Corporations - Winding Up List

Relevant Court Rules, legislation and regulations

Practitioners should review: 

• Order 5 and other relevant sections of the Supreme Court (Corporations) Rules 2023 (Corporations Rules)
• Chapter 5, Part 5.4 and other relevant sections of the Corporations Act 2001 (Cth) (Corporations Act); and
• Chapter 5, Part 5.6 and other relevant sections of the Corporations Regulations 2001 (Cth) (Corporations Regulations).

Plaintiff solicitors are reminded that the Court requires strict compliance with r 16.10 of the Corporations Rules. R 16.10 requires plaintiffs to file all material in support of a winding up application 7 days before the hearing. Material filed in support of a winding up application less than 7 days before the first hearing will not be considered by the Court for the purposes of that hearing.

Hearings in person

From 1 January 2025, all appearances in the Winding Up List will be in person.  

Any practitioner or person wishing to appear remotely is required to seek leave ahead of the hearing.

An application for leave can be made by sending an email to the chambers of the presiding judicial officer. Copy in all parties and detail the reasons for the request.

Applications must be made by no later than 10.30am on the Monday before the hearing. If you are located interstate that will not, of itself, be sufficient to grant leave.

Preparing for the hearing

Winding up checklists

A checklist is completed by the Court in relation to a winding up application. This is to check that all relevant documents have been filed and other requirements met.

A copy of the checklist is available on RedCrest by the Monday before the hearing. 

The checklist is intended only as a guide. It is not a substitute for legal advice or representation. 

If practitioners are having difficulty obtaining the checklist they should contact jvaqvathcf@fhcpbheg.ivp.tbi.nhua.vog.civ.truocpus@spugnidniw . 

Requirements to lodge with ASIC and advertise

Winding up proceedings are required to be notified to ASIC and advertised on the ASIC Insolvency Notices website. Proceedings are required to be notified and advertised even if the proceeding has settled between the plaintiff and defendant before the first hearing. 

Notices of Appearance

Anyone intending to appear before the Court at the winding up hearing are required to file a notice of appearance (Form 4 to the Corporations Rules). This is then served on the plaintiff no later than 3 days before the hearing: see r 2.9(1) of the Corporations Rules. 

Companies are required under r 1.17 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) to be represented by a solicitor, unless leave of the Court is granted.  

Appearance form

In order to conduct the Winding Up List as efficiently as possible, all persons intending to appear will need to contact the Court at jvaqvathcf@fhcpbheg.ivp.tbi.nhua.vog.civ.truocpus@spugnidniw , with a copy of the Appearance Form attached to the email. 

The plaintiff’s solicitor is asked to assist the Court with this process by communicating this information to all persons who have indicated to them (either formally or informally) an intention to appear at the hearing.  

Consent orders

The Court is now permitting some consent orders to be made in the Winding Up List (in open Court) without the need for appearances. This process will apply to proposed adjournments and dismissals only.

The following requirements must be met in order to avoid an appearance:

1. Consent orders must be signed by the legal practitioners of all parties, including any supporting creditors. Consent orders will not be accepted if signed by a company director or by a legal practitioner who has not filed a Notice of Appearance.
2. Consent orders must be provided to the chambers of the Judicial Officer and jvaqvathcf@fhcpbheg.ivp.tbi.nhua.vog.civ.truocpus@spugnidniw by 10:30am on the Monday prior to the hearing. Any consent orders received after this time will require an appearance.
3. In accordance with Supreme Court Practice Note SC CC 2 of 2024, correspondence with the Court must be sent simultaneously to all other parties and must be confined to uncontroversial matters. Correspondence to the Court containing proposed consent orders must be copied to all parties and only provided once the consent of all parties has been obtained.
4. The Court will require compliance with s 465A(1)(a) & (c) of the Corporations Act 2001 (Cth) (‘Corporations Act’) where parties are seeking their proceeding be dismissed.
5. The proceeding will be called in open Court. Where there is no appearance or objection, the consent orders will be made. If there is any objection, the proceeding will be adjourned for two weeks and the parties notified.  
6. Once consent orders are submitted to the Court for consideration, parties should not assume that the consent orders will be made in open Court without the need for an appearance. The Associate will provide confirmation if appearances are not required.

For adjournments, only 1 adjournment on the papers will be permitted.

Orders in the Winding Up List are not made “on the papers”. 

Fixed Costs Orders

If the proceeding results in the winding up of the defendant company and the plaintiff seeks its costs of the proceeding to be fixed at the hearing,

• the plaintiff should provide a short form bill of costs at or prior to the hearing and
• obtain the consent or non-opposition of the proposed liquidator to the amount of costs sought.

Late Filing

Any documents filed or intended to be filed on RedCrest within 48 hours of the hearing, must also be emailed in PDF format to jvaqvathcf@fhcpbheg.ivp.tbi.nhua.vog.civ.truocpus@spugnidniw  to ensure they are brought directly to the judicial officer’s attention prior to the hearing.

Attending the hearing

The originating process states the date of the hearing and the time as 10.30am. 

All hearings are conducted in person.  

The daily hearing list will list all matters for the winding up list on that day but matters will be batched into approximate times.  

These times will be published in the Daily Hearing List by 3.45pm the day before the hearing.  

All parties intending to appear should make sure they keep the day free so they are available for the time of the hearing. The Court cannot accommodate specific requests for specific times.  

The Court will do its best to keep to these times, but there may be some delays if matters take longer than anticipated. 

Guidelines for directors of defendant companies

How does the company attend the hearing? 
Under r 1.17 of the Supreme Court (General Civil Procedure) Rules 2015 the company is required to be represented by a solicitor, unless leave of the Court is granted. You should try to retain a solicitor for the company so they can file a notice of appearance for the company no later than 3 days before the hearing. 

If you intend to appear at the hearing yourself you should email the Court at jvaqvathcf@fhcpbheg.ivp.tbi.nhua.vog.civ.truocpus@spugnidniw at least 2 days prior to the hearing notifying the Court you intend to appear.  

What happens if I do not engage a solicitor on behalf of the Company?  
If you do not engage a solicitor to appear on behalf of the Company, you have two options: 

1. You can try and agree to an adjournment with the solicitor for the plaintiff. If the plaintiff agrees to your request the Court may allow that adjournment without you needing to appear. The plaintiff will appear and inform the Court of the agreement reached.
2. If you cannot reach an agreement with the solicitor for the plaintiff, you will need to appear at the hearing and ask the Court for the adjournment yourself.  

If you have not reached an agreement for an adjournment with the plaintiff and you do not appear at the hearing, the matter will still proceed and an order may be made against the company at that time.

What happens if I do engage a solicitor on behalf of the Company?  
If the Company engages a solicitor, you have two options: 

1. The Company’s solicitor can try and reach agreement with the solicitor for the plaintiff. If the parties agree to an adjournment, they can provide the Court with minutes of consent orders signed by both the plaintiff’s and Company’s solicitors. These orders can be made without the need for an appearance by either party.  
2. If the solicitors cannot reach an agreement, the solicitor will appear on the Company’s behalf. You do not need to personally appear. At that time, the Court may consider any request made by the solicitor for the Company for an adjournment.