I ASSENT Insolvency INSOLVENCY RULES, 2014
© Government of Gibraltar (www.gibraltarlaws.gov.gi)
2011-26 Subsidiary 2014/196
Subsidiary Legislation made under s. 495.
INSOLVENCY RULES, 2014
(LN. 2014/196)
Commencement 1.11.2014
Amending
enactments
Relevant current
provisions
Commencement
date
_______________________
ARRANGEMENT OF REGULATIONS.
Regulation
In exercise of the powers conferred on him by section 495 of the Insolvency
Act 2011, the Minister has made the following Rules–
PART I
PRELIMINARY PROVISIONS
Title and commencement.
1. These Rules may be cited as the Insolvency Rules, 2014 and come into
effect on the 1st day of November 2014.
Interpretation.
2.(1) In these Rules-
“Act” means the Insolvency Act, 2011;
“approved electronic form”, in relation to documents filed with the
Court, has the meaning specified in rule 324;
“contact details”, in respect of a person, means–
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(a) a telephone number,
(b) a fax number,
(c) an e-mail address, or
(d) another method of communication, not being a physical address.
“the Court Rules” means the Supreme Court Rules or, in the event that
the Supreme Court Rules do not apply in relation to any matter, the
Civil Procedure Rules made (as amended from time to time) under the
Civil Procedure Act 1997 in England and Wales;
“insolvency proceeding” means any proceeding under the Act or the
Rules, including a creditors’ arrangement;
“practice direction” means a direction as to practice and procedure issued
by the Court under rule 325;
“the Rules” means these Rules;
“section” means a section of the Act;
“Supreme Court Rules” means the Supreme Court Rules 2000 and
“SCR” followed by a Part or rule by number means the Part or rule
with that number in those Rules.
(2) For the purposes of section 1(A), the following are prescribed as
laws and subsidiary legislation concerning collateral arrangements and
collateral–
(a) the Financial Collateral Arrangements Act; and
(b) the Financial Markets and Insolvency (Settlement Finality) Regulations 2011.
(3) For the purposes of section 2(1)–
(a) “parent” has the same meaning as “parent undertaking” in the
Companies Act;
(b) “subsidiary” has the same meaning as “subsidiary undertaking”
in the Companies Act; and
(c) such debts as may be set out in the Schedule are preferential
debts.
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2011-26 Subsidiary 2014/196 (4) Unless otherwise provided, the words and expressions defined in the
Act have the same meaning in the Rules.
Meaning of “connected person”
3.(1) For the purposes of section 2(1), “connected person” shall be
construed in accordance with this Rule.
(2) A person is connected with an individual if the person is–
(a) the individual’s spouse or civil partner;
(b) a relative of the individual or of the individual’s spouse or civil
partner; or
(c) the spouse or civil partner of a relative of the individual or of the
individual’s spouse or civil partner.
(3) A person is connected with a company if the person—
(a) is a director of the company;
(b) is a parent or subsidiary of the company; or
(c) has control of the company.
(4) A person is connected with–
(a) a person with whom the person is in partnership; or
(b) a person who is a connected person in relation to a person with
whom the person is in partnership;
(5) A person is connected with any person whom he employees or who
employees him.
(6) For the purposes of sub-rule (2), a person is a relative of an
individual if the person is the individual’s brother, sister, uncle, aunt,
nephew, niece, lineal ancestor or lineal descendant, treating–
(a) any relationship of the half blood as a relationship of the whole
blood and the stepchild or adopted child of a person as his child;
and
(b) an illegitimate child as the legitimate child of his mother and
reputed father.
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2011-26 Subsidiary 2014/196 (7) A reference in sub-rule (6) to a husband, wife or civil partner include
a former or reputed husband, wife or civil partner.
(8) For the purposes of sub-rule (3), a person has control of a company
if the person, whether acting alone or jointly with one or more other
persons, if–
(a) the directors of the company or a parent of the company are
accustomed to act in accordance with the person’s directions or
instructions; or
(b) the person is entitled to exercise, or control the exercise, of one
third or more of the voting power at any general meeting of the
company.
PART 2
COMPANY VOLUNTARY ARRANGEMENTS
Preliminary
Scope of and interpretation for this Part.
4.(1) This Part applies where it is intended to make, and there is made, a
proposal under Part 2 of the Act for a company voluntary arrangement and
in respect of any arrangement that may be approved.
(2) In this Part, “creditors’ meeting” means a creditors’ meeting held
under Part 2 of the Act.
Additional matters that may be included in an arrangement.
5. Subject to section 13(4), and without limiting section 13(1), an
arrangement may–
(a) provide for circumstances in which persons who become
creditors of the company after the approval of an arrangement
are entitled to be paid under the arrangement in priority to
creditors bound by the arrangement;
(b) specify a date or a time at which liabilities of the company will
be calculated and provide how liabilities arising after that date
are to be dealt with;
(c) be entered into in conjunction with any other arrangement,
reorganization or scheme taking effect under the law of another
jurisdiction, whether subject to Court approval or otherwise;
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(d) provide for the whole or partial cancellation of a liability of the
company in return for shares of any kind or for the issue by the
company, or by any other person, of a debenture or a security
interest; and
(e) relate to an amendment of the company’s memorandum or
articles that affects the likelihood of the company being able to
pay a debt or satisfy a liability.
Proposal and Statement of Affairs
Form and contents of proposal.
6.(1) A proposal by the directors shall be in writing and shall include–
(a) details of the name, registered office, date of incorporation and
any trading names of the company and, if the proposal is being
made by the administrator or liquidator of the company, a
statement to that effect and the date on which it entered into
administration or liquidation;
(b) a summary of the proposed arrangement with a brief explanation
as to its main features and as to why the arrangement is
desirable and why the directors, expect the creditors to agree to
it;
(c) to the best of the knowledge and belief of the directors,
particulars of the assets of the company specifying–
(i) the value of each asset or class of assets;
(ii) the extent, if any, to which the assets are charged in favour
of creditors; and
(iii) the extent, if any, to which particular assets are to be
excluded from the arrangement;
(d) particulars of any assets, other than those of the company, which
it is proposed will be included in the arrangement, specifying–
(i) the source of the assets; and
(ii) the terms upon which they are to be made available to
creditors under the arrangement;
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2011-26 Subsidiary 2014/196 (e) to the best of the knowledge and belief of the directors,
particulars of the nature and amount of the company’s liabilities,
including any disputed claims and any joint obligations, and the
manner in which they will be met, modified or postponed or
otherwise dealt with under the arrangement, specifying in
particular–
(i) how it is proposed that creditors who are or who claim to
be secured creditors will be dealt with, detailing the
amount of any secured liabilities;
(ii) how it is proposed that any creditors or joint, or joint and
several, debtors who are connected persons in relation to
the company will be dealt with;
(iii) whether there are, to the knowledge of the directors, any
circumstances giving rise to the possibility, in the event
that the company should go into liquidation, of claims
for a voidable transaction under Part 9 of the Act and, if
so, whether and how it is proposed to make provision for
wholly or partly indemnifying the company in respect of
such claims;
(iv) whether there are any persons with non-admissible or
postponed claims against the company and how it is
proposed that they will be dealt with, if at all;
(v) any creditors who, for the purposes of section 13(4) are
or are expected to be or claim to be preferential creditors,
detailing the amount and nature of each such claim and
how it is proposed that the claims will be dealt with;
(f) how it is proposed that the claims of any creditor who did not
participate in the approval of the arrangement, as provided by
sub-rule (3), will be dealt with;
(g) particulars of any security interest, liens, rights of set-off held by
creditors and as to any guarantees of the company’s debts given
by third parties, specifying which of the guarantors, if any, are
connected persons in relation to the company;
(h) details of the proposed duration of the arrangement;
(i) the proposed dates of distributions of assets to creditors of the
company, with estimates of their amounts;
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2011-26 Subsidiary 2014/196 (j) particulars of the remuneration proposed to be paid to the
interim supervisor and to the supervisor and how the
remuneration and the other costs of the interim supervisor and
the supervisor are to be met;
(k) details of any benefits, including guarantees, assets and any
security interests that are to be offered by any director or other
third party for the purposes of the arrangement;
(l) details of any further loans or credit facilities which it is
intended to arrange for the company, specifying on what terms
and how it is proposed that the additional liabilities, including
interest, are to be repaid;
(m) details of the business that will be conducted by the company
during the course of the arrangement and the manner in which
funds payable to the company will be dealt with during the
period before the arrangement is approved and during the course
of the arrangement, if approved;
(n) the manner in which funds or other assets held for the purpose
of the arrangement are to be banked, invested or otherwise dealt
with pending distribution to the creditors;
(o) the manner in which funds or other assets held for the purpose
of payment to creditors, and not so paid on the termination of
the arrangement, are to be dealt with;
(p) the functions to be undertaken by the interim supervisor and by
the supervisor if the arrangement is approved;
(q) if the supervisor is to carry on the business of the company or
trade on its behalf and in its name, details of the extent of the
business to be carried on by the supervisor and the basis on
which the supervisor will carry on that business or trade on its
behalf; and
(r) the name and address of the persons proposed as the supervisor
and interim supervisor, who may be the same person, and
confirmation that they are, or he is, eligible to act in relation to
the company.
(2) Where a proposal is being made by the administrator or liquidator,
the proposal shall specify all the matters that the directors would be required
to include under sub-rule (1), with such modifications as are necessary, with
the addition of the nature and amount of the company’s preferential
creditors.
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(3) For the purposes of sub-rule (1)(f), a creditor does not participate in
the approval of the arrangement if, for whatever reason–
(a) he was not given notice of the creditors’ meeting called under
section 23; and
(b) he did not attend the meeting at which the arrangement was
approved, whether in person or by proxy.
(4) Where the company is in liquidation, and the liquidator was
appointed by the Court under section 160, the nominated insolvency
practitioner shall give notice of the proposal to the Official Receiver.
Statement of affairs.
7.(1) The statement of affairs provided to the nominated insolvency
practitioner under section 17(1)(c) shall–
(a) supplement or amplify, so far as is necessary for clarifying the
state of the company’s affairs, those already given in the
proposal; and
(b) contain, in addition to the matters required under rule 132, such
other matters as the nominated solvency practitioner shall
require.
(2) Subject to sub-rule (3), the statement of affairs shall be made up to a
date not earlier than 2 weeks before the date of the notice provided to the
nominated insolvency practitioner under section 17(1)(d).
(3) The nominated insolvency practitioner may allow an extension of
the period specified in sub-rule (2) to the nearest practicable date not earlier
than 2 months before the date of the notice provided under section 17(1)(d).
(4) The statement of affairs shall be verified by at least one director of
the company.
Amendment or withdrawal of proposal before appointment of interim
supervisor.
8.(1) The directors of a company or, in the case of a company that is in
administration or liquidation, its administrator or liquidator, may before the
nominated insolvency practitioner has accepted appointment as interim
supervisor–
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2011-26 Subsidiary 2014/196 (a) amend a proposal by providing a copy of the amended proposal
to the nominated insolvency practitioner; or
(b) withdraw the proposal by providing a notice of withdrawal to
the nominated insolvency practitioner.
(2) In the case of a company that is not in administration or liquidation,
the nominated insolvency practitioner shall also be provided with a copy of
the resolution of the directors approving the amendment or withdrawal.
(3) The withdrawal of a proposal under section 22(1)(a) takes effect
from the time that the notice of withdrawal is received by the nominated
insolvency practitioner.
(4) The nominated insolvency practitioner shall endorse the notice of
withdrawal with the time and date that it was received and return a copy to
the directors, administrator or liquidator, as the case may be.
Amendment or withdrawal of proposal after appointment of interim
supervisor.
9.(1) This rule applies if the directors of a company or, in the case of a
company in administration or liquidation, its administrator or liquidator,
wish to amend or withdraw a proposal after the appointment of an interim
supervisor but before a creditors’ meeting is called under section 23.
(2) A proposal is deemed to be amended under this rule if–
(a) the amendment is provided to the interim supervisor in writing
together with, if appropriate, a copy of the directors’ resolution
before the interim supervisor calls a creditors’ meeting under
section 23; and
(b) the interim supervisor consents to the proposal being amended
in the terms of the amendment provided to him.
(3) Without limiting sub-rule (2)(b), the interim supervisor may refuse
to consent to the amendment if he considers that he does not have sufficient
time to prepare a report on the amended proposal before giving notice of the
creditors’ meeting under section 23.
(4) A proposal may be withdrawn under section 22(1)(b) by providing
the interim supervisor with a notice of withdrawal together with, if
appropriate, a copy of the directors’ resolution, before the interim supervisor
calls a creditors’ meeting under section 23.
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2011-26 Subsidiary 2014/196 (5) On receipt of a notice of withdrawal in accordance with sub-rule (4),
the interim supervisor shall endorse the notice of withdrawal with the time
and date that it was received and return a copy to the directors, administrator
or liquidator, as the case may be.
(6) The withdrawal of a proposal under section 22(1)(b), and the
termination of the interim supervisor’s appointment, takes effect from the
time that he receives the notice of withdrawal.
(7) If the interim supervisor has filed a notice of his appointment under
section 20 with the Registrar and, if appropriate, provided a copy to the
Commission, he shall, within 2 business days of receiving the withdrawal
notice, file a copy of the notice with the Registrar and, if appropriate,
provide a copy to the Commission.
(8) Where a proposal is withdrawn under this rule, the company is liable
to the former interim supervisor in respect of any costs and remuneration
payable to him, including the costs of complying with sub-rule (7).
