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Vanuatu Consolidated Legislation |
REPUBLIC
OF VANUATU
REVISED
EDITION 1988
CHAPTER 191
COMPANIES
Continued
..................
SUBSIDIARY LEGISLATION
COMPANIES (WINDING-UP) RULES
SI 1949/3304
SI 1975/214
LN
23/1977
SI 1977/1395
SI 1979/209
SI 1979/1592
SI 1981/788
SI
1981/130
SI 1983/727 (L 16)
ARRANGEMENT OF RULES
RULE
Preliminary
1.
Interpretation of terms
2. Application
of Rules
3. Use of forms in
Schedule
Court and Chambers
4.
Office of Registrar
5. Matters in
Court to be heard in Court and
Chambers
6. Applications in
Chambers
7. Motions and
summonses
Proceedings
8.
Title of proceedings
9. Written or
printed proceedings
10. Process to be
sealed
11. Issue of
summonses
12.
Orders
13. File of proceedings in
office of Registrar
14. Office
copies
15. Inspection of
file
16. Use of file by Minister and
Official Receiver
Service of Process and Enforcement of Orders
17.
Service by post
18. Validity of
service
19. Enforcement of
orders
Petition
20.
Form of petition
21. Presentation of
petition
22. Advertisement of
petition
23. Service of
petition
24. Verification of
petition
25. Copy of petition to be
furnished to creditor or contributory
Provisional Liquidator
26. Appointment of provisional liquidator
Hearing of Petitions and Orders Made Thereon
27.
Attendance before hearing to show compliance with
Rules
28. Notice by persons who intend
to appear
29. List of names and
addresses of persons who appear on the
petition
30. Affidavits in opposition
and reply
31. Substitution of creditor
or contributory for withdrawing
petitioner
32. Power of Registrar of
Companies to withdraw petition
Order to Wind-up a Company and Order under Section 216 of the Act
33.
Notice that winding-up order has been pronounced to be given to Official
Receiver
34. Documents for drawing up
order to be left with Registrar
35. No
appointment for settling order
36.
Contents of winding-up order
37.
Transmission and advertisement of winding-up
order
38. Notice to the
bailiff
Special Manager
39.
Appointment of special manager
40.
Accounting by special manager
Statement of Affairs
41.
Preparation of statement of
affairs
42. Extension of time for
submitting statement of affairs
43.
Information subsequent to statement of
affairs
44.
Default
45. Expenses of statement of
affairs
46. Dispensing with statement
of affairs
Appointment of Liquidator in a Winding-up by the Court
47. Appointment of liquidator on report of meetings of creditors and contributories
Security by Liquidator or Special Manager in a Winding-up by the Court
48.
Standing security to Minister
49.
Failure to give or keep up security
Public Examination
50.
Consideration of report
51. Procedure
consequent on order for public
examination
52. Application for day
for holding examination
53.
Appointment of time and place for public
examination
54. Notice of public
examination to creditors and
contributories
55. Default in
attending
56. Notes of examination to
be filed
Proceedings by or against Directors, Promoters, and Officers
57.
Applications by or against delinquent directors, officers and
promoters
58. Notice of
application
59. Hearing of
application
60. Use of depositions
taken at public examinations
Witnesses and Depositions
61.
Shorthand notes
62. Committal of
contumacious witness
63. Depositions
at private examinations
Disclaimer
64. Disclaimer
Vesting of Disclaimed Property
65. Vesting of disclaimed property
Arrangements with Creditors and Contributories in a Winding-up by the Court
66. Report by Official Receiver on arrangements and compromises
Collection and Distribution of Assets in a Winding-up by the Court
67.
Collection and distribution of company's assets by
liquidator
68. Power of liquidator to
require delivery of property
List of Contributories in a Winding-up by the Court
69.
Liquidator to settle list of
contributories
70. Appointment of time
and place for settlement of list
71.
Settlement of list of
contributories
72. Notice to
contributories
73. Application to the
Court to vary the list
74. Variation
of or addition to list of contributories
Calls
75. Calls by
liquidator
76. Application to the
Court for leave to make a call
77.
Document making the call
78. Service
of notice of a call
79. Enforcement of
call
Proofs
80.
Proof of a debt
81. Mode of
proof
82. Verification of
proof
83. Contents of
proof
84. Statement of
security
85. Proof before whom
sworn
86. Costs of
proof
87.
Discount
88. Periodical
payments
89.
Interest
90. Proof for debt payable at
a future time
91. Proof under section
308
92. Workmen's
wages
93. Production of bills of
exchange and promissory notes
94.
Transmission of proofs to liquidator
Admission and Rejection of Proofs and Preferential Claims and Appeal to the Court
95.
Notice to creditors to prove
96.
Examination of proof
97. Appeal by
creditor
98. Expunging at instance of
liquidator
99. Expunging at instance
of creditor
100.
Oaths
101. Official Receiver's
powers
102. Filing proofs by Official
Receiver
103. Proofs to be
filed
104. Procedure where creditor
appeals
105. Time for dealing with
proofs by Official Receiver
106. Time
for dealing with proofs by
liquidator
107. Cost of appeals from
decisions as to proofs
Dividends in a Winding-up by the Court
108.
Dividends to creditors
109. Return of
capital to contributories
General Meetings of Creditors and Contributories in relation to a Winding-up by the Court
110.
First meetings of creditors and
contributories
111. Notice of first
meetings to Minister
112. Summoning of
first meetings
113. Form of notices of
first meetings
114. Notice of first
meeting to officers of company
115.
Summary of statement of affairs
General Meetings of Creditors and Contributories in relation to Winding-up by the Court and of Creditors in relation to a Creditors' Voluntary Winding-up
116.
Liquidator's meetings of creditors and
contributories
117. Application of
rules as to meetings
118. Summoning of
meetings
119. Proof of
notice
120. Place of
meetings
121. Costs of calling
meetings
122. Chairman of
meeting
123. Ordinary resolution of
creditors and contributories
124. Copy
of resolution to be filed
123.
Non-reception of notice by a
creditor
126.
Adjournments
127.
Quorum
128. Creditors entitled to
vote
129. Cases in which creditors may
not vote
130. Votes of secured
creditors
131. Creditor required to
give up security
132. Admission and
rejection of proofs for purpose of
voting
133. Statement of
security
134. Minutes of
meeting
Proxies in relation to a Winding-up by the Court and to Meetings of Creditors in a Creditors' Voluntary Winding-up
135.
Proxies
136. Form of
proxies
137. Forms of proxy to be sent
with notices
138. General
proxies
139. Special
proxies
140. Solicitation by
liquidator to obtain proxies
141.
Proxies to Official Receiver or
liquidator
142. Holder of proxy not to
vote on matter in which he is financially
interested
143.
Proxies
144. Use of proxies by
deputy
145. Filling in where creditor
blind or incapable
Attendance and Appearance of Parties
146.
Attendance at proceedings
147.
Attendance of liquidator's solicitor
Liquidator and Committee of Inspection
140.
Remuneration of liquidator
141. Limit
of remuneration
142. Dealings with
assets
143. Restriction on purchase of
goods by liquidator
144. Committee of
inspection not to make profit
145.
Costs of obtaining sanction of
Court
146. Sanction of payments to
committee
147. Discharge of costs
before assets handed to
liquidator
148. Resignation of
liquidator
149. Limit of
Remuneration
150. Dealings with
Assets
151. Restriction on purchase of
goods by Liquidator
152. Committee of
Inspection not to make profit
153.
Costs of obtaining sanction of
Court
154. Sanction of payments to
committee
155. Discharge of costs
before assets handed to
liquidator
156. Resignation of
Liquidator
157. Office of liquidator
vacated by his insolvency
158.
Payments out of bank
159. Special bank
account
Books
160.
Record Book
161. Cash
Book
Accounts and Audit in a Winding-up by the Court
162.
Audit of Cash Book
163. Minister's
audit of liquidator's accounts
164.
Liquidator carrying on business
165.
Copy of accounts to be filed
166.
Affidavit of no receipts or
payments
167. Proceedings on
resignation, etc., of liquidator
168.
Disposal of books
169. Expenses of
sales
170. Final Account in Voluntary
Winding-up
Taxation of Costs
171.
