the real issues in dispute between the parties so that a speedy resolution of those issues may be achieved;

          (vii) Trial Counsel will appear at the directions hearing when the matter is set down for hearing and provide to the Court a considered opinion of the realistic estimate of the time required for trial; and if a stopwatch system for trial is to apply, a considered opinion as to the appropriate allocation of time for evidence and submissions.

      20. To facilitate the just, quick and cheap resolution of Corporations Matters, by written application to the List Judge’s Associate, the List Judge will make Consent Orders in Chambers on days other than Monday. When Consent Orders varying a timetable are to be made either in Chambers or in Court, it is imperative that those orders include the vacation of any date for directions hearings, or the hearing of interlocutory applications that the parties no longer with to maintain. If the proceedings settle, it is necessary to have the List Judge make Order finalising the litigation, rather than filing Terms or Orders with the Registry. Those orders may also be made by consent in Chambers.

      21. The Corporations List closes at 12 noon on Friday. Any application to add a matter to the List or remove a matter from the List must be made prior to 12 noon on Friday. Such applications are to be made in writing to the List Judge’s Associate.

      Statutory Demand cases

      22. All Statutory Demand cases will be entered into the Corporations Registrar’s List for case management, Consent Orders and/or if necessary, referral to the List Judge.

      23. The parties to a Statutory Demand case must agree on a timetable that makes it ready for hearing promptly after its first return date before the Corporations Registrar.

      24. A plaintiff in a Statutory Demand case must include in its outline of submissions:
          (a) in a genuine dispute case under s 459H(1)(a), a succinct statement of:
            (i) its understanding of the basis on which the debt is alleged by the defendant to be owing, due and payable in the amount stated in the demand; and
            (ii) why that basis is disputed; and

          (b) in an offsetting claim case under s 459H(1)(b), a succinct statement of:
            (i) the precise facts and circumstances giving rise to the claim; and
            (ii) the amount of the claim and the way in which it is calculated
      Court Appointment of Liquidators
        25. The arrangements outlined in Schedule 2 to this Practice Note apply to the appointment of liquidators by the Court.
          Schemes of Arrangement
            26. When making an order under subsection 411(1) of the Corporations Act 2001 (Cth) the Court will require that the explanatory statement or a document accompanying the explanatory statement prominently display a notice in the following form or to the following effect:
                  “IMPORTANT NOTICE ASSOCIATED WITH COURT ORDER UNDER SUBSECTION 411(1) OF CORPORATIONS ACT 2001 (Cth)
                  The fact that under subsection 411(1) of the Corporations Act 2001 (Cth) the Court has ordered that a meeting be convened and has approved the explanatory statement required to accompany the notices of the meeting does not mean that the Court:

                  (a) has formed any view as to the merits of the proposed scheme or as to how members/creditors should vote (on this matter members/creditors must reach their own decision); or

                  (b) has prepared, or is responsible for the content of, the explanatory statement.”

            T F BATHURST AC
            Chief Justice of New South Wales
            17 December 2018

            Related information
            See also:
            Practice Note SC Gen 1 Supreme Court - Application of Practice Notes
            Practice Note SC Eq 1 Supreme Court Equity Division – Case Management
            Practice Note SC Eq 3 Supreme Court Equity Division – Commercial List and Technology and Construction List
            Practice Note SC Eq 6 Supreme Court Equity Division - Cross Border Insolvency: Cooperation with Foreign Courts or Foreign Representatives
            Corporations Act 2001 (Cth)
            Australian Securities and Investments Commission Act 2001 (Cth),

            Cross-Border Insolvency Act 2008 (Cth)
            Civil Procedure Act 2005
            Uniform Civil Procedure Rules 2005
            Supreme Court (Corporations) Rules 1999

            Amendment history
            17 December 2018: The Practice Note issued on 10 May 2011 and commencing on 1 June 2011 is replaced. The amendment provided, inter alia, for the Registrar’s online Court list.
            10 May 2011: the Practice Note issued on 5 November 2010 is replaced; paragraphs 17, 20 and 21 are altered to dispense with the need for court attendance when seeking orders and hearing dates by consent.
            5 November 2010: the Practice Note issued on 12 April 2010 is replaced; paragraph 30 is added to Practice Note SC Eq 4.
            12 April 2010: an amended version of Practice Note SC Eq 4 is issued announcing substantial changes in case management practices with effect from 31 May 2010.
            11 March 2009: paragraph 32 of Practice Note SC Eq 4 deleted following the commencement of Practice Note SC Eq 6 - Cross Border Insolvency: Cooperation with Foreign Courts or Foreign Representatives.
            17 October 2008: provisions about remuneration of insolvency practitioners were removed from Practice Note SC Eq 4 following the enactment of the Corporations Amendment (Insolvency) Act 2007 (Cth), facilitating co-operation between courts in light of the Cross-Border Insolvency Act 2008 (Cth), and reflecting new arrangements in the Registrar’s Corporations List.
            27 April 2006: Practice Note SC Eq 4 was amended to reflect new arrangements consequent on the assignment of a Judge of the Equity Division to Corporations matters as Corporations Judge on a full-time basis with effect from 1 May 2006
            16 November 2005: paragraphs 26-30 added to Practice Note SC Eq 4
            19 October 2005: formal errors corrected
            17 August 2005: Practice Note SC Eq 4 replaced former Practice Note Nos. 111, 117 and 126.