Amendment or withdrawal of proposal before creditors’ meeting.
10.(1) This rule applies if the directors of a company or, in the case of a
company in administration or liquidation, its administrator or liquidator,
wishes to amend or withdraw a proposal after the calling of a creditors’
meeting under section 23 but before the meeting is held.
(2) A proposal is deemed to be amended under this rule if–
(a) the amendment is provided to the interim supervisor in writing
together with, if appropriate, a copy of the directors’ resolution
at least 7 days prior to the date fixed in the notice calling the
meeting under section 23; and
(b) the interim supervisor consents to the proposal being amended
in the terms of the amendment provided to him.
(3) Where a proposal is amended under this rule, the interim supervisor
shall give at least 2 business days’ notice of the amendment, together with a
brief report on the effect of the amendment, to every person who received
the notice calling the meeting under section 23.
(4) Without limiting sub-rule (2)(b), the interim supervisor may refuse
to consent to the amendment if he considers that he does not have sufficient
time to comply with sub-rule (3).
(5) A proposal may be withdrawn under section 22(1)(c) by providing
the interim supervisor with a notice of withdrawal together with, if
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2011-26 Subsidiary 2014/196 appropriate, a copy of the directors’ resolution, at least 5 business days prior
to the date fixed for the creditors’ meeting called under section 23.
(6) On receipt of a notice of withdrawal in accordance with sub-rule (5),
the interim supervisor shall endorse the notice of withdrawal with the time
and date that it was received and return a copy to the directors, administrator
or liquidator, as the case may be.
(7) The withdrawal of a proposal under section 22(1)(c), and the
termination of the interim supervisor’s appointment, takes effect from the
time that he receives the notice of withdrawal.
(8) Forthwith on receiving a notice of withdrawal under sub-rule (5), the
former interim supervisor shall–
(a) send a notice cancelling the creditors’ meeting to every creditor,
member and director of the company and to the company itself;
and
(b) file a copy of the notice of withdrawal with the Registrar and, if
the company is an Authorised person, provide a copy to the
Commission.
(9) Where a proposal is withdrawn under section 22(1)(c), the company
is liable to the former interim supervisor in respect of any costs and
remuneration payable to him, including the costs of complying with sub-
rule (8).
Effect of amendment or withdrawal of proposal.
11. Where a proposal is amended under rules 8, 9 or 10, Part 2 of the Act
applies to the amended proposal as if it was the original proposal.
Appointment of Interim Supervisor
Appointment of interim supervisor by directors.
12. If the insolvency practitioner nominated by the directors of a company
agrees to act as interim supervisor, he shall–
(a) cause a copy of the notice of intention to appoint him as interim
supervisor to be endorsed with–
(i) an acknowledgement that he has received a copy of the
resolution of the directors together with a copy of the
proposal approved by the directors and a copy of the
company’s statement of affairs;
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(ii) the date upon which he received the notice of intention to
appoint him interim supervisor and copies of the
resolution, the proposal and the statement of affairs;
(iii) the date or dates upon which he received an amended
proposal from the directors or confirmation that the
proposal has not been amended;
(iv) confirmation that, to the best of his knowledge, he is
eligible to act as an insolvency practitioner in respect of
the company; and
(v) his agreement to act as interim supervisor;
(b) deliver the endorsed notice to the directors at the address
specified in the notice; and
(c) retain a copy of the endorsed notice.
Appointment by administrator or liquidator of another insolvency
practitioner as interim supervisor.
13.(1) Where the administrator or liquidator of a company intends to
appoint another insolvency practitioner as interim supervisor, the notice of
intention to appoint shall be in the form for an appointment made by the
directors of a company, with suitable modifications.
(2) If the insolvency practitioner who the administrator or liquidator
intends to appoint as interim supervisor agrees to act, he shall–
(a) cause a copy of the notice of intention to appoint him as interim
supervisor to be endorsed with–
(i) an acknowledgement that he has received a copy of the
proposal;
(ii) the date upon which he received the proposal;
(iii) the date or dates upon which he received an amended
proposal from the administrator or liquidator or
confirmation that the proposal has not been amended;
(iv) confirmation that, to the best of his knowledge, he is
eligible to act as an insolvency practitioner in respect of
the company; and
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(b) deliver the endorsed notice to the administrator or liquidator at
the address specified in the notice; and
(c) retain a copy of the endorsed notice.
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Reports to Creditors
Reports to creditors.
14(1). The report that the interim supervisor is required to make to the
creditors’ meeting called to consider the directors’ proposal, shall include–
(a) in the case of an interim supervisor appointed by the directors of
a company, a summary of the affairs of the company and the
conduct of its business during the proposal period;
(b) in the case of a company that is not in liquidation or
administration, his opinion as to whether the company is
insolvent or likely to become insolvent;
(c) his opinion as to whether the arrangement which is being
proposed has a reasonable prospect of being implemented;
(d) the costs to the company of his acting as interim supervisor;
(e) any other matters that he considers should be brought to the
attention of the creditors.
(2). The supervisor’s written report to creditors on a proposed
modification to an arrangement shall include–
(a) details of the proposed modification together with an
explanation as to why the supervisor considers that the
modification is necessary or desirable;
(b) a brief summary of the implementation of the arrangement to the
date of the report, including details of any material differences
between the implementation and the proposal approved by
creditors; and
(c) any other information that the supervisor considers would assist
the creditors in deciding whether to approve the modification.
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Creditors’ Meeting
General provisions to apply.
15.(1) Rules 281 to 301 apply to a creditors’ meeting held under Part 2 of
the Act, subject to any modification required by rules 16 to 18.
Chairman of creditors’ meeting.
16. Subject to rule 281(2) and (3), the interim supervisor or the supervisor
shall be the chairman of every creditors’ meeting.
Entitlement to vote and admission and rejection of claims.
17.(1) A creditor is not entitled to vote at a creditors’ meeting unless
written notice of his claim is given to the interim supervisor, or supervisor,
or the chairman of the meeting either at the meeting or before it.
(2) If the chairman is in doubt whether a claim should be admitted or
rejected, he shall mark it as objected to and allow votes to be cast in respect
of it, subject to such votes being subsequently declared invalid if the
objection to the claim is sustained.
(3) At any creditors’ meeting held under Part 2 of the Act, a creditor
may vote in respect of a claim for an unliquidated amount or on any claim
the value of which is not ascertained and for the purposes of voting, but not
otherwise, his claim shall be valued at £1.00 unless the chairman agrees to
put a higher value on it.
(4) The chairman is not personally liable for any costs incurred by any
person in respect of an appeal under this rule.
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Requisite majorities at creditors’ meeting.
18.(1) The majority required for the passing of a resolution at a creditors’
meeting is–
(a) for the approval of an arrangement or of a modification of an
arrangement, 75 per cent or more in value of the creditors
present in person or by proxy who vote on the resolution; and
(b) in respect of any other matter, in excess of 50 per cent in value
of the creditors present in person or by proxy who vote on the
resolution.
(2) A resolution is invalid if those voting against it include more than
half in value of the creditors, counting in these latter only those–
(a) to whom notice of the meeting was sent;
(b) who are not entitled to vote by reasons of rule 17(1), rule 288(2)
or where the claim, or the part voted on, is secured; and
(c) who are not, to the best of the chairman's belief, connected
persons in relation to the company.
(3) It is for the chairman of the meeting to decide whether under this rule
a person is a connected person for the purposes of sub-rule (2)(c).
Other Matters
Other person appointed supervisor.
19. If a resolution is moved for the appointment of some person other
than the interim supervisor to be supervisor of the arrangement, there must
be produced to the chairman, at or before the meeting evidence acceptable
to the chairman that the person is an eligible insolvency practitioner in
relation to the company.
Appointment of joint supervisors.
20. Where joint supervisors of an arrangement are appointed, they may act
jointly or severally unless the arrangement provides otherwise.
Withdrawal of proposal.
21.(1) A proposal may be withdrawn at the creditors’ meeting under
section 27(4) by providing to the chairman of the meeting at any time before
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if appropriate, a copy of the directors’ resolution.
(2) Where a proposal is withdrawn under section 27(4), the chairman’s
report under section 28 shall state that fact.
(3) The interim supervisor’s appointment is terminated with effect from
the conclusion of the creditors’ meeting at which the proposal was
withdrawn.
(4) Where a proposal is withdrawn under section 27(4), the company is
liable to the former interim supervisor in respect of any costs and
remuneration payable to him, including the costs of complying with section
27.
Interim supervisor’s report.
22. The interim supervisor’s report under section 28 shall–
(a) state whether the proposal for a voluntary arrangement was
approved by the creditors of the company and whether the
approval was with any modifications;
(b) set out the resolutions which were taken at the meeting, and the
decision on each one;
(c) list the creditors of the company, with their respective values,
who were present or represented at the meetings, and how they
voted on each resolution;
(d) include such further information, if any, that the interim
supervisor thinks it appropriate to provide to the creditors.
Termination of arrangement.
23. Where an arrangement terminates prior to its completion, the supervisor
shall, in the report prepared under section 33(2)(c) explain the reason why
the arrangement has terminated.
Applications to Court
Application for appointment of supervisor or interim supervisor.
24.(1) A person, other than the supervisor or interim supervisor, who
makes an application to the Court under section 39 shall serve a sealed copy
of the application on the supervisor or interim supervisor at least 7 days
before the date fixed for the hearing.
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(2) Where the Court makes an order under section 39 on the application
of a person other than the supervisor or interim supervisor, the person who
applied for the order shall serve a sealed copy of the order on the supervisor
or interim supervisor.
Application where arrangement approved or modified.
25.(1) A person, other than the supervisor, who makes an application to the
Court under section 40 shall serve a sealed copy of the application on the
supervisor at least 7 days before the date fixed for the hearing.
(2) Where the Court makes an order under section 40 on the application
of a person other than the supervisor or interim supervisor, the person who
applied for the order shall serve a sealed copy of the order on the supervisor
or interim supervisor.
Application on grounds of unfair prejudice.
26.(1) In considering whether to make an order under section 41, the Court
may take into account the time that has elapsed between the applicant first
becoming aware of the circumstances which he claims ground a claim under
that section and the date of his application.
(2) Where the Court makes an order of revocation or suspension under
section 41, the person who applied for the order shall serve sealed copies of
the order–
(a) on the supervisor; and
(b) on the directors of the company or the administrator or
liquidator, depending upon who made the proposal for the
arrangement.
(3) If the order includes a direction by the Court under section 41 for
any further creditors’ meetings to be summoned, notice shall also be given,
by the person who applied for the order, to whoever is, in accordance with
the direction, required to summon the meetings.
(4) The directors or the administrator or liquidator, as the case may be,
shall–
(a) immediately after receiving a copy of the Court’s order, give
notice of it to all persons who were sent notice of the creditors’
meeting that approved the arrangement or who, not having been
sent that notice, appear to be affected by the order;
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such longer period as the Court may allow, give notice to the
Court whether it is intended to make a revised proposal to the
company and its creditors, or to invite re-consideration of the
original proposal.
(5) The person on whose application the order of revocation or
suspension was made shall, within 7 days after the making of the order,
deliver a copy of the order with the Registrar.
PART 3
ADMINISTRATION
Preliminary
Interpretation and scope of this Part.
27.(1) In this Part, unless otherwise stated–
“pre-administration costs” means any fees charged and expenses incurred
by the administrator, or any other insolvency practitioner, before
the company entered into administration, but with a view to doing
so;
“statutory objective” means the objective specified in section 46(1),
including any additional objectives or varied objectives specified in
a notice published by the Minister under section 46(3).
(2) This Part applies to–
(a) an application for the appointment of an administrator,
(b) the appointment of an administrator by the holder of a floating
charge under section 48, and
(c) administration proceedings,
under Part 3 of the Act.
Appointment of Administrator by Holder of Floating Charge
Consent of holder of prior floating charge.
28. Where the holder of a prior floating charge consents to the appointment
of an administrator under section 49(1)(b), the written consent shall be
authenticated and dated and shall include–
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(a) details of the name, address of registered office and registered
number of the company in respect of which the appointment is
proposed to be made;
(b) details of the charge held by him including the date it was
registered and, where applicable, any financial limit and any
deeds of priority;
(c) his name and address;
(d) the name and address of the holder of the qualifying floating
charge who is proposing to make the appointment;
(e) the date that notice of intention to appoint was given;
(f) the name of the proposed administrator; and
(g) a statement of consent to the proposed appointment.
Notice to Court of appointment.
29.(1) The notice of appointment filed with the Court under section 50,
together with the statutory declaration and statement referred to in that
section, shall be accompanied by–
(a) evidence that the person making the appointment has given
the notice required by section 49(1)(a); or
(b) copies of the written consent of all those required to give
consent in accordance with section 49(1)(b).
(3) The statutory declaration required by section 50(2) shall be made not
more than 5 business days before the date that it is filed with the Court.
(4) Where the holder of a qualifying floating charge appoints an
administrator after receiving notice of an application to Court to appoint an
administrator, he shall as soon as reasonably practicable send a copy of the
notice of appointment to the person making the application.
(5) The appointor shall notify the administrator, as soon as reasonably
practicable, that the notice has been filed, whether under this rule or in
approved electronic form.
Appointment taking place outside Court hours.
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administrator when the Court is not open for public business, the notice of
appointment may be filed with the Court by sending it to the Court in
approved electronic form.