Taxation of costs payable by or to Official Receiver or liquidator or by
company
172. Notice of
appointment
173. Lodgement of
bill
174. Copy of the bill to be
furnished
175. Applications for
costs
176. Certificate of
taxation
177. Certificate of
employment
178. Bailiff's
costs
179. Taxation of bailiff's costs
after deduction
Costs and Expenses Payable out of the Assets of the Company
180.
Liquidator's charges
181. Costs
payable out of the assets
Statements by Liquidator to the Registrar of Companies
182.
Conclusion of winding-up
183. Times
for sending liquidator's statements and regulations applicable
thereto
184. Affidavits of no receipts
or payments
Unclaimed Funds and Undistributed Assets in the Hands of a Liquidator
185.
Payment of undistributed and unclaimed money into Companies Liquidation
Account
186. Liquidator to furnish
information to Minister
187. Minister
may call for verified accounts
188.
Application for payment out by person
entitled
189. Application by
liquidator for payment out
Release of Liquidator in a Winding-up by the Court
190.
Proceedings for release of
liquidator
191. Disposal of books and
papers
Official Receivers and Minister
192.
Appointment
193.
Removal
194. Personal performance of
duties
195. Assistant Official
Receivers
196. Power of Officers of
Ministry and Official Receivers clerks in certain cases to act for Official
Receivers
197. Duties where no
assets
198. Accounting by Official
Receiver
199. Official Receiver to act
for Minister where no committee of
inspection
200. Appeals from Minister
and Official Receiver
201.
Applications under s. 251 and s. 321(3) of the Act
Books to be Kept, and Returns made, by Officers of Courts
202. Books to be kept by Officers of Courts
Gazetting in a Winding-up by the Court
203.
Gazetting notices
204. Filing
memorandum of Gazette notices
Arrests and Commitments
205.
To whom warrants may be addressed
206.
Prison to which person arrested on warrant is to be taken
207. Prison to which a person
arrested is to be conveyed, and production and custody of persons
arrested
Miscellaneous Matters
208.
Orders and regulations
209.
Enlargement or abridgment of time
210.
Formal defect not to invalidate
proceedings
211. Application of
existing procedure
SCHEDULE - PRESCRIBED FORMS
No. 1 - Form of Summons (General)
No. 2 - General Title (Supreme Court)
No. 3 - Petition
No. 4 - Petition by unpaid Creditor on Simple Contract
No. 5 - Petition by Minority Shareholder
No. 6 - Advertisement of Petition
No. 7 - Advertisement of Petition by Minority Shareholder
No. 8 - Affidavit of Service of Petition on Members, Officers or Servants
No. 9 - Affidavit of Service of Petition on Liquidator
No. 10 - Affidavit Verifying Petition
No. 11 - Order appointing a Provisional Liquidator after Presentation of Petition and before Order to Wind-up
No. 12 - Notice of Intention to appear on Petition
No. 13 - List of Parties attending the Hearing of a Petition
No. 14 - Notification to Official Receiver of Winding-up Order
No. 15 - Notification to Official Receiver of Order pronounced for appointment of Provisional Liquidator prior to Winding-up Order being made
No. 16 - Order for Winding-up by the Court
No. 17 - Notice of Order to Wind-up (For Newspaper)
No. 18 - Affidavit by Special Manager verifying Account
No. 19 - Statement of Affairs
No. 20 - Report of Result of Meeting of Creditors or Contributories
No. 21 - Order Appointing Liquidator
No. 22 - Advertisement of Appointment of Liquidator
No. 23 - Certificate that Liquidator or Special Manager has given Security
No. 24 - Order Directing a Public Examination
No. 25 - Notice to attend Public Examination
No. 26 - Warrant against Person who fails to attend Examination
No. 27 - Notes of Public Examination where a Shorthand Writer is appointed
No. 28 - Notes of Public Examination where a Shorthand Writer is not appointed
No. 29 - Application for Appointment of Shorthand Writer to take down notes of Public Examination and Order thereon
No. 30 - Declaration by Shorthand Writer
No. 31 - Report to the Court where Person Examined refuses to answer to satisfaction of Registrar or Officer
No. 32 - Disclaimer of Lease
No. 33 - Notice of Disclaimer of Lease
No. 34 - Notice by Liquidator requiring Payment of Money or Delivery of Books, etc., to Liquidator
No. 35 - Provisional List of Contributories to be made out by Liquidator
No. 36 - Notice to Contributories of Appointment to settle List of Contributories
No. 37 - Affidavit of Postage of Notices of Appointment to settle List of Contributories
No. 38 - Certificate of Liquidator of Final Settlement of the List of Contributories
No. 39 - Notice to Contributory of Final Settlement of List of Contributories and that his Name is included
No. 40 - Affidavit of Service of Notice to Contributory
No. 41 - Order on Application to vary List of Contributories
No. 42 - Supplemental List of Contributories
No. 43 - Notice to each Member of Committee of Inspection of Meeting for Sanction to proposed Call
No. 44 - Advertisement of Meeting of Committee of Inspection to Sanction proposed Call
No. 45 - Resolution of Committee of Inspection sanctioning Call
No. 46 - Summons for Leave to make a Call
No. 47 - Affidavit of Liquidator in support of Proposal for Call
No. 48 - Advertisement of Application for Leave to make a Call
No. 49 - Order giving Leave to make a Call
No. 50 - Document making a Call
No. 51 - Notice of Call sanctioned by Committee of Inspection to be sent to Contributory
No. 52 - Notice to be served with the Order sanctioning a Call
No. 53 - Affidavit in support of Application for Order for Payment of Call
No. 54 - Order for Payment of Call due from a Contributory
No. 55 - Affidavit of Service of Order for Payment of Call
No. 56 - Proof of Debt. General Form
No. 57 - Proof of Debt (Unsworn). General Form
No. 58 - Proof of Debt of Workmen
No. 59 - Notice of Rejection of Proof of Debt
No. 60 - List of Proofs to be Filed under Rule 103
No. 61 - Notice to Creditors of Intention to declare Dividend
No. 62 - Notice to Persons claiming to be Creditors of Intention to Declare Final Dividend
No. 63 - Notice of Dividend
No. 64 - Certified List of Proofs under Rule 108(5) of the Companies (Winding-up) Rules, and Application for issue of Cheques for Dividend on Companies Liquidation Account
No. 65 - Certified List of Proofs filed under Rule 108(5) of the Companies (Winding-up) Rules, Special Bank Case
No. 66 - Authority to Liquidator to Pay Dividends to another Person
No. 67 - Notice of Return to Contributories
No. 68 - Schedule or List of Contributories holding Paid-up Shares to whom a Return is to be Paid
No. 69 - Notice to Creditors of First Meeting
No. 70 - Notice to Contributories of First Meeting
No. 71 - Notice to Officers of Company to attend First Meeting of Creditors or Contributories
No. 72 - List of Creditors to be used at every Meeting
No. 73 - Notice of Meeting (General Form)
No. 74 - Affidavit of Postage of Notices of Meeting
No. 75 - Certificates of Postage of Notices (General)
No. 76 - Authority to Deputy to Act as Chairman of Meeting and use Proxies
No. 77 - Memorandum of Adjournment of Meeting
No. 78 - General Proxy
No. 79 - Special Proxy
No. 80 - Application to Minister to authorise a special Bank Account
No. 81 - Order of Minister for special Bank Account
No. 82 - Certificate by Committee of Inspection as to Audit of Liquidator's Cash Book
No. 83 - Affidavit verifying Liquidator's Account under Section 250
No. 84 - Liquidator's Trading Account under Section 250
No. 85 - Affidavit verifying Liquidator's Trading Account under Section 250
No. 86 - Request to deliver Bill for Taxation
No. 87 - Certificate of Taxation
No. 88 - Statement of Receipts and Payments and General Directions as to Statements
No. 89 - Affidavit verifying Statement of Liquidator's Account under Section 329
No. 90 - Liquidator's Trading Account under Section 329
No. 91 - List of Dividends or Composition
No. 92 - List of Amounts Paid or Payable to Contributories
No. 93 - Affidavit verifying Account of Unclaimed and Undistributed Funds
No. 94 - Notice to Creditors and Contributories of intention to apply for Release
No. 95 - Application by Liquidator to Minister for Release
No. 96 - Statement to accompany Notice of Application for Release
No. 97 - Register of Winding-up Orders to be kept in the Court
No. 98 - Register of Winding-up Petitions to be kept in the Court
No. 99 - Notices for Vanuatu Gazette
No. 100 - Memorandum of Advertisement or Gazetting
No. 101 - Notice of appointment of Liquidator
No. 102 - Declaration of Solvency, embodying a Statement of Assets and Liabilities
No. 103 - Form of Statement of Assets and Liabilities
No. 104 - Liquidator's Statement of Account (Members' or Creditors' Voluntary Winding-up)
No. 105 - Return of Final Winding-up Meeting
No. 106 - Return of the Final Winding-up Meetings of Members and Creditors
--------------
SUBSIDIARY LEGISLATION
COMPANIES (WINDING-UP) RULES
To provide rules for the
winding-up of companies.
