Commonwealth Consolidated Regulations

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FEDERAL COURT (CORPORATIONS) RULES 2000 - RULE 5.4

Affidavit in support of application for winding up (Corporations Act s 459P, s 462, s 464)

             (1)  The affidavit in support of an originating process seeking an order that a company be wound up must be made by the plaintiff or by a person with the authority of the plaintiff or plaintiffs.

             (2)  If the application is made in reliance on a failure by the company to comply with a statutory demand, the affidavit must:

                     (a)  verify service of the demand on the company; and

                     (b)  verify the failure of the company to comply with the demand; and

                     (c)  state whether and, if so, to what extent the debt, or each of the debts, to which the demand relates is still due and payable by the company at the date when the affidavit is made.

Note:          An example of the affidavit in support of an application for winding up in insolvency for failure to comply with a statutory demand is shown in Schedule 3 (Notes to these Rules).

             (3)  If the application is made in reliance on the ground mentioned in paragraph 461 (1) (a) of the Corporations Act, the affidavit must:

                     (a)  state whether the company is able to pay all its debts as and when they become due and payable; and

                     (b)  refer to the company's most recent balance sheet and profit and loss statement as an annexure or exhibit to the affidavit, or explain their absence.

             (4)  The affidavit must be made within 7 days before the originating process is filed.



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