(2) Where the notice of appointment is filed in approved electronic
form, the appointment shall take effect from the date and time of the fax
transmission or the sending of the e-mail.
(3) The appointor shall attach to the notice a statement providing full
reasons for the out of hours filing of the notice of appointment, including
why it would have been damaging to the company and its creditors not to
have so acted.
(4) The copies of the notice shall be sealed by the Court and shall be
endorsed with the date and time when, according to the appointor’s fax
transmission report, or hard copy of the e-mail, the notice was faxed or sent
and the date when the notice and accompanying documents were delivered
to the Court.
(5) The administrator’s appointment shall cease to have effect if the
requirements of rule 324(5) are not completed within the time period
indicated in that rule, and the administration is terminated.
(6) Where any question arises in respect of the date and time that the
notice of appointment was filed with the Court it shall be a presumption
capable of rebuttal that the date and time shown on the appointor’s fax
transmission report or hard copy of the e-mail is the date and time at which
the notice was filed.
(7) The Court shall issue two of the sealed copies of the notice of
appointment to the person making the appointment, who shall, as soon as
reasonably practicable, send one of the copies to the administrator.
Appointment of Administrator by Court
Application.
31. Application for an administration order is made by filing at Court–
(a) an application complying with rule 32; and
(b) an affidavit in support of the application complying with rule
33.
Form of application.
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(a) unless the application is made by the holder of a qualifying
floating charge in accordance with section 58, state the
applicant’s belief that the company is or is likely to become
insolvent;
(b) specify the name and address of the insolvency practitioner the
applicant proposes for appointment as administrator; and
(c) state the applicant’s address for service which, in the case of an
application made by the company itself or the directors, shall, in
the absence of special reasons to the contrary, be the registered
office of the company.
(2) An application for an administration order made by the directors of a
company shall, from the filing of the application, be treated as the
application of the company.
(3) An application for an administration order made by 2 or more
creditors shall name all the creditors as applicants but, from the filing of the
application, it is to be treated as the application of the first named creditor
applying on behalf of himself and other creditors.
(4) An application made by one or more creditors-
(a) where made by a single creditor, shall state the creditor’s name
and address as the address for service;
(b) where made by more than one creditor, shall state the first-
named creditor’s name and address as the address for service.
(5) An application for an administration order shall have attached to it a
written statement signed by each proposed administrator that–
(a) he is an eligible insolvency practitioner in relation to the
company and the appointment;
(b) details of any prior professional relationship that he has had with
the company;
(c) in his opinion, there is a reasonable prospect that the statutory
objective of administration will be achieved.
Affidavit in support.
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shall–
(a) unless the application is made by the holder of a qualifying
floating charge in accordance with section 58, state the
deponent’s belief that the company is or is likely to become
insolvent;
(b) to the best of the deponent’s knowledge and belief provide
details of–
(i) the financial position of the company, specifying its assets
and liabilities,
(ii) any security interest held by creditors of the company,
specifying whether the holder of any security interest has
the power to appoint an administrative receiver or an
administrator and, if so, whether an administrative
receiver has been appointed;
(iii) any insolvency proceedings that have commenced in
relation to the company and whether an application has
been made for the appointment of a liquidator; and
(c) set out any other facts or matters that, in the opinion of the
applicant, will or may assist the Court in deciding whether to
make an administration order in respect of the company.
(2) Where an application for an administration order is made by the
liquidator of a company under section 56, the affidavit is support of the
application shall also contain–
(a) full details of the liquidation, including the name and address of
the liquidator, the date upon which the liquidation commenced
and whether it was commenced on an appointment by the Court
or by the members;
(b) the reasons why the liquidator considers that an administration
order should be made; and
(c) all other matters that the liquidator considers would assist the
Court in determining the application and in making provision
for the matters specified in section 59(5)(a)(ii) to (iv).
(3) Where the application is made by the holder of a qualifying floating
charge in accordance with section 58, the affidavit shall set out the basis on
which the applicant is entitled to make the application.
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(4) An affidavit under sub-rule (1) shall be sworn–
(a) in the case of an application made by a company or by the
directors of the company, by a director or the secretary of the
company, on behalf of the company or the directors;
(b) in the case of an application made by a creditor, by the creditor
or a person authorised by the creditor, or all the creditors;
(c) in the case of an application made by the supervisor of an
arrangement, by the supervisor or a person authorised by him;
(d) in the case of an application made by the liquidator, by the
liquidator or a person authorised by him; and
(e) in the case of an application made by the Commission, by an
authorised officer of the Commission.
Subsequent application for appointment of liquidator.
34. If, after the filing of an application in respect of a company, the
applicant becomes aware that an application for the appointment of a
liquidator of the company has been made, he shall notify the Court in
writing.
Service of application.
35.(1) Service shall be effected on each person specified in section 56(2)
by serving him with a sealed copy of the application for an administration
order, the statement of the insolvency practitioner proposed for appointment
as administrator attached to the application and the affidavit in support of
the application, including the documents exhibited to the affidavit.
(2) For the purposes of section 56(2)(g), the following persons shall also
be served with a copy of an application for an administration order–
(a) the insolvency practitioner proposed as administrator; and
(b) if a supervisor of an arrangement has been appointed under Part
2 of the Act, on the supervisor.
Copies of application to be sent to other persons.
36. A sealed copy of the application for an administration order shall be
sent to–
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an execution or other legal process against the company or its
assets; and
(b) any person who, to the applicant’s knowledge, has distrained
against the company or its assets.
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Hearing of application.
37. The following are entitled to appear or be represented at the hearing of
an application for an administration order–
(a) the applicant;
(b) a person entitled under the Act or the Rules to be served with a
copy of the application;
(c) the person proposed to be appointed administrator; and
(d) with the leave of the Court, any other person who appears to the
Court to have an interest in the application.
Administration order.
38.(1) An administration order shall be in the specified form.
(2) Where the Court makes an administration order, the costs of the
applicant and of any person whose costs are allowed by the Court, are
payable as an expense of the administration.
(3) Where the Court makes an administration order on the application of
the liquidator of a company, it shall–
(a) where the liquidator was appointed by the members of the
company under section 146, provide for the liquidator’s removal
from office;
(b) provide for the payment of the expenses of the liquidator;
(c) make provision regarding any indemnity given to the liquidator;
(d) make provision regarding the handling or realisation of any of
the company’s assets in the hands of or under the control of the
liquidator; and
(e) provide details concerning the release of the liquidator;
and the Court may make such other order as it considers appropriate.
Notice of administration order.
39.(1) Where an administration order is made, the Court shall, as soon as
reasonably practicable, send 2 sealed copies of the order to the applicant.
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(2) The applicant shall, as soon as reasonably practicable, send a sealed
copy of the administration order to the person appointed as administrator.
(3) For the purposes of section 52(2), the following persons shall be
given notice of the appointment of an administrator-
(a) any person who, to the applicant’s knowledge, is charged with
an execution or other legal process against the company or its
assets;
(b) any person who, to the applicant’s knowledge, has distrained
against the company or its assets;
(c) if a supervisor of an arrangement has been appointed under Part
2 of the Act, on the supervisor; and
(d) if the company is or has been an Authorised person, the
Commission.
(4) The advertisement of an administration order, as required by rule
313(1), shall include the following statements–
(a) that an administrator has been appointed;
(b) the date of the appointment; and
(c) the nature of the business of the company.
Proposal and Statement of Affairs.
Proposal.
40. The administrator’s proposal may include–
(a) a proposal for an arrangement under Part 2 of the Act; or
(b) a proposal for an arrangement under section Part VIII of the
Companies Act.
Matters to be set out in report on proposals.
41.(1) The report of the administrator on his proposals prepared under
section 80(1)(a) shall include the following–
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incorporation and any trading names of the company;
(b) details relating to his appointment as administrator, including
the date of his appointment and the person who applied for his
appointment and details of any joint administrators;
(c) the names of the directors and any secretary of the company and
details of any shareholdings they may have;
(d) an account of the circumstances giving rise to the application for
an administration order;
(e) if a statement of affairs has been submitted, a copy or summary
of it, with the administrator’s comments, if any;
(f) if an order of limited disclosure has been made under section
239, a statement of that fact, as well as-
(i) details of the relevant person who provided the statement
of affairs,
(ii) the date of the order of limited disclosure, and
(iii) the details or a summary of the details that are not subject
to that order;
(g) if a full statement of affairs is not provided, the names,
addresses and debts of the creditors of the company, including
details of any security held;
(h) if no statement of affairs has been submitted, to the best of his
knowledge and belief–
(i) details of the financial position of the company at the
latest practicable date, which shall, unless the Court
otherwise orders, be a date not earlier than that of the
administration order,
(ii) a list of the company’s creditors, including any security
held, and
(iii) an explanation as to why no statement of affairs has been
submitted.
(i) the basis on which it is proposed that the administrator’s
remuneration should be fixed;
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(j) a statement of any pre-administration costs;
(k) a statement of how it is envisaged that the objective of the
administration will be achieved and how it is proposed that the
administration will terminate;
(l) where the administrator will not call a meeting of creditors, a
statement to that effect together with an explanation of how
section 80(3) applies;
(m) the manner in which the affairs and business of the company–
(i) have, since the date of the administrator’s appointment,
been managed and financed, including where any assets
have been disposed of, the reasons for such disposals and
the terms upon which such disposals were made, and
(ii) will, if the administrator’s proposals are approved,
continue to be managed and financed; and
(n) whether the EC Regulation applies and, if so, whether the
proceedings are main proceedings, secondary proceedings or
territorial proceedings; and
(o) such other information, if any, that the administrator considers
necessary to enable creditors to decide whether or not to vote for
the adoption of the proposals.
(2) Where applicable, the report shall explain why–
(a) the administrator considers that it is not reasonably practicable
to achieve the objective specified in section 46(1)(a) or (b);
(b) the objective is inconsistent with any additional or varied
objectives that may be applicable to the company; and
(c) the proposal does not unnecessarily harm the interests of the
creditors as a whole.
(3) The proposals of an administrator, including the proposals as
amended or modified, shall not, except with the written agreement of the
secured creditor or the preferential creditor concerned–
(a) affect the right of a secured creditor of the company to enforce
his security interest or vary the liability secured by the security
interest; or
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(b) result in a preferential creditor receiving less than he would
receive in a liquidation or bankruptcy of the debtor had it
commenced at the time of approval of the arrangement.
(4) The Court shall not discharge an administration order under section
62 unless it is satisfied that the administrator has sent a report to creditors
under section 80(1) or under rule 42(3).
Other matters concerning proposal.
42.(1) Where section 80(3) applies and the administrator has not called an
initial meeting of creditors, the administrators’ proposal will, if no meeting
has been requisitioned under section 80(4) within the period set out in rule
47(1), be deemed to have been approved by the creditors.
(2) Where proposals are deemed under sub-rule (1) to have been
approved, the administrator must, as soon as reasonably practicable after
expiry of the period set out in rule 47(1), give notice of the date on which
they were deemed to have been approved to the Registrar, the Court and the
creditors and a copy of the proposals must be attached to the notice given to
the Court and to creditors who have not previously received them.
(3) Where the administrator intends to apply to the Court under section
62 for the administration order to be discharged before he has sent a report
to creditors, he shall, at least 10 days before the hearing of the application,
send to all creditors of the company a report containing the information
required by rule 41(1)(a) to (n).
Advertisement of availability of proposal for members.
43.(1) The administrator, instead of sending a copy of a notice calling a
meeting of creditors and a copy of his report to members under sections
80(1)(d) and 84(1)(d), may advertise a notice–
(a) specifying the date and venue of the creditors’ meeting; and
(b) undertaking to provide a copy of the statement of proposals free
of charge to any member of the company who applies in writing
to a specified address.
(2) Rule 313(1) applies to an advertisement under sub-rule (1) with the
substitution in rule 313(1)(b) of “members” for “creditors”.
(3) A notice under sub-rule (1) shall be advertised no later than 14 days
prior to the date set for the meeting of creditors.
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44.(1) Where the administrator thinks that it would prejudice the conduct of
the administration for any of the matters specified 41(1)(g) and (h) to be
disclosed, the administrator may apply to the Court for an order of limited
disclosure in respect of any specified part of the report.
(2) Where the administrator makes an application under sub-rule (1),
section 239 and rules 139 and 140 apply as if the report was a statement of
affairs, with necessary modifications.
Statement of affairs.
45. If the administrator receives a statement of affairs after he has sent
the report on his proposals to creditors, he shall, as soon as reasonably
practicable after receiving the statement of affairs, send a copy of the
statement of affairs, or a summary thereof, to the creditors.
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Conduct of Administration
Minutes of creditors’ meeting.
46. In administration proceedings, the minutes required to be kept under
rule 292 shall be entered in the company’s minute book.
Requisition of meeting by creditors under section 80(4).
47.(1) A request to the administrator of a company to requisition a meeting
under section 80(4) shall be delivered to the administrator within 14 days of
the date when the administrator sent his report to the creditors under section
80(1)(c).
(2) Subject to sub-rule (1), rule 280 applies to the requisition of a
creditors’ meeting under section 80(4).
Modification of proposals.
48.(1) The report of the administrator on his proposed modifications to
approved proposals prepared under section 84(1)(a) shall include the
following–
(a) the matters specified in rule 41(1), paragraphs (a), (b) and (c);
(b) a summary of the initial proposals and the reasons for proposing
a modification;
(c) details of the proposed modification including details of the
administrator’s assessment of the likely impact of the proposed
modification upon creditors generally or upon each class of
creditors;
(d) where a proposed modification relates to the termination of an
administration, details of how it is proposed that the
administration should terminate; and
(e) any other information that the administrator thinks necessary to
enable creditors to decide whether or not to vote for the
proposed modification.