PRELIMINARY
INTERPRETATION
OF TERMS
1.
In these Rules, unless the context or subject-matter otherwise requires
-
"Act" means the Companies Act, Cap. 191;
"company" means a company which is being wound-up, or against which proceedings to have it wound-up or proceedings under section 216 of the Act have been commenced;
"Court" means the Supreme Court;
"Judge" means in the Supreme Court the Judge who for the time being exercises the jurisdiction of the Supreme Court to wind-up companies;
"Minister" means the Minister responsible for commerce;
"prescribed" in relation to fees or charges means prescribed by the Rules of the Supreme Court;
"proceedings" means the proceedings in the winding-up of a company under the Act, or proceedings under section 216 of the Act;
"Registrar" means any of the Registrars in Bankruptcy of the Supreme Court, and any person who shall be appointed to fill the office of Registrar under these Rules;
"Rules" means these Rules, and includes the prescribed forms;
"sealed" means sealed with the seal of the Court;
"taxing officer" means the officer of the Court whose duty it is to tax costs in the proceedings of the Court under its ordinary jurisdiction;
Unless the context otherwise requires words or expressions contained in these Rules shall bear the same meaning as in the Act or any statutory modification thereof.
APPLICATION
OF RULES
2.
(1) Subject to the limitations hereinafter mentioned, these Rules shall apply to
the proceedings in every winding-up under the
Act.
(2) Rules which from their
nature and subject matter are, or which by the head lines above the group in
which they are contained or
by their terms are made applicable only to the
proceedings in a winding-up by the Court, or only to such proceedings and to
proceedings
in a creditors' voluntary winding-up, shall not apply to the
proceedings in a voluntary winding-up, or, as the case may be, in a
members'
voluntary winding-up.
(3) Rules
which from their nature and subject matter are, or which by the head lines above
the group in which they are contained or
by their terms are made applicable only
to the proceedings in a winding-up, whether by the Court or voluntarily, shall
not apply
to proceedings under section 216 of the
Act.
USE OF
FORMS IN
SCHEDULE
3.
The forms in the Schedule, where applicable, and where they are not applicable,
forms of the like character, with such variations
as circumstances may require,
shall be used. Where such forms are applicable, any costs occasioned by the use
of any other or more
prolix forms shall be home by or disallowed to the party
using the same, unless the Court shall otherwise
direct:
Provided that the Minister
may from time to time alter any forms which relate to matters of an
administrative and not of a judicial
character, or substitute new forms in lieu
thereof. Where the Minister alters any form, or substitutes any new form in lieu
of a
form prescribed by these Rules, such altered or substituted form shall be
published in the Gazette.
COURT
AND CHAMBERS OFFICE OF
REGISTRAR
4.
(1) All proceedings in the Court shall from time to time be attached to one or
more of the Registrars, who shall, together with the
necessary clerks and
officers, and subject to the Act and Rules, act under the general or special
directions of the Judge.
(2) Every
other Registrar may act for and in place of such Registrar as above-mentioned in
all proceedings under the Act and Rules,
including the holding of public
examinations, and when so acting such other Registrar shall be deemed to be the
Registrar for the
purposes of the Act and
Rules.
(3) In every cause or
matter within the jurisdiction of the Judge, whether by virtue of the Act, or by
transfer, or otherwise, the
Registrar shall, in addition to his powers and
duties under the Rules, have all the powers and duties of a Master, Registrar,
or
Taxing
Master.
MATTERS
IN COURT TO BE HEARD IN COURT AND
CHAMBERS
5.
(1) The following matters and applications shall be heard in open Court
-
(a) petitions;
(b) appeals to the Court from the Minister and from the Official Receiver when acting as Official Receiver and not as liquidator;
(c) applications under section 333 of the Act;
(d) applications for the committal of any person to prison for contempt;
(e) such matters and applications as the Judge may from time to time by any general or special order direct to be heard in open Court.
(2)
Examinations of persons summoned before the Court under section 268 of the Act
shall be held in Court or in Chambers as the Court
shall
direct.
(3) Every other matter or
application in the Court under the Act to which the Rules apply may be heard and
determined in Chambers.
APPLICATIONS
IN
CHAMBERS
6.
Subject to the provisions of the Act and Rules, in the Supreme Court
-
(a) the Registrar may under the general or special directions of the Judge hear and determine any application or matter which under the Act and Rules may be heard and determined in Chambers;
(b) any matter or application before the Registrar may at any time be adjourned by him to be heard before the Judge either in Chambers or in Court;
(c) any matter or application may, if the Judge or, as the case may be, the Registrar thinks fit, be adjourned from Chambers to Court or from Court to Chambers.
MOTIONS
AND SUMMONSES
Form
1
7.
(1) Every application in Court other than a petition shall be made by motion,
notice of which shall be served on every person against
whom an order is sought
not less than 2 clear days before the day named in the notice for hearing the
motion, which day must be one
of the days appointed for the sittings of the
Court.
Every application in
Chambers shall be made by summons, which, unless otherwise ordered, shall be
served on every person against whom
an order is sought, and shall require the
person or persons to whom the summons is addressed to attend at the time and
place named
in the summons.
PROCEEDINGS
TITLE
OF
PROCEEDINGS
Form
2
8.
(1) Every proceeding shall be dated, and shall, with any necessary additions, be
intituled in the matter of the company to which
it relates and in the matter of
the Companies Act, and otherwise as in Form 2 in the Schedule. Numbers and dates
may be denoted by
figures.
(2) The
first proceeding shall have a distinctive number assigned to it in the office of
the Registrar, and all proceedings subsequent
to the first proceeding shall bear
the same number as the first
proceeding.
WRITTEN
OR PRINTED
PROCEEDINGS
9.
All proceedings shall be written or printed, or partly written or partly printed
on paper of the size of 13 inches in length and
8 inches in breadth, or
thereabouts, and must have a stitching margin; but no objection shall be allowed
to any proof or affidavit
on account only of its being written or printed on
paper of other
size.
PROCESS
TO BE
SEALED
10.
All orders, summonses, petitions, warrants, process of any kind (including
notices when issued by the Court) and office copies in
any proceedings shall be
sealed.
ISSUE
OF
SUMMONSES
11.
Every summons in proceedings in the Court shall be prepared by the applicant or
his solicitor and issued from the office of the
Registrar. A summons, when
sealed, shall be deemed to be issued. The person obtaining the summons shall
leave in the Registrar's
office a duplicate which shall be stamped with the
appropriate stamp and
filed.
ORDERS
12.
Every order, whether made in Court or in Chambers, shall be drawn up by the
Registrar, unless in any proceeding, or classes of proceedings,
the Judge or
Registrar who makes the order shall direct that no order need be drawn up. Where
a direction is given that no order
need be drawn up, the note or memorandum of
the order, signed or initialled by the Judge or the Registrar making the order,
shall
be sufficient evidence of the order having been
made.
FILE OF
PROCEEDINGS IN OFFICE OF
REGISTRAR
13.
All petitions, affidavits, summonses, orders, proofs, notices, depositions,
bills of costs and other proceedings in the Court shall
be kept and remain of
record in the office of the Registrar and, subject to the directions of the
Court, shall be placed in one continuous
file, and no proceedings shall be filed
in the Central
Office.
OFFICE
COPIES
14.
In the Court all office copies of petitions, affidavits, depositions, papers and
writings, or any parts thereof, required by the
Official Receiver or any
liquidator, contributory, creditor, officer of a company, or other person
entitled thereto, shall be provided
by the Registrar, and shall, except as to
figures, be fairly written out at length, and be sealed and delivered out
without any unnecessary
delay, and in the order in which they shall have been
bespoken.
INSPECTION
OF
FILE
15.