            SCHEDULE 1
            REGISTRARS’ POWERS
            Applications Corporations Act 2001
            CORPORATIONS ACT 2001 (Cth)
            Section 425 Fix a receiver’s remuneration
            Subsection 429 (3) Extend the period for submission of a controller’s report
            Section 440D (1) Grant leave to begin or proceed with a proceeding in a court against a company which is in administration, or in relation to any of its property Where the application is not opposed
            Section 449C Appoint an administrator of a company in administration where there is a casual vacancyWhere the application is not opposed
            Former subsection 449E (1) Fix the remuneration of an administrator of a company, or of a deed of company arrangement
            Sections 459A and 459B (except in respect of applications under s 234)Order that an insolvent company be wound up in insolvency on an application made under s 459P, s 462 or s 464. Where the application is not opposed
            Section 459R Extend the period within which an application for a company to be wound up in insolvency must be determined
            Section 461Order the winding up of a companyWhere the application is not opposed
            Section 465B Substitute an applicant or applicants in an application under s 459P, 462 or 464
            Section 465C Grant leave to oppose an application under s 459P, 462 or 464 notwithstanding failure to file and serve notice of grounds of opposition and an affidavit verifying
            Subsections 466 (2) and (4) Otherwise order in respect of reimbursement of the applicant’s costs, and payment of the costs incurred by a company or liquidator as applicantWhere the Registrar makes the relevant winding-up order
            Section 467Dismiss, adjourn or make an interim order in a winding up applicationWhere the Registrar has power to make a final order on the application
            Paragraph
            470 (2) (b)
            Direct service of copy of order on another person Where the Registrar makes the relevant winding up order
            Section 471BGrant leave to begin or proceed with a proceeding in a court or enforcement process against a company being wound up by the Court or in relation to its propertyWhere the application is not opposed
            Section 472 (1)



            Section 472 (6)
            Appoint official liquidator



            Declare whether anything to be done by liquidator is to be done by all or any one of appointees, where more than one liquidator is appointed by the Court
            Where the Registrar makes the relevant winding up order


            Where the registrar appoints the liquidator
            Former subsection 473 (1) Remove a liquidator appointed by the CourtWhere the application is not opposed
            Former subsection 473 (2) Determine provisional liquidator’s remuneration
            Former subsection 473 (3) Determine remuneration of liquidator
            Subsection 473A(1) Fill vacancy in office of official liquidator in a winding up by the CourtWhere the application is not opposed
            Subsection 473A(4)Declare whether anything to be done by liquidator is to be done by all or any one or more of appointees, where more than one liquidator is appointed by the Court Where the Registrar appoints the liquidators
            Section 480 Release liquidator and deregister company
            Subsection 481 (1)Order preparation of report on accounts of liquidator
            Subsection 482 (1)Order staying the winding up of a company for a limited timeWhere the winding-up order was made by a Registrar
            Paragraph 484 (2) (b)Fix remuneration of special manager
            Section 486 Order for inspection of books of company by creditors or contributories in a winding up by the Court
            Section 500 (2)Leave to proceed with or commence action or other civil proceeding against company subject to creditors’ voluntary winding up Where the application is not opposed
            Former paragraph 542 (3) (a) Directions abridging the period for which books of the company must be retained
            Paragraph 585 (b)Approval or direction in respect of manner of service of notice to Part 5.7 body of institution of action or proceeding against member
            Sections 596A, 596BSummon a person for examination about a corporation’s examinable affairs
            Section 596FDirections about examination
            Section 597, except subsection (15)Conduct of examination
            Subsections 601AH (2)Order that ASIC reinstate registration of a companyWhere notice of the application has been served on ASIC and the application is not opposed by ASIC or any other person
            Subsection 601CC (9) Order directing restoration of name of registered Australian body to the Register, and associated directions Where notice of the application has been served on ASIC and the application is not opposed by ASIC or any other person
            Subsection 601CL (10) Order directing restoration of name of registered foreign company to the Register, and associated directionsWhere notice of the application has been served on ASIC and the application is not opposed by ASIC or any other person
            Section 1335 Require security to be given for costs
            Div 60 of the Insolvency Practice Schedule (Corporations)Fix remuneration of external administratorsWhere the application is not opposed
            Div 70 of the Insolvency Practice Schedule (Corporations)Directions abridging the period for which books of the company must be retained
            Div 90 of the Insolvency Practice Schedule (Corporations)Fill a vacancy in the office of an external administratorWhere the application is not opposed
            Div 90 of the Insolvency Practice Schedule (Corporations)Remove and replace external administratorWhere the application is not opposed
            SCHEDULE 2