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Creditors’ request for information.
49.(1) If–
(a) within 21 days of receipt of a progress report under section
87(1)(b)–
(i) a secured creditor, or
(ii) an unsecured creditor with the concurrence of at least 5%
in value of the unsecured creditors, including the creditor
in question, or
(b) with the permission of the Court upon an application made
within that period of 21 days, any unsecured creditor,
makes a request in writing to the administrator for further information about
remuneration or expenses, other than pre-administration costs set out in the
administrator’s report on proposals, the administrator must, within 14 days
of receipt of the request, comply with sub-rule (2).
(2) The administrator complies with this sub-rule by either–
(a) providing all of the information asked for, or
(b) so far as the administrator considers that-
(i) the time or cost of preparation of the information would be
excessive, or
(ii) disclosure of the information would be prejudicial to the
conduct of the administration or
(iii) the administrator is subject to an obligation of
confidentiality in respect of the information,
giving reasons for not providing all of the information.
(3) Any creditor, who need not be the same as the creditor who
requested further information under sub-rule (1), may apply to the Court
within 21 days of–
(a) the giving by the administrator of reasons for not providing all
of the information asked for; or
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Court may make such order as it thinks just.
Creditors’ committee.
50.(1) When there is any change in the membership of a creditors’
committee appointed in an administration, the administrator shall file with
the Registrar a copy of the notice filed with the Court under section
460(3)(a).
(2) In the case of a company in administration, a record of each
resolution of the creditors’ committee shall be entered into the company’s
minute book.
Administrator
Resignation of administrator.
51.(1) The grounds upon which an administrator may resign are–
(a) his ill health;
(b) because he intends ceasing to practice as an insolvency
practitioner; or
(c) because there is some conflict of interest, or change of personal
circumstances, which precludes or makes impracticable the
further discharge by him of the duties of administrator.
(2) The administrator shall give 7 days’ notice of his intention to resign
or of an application to the Court under section 88(2)(a) for leave to resign–
(a) if there is a continuing administrator of the company, to him;
(b) if there is no continuing administrator, to the creditors’
committee, if any; or
(c) if there is no administrator or creditors’ committee, to the
company and its creditors.
(3) An administrator who resigns shall, within 5 days of his resignation,
file a notice of his resignation with the Court and the Registrar and send a
copy of the notice to each person to whom a notice of his intention to resign
was given under sub-rule (2).
(4) Where an administrator resigns under section 88(2)(b) (ceasing to be
an eligible insolvency practitioner), he shall–
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(a) forthwith file a notice of his resignation, specifying the reason
for his resignation, with the Court and the Registrar; and
(b) within 5 days of his resignation, send a copy of the notice filed
with the Court to the persons specified in sub-rule (2).
Death of administrator.
52.(1) Where the administrator dies, his personal representative shall give
notice of his death to the Court and the Registrar, specifying the date of his
death, unless notice has already been given to the Court and the Registrar
under sub-rules (2) or (3).
(2) If an administrator who dies was a partner in a firm, notice of his
death may be given to the Court and the Registrar by a partner in the firm
who is an insolvency practitioner.
(3) Notice of the death of an administrator may be given by any person
producing to the Court and the Registrar the relevant death certificate or a
copy of it.
Application by creditor to remove administrator.
53.(1) An application by a creditor of a company to remove an
administrator from office shall state the grounds on which it is requested
that the administrator should be removed from office.
(2) Notice of the application shall be served on the administrator, the
person who applied for the administration order, the creditors’ committee (if
any), any joint administrator and, where there is neither a creditors’
committee or a joint administrator, to the company and each of the creditors
of the company not less than 5 business days before the date fixed for the
application to be heard.
(3) Where a Court makes an order removing the administrator it shall
give a copy of the order to the applicant who as soon as reasonably
practicable shall send a copy to the administrator.
(4) The applicant shall, within 5 business days of the order being made,
send a copy of the order to the Registrar and to each person to whom notice
of the application was sent.
Application to replace administrator.
54.(1) An application to the Court under section 89 to appoint a
replacement administrator–
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(a) shall specify the grounds of the application; and
(b) shall be served on the person who applied for the administration
order and on any person who was entitled to be served with
notice of the application for the administration order.
(2) An application under section 89 shall be supported by an affidavit
deposing as to the matters set out in the application and as to any other
matters that may assist the Court in determining the application.
Application to appoint joint administrator.
55.(1) Application may be made to the Court to appoint a joint
administrator.
(2) An application under sub-rule (1) and any order made by the Court
shall, for the purposes of form of application, notice, hearing and
advertisement be treated as an application under section 89.
Termination of Administration
Termination of administration.
56.(1) Where the Court has made an administration order in respect of a
company, the administration terminates on the discharge of the
administration order.
(2) Where an administrator is appointed by the holder of a floating
charge under section 48, the administration terminates–
(a) where rule 30(5) applies, at the time specified in that rule;
(b) if the Court by order discharges the appointment of the
administrator; or
(c) if paragraphs (a) and (b) do not apply, on the filing of a notice
of completion with the Court in accordance with rule 59.
Discharge of administration order.
57.(1) Together with an application for an order varying or discharging the
administration order under section 62(2)(a), the administrator shall file with
the Court a report–
(a) indicating the reasons why the administrator considers that the
administration order should be varied or discharged;
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(b) if the application is for the discharge of the order, setting out his
opinion, with reasons, as to whether the Court should make an
order under section 63(1)(a) or (b) or, if not, his opinion as to
the future prospects for the company;
(c) if he is of the opinion that the Court should make an order under
section 63(1)(a), whether he seeks appointment, or would
consent to being appointed, as liquidator; whether or.
(2) The administrator shall send the company and each creditor of the
company a copy of an application under section 62(2)(a) together with his
report at least 7 days before the date fixed for hearing of the application.
(3) Together with an application for an order varying or discharging the
administration order under section 62(2)(b), the administrator shall file with
the Court a report–
(a) indicating, with reasons, whether he agrees with the creditors’
requirement that he make the application;
(b) indicating, with reasons, whether or not he considers that the
administration order should be varied or discharged;
(c) if he considers that the administration order should be
discharged, setting out his opinion, with reasons, as to whether
the Court should make an order under section 63(1)(a) or (b) or,
if not, his opinion as to the future prospects for the company;
(d) if he is of the opinion that the Court should make an order under
section 63(1)(a), whether he seeks appointment, or would
consent to being appointed, as liquidator; and
(e) if he has indicated that he would seeks appointment, or would
consent to being appointed, as liquidator, the date upon which
he so notified creditors, either in writing or at a meeting of
creditors and advised them .
(4) A report filed under sub-rules (1) or (3) shall have the most recent
accounts and report prepared by the administrator under section 87 annexed
to it and a report filed under sub-rule (3) shall also have annexed to it the
resolution of the creditors requiring him to make the application.
(5) Where, in a report filed under sub-rule (1) or (3), the administrator
indicates that he seeks appointment, or would consent to being appointed, as
liquidator, he shall, at least 7 days prior to the date fixed for the hearing of
the application to discharge the administration order, notify the creditors of
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to his appointment as liquidator which he will bring to the attention of the
Court.
(6) The administrator may comply with sub-rule (5)–
(a) by including the notification in his report prepared under sub-
rule (1);
(b) by notifying creditors at a meeting of creditors; or
(c) by separate written notice.
(7) Where an administration order is discharged or varied, the
administrator or where the order is discharged the person who, immediately
before the discharge, was the administrator of the company, shall within 14
days of the date of the order, send a notice of the order to the company and
to each creditor of the company.
(8) A notice filed with the Registrar under section 64(1) and sent to the
company and creditors under sub-rule (7) shall–
(a) state whether the Court appointed a liquidator or dissolved the
company; and
(b) be accompanied by the administrator’s final progress report.
Application to court by administrator appointed by holder of floating
charge.
58.(1) Application to the Court for an order discharging his appointment as
administrator-
(a) may be made at any time by an administrator appointed by the
holder of a floating charge under section 58; and
(b) shall be made by such an administrator if he is required to do so
by a meeting of creditors summoned for the purpose.
(2) An application under sub-rule (1) shall have attached to it a progress
report for the period since the last progress report prepared under section
87(1)(b), if any, or the date the company entered administration and a
statement indicating what the administrator thinks should be the next steps
for the company, if applicable.
(3) Where the administrator applies to the Court because the creditors’
meeting has required him to, he shall also attach a statement to the
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agrees with the creditors' requirement to him to make the application.
(4) When the administrator applies other than at the request of a
creditors’ meeting, he shall–
(a) give notice in writing to the applicant for the administration
order under which he was appointed, or the person by whom he
was appointed and the creditors of his intention to apply to court
at least 5 business days before the date that he intends to makes
his application; and
(b) attach to his application to the Court, a statement that he has
notified the creditors, and copies of any response from creditors
to that notification.
(5) On an application under this rule, the Court may discharge the
appointment of the administrator.
(6) Where the Court makes an order under this rule, the administration
is terminated with effect from the time of the administrator’s discharge.
Termination of administration, administrator appointed by holder of
floating charge.
59.(1) Where an administrator appointed by the holder of a floating charge
under section 48 considers that the objective of administration has been
sufficiently achieved, he shall file a notice of completion with the Registrar
and two copies of the notice with the Court.
(2) The notices filed with the Court shall each have attached to it the
final progress report required under section 87(2)(c).
(3) The Court shall endorse each copy with the date and time of filing.
(4) The administrator’s appointment shall cease to have effect and the
administration is terminated on the date and time of filing endorsed on the
notice by the Court.
(5) The administrator shall, as soon as reasonably practicable, and
within 5 business days, send a copy of the notice of completion of the
administration, and the accompanying report, to every creditor of the
company, to all those persons, except the Registrar, who were notified of his
appointment and to the company.
(6) Where the Court terminates an administration under this rule, the
former administrator shall, within 14 days of the date of the order–
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(a) file a notice of the termination with the Registrar, accompanied
by his final progress report; and
(b) send a notice of the termination, accompanied by his final
progress report, to–
(i) the company;
(ii) each creditor of the company; and
(iii) all other persons who received notice of the
administrator’s appointment.
Final report.
60. The final report prepared by an administrator under section 87(2)(c)
shall include a summary of–
(a) the administrator’s proposals;
(b) any modifications to those proposals;
(c) the steps taken during the administration; and
(d) the outcome of the administration.
Administrator’s duties on vacating office.
61. Where a person, for whatever reason, ceases to hold office as
administrator, he shall as soon as reasonably practicable deliver up to the
person succeeding him as administrator–
(a) the assets of the company, after deduction of any expenses
properly incurred;
(b) the records of, and relating to, the administration; and
(c) the company’s books, papers and other records.
Distributions, Expenses and Pre-Administration Costs
Distributions.
62. Where the administrator makes, or proposes to make, a distribution
to creditors in accordance with the power granted under section 72, whether
with or without the leave of the Court, the provisions of the Rules applicable
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appropriate.
Expenses of administration.
63.(1) Subject to sub-rule (2), the expenses of an administration are
payable in the following order of priority-
(a) expenses properly incurred by the administrator in performing
his functions;
(b) the cost of any security provided by the administrator in
accordance with the Act or the Rules;
(c) where an administration order was made, the costs of the
applicant for the administration order and any person appearing
on the hearing of the application whose costs are allowed by the
Court;
(d) any amount payable to a person employed or authorised to assist
in the preparation of a statement of affairs or statement of
concurrence;
(e) any allowance made, by order of the Court, towards costs on an
application for release from the obligation to submit a statement
of affairs or statement of concurrence;
(f) any necessary disbursements by the administrator in the course
of the administration (including any expenses incurred by
members of the creditors’ committee or their representatives and
allowed for by the administrator under the Rules;
(g) the remuneration or emoluments of any person who has been
employed by the administrator to perform any services for the
company, as required or authorised under the Act or the Rules;
(h) the remuneration of the administrator.
(2) Where the assets of a company are insufficient to satisfy the
liabilities specified in sub-rule (1), the Court may make an order as to the
payment out of the assets of the expenses incurred in the administration in
such order of priority as it considers appropriate.
Pre-administration costs.
64. Where the administrator has included a statement of pre-
administration costs in the report on proposals as required by rule 41,
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administration costs were expenses of the administration.
PART 4
RECEIVERSHIP
General
Scope of this Part.
65. The rules in this Part apply where Part 4 of the Act applies to a
receiver of a company or to the appointment of a receiver of a company.
Persons not eligible to be appointed or act as receiver.
66. For the purposes of section 99(1)(g), the following persons are not
eligible to be appointed or to act as a receiver–
(a) a person who has not attained the age of 18 years;
(b) a person who is certified to be of unsound mind under any law
in force in any country.
Notices and Advertisement
Notice and advertisement of appointment.
67.(1) Subject to sub-rule (2), the notice of appointment referred to in
section 101(1) shall state–
(a) the registered name of the company, as at the date of the
appointment;
(b) the receiver’s name and address, and the date of his
appointment;
(c) the name of the person by whom the appointment was made;
(d) if the receiver is appointed to act jointly with an existing
receiver or in place of a receiver who has vacated office, that
fact;
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2011-26 Subsidiary 2014/196 (e) the date of the instrument conferring the power under which the
appointment was made, and a brief description of the
instrument;
(f) a brief description of the assets of the company in respect of
which the receiver has been appointed; and
(g) a brief description of the nature of the business of the company.