Every person who has been a director or officer of a company which is being
wound up, and every duly authorised officer of the Ministry
responsible for
commerce, shall be entitled, free of charge, and every contributory and every
creditor whose claim or proof has been
admitted, shall be entitled on payment of
the prescribed fee, at all reasonable times, to inspect the file of proceedings
and to
take copies or extracts from any document therein, or be furnished with
such copies or extracts on payment of the prescribed
fee.
USE OF
FILE BY MINISTER AND OFFICIAL
RECEIVER
16.
Where, in the exercise of their functions under the Act or Rules, the Minister
or the Official Receiver requires to inspect or use
the file of proceedings the
Registrar shall (unless the file is at the time required for use in Court or by
him) on request, transmit
the file of proceedings to the Minister or Official,
Receiver, as the case may
be.
SERVICE OF
PROCESS AND ENFORCEMENT OF ORDERS SERVICE BY
POST
17.
All notices, summonses, and other documents other than those of which personal
service is required, may be sent by prepaid post letter
to the last known
address of the person to be served therewith; and the notice, summons or
document shall be considered as served
at the time that the same ought to be
delivered in the ordinary course of post by the post office, and notwithstanding
the same may
be returned by the post
office.
VALIDITY
OF
SERVICE
18.
No service shall be deemed invalid by reason that the name, or any of the names
other than the surname of the person to be served,
has been omitted from the
document containing the person's name, provided that the Court is satisfied that
in other respects the
service of the document has been
sufficient.
ENFORCEMENT
OF
ORDERS
19.
Every order of the Court having jurisdiction to wind up a company, made in the
exercise of the powers conferred by the Act and Rules
may be enforced by the
Court as if it were a judgment or order of the Court made in the exercise of its
ordinary jurisdiction.
PETITION
FORM
OF PETITION
Form
3, 4 and
5
20.
Every petition shall be in Forms 3, 4 and 5 in the Schedule with such variations
as circumstances may
require.
PRESENTATION
OF
PETITION
21.
A petition shall be presented at the office or chambers of the Registrar, who
shall appoint the time and place at which the petition
is to be heard. Notice of
the time and place appointed for hearing the petition shall be written on the
petition and sealed copies
thereof, and the Registrar may, at any time before
the petition has been advertised, alter the time appointed and fix another
time.
ADVERTISEMENT
OF PETITION
Form 6
and
7
22.
(1) Unless the Court otherwise directs, every petition shall be advertised once
in the Gazette not less than 7 clear days after it
has been served on the
company and not less than 7 clear days before the day fixed for the
hearing.
(2) The advertisements
shall be in Form 6 or Form 7 in the Schedule with such variations as
circumstances may require.
(3) If
the petition is not duly advertised in accordance with this Rule the Judge may
order that it shall be removed from the
file.
SERVICE
OF PETITION
Form 8
and
9
23.
Every petition shall, unless presented by the company, be served upon the
company at the registered office, if any, of the company,
and if there is no
registered office, then at the principal or last known principal place of
business of the company, if any such
can be found, by leaving a copy with any
member, officer or servant of the company there, or in case no such member,
officer or servant
can be found there, then by leaving a copy at such registered
office or principal place of business, or by serving it on such member,
officer
or servant of the company as the Court may direct; and where the company is
being wound up voluntarily, the petition shall
also be served upon the
liquidator (if any), appointed for the purpose of winding-up the affairs of the
company.
VERIFICATION
OF PETITION
Form
10
24.
(1) Every petition shall be verified by an affidavit in Form 10 in the Schedule
with such variations as the circumstances may
require.
(2) The affidavit shall
be made by the petitioner, or by one of the petitioners, if more than one, or by
some person, such as a director,
company secretary or similar officer, or a
solicitor who has been concerned in the matter on behalf of the
petitioner.
(3) The affidavit
shall be filed within 7 days after the petition is presented and shall be prima
facie evidence of the statements
in the
petition.
COPY
OF PETITION TO BE FURNISHED TO CREDITOR OR
CONTRIBUTORY
25.
Every contributory, or in the case of a petition for the winding-up of a company
every creditor, of the company shall be entitled
to be furnished by the
solicitor of the petitioner with a copy of the petition within 24 hours after
requiring same, on paying the
prescribed charge for such copy.
PROVISIONAL LIQUIDATOR
APPOINTMENT
OF PROVISIONAL
LIQUIDATOR
26.
(1) After the presentation of a petition for the winding-up of a company by the
Court, upon the application of a creditor, or of
a contributory, or of the
company, and upon proof by affidavit of sufficient ground for the appointment of
a provisional liquidator,
the Court, if it thinks fit and upon such terms as in
the opinion of the Court shall be just and necessary, make the
appointment.
Form
11
(2) The order appointing the
provisional liquidator, shall bear the number of the petition, and shall state
the nature and a short
description of the property of which the provisional
liquidator is ordered to take possession, and the duties to be performed by
the
provisional liquidator.
(3)
Subject to any order of the Court, if no order for the winding-up of the company
is made upon the petition, or if an order for
the winding-up of the company on
the petition is rescinded, or if all proceedings on the petition are stayed, or
if an order is made
continuing the voluntary winding-up of the company subject
to the supervision of the court, the provisional liquidator shall be entitled
to
be paid, out of the property of the company, all the costs, charges, and
expenses properly incurred by him as provisional liquidator,
including such sum
as is or would be payable under the scale of fees for the time being in force
where the Official Receiver is appointed
provisional liquidator, and may retain
out of such property the amounts of such costs, charges, and
expenses.
(4) Where any person
other than the Official Receiver has been appointed provisional liquidator and
the Official Receiver has taken
any steps for the purpose of obtaining a
statement of affairs or has performed any other duty prescribed by these Rules
the provisional
liquidator shall pay the Official Receiver such sum, if any, as
the Court directs.
HEARING OF PETITIONS AND ORDERS MADE THEREON
ATTENDANCE
BEFORE HEARING TO SHOW COMPLIANCE WITH
RULES
27.
After a petition has been presented, the petitioner, or his solicitor shall, on
a day to be appointed by the Registrar, attend before
the Registrar and satisfy
him that the petition has been duly advertised, that the prescribed affidavit
verifying the statements
therein and the affidavit of service (if any) have been
duly filed, and that the provisions of the Rules as to petitions have been
duly
complied with by the petitioner. No order shall be made on the petition of any
petitioner who has not, prior to the hearing
of the petition, attended before
the registrar at the time appointed, and satisfied him in manner required by
this
Rule.
NOTICE BY
PERSONS WHO INTEND TO
APPEAR
Form
12
28.
Every person who intends to appear on the hearing of a petition shall serve on,
or send by post to, the petitioner, or his solicitor
or agent, at the address
stated in the advertisement of the petition, notice of his intention. The notice
shall contain the address
of such person, and shall be signed by him or by his
solicitor or agent, and shall be served, or if sent by post shall be posted
in
such time as in ordinary course of post to reach the address, not later than 6
o'clock in the afternoon of the day previous to
the day appointed for the
hearing of the petition, or if such day be a Monday, not later than 1 o'clock in
the afternoon of the Saturday
previous to such day. The notice shall be in Form
12 in the Schedule with such variations as circumstances may require. A person
who has failed to comply with this Rule shall not, without the special leave of
the Court, be allowed to appear on the hearing of
the
petition.
LIST
OF NAMES AND ADDRESSES OF PERSONS WHO APPEAR ON THE
PETITION
Form
13
29.
The petitioner, or his solicitor or agent, shall prepare a list of the names and
addresses of the persons who have given notice of
their intention to appear on
the hearing of the petition, and of their respective solicitors; such list shall
be in Form 13 in the
Schedule. On the day appointed for hearing the petition a
fair copy of the list (or if no notice of intention to appear has been
given a
statement in writing to that effect) shall be handed by the petitioner, or his
solicitor or agent, to the Court prior to
the hearing of the
petition.
AFFIDAVITS
IN OPPOSITION AND
REPLY
30.
(1) Affidavits in opposition to a petition shall be filed within 14 days of the
date on which the affidavit verifying the petition
is filed, and notice of the
filing of every affidavit in opposition to such a petition shall be given to the
petitioner or his solicitor
or agent, on the day on which the affidavit is
filed.
(2) An affidavit in reply
to an affidavit filed in opposition to a petition shall be filed within 7 days
of the date on which notice
of such affidavit is received by the petitioner or
his solicitor or
agent.