            COURT APPOINTMENT OF LIQUIDATORS

            The plaintiff in winding-up proceedings may nominate for appointment a registered liquidator. A nomination is effected by filing with the originating process a consent in Form 8 of the Rules, signed by the nominee, certifying that he or she is not aware of any conflict of interest or duty and making proper disclosure of fee rates, and serving it in accordance with Rule 5.5(3)(b);

            The Court appoints the plaintiff’s nominee in the normal case, but is not obliged to do so. An obvious ground for the Court declining to appoint the plaintiff’s nominee is that the Court considers there is an actual or potential conflict between the duties of a liquidator and the nominee’s personal interest or some other duty (for example, a person who has acted as receiver and manager of the company for a secured creditor will almost never be appointed liquidator).

            SCHEDULE 3

            ONLINE COURT PROTOCOL (CORPORATIONS LIST)

            Commencement

            1. This Protocol commenced on 13 December 2016.

            Application

            2. This Protocol applies to matters in the Corporations List in the Equity Division.

            Definitions

            3. In this Protocol:

            Corporations Act means the Corporations Act 2001 (Cth).

            Judicial Officer means a Judge of the Equity Division or a Registrar.

                Online Registry has the same meaning as in Part 3 of the Uniform Civil Procedure Rules 2005 (NSW).
            PDF means Portable Document Format.
                Registered User means a legal practitioner who has registered as a user of the Online Registry and the Online Court.

                Request means a request using the Online Court for case management orders (including, but not limited to, timetables for the preparation of the matter for trial, referral to mediation, adjournment, referral to the List Judge, and scheduling a listing date).

            UCPR means the Uniform Civil Procedure Rules 2005 (NSW).

            Availability of Online Court

            4. The Online Court is available to legal practitioners who are Registered Users.

            5. Legal practitioners with carriage of matters entered in the Corporations List must be Registered Users. Registration and access to the Online Court is at: https://onlineregistry.lawlink.nsw.gov.au/.

            Procedure

            6. All matters in the Corporations Registrar’s List are automatically entered into the Online Court.

            7. All eligible matters will be managed in the Online Court with the exception of:

                the first return date in an application for winding up under Part 5.4 or 5.4A of the Corporations Act; and
                the first return date in an application for reinstatement under s 601AH of the Corporations Act; and
                matters in which litigants or applicants are not legally represented by a legal practitioner.
            8. Registered Users must submit a Request to the Registrar at any time prior to 12:00pm on the day before the first return date.

            9. Any party may, prior to 12:00pm on the day before any return date, submit a Request to the Registrar for the matter to be dealt with in open court on the basis that the matter is not suitable to be dealt with using the Online Court.

            10. Failing to submit requests or consent orders in the Online Court in accordance with the timeframes described in this Practice Note will be treated as a non-appearance in the proceedings. The registrar will issue a notice pursuant to rule 13.6 of the UCPR that any further non-appearance may result in the proceedings being dismissed.


            Conduct in an Online Court
            11. The Online Court is a virtual courtroom and must only be used for issues requiring consideration and determination by a Judicial Officer.

            12. The Online Court must not be used for communications solely between the legal representatives of parties.

            13. It is expected that there will be adherence to professional etiquette and courtesy in the Online Court.

            14. Undertakings given and orders made in an Online Court are binding as if given or made in open court.

            15. All rules including those relating to contempt apply to proceedings conducted in the Online Court.

            Terminating an Online Court
            16. A Judicial Officer may at any time order that any or all further hearings be conducted in open court.

            User Identification Code and Password
            17. Each Registered User has a unique User Name and Password which must be kept secure.

            18. When an Online Registry account is used to send a message or document using the Online Court, the person to whom that account was allocated is deemed to be the person who sent the message or document and is responsible for the contents.

            Messages
            19. Messages posted in an Online Court must be:

                relevant to the topic under discussion;
                concise; and
                posted in a timely manner.

            20. A Judicial Officer may, from time to time, give instructions as to:
                the acceptable length of messages in an Online Court; and
                the time and date by which messages must be received.

            Documents
            21. Documents may be attached to messages sent using the Online Court.

            22. Documents cannot be filed using the Online Court. Documents must be filed in accordance with Parts 3 and 4 of the UCPR and may be filed using the Online Registry at: https://onlineregistry.lawlink.nsw.gov.au/.

            23. If an Online Court message refers to a document that has been filed, the document should where possible be attached to the message. The message must indicate the date on which the document was filed. If the document was filed using the Online Registry, the message must indicate whether the Online Registry has given a notice of acceptance of the document.

            24. Documents sent using the Online Court must be in PDF and must not be locked.

            25. If the document contains draft consent orders, the message to which the document is attached must contain a certification that all the parties have seen and agreed to the terms.

            Transcripts
            26. A free official transcript of an Online Court can be requested by emailing the Online Registry.

            27. Requests by non-parties for a transcript will be referred to the Judicial Officer presiding over the Online Court for consideration.



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