(2) The notice of appointment of an administrative receiver required to
be sent to the company under section 101(1)(a) and to the creditors under
section 101(2)(b) shall, in addition to the matters specified in sub-rule (1),
state–
(a) any name with which the company has been registered in the 12
months preceding the date of his appointment; and
(c) any name under which the company has traded at any time in
those 12 months, if substantially different from its registered
name.
(3) The advertisement by an administrative receiver of his appointment
shall state the matters specified in sub–rules (1) and (2).
Notice of vacation of office.
68. An administrative receiver who, under section 103(3), is required to
give notice of his resignation or vacation of office shall, if there is no
creditors’ committee, also give notice to the creditors of the company.
Report and meeting of unsecured creditors.
69.(1) If, when he sends his report to the Registrar under section 132(1),
the administrative receiver has not received a statement of affairs, he shall in
his report state that fact and state, to the best of his knowledge and belief,
the reasons therefore.
(2) The notice calling a meeting of unsecured creditors under section
132(3)(c) shall state that creditors whose claims are wholly secured are not
entitled to attend or be represented at the meeting.
Miscellaneous Provisions
Application to dispose of charged assets.
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2011-26 Subsidiary 2014/196 70.(1) This rule applies where the administrative receiver of a company
applies to the Court under section 128 for authority to dispose of assets of
the company subject to a security interest.
(2) The administrative receiver shall forthwith give notice of the hearing
of an application under section 128 to the person who is the holder of the
security interest.
(3) If an order is made under section 128, the administrative receiver
shall forthwith serve a sealed copy of the order on the holder of the security
interest.
Death of administrative receiver.
71. If an administrative receiver dies, the person who appointed him
shall, forthwith on his becoming aware of the death, give notice of it to–
(a) the Registrar;
(b) the company or, if it is in liquidation, the liquidator; and
(c) in any case, to the members of the creditors’ committee, if any.
PART 5
PROVISIONS APPLICABLE TO THE LIQUIDATION OF
COMPANIES
AND TO THE BANKRUPTCY OF INDIVIDUALS
Quantification of Claims
Claim in currency other than pounds.
72.(1) The rate of exchange used for the purposes of converting a liability
into pounds in accordance with section 140 is the closing mid-point rate
published in the European edition of the Financial Times for the relevant
date.
(2) In the absence of a published rate as referred to in sub–rule (1), the
rate used shall be determined by the Court.
Discounts.
73. Any trade and other discounts which would have been available to
the debtor but for the insolvency proceeding, except any discount for
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claim.
Discount for debt payable after commencement date.
74.(1) This rule provides for the discount to be applied to a claim based on
a liability that, at the commencement of the insolvency proceeding, was not
payable by the company until after the commencement of the insolvency
proceeding.
(2) The claim shall be reduced by a percentage calculated as follows–
I x M
12
where
(a) I = 5%; and
(b) M is the number of months, expressed if need be as, or as
including, fractions of a month, between the commencement of
the liquidation and the date when the liability would otherwise
have been due for payment.
Statutory Demand
Statutory demand.
75.(1) The minimum sum for which a statutory demand may be issued is
£750.
(2) Where the amount claimed in a statutory demand made against a
person includes–
(a) a charge by way of interest not previously notified to the person
as included in his liability; or
(b) any other charge accruing from time to time;
the amount or rate of the charge shall be separately identified, and the
grounds on which payment of it is claimed shall be stated.
(3) Where sub-rule (2) applies, the amount claimed shall be limited to
that amount that has accrued due at the date of the demand.
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2011-26 Subsidiary 2014/196 (4) A statutory demand shall include the name, address and the contact
details, if any, of an individual or individuals with whom the debtor may
communicate with a view to securing or compounding for the debt to the
satisfaction of the creditor.
Service on individual.
76.(1) A creditor shall make all reasonable attempts to effect personal
service of a statutory demand on an individual.
(2) Where a creditor is not able to effect personal service, a statutory
demand may be served on an individual by leaving the demand addressed to
the individual at such of the places specified in sub-rule (3) as would be
most likely to bring the demand to his notice.
(3) The places referred to in sub-rule (2) are his last known place of
residence, place of business or place of employment.
(4) Where the creditor has no knowledge of the last known place of
residence, place of business or place of employment of the individual, he
may serve the statutory demand by advertisement in one or more local
newspapers.
(5) Where service is effect in accordance with sub-rule (4), the period of
time specified in section 141(2)(d) for compliance with the demand shall
run from the date of publication of the advertisement.
Service out of jurisdiction.
77. Where the Court permits a statutory demand is to be served outside
Gibraltar, the period of time specified in SCR rule 3(5) and 3(6) for
compliance with the demand shall be increased to 28 days or such longer
period of time as the Court may order.
Setting aside of statutory demand.
78.(1) An application to set aside a statutory demand shall be supported by
an affidavit–
(a) specifying the date upon which the debtor was served with the
statutory demand; and
(b) stating the grounds upon which he claims that the statutory
demand should be set aside.
(2) A copy of the statutory demand shall be exhibited to the affidavit in
support.
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PART 6
LIQUIDATION
Preliminary
Scope of this Part.
79.(1) Subject to Part 7 of the Rules and any specific provisions in the Act
or the Rules relating to unregistered companies, the rules in this Part apply,
to the extent provided, to–
(a) an application to the Court to appoint a liquidator of a company
under Part 6 and an unregistered company in accordance with
Part 7;
(b) the appointment of a liquidator of a company, whether by the
members or the Court under Part 6 or the appointment of a
liquidator of an unregistered company by the Court in
accordance with Part 7; and
(c) the liquidation of a company and an unregistered company.
(2) Where a liquidator is appointed in respect of an Authorised person,
the liquidator shall send to the Commission a copy of every notice or other
document–
(a) required to be sent to creditors of the regulated person; or
(b) filed with the Court.
Appointment of Liquidator
Appointment of liquidator by members.
80.(1) The chairman of a meeting of members that, by a special resolution,
appoints a liquidator under section 146(1) shall, as soon as practicable,
provide the liquidator with–
(a) a copy of the resolution by which he was appointed; and
(b) a certificate of his appointment, signed by the chairman.
(2) The provision to the liquidator of the documents specified in sub-
rule (1) is deemed notice to the liquidator for the purposes of section 148(1).
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Application to Court for appointment of liquidator.
81.(1) Application for the appointment of a liquidator by the Court is made
by filing at Court an application complying with sub-rule (2) together with
an affidavit in support of the application complying with rule 82.
(2) An application under sub-rule (1) shall state–
(a) the grounds upon which the appointment is sought; and
(b) whether the applicant proposes an eligible insolvency
practitioner as liquidator and, if he does, it shall-
(i) specify the name and address of the person proposed; and
(ii) state that, to the best of the applicant’s knowledge and
belief, the person specified is eligible to act as an
insolvency practitioner in relation to the company.
(3) No application for the appointment of a liquidator may be made to
the Court where the company is in liquidation, whether the liquidator was
appointed by the members or by the Court.
Affidavit in support.
82.(1) An application for the appointment of a liquidator shall be supported
by an affidavit stating that the statements made in the application are true or
are true to the best of the deponent’s knowledge, information and belief.
(2) If the application is in respect of debts due to different creditors, the
debts due to each creditor shall be separately verified.
(3) The supporting affidavit shall be made–
(a) by the applicant;
(b) if the applicant is a corporate body, by an officer who has been
concerned with the matters stated in the application;
(c) by the legal practitioner acting for the applicant; or
(d) by a responsible person who is authorised to make the affidavit
and who has the requisite knowledge of the matters sworn in the
affidavit.
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2011-26 Subsidiary 2014/196 (4) A supporting affidavit is prima facie evidence of the statements in
the application to which it relates.
(5) Where an applicant is making applications to appoint a liquidator for
more than one company, a separate affidavit shall be filed in respect of each
application.
(6) If the applicant proposes an eligible insolvency practitioner as
liquidator of the company, a notice of eligibility and consent to act signed
by the insolvency practitioner specified in the application shall be exhibited
to the affidavit in support of an application for the appointment of a
liquidator.
Service of application on company.
83.(1) Unless the company is the applicant, a sealed copy of the application
for the appointment of a liquidator, together with the supporting affidavit,
shall be served on the company not more than 14 days after the application
has been filed.
(2) Service of the application on the company shall be verified by an
affidavit of service complying with the Court Rules.
(3) If an order has been made for substituted service of the application, a
sealed copy of the order shall also be exhibited to the affidavit of service.
(4) The affidavit of service shall be filed with the Court as soon as
reasonably practicable after service has been effected.
Copies of application to be sent to other persons.
84.(1) A sealed copy of an application for the appointment of a liquidator
shall be sent–
(a) if the company is in administration, to its administrator;
(b) if an administrative receiver has been appointed in respect of the
assets of the company, to him;
(c) if a creditors’ arrangement has been proposed or accepted, to the
interim supervisor or supervisor appointed in respect of the
arrangement or the proposed arrangement, as the case may be;
(d) if the company is, or at any time has been, an Authorised
person, to the Commission, unless the Commission is the
applicant;
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(2) Documents referred to in sub-rule (1) shall be sent–
(a) to the persons specified in sub-rule (1)(a) to (c)–
(i) no earlier than the day after service of the application on
the company, and
(ii) no later than 4 days after service of the application on the
company; and
(b) to the Commission under paragraph (d), as soon as reasonably
practicable after the application has been filed but, in any event,
no later than 11am on the day immediately after the date on
which the application was filed.
Application seeking appointment of supervisor as liquidator.
85.(1) This rule applies where, in an application for the appointment of a
liquidator, the applicant proposes as liquidator the supervisor of an
arrangement in place in respect of the company.
(2) Within 5 business days of receiving a copy of the application, the
supervisor shall send a notice to each creditor of the company–
(a) stating that an application has been made for the appointment of
a liquidator of the company and that it is proposed that he be
appointed liquidator; and
(b) advising the creditor–
(i) of the date fixed for the hearing of the application; and
(ii) that if the creditor wishes to object to the supervisor’s
appointment, or respond in any other way, he shall send
his objection or response to the supervisor not later than
12 noon on the day before the date fixed for the hearing.
(3) The supervisor shall file with the Court, before or at the hearing of
the application, a report summarising any responses or objections that he
has received.
Persons entitled to a copy of the application.
86. An applicant for the appointment of a liquidator shall, on receiving–
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for a copy of the application, and
(b) payment of a fee of £2.00,
provide that person with a copy of the application as soon as is reasonably
practicable to do so.
Advertisement of application.
87. The advertisement of an application to appoint a liquidator shall state–
(a) the name of the company in respect of which the appointment is
sought and the address of its registered office or, in the case of a
unregistered company, the address at which the application was
served;
(b) the name and address of the applicant;
(c) the date on which the application was filed;
(d) the venue fixed for the hearing of the application;
(e) the name and address of the legal practitioner acting for the
applicant; and
(f) that any person intending to appear at the hearing of the
application, whether to support or oppose the application, shall
give notice of his intention in accordance with rule 88.
Notice of intention to appear.
88.(1) A person who intends to appear on the hearing of an application to
appoint a liquidator, other than the company itself, shall send a notice of
intention to appear to the applicant.
(2) A notice of intention to appear shall be in writing and shall specify–
(a) the name and address of the person giving notice and his contact
details, if any;
(b) whether it is his intention to support or oppose the application;
and
(c) if he is a creditor, the amount of his debt or if he is not a creditor
the grounds upon which he supports or opposes the application;
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2011-26 Subsidiary 2014/196 (3) A notice of intention to appear shall be sent so as to reach the
applicant no later than 16.00 hours on the business day before the date fixed
for the hearing of the application, or where the hearing has been adjourned,
the adjourned hearing.
(4) A person who fails to comply with this rule may appear on the
hearing of the application only with the leave of the Court.
List of appearances.
89.(1) An applicant for the appointment of a liquidator shall prepare a list
of the persons, if any, who have sent him a notice of intention to appear in
accordance with rule 88, specifying, in respect of each person–
(a) his name and address;
(b) his legal practitioner, if known; and
(c) whether he intends to support or oppose the application.
(2) The list shall be filed with the Court at the hearing of the application.
(3) If the Court grants a person leave to appear on the hearing of the
application under rule 88, the applicant shall, as soon as practicable, file an
amended list of appearances with the Court.
Affidavit in opposition.
90. If a company intends to oppose an application for the appointment of
a liquidator it shall, not less than 7 days before the date fixed for the hearing
of the application, file with the Court and serve on the applicant–
(a) a notice setting out the grounds on which it opposes the
application; and
(b) an affidavit verifying the matters stated in the notice.
Leave to withdraw application.
91.(1) The Court may, on the application of the person applying for the
appointment of a liquidator in respect of a company, grant that person leave
to withdraw the application in accordance with section 154 if it is satisfied
that–
(a) the application has not been advertised;
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applicant under rule 88; and
(c) the company consents to the application being withdrawn.
(2) An application under sub-rule (1) shall be made ex parte at least 5
days before the date fixed for the hearing of the application.
Appointment of Official Receiver as liquidator.