SUBSTITUTION
OF CREDITOR OR CONTRIBUTORY FOR WITHDRAWING
PETITIONER
31.
When a petitioner for an order that a company be wound up by the Court is not
entitled to present a petition, or whether so entitled
or not, where he (a)
fails to advertise his petition within the time prescribed by these Rules or
such extended time as the Registrar
may allow, or (b) consents to withdraw his
petition, or to allow it to be dismissed, or the hearing adjourned, or fails to
appear
in support of his petition when it is called on in Court on the day
originally fixed for the hearing thereof, or on any day to which
the hearing has
been adjourned, or (c) if appearing, does not apply for an order in the terms of
the prayer of his petition, the
Court may, upon such terms as it may think just,
substitute as petitioner any creditor or contributory who in the opinion of the
Court would have a right to present a petition, and who is desirous of
prosecuting the petition. An order to substitute a petitioner
may, where a
petitioner fails to advertise his petition within the time prescribed by these
rules or consents to withdraw his petition,
be made in Chambers at any
time.
POWER OF
REGISTRAR OF COMPANIES TO WITHDRAW
PETITION
32.
Where the Registrar of Companies has presented a petition for the winding-up of
a company on the ground that the company has failed
to comply with one or more
requirements of the Act, the Court may permit the Registrar to withdraw that
petition if the Court has
been informed in writing by the Registrar that the
company has subsequently complied with the requirement or requirements upon
which
the petition was grounded.
ORDER
TO WIND-UP A COMPANY AND
ORDER
UNDER SECTION
216 OF THE ACT
NOTICE
THAT WINDING-UP ORDER HAS BEEN PRONOUNCED TO BE GIVEN TO OFFICIAL
RECEIVER
Forms 14
and
15
33.
When an order for the winding-up of a company, or for the appointment of a
provisional liquidator prior to the making of an order
for the winding-up of the
company, has been made, the Registrar shall, at latest on the day following the
day on which such an order
is pronounced, send to the Official Receiver a notice
informing him that the order has been
pronounced.
The notice shall be in
Forms 14 and 15 in the Schedule respectively, with such variations as
circumstances may
require.
DOCUMENTS
FOR DRAWING UP ORDER TO BE LEFT WITH
REGISTRAR
34.
It shall be the duty of the petitioner, or his solicitor or agent, and of all
other persons who have appeared on the hearing of the
petition, at latest on the
day following the day on which an order for the winding-up of a company or an
order under section 216
of the Act is pronounced in Court to leave at the
Registrar's office all the documents required for the purpose of enabling the
Registrar
to complete the order
forthwith.
NO
APPOINTMENT FOR SETTLING
ORDER
35.
Except in the case of an order made under section 216 of the Act it shall not be
necessary for the Registrar to make an appointment
to settle the order, unless
in any particular case the special circumstances make an appointment
necessary.
CONTENTS
OF WINDING-UP
ORDER
Forms 11 and
16
36.
An order to wind-up a company or for the appointment of a provisional liquidator
shall contain at the foot thereof a notice stating
that it will be the duty of
such of the persons who are liable to make out or concur in making out the
company's statement of affairs
as the Official Receiver may require, to attend
on the Official Receiver at such time and place as he may appoint and to give
him
all information he may
require.
TRANSMISSION
AND ADVERTISEMENT OF WINDING-UP
ORDER
37.
(1) When an order that a company be wound up, or for the appointment of a
provisional liquidator has been made -
(a) 3 copies of the order sealed with the seal of the Court shall forthwith be sent by post or otherwise by the Registrar to the Official Receiver.
(b) The Official Receiver shall cause a sealed copy of the order to be served upon the company by prepaid letter addressed to it at its registered office (if any) or if there is no registered office at its principal or last known principal place of business or upon such other person or persons, or in such other manner as the Court may direct, and if the order is that the company be wound up by the Court, shall forward to the Registrar of Companies the copy of the order which by section 232 of the Act is directed to be so forwarded by the company or otherwise as may be prescribed.
Form 99(1)
(c) The Official Receiver shall forthwith give notice of the order to the Minister, who shall forthwith cause the notice to be gazetted.
Form 17
(d) The Official Receiver shall forthwith send notice of the order to such local paper as the Minister may from time to time direct, or, in default of such direction, as he may select.
(2)
Where an order under section 216 of the Act has been made, an office copy of the
order shall, unless the Court otherwise orders,
be served by the petitioner on
the company and on the Registrar of Companies in like manner as, under subrule
(1)(b), the Official
Receiver is required to serve a sealed copy of the order,
and where such order involves a reduction of capital or alteration of the
memorandum of association, the Act and Rules of the Supreme Court relative to
such matters shall apply as the Court may
direct.
NOTICE
TO THE
BAILIFF
38.
For the purposes of section 314 of the Act a notice that (a) a winding-up
petition has been presented, or (b) a winding-up order
has been made, or (c) a
provisional liquidator has been appointed, or (d) a meeting has been called at
which there is to be proposed
a resolution for the voluntary winding-up of the
company, or (e) a resolution has been passed for the voluntary winding-up of the
company, shall be in writing and shall be addressed, to the bailiff, and may be
served by being delivered by hand or by registered
post at the office of the
bailiff.
SPECIAL
MANAGER APPOINTMENT OF SPECIAL
MANAGER
39.
(1) An application by the Official Receiver for the appointment of a special
manager shall be supported by a report of the Official
Receiver, which shall be
placed on the file of proceedings, and such report shall either state the amount
of remuneration which,
in the opinion of the Official Receiver, ought to be
allowed to the special manager, or that it is, in the opinion of the Official
Receiver, desirable that the fixing of such remuneration should be deferred. No
affidavit by the Official Receiver in support of
the application shall be
required.
(2) The remuneration of
the special manager shall, unless the Court in any case otherwise directs, be
stated in the order appointing
him, but the Court may at any subsequent time for
good cause shown make an order for payment to the special manager of further
remuneration.
(3) A copy of the
order appointing a special manager shall be transmitted to the Minister by the
Official
Receiver.
ACCOUNTING
BY SPECIAL
MANAGER
Form
18
40.
Every special manager shall account to the Official Receiver, and the special
manager's accounts shall be verified by affidavit,
and, when approved by the
Official Receiver, the totals of the receipts and payments shall be added by the
Official Receiver to his
accounts.
STATEMENT OF AFFAIRS
PREPARATION
OF STATEMENT OF
AFFAIRS
Form
19
41.
(1) A person who under section 237 of the Act has been required by the Official
Receiver to submit and verify a statement of affairs
of a company, shall be
furnished by the Official Receiver with such forms and instructions as the
Official Receiver in his discretion
shall consider necessary. The statement
shall be made out in duplicate, one copy of which shall be verified by
affidavit. The Official
Receiver shall cause to be filed with the Registrar the
verified statement of affairs.
(2)
The Official Receiver may from time to time hold personal interviews with any
such person as is mentioned in paragraphs (a), (b),
(c) or (d) of section 237(2)
of the Act for the purpose of investigating the company's affairs, and it shall
be the duty of every
such person to attend on the Official Receiver at such time
and place as the Official Receiver may appoint and give the Official
Receiver
all information that he may
require.
EXTENSION
OF TIME FOR SUBMITTING STATEMENT OF
AFFAIRS
42.
When any person requires any extension of time for submitting the statement of
affairs, he shall apply to the Official Receiver,
who may, if he thinks fit,
give a written certificate extending the time, which certificate shall be filed
with the proceedings and
shall render an application to the Court
unnecessary.
INFORMATION
SUBSEQUENT TO STATEMENT OF
AFFAIRS
43.
After the statement of affairs of a company has been submitted to the Official
Receiver it shall be the duty of each person who has
made or concurred in making
it, if and when required, to attend on the Official Receiver and answer all such
questions as may be
put to him, and give all such further information as may be
required of him by the Official Receiver in relation to the statement
of
affairs.
DEFAULT
44.
Any default in complying with the requirements of section 237 of the Act may be
reported by the Official Receiver to the
Court.
EXPENSES
OF STATEMENT OF
AFFAIRS
45.
A person who is required to make or concur in making any statement of affairs of
a company shall, before incurring any costs or expenses
in and about the
preparation and making of the statement, apply to the Official Receiver for his
sanction and submit a statement
of the estimated costs and expenses which it is
intended to incur; and, except by order of the Court, no person shall be allowed
out of the assets of the company any costs or expenses which have not before
being incurred been sanctioned by the Official
Receiver.
