Home | Databases | WorldLII | Search | Feedback Tonga Consolidated Legislation

Supreme Court Act - Companies Winding-Up Practice Direction

LAWS OF TONGA

1988 Revised Edition]

CHAPTER 10E

COMPANIES WINDING-UP PRACTICE DIRECTION

Arrangement of Directions

PRACTICE DIRECTION
1 Service of Notice of Demand on Debtor.
2 Winding-Up Petition.
3 Chambers Date and Filing of Affidavits.
4 Call-Over in Chambers.
5 Advertisement of Petition.
6 Fresh Grounds of Dispute.
7 Hearing of Petition.

SCHEDULE

-----------------------------------

COMPANIES WINDING-UP PRACTICE DIRECTION

Made by the (Acting) Chief Justice
G. 199/86

Commencement [31 October, 1986]

PRACTICE DIRECTION

The following practice direction is issued by Acting Chief Justice Mr David Tupou for the guidance of those using the Winding-Up provisions of the Companies Act:

1 Service of Notice of Demand on Debtor.

If particulars of the debt have already been supplied to a debtor it is permissible to state in Notice of Demand that the debt arises pursuant to:

"goods supplied full particulars of which have already been supplied to you".

However should the debtor query this statement full particulars of goods supplied less payments made must be supplied to him once asked for. This must be done before further steps are taken to proceed to wind the debtor company up.

The notice of demand may be signed on behalf of a creditor by its authorised agent or solicitor.

2 Winding-Up Petition.

After the expiry of 3 weeks from service of the notice of demand if there has been no payment or security obtained to the reasonable satisfaction of the creditor a petition to wind up the Company may be presented to the Court. Petitions for companies based on islands other than Tongatapu can be filed at Nuku'alofa, however the trial judge has a discretion as to where the hearing will occur. Before the petition is heard at a call-over it must be supported by:

affidavit of service

affidavit of verification

The petition may be accepted for filing by the Court supported only by the affidavit of service but it cannot be heard at call-over until the affidavit of verification of the petition is also filed with the Court.

3 Chambers Date and Filing of Affidavits.

The petition should be given a Chambers date for preliminary call-over by the Registrar and then served on the respondent. However the call-over date must be not less than 21 days from the date of service upon the respondent. The petition served upon the respondent must advise him of the need to file sworn affidavits 7 days before the call-over date if he wishes to defend the petition. A suitable notice would be as set out in the Schedule. The affidavits must show that the petition is disputed in good faith and upon substantial grounds in order to prevent advertisement of the petition and a hearing date being allocated.

4 Call-Over in Chambers.

At a preliminary call-over in Chambers the Judge can ascertain whether or not there is a genuine dispute. If so he may stay or dismiss the petition. To save expense he could decide the dispute as to the debt. However usually the petition will be adjourned to enable the question to be decided by action. The Judge has the power to order the amount of the alleged debt to be paid into Court.

If at call-over no cause is presented that shows the petition is disputed in good faith and upon substantial grounds a hearing date for the petition can be set by the Court and leave to advertise the petition granted.

5 Advertisement of Petition.

The date of hearing of the petition must be advertised in the Tonga Chronicle to give notice to other creditors. The date of hearing cannot be earlier than 14 days from date of advertisement. Advertisement must occur not later than 6 months from call-over.

6 Fresh Grounds of Dispute.

At the hearing the respondent may still bring up grounds of dispute not raised at call-over. Should the respondent be successful in having the petition stayed because of a point not raised at preliminary call-over the Court has the discretion to order that the stay be subject to payment of expenses incurred by the petitioner bringing witnesses to the hearing.

7 Hearing of Petition.

At the hearing, in the absence of a dispute as to the debt made in good faith upon substantial grounds the Court may make an order winding up the respondent.

SCHEDULE

To: .............................................. Limited

Take notice that if no grounds are presented to the Judge at the Call-Over date of this matter that show this petition is disputed in good faith and upon substantial grounds a hearing date will be set for the winding-up of your company.

The hearing date of this petition will then be advertised in the Tonga Chronicle not later than 6 months after the call-over date. The petition may be heard by the Court at any time after 14 days have lapsed from the date of advertisement.

If you wish to dispute the debt which is the subject-matter of this petition sworn affidavits must be filed on your behalf by ............................................................ 19 ..........., seven (7) days before the call-over date.

If you are in any doubt as to your position you should consult your legal advisor immediately.

-----------------------------------