92. The Court may appoint the Official Receiver as liquidator of a company
notwithstanding that–
(a) the applicant may, in his application, have proposed the
appointment of an eligible insolvency practitioner as liquidator
under section 150(4);
(b) the Official Receiver has not consented to act as liquidator; and
(c) the Official Receiver has not been given notice of the
application.
Notice of order.
93. The Court shall, forthwith on making an order appointing a liquidator,
give notice to the liquidator of his appointment and send a sealed copy of
the order to him as soon as is practicable.
Application by member of company.
94.(1) Except as provided in this rule or by the Court, this Part does not
apply to an application for the appointment of a liquidator made by a
member of the company (“a member’s application”).
(2) A member’s application shall be made in accordance with rule 81
and shall be supported by an affidavit complying with rule 82.
(3) A sealed copy of the application and the affidavit in support shall be
served on the company not less than 14 days before the date fixed for the
hearing of the application.
(4) A member’s application shall not, except as directed by the Court,
be served on any person other than the company or be advertised.
(5) At the first hearing of the application, the Court shall give such
directions concerning the procedures for or in connection with the
determination of the application as it considers appropriate.
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(6) Without limiting sub-rule (5), the Court shall give directions
concerning–
(a) service of the application on, or giving notice of the application
to, persons other than the company;
(b) whether the application should be advertised and, if so, the
manner of its advertisement;
(c) whether particulars of claim, defence and reply to defence are to
be delivered; and
(d) the manner in which evidence is to be adduced at the hearing of
the application including the matters to be dealt with in
evidence.
(7) Rules 88, 89, 91, 92 and 93 apply to a member’s application with
such modifications as are necessary.
Interim Relief
Application for appointment of provisional liquidator.
95.(1) An application for the appointment of a provisional liquidator of a
company shall propose an eligible insolvency practitioner or the Official
Receiver for appointment as provisional liquidator.
(2) If the Official Receiver is proposed for appointment as provisional
liquidator, he shall be given sufficient notice of the hearing to enable him to
attend the hearing.
(3) An application for the appointment of a provisional liquidator shall
be supported by an affidavit stating–
(a) the grounds upon which the application is being made;
(b) that the proposed appointee has consented to act and, to the best
of the applicant’s belief is eligible to act as provisional
liquidator of the company;
(c) whether, to the applicant’s knowledge–
(i) there has been proposed or is in force for the company a
creditor’s arrangement under Part 2 of the Act, or
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relation to the company;
(d) the applicant’s estimate of the value of the assets in respect of
which the provisional liquidator is to be appointed; and
(e) if the Official Receiver is proposed for appointment as
provisional liquidator, whether and in what manner he has been
given notice of the application.
Hearing of application.
96.(1) If the Official Receiver is proposed to be appointed as provisional
liquidator, he is entitled to attend the hearing and make such representations
as he considers appropriate.
(2) The Court shall not appoint the Official Receiver as provisional
liquidator of a company unless he has been given notice of the application
in accordance with rule 95(2).
Order appointing provisional liquidator.
97.(1) The order appointing a provisional liquidator shall specify the
functions to be carried out by him in relation to the company’s affairs and
assets.
(2) The Court shall, forthwith on making an order appointing a
provisional liquidator, give notice to the provisional liquidator of his
appointment and, as soon as is practicable–
(a) send 2 sealed copies of the order to the provisional liquidator;
and
(b) send one copy of the sealed order to any administrator or
administrative receiver who has been appointed.
(3) The provisional liquidator shall, as soon as practicable, send one
copy of the sealed order to the company.
Notice of Appointment and First Meeting of Creditors
First meeting of creditors.
98.(1) The notice of the first meeting of creditors required to be sent under
section 170(1)(a) shall state–
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rule (2); and
(b) that the liquidator will, at the request of any creditor, during the
period before the date of the meeting furnish the creditor with–
(i) a list of the creditors of the company known to the
liquidator, and
(ii) such other information concerning the affairs of the
company as the creditor may reasonably require and that
the liquidator is reasonably able to provide;
and shall be accompanied by a claim form as required by rule 111.
(2) The first meeting of creditors may pass only one or more of the
following resolutions–
(a) such resolutions as are necessary to exercise the powers
specified in section 170(4);
(b) a resolution to adjourn the meeting for a period of not more than
21 days;
(c) where the meeting has been requisitioned in accordance with
section 174(b)(iii), a resolution that the expenses of calling and
holding the meeting are to be payable out of the assets of the
company;
(d) any other resolution that the chairman allows to be put to the
meeting.
Liquidators
Advertisement of appointment.
99.(1) This Rule applies to the advertisement by a liquidator of his
appointment as required by section 169.
(2) A liquidator shall advertise his appointment
(a) as specified in Rule 313(1)(a);
(b) in a newspaper published and circulating in Gibraltar; and
(c) in such other newspaper or newspapers, if any, that he considers
most appropriate for ensuring that the application, order, notice
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creditors of the company.
Authentication of liquidator’s appointment.
100. A copy of the certificate of the liquidator’s appointment (where he
was appointed by the members) or, as the case may be, a sealed copy of the
Court’s order appointing the liquidator, may in any proceedings be adduced
as proof that the person appointed is duly authorised to exercise the powers
and perform the duties of liquidator in the company’s liquidation.
Removal of liquidator.
101.(1) Application for the removal of a liquidator under section 178 is
made by filing at Court–
(a) an application stating the grounds upon which the removal of
the liquidator is sought; and
(b) an affidavit setting out the evidence relied upon in support of the
application.
(2) A sealed copy of the application and the affidavit shall be served on
the liquidator and the Official Receiver, unless it is his application, not less
than 10 days before the date fixed for the hearing.
(3) The liquidator may file affidavit evidence in opposition to the
application not less than 4 days before the date fixed for the hearing of the
application.
(4) The liquidator shall, not less than 4 days after being served with an
application under sub-rule (2) send to the Official Receiver a statement as to
whether any of the company’s assets have not been realised, applied,
distributed or otherwise fully dealt with and, if so, providing details of–
(a) the nature, value and location of the assets;
(b) any action taken by the liquidator to deal with the assets or his
reason for not dealing with them; and
(c) the current position in relation to the assets.
(5) Unless the Court otherwise directs, an application for the removal of
a liquidator shall be held in Chambers.
(6) The Court may require the applicant to make a deposit or provide
security for the costs to be incurred by the liquidator on the application.
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(7) Subject to any order of the Court to the contrary, the costs of an
application to remove the liquidator of a company are not payable out of the
assets of the company.
(8) If the Court removes a liquidator under section 178, it shall send a
copy of the order removing him to–
(a) the liquidator removed;
(b) any remaining liquidator; and
(c) the Official Receiver.
(9) Where the Court removes a liquidator under section 178, it may
appoint the Official Receiver as liquidator under section 178(3)(b)
notwithstanding that the company commenced liquidation on the
appointment of a liquidator by the members under section 146.
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Resignation of liquidator no longer eligible to act.
102.(1) Where the liquidator resigns under section 179(1)(a), he shall send
the Official Receiver with the notice of his resignation, a statement covering
the matters specified in rule 101(4).
(2) The liquidator shall, if so directed by the Official Receiver, verify
the statement by affidavit.
Resignation of liquidator for other reason.
103.(1) Unless the liquidator is a joint liquidator resigning in accordance
with section 179(4), the notice of a creditors’ meeting sent to creditors in
accordance with section 179(5) shall be accompanied by an account of the
liquidator’s administration of the liquidation, including a summary of his
receipts and payments.
(2) The liquidator shall, not less than 7 days before the date fixed for the
creditors’ meeting–
(a) send a copy of the notice and account referred to in sub-rule (1)
and a statement covering the matters specified in rule 101(4) to
the Official Receiver; and
(b) if he was appointed by the Court, file a copy of the notice and
account with the Court.
(3) If at a creditors’ meeting called under section 179(5) either of the
following resolutions is passed–
(a) that the liquidator’s resignation be accepted,
(b) that a new liquidator be appointed,
the chairman shall, forthwith, send the Official Receiver a copy of the
resolution together with a certificate of the liquidator’s appointment, signed
by the chairman.
(4) Where a liquidator’s resignation is accepted by the creditors, he shall
forthwith–
(a) send a notice of his resignation to the Official Receiver, and
(b) if he was appointed by the Court, file a notice of his resignation
with the Court.
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of his resignation is received by the Official Receiver, which date shall be
endorsed on the notice and a copy of the endorsed notice returned to the
former liquidator.
(6) Within 14 days of receiving a copy of the endorsed notice from the
Official Receiver under sub-rule (5), the former liquidator shall file a copy
of the endorsed notice with the Registrar.
Leave to resign.
104.(1) A liquidator shall, not less than 7 days before the date fixed for the
hearing of an application for leave to resign under section 179(7), give
notice of his application to–
(a) any joint liquidator;
(b) the creditors’ committee, if any; and
(c) the Official Receiver.
(2) If the Court gives the liquidator leave to resign, it may make such
provision as it consider appropriate with respect to matters arising in
connection with the resignation.
(3) Where the Court gives the liquidator leave to resign, section 178(3)
and rule 101(9) apply with such modifications as are necessary.
(4) The Court shall send 2 sealed copies of the order to the liquidator,
who shall forthwith send one of the copies to the Official Receiver.
(5) Within 14 days of his resignation, the former liquidator shall send a
notice of his resignation to the Official Receiver and to the Registrar.
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Death of liquidator.
105.(1) Where the liquidator dies, his personal representative shall give
notice of his death to the Official Receiver and the Registrar, specifying the
date of his death, unless notice has already been given to the Court and the
Registrar under sub-rules (2) or (3).
(2) If a liquidator who dies was a partner in a firm, notice of his death
may be given to the Official Receiver and the Registrar by a partner in the
firm who is an insolvency practitioner.
(3) Notice of the death of a liquidator may be given by any person
producing to the Court and the Registrar the relevant death certificate or a
copy of it.
(4) Where the Official Receiver receives a notice under sub-rule (3) and
the deceased liquidator was the sole liquidator of the company, the Official
Receiver shall as soon as reasonably practicable apply to the Court under
section 180(1) for the appointment of a replacement liquidator, unless an
application has already been made by the creditors’ committee.
Advertisement of appointment.
106.(1) A liquidator who is appointed to replace a liquidator who has, for
whatever reason, ceased to hold office, shall within 21 days of the date of
his appointment, advertise his appointment.
(2) His advertisement shall state that he has been appointed in place of a
liquidator who ceased office.
Solicitation.
107.(1) Where the Court is satisfied that any improper solicitation has been
used by or on behalf of a liquidator in obtaining proxies or procuring his
appointment, it may order that no remuneration, or that reduced
remuneration, be payable to the liquidator out of the assets of the company.
(2) An order of the Court under sub-rule (1) overrides any resolution of
the creditors’ committee or any other provision of the Rules.
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Settling List of Members
Form and contents of list of members.
108.(1) The list of members settled by the liquidator under section 184(1)
shall identify–
(a) the classes of the company’s shares, if more than one;
(b) the classes of members, if more than one.
(2) The list shall detail, in respect of each member–
(a) his name and address;
(b) the number and class of shares held by him, or the extent of any
other interest to be attributed to him;
(c) if the shares are not fully paid up, the amounts that have been
called up and paid in respect of them, and the equivalent if his
interest is other than shares.
Procedure for settling list of members.
109.(1) The notice given to each person under section 184(2) shall state–
(a) in what character, and for what number of shares or what
interest, he is included in the list;
(b) what amounts have been called up and paid up in respect of the
shares or interest;
(c) that in relation to any shares or interest not fully paid up, his
inclusion in the list may result in the unpaid capital being called;
and
(d) the rights of a person to object under sub-rules (2) and (3) of this
rule.
(2) If a person objects to any entry in, or omission from, the list, he shall
inform the liquidator of his objection in writing within 21 days from the
date of the notice.
(3) Where the liquidator receives an objection under sub-rule (2), he
shall, within 14 days, give notice to the objector either–
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(b) that he does not accept the objection and that he does not intend
to amend the list.
(4) A notice given under sub-rule (3) shall contain a summary of the
effects of section 184(3) and (4).
Claims
Claims by unsecured creditors.
110. A claim made against a company in liquidation by an unsecured
creditor under section 201 shall be in the specified form and shall specify–
(a) the name and address of the creditor;
(b) the total amount of his claim as at the commencement of the
liquidation;
(c) whether or not the claim includes uncapitalised interest;
(d) whether the whole or any part of the debt or liability, and if so
which, is a preferential claim;
(e) particulars of how and when the debt or liability was incurred by
the company;
(f) the documents, if any, by which the debt or liability can be
substantiated;
(g) particulars of any security interest held, the date when it was
given and the value that the creditor places upon it; and
(h) the name and address of the person signing the claim, if not the
creditor himself.
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Claim forms.
111.(1) Unless the Court otherwise orders, the liquidator shall send a claim
form to each creditor of whom he is aware at the same time as he sends the
creditor–
(a) notice of the first meeting of creditors under section 170(1)(a);
or
(b) notice under section 174(b) that he does not consider it
necessary to call a meeting of creditors.
(2) The liquidator shall as soon as is practicable send a claim form to
any creditor that he becomes aware of subsequent to sending out a notice
under section 170(1)(a) or section 174(b).
Application to Court expunge or amend an admitted claim.
112. The applicant for an order expunging or reducing a claim under
section 202(2) shall serve a copy of his claim–
(a) in the case of an application by the liquidator, on the creditor
who made the claim; and
(b) in the case of an application by a creditor, on the liquidator and
on the creditor who submitted the claim.