DISPENSING
WITH STATEMENT OF
AFFAIRS
46.
(1) Any application to dispense with the requirements of section 237 of the Act
shall be supported by a report of the Official Receiver
showing the special
circumstances which in his opinion render such a course
desirable.
(2) When the Court has
made an order dispensing with the requirements of the said section, it may give
such consequential directions
as it may see fit and in particular it may give
directions as to the sending of any notices which are by these rules required to
be sent to any person mentioned in the statement of affairs.
APPOINTMENT OF LIQUIDATOR IN A WINDING-UP BY THE COURT
APPOINTMENT
OF LIQUIDATOR ON REPORT OF MEETINGS OF CREDITORS AND
CONTRIBUTORIES
Form
20
47.
(1) As soon as possible after the first meetings of creditors and contributories
have been held the Official Receiver, or the chairman
of the meeting, as the
case may be, shall report the result of each meeting to the
Court.
(2) Upon the result of the
meetings of creditors and contributories being reported to the Court, if there
is a difference between
the determinations of the meetings of the creditors and
contributories, the Court shall, on the application of the Official Receiver,
fix a time and place for considering the resolutions and determinations (if any)
of the meetings, deciding differences, and making
such order as shall be
necessary. In any other case the Court may upon the application of the Official
Receiver forthwith make any
appointment necessary for giving effect to any such
resolutions or determinations.
(3)
When a time and place have been fixed for the consideration of the resolutions
and determinations of the meetings, such time and
place shall be advertised by
the Official Receiver in such manner as the Court shall direct, but so that the
first or only advertisement
shall be published not less than 7 days before the
time so fixed.
(4) Upon the
consideration of the resolutions and determinations of the meetings the Court
shall hear the Official Receiver and any
creditor or
contributory.
Forms
21 and 99(7)
(5) If a liquidator
is appointed a copy of the order appointing him shall be transmitted to the
Minister by the Official Receiver,
and the Minister shall, as soon as the
liquidator has given security, cause notice of the appointment to be
gazetted.
Form
22
(6) Every appointment of a
liquidator or committee of inspection shall be advertised by the liquidator in
such manner as the Court
directs immediately after the appointment has been
made, and the liquidator has given the required
security.
Form
99(8)
(7) If a liquidator in a
winding-up by the Court shall die, or resign, or be removed, another liquidator
may be appointed in his place
in the same manner as in the case of a first
appointment, and the Official Receiver shall, on the request of not less than
one-tenth
in value of the creditors or contributories summon meetings for the
purpose of determining whether or not the vacancy shall be filled;
but none of
the provisions of this Rule shall apply where the liquidator is released under
section 252 of the Act in which case the
Official Receiver shall remain
liquidator.
SECURITY
BY LIQUIDATOR OR SPECIAL MANAGER IN A WINDING-UP BY THE COURT STANDING SECURITY
TO
MINISTER
48.
In the case of a special manager or a liquidator other than the Official
Receiver, the following provisions as to security shall
have effect, namely
-
(a) the security shall be given to such officers or persons and in such manner as the Minister may from time to time direct;
(b) it shall not be necessary that security shall be given in each separate winding-up; but security may be given either specially in a particular winding-up, or generally, to be available for any winding-up in which the person giving security may be appointed, either as liquidator or special manager;
(c) the Minister shall fix the amount and nature of such security, and may from time to time, as he thinks fit, either increase or diminish the amount of special or general security which any person has given;
Form 23
(d) the certificate of the Minister that a liquidator or special manager has given security to their satisfaction shall be filed with the Registrar;
(e) the cost of furnishing the required security by a liquidator or special manager, including any premiums which he may pay to a guarantee society, shall be borne by him personally, and shall not be charged against the assets of the company as an expense incurred in the winding-up.
FAILURE TO GIVE OR KEEP UP SECURITY
49. (1) If a liquidator or special manager fails to give the required security within the time stated for that purpose in the order appointing him, or any extension thereof, the Official Receiver shall report such failure to the Court, who may thereupon rescind the order appointing the liquidator or special manager.
(2) If a liquidator or special manager fails to keep up his security the Official Receiver shall report such failure to the Court, who may thereupon remove the liquidator or special manager, and make such order as to costs as the Court shall think fit.
(3)
Where an order is made under this Rule rescinding an order for the appointment
of or removing a liquidator, the Court may direct
that meetings shall be held
for the purpose of determining whether an application shall be made to the Court
for another liquidator
to be appointed and thereupon the same meetings shall be
summoned and the same proceedings may be taken as in the case of a first
appointment of a
liquidator.
PUBLIC
EXAMINATION CONSIDERATION OF
REPORT
50.
The consideration of a report made by the Official Receiver pursuant to section
238(2) of the Act shall be before the Judge of the
Court personally in Chambers,
and the Official Receiver shall personally, or by counsel or solicitor, attend
the consideration of
the report and give the Court any further information or
explanation with reference to the matters stated in the report which the
Court
may
require.
PROCEDURE
CONSEQUENT ON ORDER FOR PUBLIC
EXAMINATION
Form
24
51.
Where the Court makes an order under section 269 of the Act, directing any
person or persons to attend for public examination -
(a) the examination shall be held before the Court:
Provided that the Court may direct that the whole or any part of the examination of any such person or persons, including any application as to costs, be held and heard and determined before the Registrar;
(b) the Court may, if it thinks fit, either in the order for examination or by any subsequent order, give directions as to the special matters on which any such person is to be examined;
(c) where on an examination held before the Registrar, he is of opinion that such examination is being unduly or unnecessarily protracted, or for any other sufficient cause, he may adjourn the examination of any person, or any part of the examination, to be held before the Court.
APPLICATION
FOR DAY FOR HOLDING
EXAMINATION
52.
Upon an order directing a person to attend for public examination being made,
the Official Receiver shall, unless the Court shall
otherwise direct, without
further order, take an appointment for the public examination to be
held.
APPOINTMENT
OF TIME AND PLACE FOR PUBLIC
EXAMINATION
Form
25
53.
A day and a place shall be appointed for holding the public examination, and
notice of the day and place so appointed shall be given
by the Official Receiver
to the person who is to be examined by sending such notice in a registered
letter addressed to his usual
or last known
address.
NOTICE
OF PUBLIC EXAMINATION TO CREDITORS AND
CONTRIBUTORIES
Form
99(3)
54.
(1) The Official Receiver shall give notice of the time and place appointed for
holding a public examination to the creditors and
contributories by
advertisement in such newspapers as the Minister from time to time directs, or
in default of any such direction
as the Official Receiver thinks fit, and shall
also forward notice of the appointment to the Minister to be
gazetted.
(2) Where an adjournment
of the public examination has been directed, notice of the adjournment shall
not, unless otherwise directed
by the Court, be advertised in any news- paper,
but it shall be sufficient to publish in the Gazette a notice of the time and
place
fixed for the adjourned
examination.
DEFAULT
IN ATTENDING
Form
26
55.
(1) If any person who has been directed by the Court to attend for public
examination fails to attend at the time and place appointed
for holding or
proceeding with the same, and no good cause is shown by him for such failure, or
if before the day appointed for the
examination the Official Receiver satisfies
the Court that such person has absconded, or that there is reason for believing
that
he is about to abscond with the view of avoiding examination, it shall be
lawful for the Court, upon it being proved to the satisfaction
of the Court that
notice of the order and of the time and place appointed for attendance at the
public examination was duly served,
without any further notice, to issue a
warrant for the arrest of the person required to attend, or to make such other
order as the
Court shall think
just.
(2) A warrant of arrest
issued by the Court under this Rule shall be issued in the Central Office of the
Supreme Court pursuant to
an order of the Court directing such
issue.
NOTES OF
EXAMINATION TO BE
FILED
Form 27 and
28
56.
The notes of every public examination shall, after being signed as required by
section 269(7) of the Act, be filed with the Registrar.
PROCEEDINGS BY OR AGAINST DIRECTORS, PROMOTERS, AND OFFICERS
APPLICATIONS
BY OR AGAINST DELINQUENT DIRECTORS, OFFICERS AND
PROMOTERS
57.
