FEDERAL COURT OF AUSTRALIA
WINDING UP CHECKLIST

In the matter of:

Plaintiff’s Lawyer: 
Defendant’s lawyer: 

Key Issues: 	File No:

	

PRESUMPTION OF INSOLVENCY (Corporations Act 459C)	
	FAILURE TO COMPLY WITH STATUTORY DEMAND Corporations Act  s459Q	
		Correct form  Corporations Act  s 459E(2)(e) Form 509H (Regs)	
		Debt/s $2,000 or more   Corporations Act s9; s 459E(1)	
		Requires debt to be paid, or secured within 21 days after demand served 
Corporations Act  s 459E(2)(c)	
		Signed by or on behalf of creditor  Corporations Act  s 459E(2)(f)	
		Affidavit in support of demand 		
			Verifies that debt, or total of the amounts of the debts, is due and payable by the company; and  Corporations Act  s 459E(3)(a)	
			Complies with Form 7 Corporations Act  s 459E (3)  Corporations Rules 5.2(a)	
			Deponent authorised to swear Corporations Act  s 459E (3) Corporations Rules r 5.2(b)	

			No reference to Court or proceeding number Corporations Act  s 459E (3) Corporations Rules  5.2(c)	
	OTHER PRESUMPTION OF INSOLVENCY 459C	
	WINDING UP FOR FAILURE TO COMPLY WITH STATUTORY DEMAND	
		Date of presumption of insolvency in issue: Yes/No Corporations Act  s 459C(2)
If yes, relevant dates are:_____________________________	
		Title in accordance with Form 1 Corporations Rules 2.1	
		Originating process in accordance with Form 2 Corporations Rules 2.2(3)	
		Sets out particulars of service of the demand on the company and failure to comply with the demand   Corporations Act  s 459Q(a) Corporations Rules Form 2, Part C	
		Attaches copy of demand and any order made under 459H(4)  Corporations Act s 459Q(b)	
		Capacity of applicant:      Corporations Act s459P(1); s 462; s 464	
		Leave required? Corporations Act  s 459P(2) Corporations Rules  5.3	
	OTHER GROUNDS FOR WINDING UP Corporations Act  s 461, s 464	
	AFFIDAVIT IN SUPPORT	
		Deponent authorised to swear  Corporations Rules 5.4(1); 2.5	
		Made within 7 days before the originating process was filed. Corporations Rules 5.4(4)	
		Annexes result of ASIC search carried out no earlier than 7 days before the originating process was filed. Corporations Rules 2.4(2)	
		Verifies the facts in support of application for winding up Corporations Rules 2.4(1)
(a) If the application is made in reliance on a failure by the company to comply with a statutory demand:  Corporations Act  s 459Q  Corporations Rules 5.4(2)	
		Verifies service of demand on company; and	
		Verifies failure of company to comply with demand; and
Verifies that the debt, or the total of the amounts of the debts, is due and payable by the company 
OR	
		(b) If the application is made under para. 461(1)(a) of the Corporations Corporations Rules 5.4(3)	
		states whether the company is able to pay all its debts as and when they become due and payable; and	
		refers 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 	
	LIQUIDATOR'S CONSENT Corporations Rules Form 8	
		Liquidator's consent served at least 1 day before hearing Corporations Rules 5.5(3)(b)	
		Includes hourly rates Corporations Rules Form 8	
		
	AFFIDAVIT OF SERVICE OF ORIGINATING PROCESS	
		Annexes copy of originating process	
		Originating process served within 14 days of filing Corporations Act  s 465A	
		Originating process served more than 5 days before hearing Corporations Rules 2.7(1)	
		Affidavits in support served more than 5 days before hearing Corporations Rules 2.7(1)
Annexes Affidavit of service of the statutory demand( only if not served by person making affidavit in support of application for winding up) Corporations Act  s 109X; s 459E	
		Manner of service permitted by s109X Corporations Act  s 109X	
	AFFIDAVIT OF LODGMENT OF NOTICE AT ASIC	
		Annexes copy of notice as lodged Corporations Act  s 465A(a)	
		Notice lodged no later than 10.30am next business day after filing application 
Corporations Act  s 470(1)(a)	
	AFFIDAVIT/MEMORANDUM OF PUBLICATION OF NOTICE OF APPLICATION	
		Made by the person or the person's legal practitioner Corporations Rules 2.12(2)(a)	
		States date of publication Corporations Rules  2.12(2)(a)	
		Copy of notice annexed Corporations Rules 2.12(2)(a)	
		Notice complies with Form 9 Corporations Rules 5.6(2)(a) (Reg 5.4.01A)	
		Notice published more than 3 days after service of originating process and more than 7 days prior to hearing Corporations Act  s 465A Corporations Rules 5.6(2)(b)	
		Published in the prescribed manner – ASIC Insolvency Notices website Corporations Act  s 465A (Regs 5.6.75)	
	PERSON INTENDING TO OPPOSE APPLICATION OR PETITION	
		Notice of Appearance (Form 4) Corporations Rules 2.9(1)(a)(i)	
		Notice of the grounds on which the person opposes the application Corporations Act  s 465C(a)  Corporations Rules 2.9(2)	
		Affidavit verifying matters stated in the notice. Corporations Act  s 465C(b)	
		Notice and affidavit served not later than 3 days before the date fixed for hearing Corporations Rules 2.9(1)(b)(i); 2.9(3) 

Adjournment Notification - Affidavit of proof of written notification of any adjourned court date. 

Costs Orders:  Fixed costs plus any costs reserved on adjournment allowed under schedule 3, item s 1.1 and 13.1 of the Federal Court Rules 2011. 	
	ORDER MADE WITHIN 6 MONTHS OF FILING  (or within time as extended) Corporations Act  s 459R