Negotiable instruments.
113. The liquidator may reject a claim in respect of money owed on a bill
of exchange, promissory note, cheque or other negotiable instrument or
security unless the instrument or security, or a copy certified by the creditor
or his authorised representative to be a true copy, is produced to the
liquidator.
Inspection of claims.
114. The liquidator shall allow claims in his custody or control to be
inspected by–
(a) a creditor who has submitted a claim in the liquidation that has
not been wholly rejected by the liquidator;
(b) a contributory of the company;
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or (b).
Distributions
Distribution by means of dividend.
115. The liquidator shall make a distribution by distributing dividends
among the creditors whose claims he has admitted.
Notice to submit claim.
116. A notice issued under section 208(1) shall state that the liquidator
intends to distribute a dividend and that a creditor who does not submit a
claim by the date specified in the notice will be excluded from the
distribution.
Distributions.
117.(1) In determining the funds available for distribution to creditors by
way of dividend, the liquidator shall make provision–
(a) for any claims which creditors may not have had sufficient time
to make;
(b) for any claims which have not yet been determined; and
(c) for any disputed claims.
(2) A creditor who has not submitted a claim by the date specified in the
notice issued under section 216(1) is not entitled to disturb, by reason that
he has not participated in it, the distribution of the dividend.
(3) When a creditor referred to in sub-rule (2) makes a claim that is
accepted by the liquidator–
(a) he is entitled to be paid, out of any money for the time being
available for distributing a further dividend, a payment in
respect of any dividend which he has failed to receive, and
(b) any payment under paragraph (a) shall be paid before that
money is used to distribute a further dividend to creditors.
(4) No action lies against the liquidator for a dividend but if he refuses
to pay a dividend, the Court may, if it thinks fit, order him to pay it and also
to pay, out of his own money–
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was withheld; and
(b) the costs of the proceedings in which the order to pay is made.
Distribution of dividend.
118. Where the liquidator distributes a dividend, he shall send to each
creditor participating in the dividend, a statement containing such
particulars with respect to the company, and to its assets and affairs, as will
enable creditors to understand the calculation of the amount of the dividend.
Disclaimer
Notice of disclaimer.
119.(1) A notice of disclaimer shall contain such details of the property
disclaimed as enable it to be easily identified.
(2) The notice shall be signed by the liquidator and filed at Court with a
copy.
(3) The original notice and the copy notice shall be sealed by the Court,
endorsed with the date of filing and the copy notice shall be returned to the
liquidator.
(4) The Court shall either endorse on the copy notice or record on the
Court file the method by which the sealed notice of disclaimer was returned
to the liquidator.
Communication of notice of disclaimer.
120.(1) Written notice of a disclaimer notice shall be given under section
209(3) and 210(2) by sending or giving a copy of the sealed and endorsed
disclaimer notice to each person entitled to receive it.
(2) Without limiting section 209, the following are persons whose rights
are affected by a disclaimer of property–
(a) a person who claims an interest in the disclaimed property;
(b) a person who is under a liability in respect of the disclaimed
property, that has not been discharged by the disclaimer; and
(c) where the disclaimer is of an unprofitable contract, a person
who is a party to the contract.
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person’s rights are affected by a disclaimer, the liquidator shall forthwith
given written notice of the disclaimer to that person in accordance with this
rule unless–
(a) the liquidator is satisfied that the person has already been made
aware of the disclaimer and its date; or
(b) the Court otherwise orders.
(4) A liquidator disclaiming property may at any time, in addition to his
obligations under the Act and the Rules, give notice of the disclaimer to any
person who, in his opinion, ought in the public interest or otherwise to be
informed of the disclaimer.
Duty to keep Court informed.
121. The liquidator shall, as soon as reasonably practicable, notify the
Court of each person to whom he has given notice of disclaimer in
accordance with the Act and the Rules, specifying the name and address of
each person and his interest in the property disclaimed.
Notice to elect.
122. A notice to elect shall be served on a liquidator by delivering the
notice to him personally or sending it to him by registered post.
Notice to declare interest in onerous property.
123.(1) If it appears to the liquidator that a person may have an interest in
onerous property, he may give notice to that person to declare, within 14
days, whether he claims any interest in the property and, if so, the nature
and extent of his interest.
(2) If a person fails to comply with a notice given under sub-rule (1), the
liquidator is entitled to assume that, for the purposes of the disclaimer of
that property, the person concerned has no interest in it.
Application for vesting order or order for delivery.
124.(1) An application for a vesting order or an order for delivery under
section 213 shall be made within 3 months of–
(a) the applicant first becoming aware of the disclaimer; or
(b) the applicant receiving a notice of the disclaimer from the
liquidator;
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whichever is the earlier.
(2) The application shall be filed with the Court accompanied by a copy
of the application for service on the liquidator and an affidavit–
(a) stating whether his claim is based upon an interest in the
disclaimed property or whether it is based upon an undischarged
liability;
(b) specifying the date upon which he received a copy of the
liquidator’s notice of disclaimer or otherwise became aware of
the disclaimer; and
(c) specifying the grounds upon which his application is based and
the order that he desires the Court to make under section 213.
(3) Not less than 7 days before the date fixed for the hearing of the
application, the applicant shall serve on the liquidator–
(a) a sealed copy of the application endorsed by the Court; and
(b) a copy of the affidavit filed in support.
(4) On the hearing of the application, the Court may give directions as
to other persons, if any, who should be given notice of the application and
the grounds on which it is made.
(5) Sealed copies of any order made on the application shall be sent by
the Court to the applicant and the liquidator.
(6) Unless there is an application, or more than one application, pending
under section 213, in a case where the property disclaimed is of a leasehold
nature, and section 214(2) applies to suspend the effect of the disclaimer,
the order of the Court shall include a direction giving effect to the
disclaimer.
Miscellaneous Provisions
Prescribed Priority.
125. The following costs and expenses of the liquidation shall be paid in
the order of priority in which they are listed (the “prescribed priority”)–
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preserving, realising or getting in the property of the company
or in carrying on the company’s business, including–
(i) the costs and expenses of any legal proceedings which the
liquidator has brought or defended whether in his own
name or in the name of the company; and
(ii) the costs of and in connection with an examination
ordered under section 243.
(b) the costs and expenses of complying with a notice issued by the
Official Receiver under section 278(2);
(c) the remuneration of the provisional liquidator;
(d) the deposit lodged on an application for the appointment of a
provisional liquidator;
(e) the costs of the application on which the liquidator was
appointed, including the costs of any person appearing on the
application whose costs are allowed by the Court;
(f) any costs allowed in respect of the preparation of a statement of
affairs;
(g) the cost of and in respect of any creditors’ committee appointed
in the liquidation;
(h) any disbursements properly paid by the liquidator;
(i) the remuneration of anyone employed by the liquidator;
(j) the remuneration of the liquidator;
(k) any other fees, costs, charges or expenses properly incurred in
the course of the liquidation or properly chargeable by the
liquidator in carrying out his functions in the liquidation.
PART 7
LIQUIDATION OF UNREGISTERED COMPANIES
Scope of this Part.
126.(1) Pursuant to section 230, this Part sets out the modification of Part 6
of the Act in relation to unregistered companies.
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(2) This Part does not apply to insolvent partnerships, which are
governed by Rules made under section 496.
(3) Subject to this Part, and unless the context otherwise requires,
references in Part 6–
(a) to a company are to be taken as references to an unregistered
company; and
(b) to assets are to be taken as references to assets situated in
Gibraltar.
Liquidator of unregistered company may only be appointed by the
Court.
127.(1) An unregistered company may only be put into liquidation under
Part 6 by the appointment of a liquidator by the Court.
(2) The members of an unregistered foreign company may not appoint a
liquidator under Part 6 and any resolution of the members of an unregistered
foreign company that purports to appoint a liquidator under Part 6 is void
and of no effect.
Applicants.
128.(1) Anyone or more of the following may apply to the Court for the
appointment of a liquidator of an unregistered company–
(a) the unregistered company;
(b) a creditor of the unregistered company;
(c) the Minister under section 152;
(d) the Commission under section 153;
(e) a liquidator, within the meaning of Article 2(b) of the EC
Insolvency Regulation, appointed in proceedings by virtue of
Article 3(1) of the EC Insolvency Regulation;
(f) a temporary administrator within the meaning of Article 38 the
EC Insolvency Regulation.
(2) Sub–rule (1) applies to an unregistered company in place of section
150(1) and sections 150(2) and (3) and section 151(1) and (2) do not apply
in relation to unregistered companies.
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Deemed Insolvency of unregistered company.
129.(1) An unregistered company is deemed to be insolvent if, in addition to
the circumstances specified in Part 7 of the Act, it fails to comply with the
requirements of a notice issued in accordance with this rule.
(2) Where a person has instituted an action or other proceeding against
any member of an unregistered company for any debt or demand due, or
claimed to be due, from the company or from him in his character as
member of the unregistered company, that person may issue a notice to the
company in accordance with sub-rule (3).
(3) A notice referred to in sub–rule (2) shall–
(a) be in writing and shall specify the action or proceeding that has
been instituted;
(b) be signed by the person who instituted the action or proceeding
or by a person authorised to issue the notice on his behalf;
(c) require the unregistered company to pay, secure or compound
for the debt or demand, or to procure the action or proceeding to
be stayed or to indemnify the defendant to his reasonable
satisfaction against the action or proceeding, and against all
costs, damages and expenses to be incurred by him because of
it; and
(d) state that if the notice is not complied with, application may be
made to the Court for the appointment of a liquidator.
PART 8
GENERAL PROVISIONS WITH REGARD TO
COMPANIES THAT ARE INSOLVENT OR IN LIQUIDATION
Statement of Affairs
Interpretation.
130. The words and expressions defined in Part 8 of the Act have the
same meaning in this Part.
Notice requiring statement of affairs.
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shall state–
(a) the names and addresses of all other persons, if any, to whom
the same notice has been sent;
(b) the dates within which the statement of affairs shall be made up
to;
(c) the time within which the statement shall be delivered to the
office holder;
(d) the effect of section 236(4), (failure to submit statement of
affairs and verifying affidavit an offence); and
(e) the effect of section 240, if appropriate (duty to provide
information and attend on office holder).
(2) A notice under sub-rule (1) shall be accompanied by the forms
required for the preparation of the statement of affairs.
(3) For the purposes of sub-rule (1)(b), a statement of affairs shall be
made up to a date not more than 14 days before-
(a) where the company is in administration, the date of the
administration order;
(b) where the company is in administrative receivership, the date
that the administrative receiver was first appointed; and
(c) where the company is in liquidation, the date that the liquidation
commenced in accordance with section 160.
Matters to be included in statement of affairs.
132. A statement of affairs shall include the following particulars-
(a) a list of the company’s assets, divided into such categories as are
appropriate for easy identification, with estimated values
assigned to each category;
(b) in the case of any property on which a claim against the
company is wholly or partly secured, particulars of the claim
and its amount, and of how and when the security was created;
(c) the names and addresses of the company’s preferential creditors
with the amounts of their respective claims;
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(d) the names and addresses of the company’s unsecured creditors,
with the amounts of their respective claims;
(e) particulars of any debts owed by or to the company to or by
connected persons;
(f) the names and addresses of the company’s members, with
details of their respective shareholdings.
Verification and delivery of statement of affairs.
133. A statement of affairs–
(a) shall be verified by affidavit; and
(b) shall be delivered to the office holder, together with the affidavit
of verification, within the time period specified in the notice
issued under rule 131.
Affidavit of concurrence.
134.(1) Subject to sub-rule (3), an affidavit of concurrence is an affidavit
stating that the maker of the affidavit–
(a) has been provided with a statement of affairs of a company
prepared and verified by a relevant person in accordance with
section 236(3) pursuant to a notice sent to him by an officer
holder under section 235;
(b) concurs that the statement of affairs is complete and accurate
and is not, in any respect, misleading; and
(c) has sufficient direct knowledge of the company’s affairs to
make the affidavit.
(2) An affidavit of concurrence shall have exhibited to it the statement
of affairs with which the maker concurs.
(3) An affidavit of concurrence may be qualified in respect of matters
dealt with in the statement of affairs, where the person making the affidavit
of concurrence considers the statement of affairs to be erroneous or
misleading or he is without the direct knowledge necessary for concurring
with it.
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Filing of statement of affairs and affidavit of concurrence.
135.(1) Subject to section 239 and to sub-rule (2), an office holder shall as
soon as reasonably practicable after receiving a verified statement of affairs
or an affidavit of concurrence, file a copy with the Registrar and with the
Court.
(2) A liquidator appointed by the members of a company and an
administrative receiver appointed out of Court is not required to file a
verified statement of affairs or an affidavit of concurrence with the Court.
Release from duty to submit statement of affairs and extension of time.
136.(1) Where a relevant person has received a notice requiring him to
prepare and submit a statement of affairs, he may request the office holder
who sent him the notice for–
(a) a release from his obligation; or
(b) an extension of time for submitting the statement of affairs;
under section 238.
(2) An office holder may grant a release of an obligation or an extension
of time under section 238 at his own discretion, without having received a
request from the relevant person concerned.
Application to Court where office holder refuses a request under rule
136.
137.(1) If an office holder refuses a request made under rule 136, the relevant
person concerned may apply to the Court for an order granting him the
release or the extension.
(2) An applicant shall give the office holder at least 10 business days’
notice of an application under sub-rule (1) and of any affidavit filed in
support of his application.