(1) An application made to the Court under any of the following provisions of
the Act -
(a) section 320;
(b) section 319(1);
(c) section 200;
(d) section 404(2), shall be made by a summons returnable in the first instance in Chambers. The summons shall state the nature of the declaration or order for which application is made, and the grounds of the application, and, unless otherwise ordered, shall be served, in the manner in which an originating summons is required by the Rules of the Supreme Court to be served, on every person against whom an order is sought, not less than 14 days before the day named in the summons for hearing the application. Where any such application is made by summons no affidavit or report shall be filed before the return of the summons.
(2)
On the return of the summons the Court may give such directions as it shall
think fit as to whether points of claim and defence
are to be delivered, as to
the taking of evidence wholly or in part by affidavit or orally, as to the cross
examination either before
the Judge on the hearing in Court or in Chambers of
any deponents to affidavits in support of or in opposition to the application,
as to any report it may require the Official Receiver or liquidator to make and
generally as to the procedure on the summons and
for the hearing
thereof.
(3) Where any such order
as is mentioned in subrule (2) has directed that points of claim and defence
shall be delivered then if subsequently
to such order and before the summons has
been set down for trial or adjourned to the Judge either party wishes to apply
for any further
direction as to any interlocutory matter or thing he shall
restore the summons to the Registrar's list and shall give 2 clear days'
notice
in writing to the other party stating the grounds of the application. A copy of
such notice shall be filed with the Registrar
2 clear days before the day for
which the summons is
restored.
NOTICE
OF
APPLICATION
58.
Where the application is made by motion the Court may at any time before making
an order require the Official Receiver or liquidator
to furnish to the Court a
report with respect to any facts or matters which are in his opinion relevant to
the application and may
give any directions it may see fit with regard to any of
the matters mentioned in Rule 57(2). Notice of any such intended motion
shall be
served on every person against whom an order is sought, not less than 8 days
before the day named in the notice for hearing
the motion. A copy of every
report and affidavit intended to be used in support of the motion shall be
served on every person to
whom notice of motion is given not less than 4 days
before the hearing of the
motion.
HEARING
OF
APPLICATION
59.
(1) Where any application under section 200 of the Act is made or heard after a
public examination under section 269 of the Act
has been held before the
Registrar then such application shall be heard and determined by such Registrar.
The Judge shall personally
hear all other applications under the said section
200:
Provided that the Judge may
direct that such applications or any of them shall be heard and determined by
the Registrar.
(2) Where any order
has been made under the said section 200, any application for leave arising out
of such order shall be made to
the Court having jurisdiction to wind up the
company as respects which leave is
sought.
USE OF
DEPOSITIONS TAKEN AT PUBLIC
EXAMINATIONS
60.
Where, in the course of the proceedings in a winding-up by the Court, an order
has been made for the public examination of persons
named in the order pursuant
to section 269 of the Act, then in any proceedings subsequently instituted under
any of the provisions
of the Act mentioned in Rule 57(1) the verified notes of
the examination of each person who was examined under the order shall, subject
as hereinafter mentioned, and to any order or directions of the Court as to the
manner and extent in and to which the notes shall
be used, and subject to all
just exceptions to the admissibility in evidence against any particular person
or persons of any of the
statements contained in the notes of the examinations,
be admissible in evidence against any of the persons against whom the
application
is made, who, under section 269 of the Act and the order for the
public examination, was or had the opportunity of being present
at and taking
part in the examination:
Provided
that before any such notes of a public examination shall be used on any such
application, the person intending to use the
same shall, not less than 15 days
before the day appointed for hearing the application, give notice of such
intention to each person
against whom it is intended to use such notes, or any
of them, specifying the notes or parts of the notes which it is intended to
read
against him, and furnish him with copies of such notes, or parts of notes
(except notes of the person's own depositions), and
provided also that every
person against whom the application is made shall be at liberty to cross-examine
or re-examine (as the case
may be) any person the notes of whose examination are
read, in all respects as if such person had made an affidavit on the
application.
WITNESSES AND DEPOSITIONS
SHORTHAND
NOTES
Form 29 and
30
61.
(1) If the Court or the officer of the Court before whom any examination under
the Act and Rules is directed to be held shall in
any case, and at any stage of
the proceedings, be of opinion that it would be desirable that a person (other
than the person before
whom an examination is taken) should be appointed to take
down the evidence of any person examined in shorthand or otherwise, it
shall be
competent for the Court or officer aforesaid to make such appointment. The
person at whose instance the examination is taken
shall nominate a person for
the purpose, and the person so nominated shall be appointed, unless the Court or
officer holding the
examination shall otherwise order. Every person so appointed
shall be paid such amounts as the Court may direct at such rate as may
be fixed
by the Minister responsible for the public service, and such sums shall be paid
by the party at whose instance the appointment
was made, or out of the assets of
the company as may be directed by the
Court.
(2) The fees of the
shorthand writer shall be paid by the party at whose instance the examination
was taken or out of the assets of
the company, as the Court may direct, at such
rate as may be fixed by the
Minister.
COMMITTAL
OF CONTUMACIOUS
WITNESS
Form
31
62.
(1) If a person examined before a Registrar or other officer of the Court who
has no power to commit for contempt of Court, refuses
to answer to the
satisfaction of the Registrar or officer any question which he may allow to be
put, the: Registrar or officer shall
report such refusal to the Judge, and upon
such report being made the person in default shall be in the same position, and
be dealt
with in the same manner as if he had made default in answering before
the Judge.
(2) The report shall be
in writing, but without affidavit and shall set forth the question put, and the
answer (if any) given by the
person
examined.
(3) The Registrar or
other officer shall, before the conclusion of the examination at which the
default in answering is made, name
the time when and the place where the default
will be reported to the Judge, and upon receiving the report the Judge may take
such
action thereon as he shall think fit. If the Judge is sitting at the time
when the default in answering is made, such report may
be made
immediately.
DEPOSITIONS
AT PRIVATE
EXAMINATIONS
63.
(1) The Official Receiver may attend in person, or by an Assistant Official
Receiver, or by counsel or by solicitors employed for
the purpose, any
examination of a witness under section 268 of the Act, on whose so ever
application the same has been ordered, and
may take notes of the examination for
his own use, and put such questions to the persons examined as the Court may
allow.
(2) The notes of the
depositions of a person examined under section 268 of the Act, or under any
order of the Court before the Court,
or before any officer of the Court, or
person appointed to take such an examination (other than the notes of the
depositions of a
person examined at a public examination under section 269 of
the Act) shall be forthwith lodged in the Chambers of the Registrar
but shall
not be filed, or be open to the inspection of any creditor, contributory, or
other person, except the Official Receiver
or liquidator, or any provisional
liquidator other than the Official Receiver, while he is acting as provisional
liquidator, unless
and until the Court shall so direct, and the Court may from
time to time give such general or special directions as it shall think
expedient
as to the custody and inspection of such notes and the furnishing of copies of
or extracts therefrom.
DISCLAIMER
DISCLAIMER
Form
32 and 33
64. (1) (a) An application for leave to disclaim any property of a company under section 312(1) of the Act shall be made by summons to which all persons interested who have not consented to leave to disclaim being granted shall be made respondents.
(b) Where all persons interested have consented to leave to disclaim being granted, the application may be made by ex-parte summons.
(c) A summons under this Rule shall be supported by an affidavit stating the names and addresses of all persons interested and the nature, of their interests, and verifying any relevant consents.
(d) The applicant shall serve the summons and a copy of the affidavit upon every respondent not less than 7 clear days before the day named in the summons for the hearing of the application.
(e) Where an application under this Rule is made by originating summons, no appearance need be entered to the summons.
(2)
Where a liquidator disclaims a leasehold interest he shall forthwith file the
disclaimer at the office of the Registrar. The disclaimer
shall contain
particulars of the interest disclaimed and a statement of the persons to whom
notice of the disclaimer has been given.
Until the disclaimer is filed by the
liquidator the disclaimer shall be inoperative. A disclaimer shall be in Form 32
and a notice
of disclaimer in Form 33 in the Schedule with such variations as
circumstances may require.
(3)
Where any person claims to be interested in any part of the property of a
company which the liquidator wishes to disclaim he shall
at the request of the
liquidator furnish a statement of the interest so claimed by him.
VESTING OF DISCLAIMED PROPERTY
VESTING
OF DISCLAIMED
PROPERTY
65.
(1) Any application under section 312(6) of the Act for an order for the vesting
of any disclaimed property in or the delivery of
any such property to any
persons shall be supported by the affidavit filed on the application for leave
to disclaim such property.
(2)
Where such an application as aforesaid relates to disclaimed property of a
leasehold nature and it appears that there is any mortgagee
by demise (including
a charge by way of legal mortgage), or under-lessee of such property, the Court
may direct that notice shall
be given to such mortgagee or under-lessee that, if
he does not elect to accept and apply for such a vesting order as aforesaid upon
the terms required by the above-mentioned subsection and imposed by the Court
within a time to be fixed by the Court and stated in
the notice, he will be
excluded from all interest in and security upon the property, and the Court may
adjourn the application for
such notice to be given and for such mortgagee or
under-lessee to be added-as a party to and served with the application and if he
sees fit to make such election and application as is mentioned in the notice. If
at the expiration of the time so fixed by the Court
such mortgagee or
under-lessee fails to make such election and application, the Court may make an
order vesting the property in the
applicant and excluding such mortgagee or
under-lessee from all interest in or security upon the property.
ARRANGEMENTS WITH CREDITORS AND CONTRIBUTORIES IN A WINDING-UP BY THE COURT
REPORT
BY OFFICIAL RECEIVER ON ARRANGEMENTS AND
COMPROMISES
66.
In a winding-up by the Court, if application is made to the Court to sanction
any compromise or arrangement, the Court may, before
giving its sanction
thereto, hear a report by the Official Receiver as to the terms of the scheme,
and as to the conduct of the directors
and other officers of the company, and as
to any other matters which, in the opinion of the Official Receiver or the
Minister, ought
to be brought to the attention of the Court. The report shall
not be placed upon the file, unless and until the Court shall direct
it to be
filed.
COLLECTION AND DISTRIBUTION OF ASSETS IN A WINDING-UP BY THE COURT
COLLECTION
AND DISTRIBUTION OF COMPANY'S ASSETS BY
LIQUIDATOR
67.
(1) The duties imposed on the Court by section 257(1) of the Act in a winding-up
by the Court with regard to the collection of the
assets of the company and the
application of the assets in discharge of the company's liabilities shall be
discharged by the liquidator
as an officer of the Court subject to the control
of the Court.
(2) For the purpose
of the discharge by the liquidator of the duties imposed by section 257(1) of
the Act, and subrule (1), the liquidator
in a winding-up by the Court shall, for
the purpose of acquiring or retaining possession of the property of the company,
be in the
same position as if he were a receiver of the property appointed by
the Court, and the Court may on his application enforce such
acquisition or
retention
accordingly.
POWER
OF LIQUIDATOR TO REQUIRE DELIVERY OF
PROPERTY
Form
34
68.
The powers conferred on the Court by section 258 of the Act shall be exercised
by the liquidator. Any contributory for the time
being on the list of
contributories, trustee, receiver, banker or agent or officer of a company which
is being wound up under order
of the Court shall, on notice from the liquidator
and within such time as he shall by notice in writing require, pay, deliver,
convey,
surrender or transfer to or into the hands of the liquidator any money,
property, books or papers, which happen to be in his hands
for the time being
and to which the company is prima facie
entitled.
LIST
OF CONTRIBUTORIES IN A WINDING-PP BY THE
COURT
LIQUIDATOR
TO SETTLE LIST OF
CONTRIBUTORIES
Form
35
69.
Unless the Court shall dispense with the settlement of a list of contributories,
the liquidator shall with all convenient speed
after his appointment settle a
list of contributories of the company, and shall appoint a time and place for
that purpose. The list
of contributories shall contain a statement of the
address of, and the number of shares or extent of interest to be attributed to
each contributory, and the amount called and the amount paid up in respect of
such shares or interest and shall distinguish the sever
lasses of
contributories. As regards representative contributories the liquidator shall,
so far as practicable, observe the requirements
of section 257(2) of the
Act.
APPOINTMENT
OF TIME AND PLACE FOR SETTLEMENT OF
LIST
Form 36 and
37
70.
The liquidator shall give notice in writing of the time and place appointed for
the settlement of the list of contributories to every
person whom he proposes to
include in the fist, and shall state in the notice to each person in what
character and for what number
of shares or interest he proposes to include such
person in the list and what amount has been called up and what amount paid up in
respect of such shares or
interest.
SETTLEMENT
OF LIST OF
CONTRIBUTORIES
Form
38
71.
On the day appointed for settlement of the list of contributories the liquidator
shall hear any person who objects to being settled
as a contributory, and after
such hearing shall finally settle the list, which when so settled shall be the
list of contributories
of the
company.
NOTICE
TO
CONTRIBUTORIES
Forms
39 and
40
72.
The liquidator shall forthwith give notice to every person whom he has finally
placed on the list of contributories stating in what
character and for what
number of shares or interest he has been placed on the list and what amount has
been called up and what amount
paid up in respect of such shares or interest and
in the notice he shall inform such person that any application for the removal
of his name from the list, or for a variation of the list, must be made to the
Court by summons within 21 days from the date of the
service on the contributory
or alleged contributory of notice of the fact that his name is settled on the
list of
contributories.
APPLICATION
TO THE COURT TO VARY THE
LIST
Form
41
73.
(1) Subject to the power of the Court to extend the time or to allow an
application to be made notwithstanding the expiration of
the time limited for
that purpose, no application to the Court by any person who objects to the list
of contributories as finally
settled by the liquidator shall be entertained
after the expiration of 21 days from the date of the service on such person of
notice
of the settlement of the
list.
(2) The Official Receiver
shall not in any case be personally liable to pay any costs of or in relation to
an application to set aside
or vary his act or decision settling the name of a
person on the list of contributories of a
company.
VARIATION
OF OR ADDITION TO LIST OF
CONTRIBUTORIES
Form
42
74.
The liquidator may from time to time vary or add to the fist of contributories,
but any such variation or addition shall be made
in the same manner in all
respects as the settlement of the original list.
CALLS
CALLS
BY
LIQUIDATOR
75.
The powers and duties of the Court in relation to making calls upon
contributories conferred by section 260 of the Act, shall and
may be exercised,
in a winding-up by the Court, by the liquidator as an officer of the Court
subject to the proviso to section 272
of the Act, and to the following
regulations -
(a) where the liquidator desires to make any call on the contributories, or any of them for any purpose authorised by the Act, if there is a committee of inspection he may summon a meeting of such committee for the purpose of obtaining their sanction to the intended call;
Forms 43 and 44
(b) the notice of the meeting shall be sent to each member of the committee of inspection in sufficient time to reach him not less than 7 days before the day appointed for holding the meeting, and shall contain a statement of the proposed amount of the call, and the purpose for which it is intended. Notice of the intended call and the intended meeting of the committee of inspection shall also be advertised once at least in a Port Vila newspaper. The advertisement shall state the time and place of the intended meeting of the committee of inspection, and that each contributory may either attend the said meeting and be heard, or make any communication in writing to the liquidator or members of the committee of inspection to be laid before the meeting, in reference to the said intended call;
(c) at the meeting of the committee of inspection any statements or representations made either to the meeting personally or addressed in writing to the liquidator or members of the committee by any contributory shall be considered before the intended call is sanctioned;
Form 45
(d) the sanction of the committee shall be given by resolution, which shall be passed by a majority of the members present;
(e) where there is no committee of inspection, the liquidator shall not make a call without obtaining the leave of the Court.
APPLICATION
TO THE COURT FOR LEAVE TO MAKE A
CALL
Form 46 to
49
76.
In a winding-up by the Court an application to the Court for leave to make any
call on the contributories of a company, or any of
them, for any purpose
authorised by the Acts, shall be made by summons stating the proposed amount of
such call, which summons shall
be served 4 clear days at the least before the
day appointed for making the call on every contributory proposed to be included
in
such call; or if the Court so directs, notice of such intended call may be
given by advertisement, without a separate notice to each
contributory.
DOCUMENT
MAKING THE
CALL
Form
50
77.
When the liquidator is authorised by resolution or order to make a call on the
contributories he shall file with the Registrar a
document making the call in
Form 50 in the Schedule with such variations as circumstances may
require.
SERVICE
OF NOTICE OF A
CALL
Form 45, 49,
51 and
52
78.
When a call has been made by the liquidator in a winding-up by the Court, a copy
of the resolution of the committee of inspection
or order of the Court (if any),
as the case may be, shall forthwith after the call has been made be served upon
each of the contributories
included in such call, together with a notice from
the liquidator spe