(3) The office holder is entitled to appear and make representations at
the hearing of an application under sub-rule (1) and, whether or not he
appears, to file with the Court a written report setting out any matters that he
considers should be brought to the attention of the Court.
(4) An office holder shall send the applicant a copy of a report filed
under sub-rule (3) at least 5 business days prior to the date fixed for the
hearing of the application.
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(5) On an application to the Court under this rule, the applicant’s costs
shall be paid in any event by him and, unless the Court otherwise orders, no
allowance towards them shall be made out of the assets of the company or,
in the case of an administrative receivership, out of the assets under the
administrative receiver’s control.
(6) The Court shall send sealed copies of an order made under this rule
to the office holder and to the relevant person who made the application.
Expenses of statement of affairs.
138.(1) Subject to sub-rule (3), a relevant person preparing a statement of
affairs and making a verifying affidavit shall be allowed, and paid by the
office holder out of the assets of the company or, in the case of an
administrative receivership, out of the assets under the administrative
receiver’s control, any expenses he incurs in so doing which the office
holder considers reasonable.
(2) Nothing in this rule relieves a relevant person from any obligation
with respect to the preparation, verification and submission of the statement
of affairs, or to the provision of information to, the office holder.
(3) No payment may be made to the office holder or any of his
associates in respect of any assistance given to a relevant person in the
preparation of his statement of affairs unless approved by the creditors’
committee.
Order of limited disclosure.
139.(1) Where the Court makes an order of limited disclosure under section
239 in respect of a statement of affairs, the office holder shall, as soon as
reasonably practicable, file the verified statement of affairs with the
Registrar, to the extent provided by the order.
(2) If there is a material change in circumstances rendering the limit on
disclosure, or any part of it, unnecessary, office holder shall, as soon as
reasonably practicable after the change, apply to the Court for the order to
be varied or rescinded.
(3) The office holder shall, as soon as reasonably practicable after the
making of an order under sub-rule (2), file the verified statement of affairs
with the Registrar, to the extent provided by the order.
Application by creditor for disclosure.
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2011-26 Subsidiary 2014/196 140.(1) If a creditor seeks disclosure of a statement of affairs or a specified
part of a statement of affairs in relation to which an order has been made
under section 239, he may apply to the Court for an order that the office
holder disclose it or a specified part of it.
(2) An application under sub-rule (1) shall be-
(a) supported by an affidavit; and
(b) served on the office holder, together with the supporting
affidavit, not more than 3 business days prior to the date fixed
for the hearing.
(3) The Court may make an order for disclosure to the creditor subject
to any conditions as to confidentiality, duration, the scope of the order in the
event of any change of circumstances, or other matters as it sees fit.
INVESTIGATION OF INSOLVENT COMPANY’S AFFAIRS
Office Holders Powers
Request by office holder for information.
141.(1) A notice to provide information under section 240(1)(a) shall specify
the period within which the information shall be submitted to the office
holder and shall state whether the office holder requires the information to
be verified by affidavit.
(2) Where the office holder requires the recipient of a notice under
section 240(1)(a) to prepare and submit accounts of the company, rule 138
applies with such modifications as are necessary.
(3) An office holder shall not require accounts to be prepared and
submitted to him for a period more than 5 years prior to the appropriate date
specified in paragraphs (a) to (d) of the definition of “relevant period” in
section 231(1) without the leave of the Court.
(4) The office holder may issue subsequent notices to a person specified
under section 240(2), notwithstanding that a previous notice has been fully
complied with.
Examination before Court
Application for examination.
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under section 242 shall be filed with the Court, without notice to the
proposed examinee, together with a supporting affidavit.
(2) Neither the application nor the supporting affidavit are open to
public inspection unless the Court otherwise orders.
(3) The matters contained in the supporting affidavit shall include–
(a) details of the proposed examinee and his relationship with the
company concerned or a connected company;
(b) details of the matters upon which the applicant seeks to examine
the proposed examinee and the reasons for his belief that the
proposed examinee has knowledge of these matters;
(c) details of any books, records or other documents relating to the
company or a connected company that the applicant believes are
in the possession of the proposed examinee that he wishes the
proposed examinee to produce at the examination;
(d) if he seeks an order for a public examination, the justification
for a public examination;
(e) a statement as to whether the matters upon which he seeks to
examine the proposed examinee are matters that he could
examine him on using his powers under sections 240 and 241
and, if so, whether or not he has conducted such an examination;
(f) if the applicant has conducted an examination under section 240,
the reasons why a further examination before the Court is
necessary;
(g) if the applicant is entitled to examine the proposed examinee
under section 241, but has not done so, the reasons for the
application to examine him before the Court.
Adjournment of examination.
143.(1) An examination held pursuant to an order made under section 243
may be adjourned by the Court either generally or to a fixed date.
(2) Where an examination has been adjourned generally, the Court may,
on the application of the liquidator, the Official Receiver or the examinee–
(a) fix a venue for the resumption of the hearing; or
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which, notice is to be given to any person entitled to take part in
the examination.
(3) Where the examinee applies under sub-rule (2) for the resumption of
a public examination, the Court may grant it on condition that the expenses
of giving the notices required by that sub-rule are paid by the examinee and
that, before a venue, date and time for the resumed public examination is
fixed, he shall deposit with the Official Receiver or liquidator, as the case
may be, such sum as the Official Receiver or liquidator considers necessary
to cover those expenses.
Examinee unfit for examination.
144.(1) Where an examinee is suffering from any mental disorder or
physical affliction or disability that renders him unfit to undergo or attend
for an examination, the Court may, on application, either stay the order for
his examination or direct that it shall be conducted in such manner and at
such place as it considers fit.
(2) Application under this rule shall be made–
(a) by a person who has been appointed by a court in Gibraltar or
elsewhere to manage the affairs of, or to represent, the
examinee;
(b) by a relative or friend of the examinee whom the Court
considers to be a proper person to make the application; or
(c) by the Official Receiver.
(3) Where the application is made by a person other than the Official
Receiver–
(a) it shall be supported by the affidavit of a medical practitioner as
to the examinee’s mental and physical condition; and
(b) at least 7 days’ notice of the application shall be given to the
Official Receiver and the liquidator, if not the Official Receiver.
(4) Where the application is made by the Official Receiver it may be
made ex parte, and may be supported by evidence in the form of a report by
the Official Receiver to the Court.
Adjournment of examination.
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2011-26 Subsidiary 2014/196 145.(1) The Court may, in its discretion, adjourn an examination either to a
fixed date or generally.
(2) Where an examination has been adjourned generally, the Court may
at any time on the application of the Official Receiver, the liquidator if not
the Official Receiver, or of the examinee–
(a) fix a venue for the resumption of the examination; and
(b) give directions as to the manner in which, and the time within
which, notice of the resumed examination is to be given to
persons entitled to take part in it.
(3) Where application under sub-rule (2) is made by the examinee, the
Court may grant it on terms that the expenses of giving the notices required
by that sub-rule shall be paid by him and that, before a venue for the
resumed examination is fixed, he shall deposit with the Court such sum as it
considers reasonable to cover those expenses.
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PART 9
DISQUALIFICATION ORDERS
Application for disqualification order.
146.(1) Application for a disqualification order against a person (the
respondent) is made by filing at Court an originating application and one or
more affidavits in support, at least one of which shall be sworn by the
Official Receiver.
(2) The affidavit sworn by the Official Receiver shall specify the facts
and matters that the Official Receiver relies upon to support his application
for a disqualification order.
(3) The application shall be endorsed with the following information–
(a) that if the application is successful, the Court may make a
disqualification order against the person concerned for a
maximum period of 10 years;
(b) that a disqualified person is for the period of the disqualification
order prohibited from engaging in any prohibited activity within
the meaning of section 267(3); and
(c) that any evidence that the respondent wishes to be taken into
consideration by the Court shall be filed with the Court and
served on the Official Receiver within the time limits specified
in rule 147, which shall be set out on the application.
(4) On the filing of an application for a disqualification order, the Court
shall fix, and endorse on the application, a date and time for the hearing of
the application not less than 8 weeks after the date that the application was
filed.
(5) A sealed copy of the application together with the supporting
affidavit or affidavits shall be served on the respondent not more than 14
days after the date that the application is filed.
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Affidavits in response and reply.
147.(1) The respondent shall, within 28 days of the date of service of the
application on him, file affidavit evidence in opposition to the application
if–
(a) he opposes the application for a disqualification order; or
(b) while not opposing the making of a disqualification order, he
intends to adduce mitigating factors with a view to justifying a
short period of disqualification.
(2) In any affidavit filed under sub-rule (1), the respondent shall state
the basis on which he contests the application or seeks a short period of
disqualification.
(3) The respondent shall forthwith upon filing an affidavit serve a copy
on the Official Receiver.
(4) The Official Receiver shall, within 14 days of receiving a copy of
the respondent’s affidavit or affidavits, file any further affidavits in reply
that he wishes the Court to take into consideration and shall forthwith serve
a copy of the affidavit or affidavits on the respondent.
Hearing.
148.(1) The Court shall, on the hearing of the application–
(a) determine the application summarily; or
(b) if it considers that questions of law or fact arise that are not
suitable for summary determination, give directions for the
further conduct of the matter and adjourn it to a fixed date.
(2) The Court may, upon being satisfied that the respondent has been
served with the application, make a disqualification order against the
respondent whether or not he appears and whether or not he has filed
evidence in opposition in accordance with rule 147.
(3) Any disqualification order made against the respondent in his
absence may, at any time within 2 years following the date of the order, be
set aside or varied by the Court on such terms as it considers fit.
PART 10
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General
Scope of and interpretation for this Part.
149.(1) This Part applies where a debtor makes, or intends to make, a
proposal under Part 12 of the Act and in respect of any arrangement that
may be approved.
(2) In this Part, “creditors’ meeting” means a creditors’ meeting held
under Part 12 of the Act.
Additional matters that may be included in an arrangement.
150. Subject to section 280(4), and without limiting section 280(1), an
arrangement may–
(a) provide for circumstances in which persons who become
creditors of the debtor after the approval of an arrangement are
entitled to be paid under the arrangement in priority to creditors
bound by the arrangement;
(b) specify a date or a time at which liabilities of the debtor will be
calculated and provide how liabilities arising after that date are
to be dealt with; and
(c) be entered into in conjunction with any other arrangement,
reorganization or scheme taking effect under the law of another
jurisdiction, whether subject to Court approval or otherwise.
Proposal and Statement of Assets and Liabilities
Form and contents of proposal.
151.(1) A proposal shall be in writing and shall include–
(a) a summary of the proposed arrangement with a brief explanation
as to its main features and as to why the arrangement is
desirable and why the debtor’s creditors might be expected to
agree to it;
(b) to the best of the debtor’s knowledge and belief, particulars of
his assets specifying-
(i) an estimate of their respective values;
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of creditors, and
(iii) the extent, if any, to which particular assets are to be
excluded from the arrangement;
(c) particulars of any assets, other than those of the debtor himself,
which it is proposed will be included in the arrangement,
specifying-
(i) the source of the assets, and
(ii) the terms upon which they are to be made available to
creditors under the arrangement;
(d) to the best of the debtor’s knowledge and belief, particulars of
the nature and amount of his liabilities, including any disputed
claims and any joint obligations, and the manner in which they
will be met, modified or postponed or otherwise dealt with
under the arrangement, specifying in particular-
(i) how it is proposed that preferential creditors and creditors
who are or who claim to be secured creditors will be dealt
with,
(ii) how it is proposed that any creditors or joint, or joint and
several, debtors who are connected persons in relation to
the debtor,
(iii) whether there are, to the knowledge of the debtor, any
circumstances giving rise to the possibility, in the event
that a bankruptcy order should be made against the debtor,
of claims for a voidable transaction under Part 15 of the
Act and, if so, whether and how it is proposed to make
provision for wholly or partly making the value of such
claims available to the creditors under the arrangement,
and
(iv) whether there any persons with non-admissible or
postponed claims against the debtor and how it is
proposed that they will be dealt with, if at all;
(e) particulars of any security interests, liens, rights of set-off held
by creditors and as to any guarantees of the debtor’s debts given
by third parties, specifying which of the sureties, if any, are
connected persons in relation to the debtor;
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participate in the approval of the arrangement, as provided by
sub-rule (2), will be dealt with;
(g) details of the proposed duration of the arrangement;
(h) the proposed dates of distributions of assets to creditors of the
debtor, with estimates of their amounts;
(i) particulars of the remuneration proposed to be paid to the
interim supervisor and to the supervisor and how the
remuneration and the other costs of the interim supervisor and
the supervisor are to be met;
(j) details of any benefits, including guarantees, assets and any
security interests that are to be offered by any person other than
the debtor for the purposes of the arrangement;
(k) details of any further loans or credit facilities which it is
intended to arrange for the debtor, specifying on what terms and
how it is proposed that the additional liabilities, including
interest, are to be repaid;
(l) details of any business that will be conducted by the debtor
during the course of the arrangement and the manner in which
funds payable to him will be dealt with during the period before
the arrangement is approved and during the course of the
arrangement, if approved;
(m) the manner in which funds or other assets held for the purpose
of the arrangement are to be banked, invested or otherwise dealt
with pending distribution to the creditors;
(n) the manner in which funds or other assets held for the purpose
of payment to creditors, and not so paid on the termination of
the arrangement, are to be dealt with;
(o) the functions to be undertaken by the interim supervisor and by
the supervisor if the arrangement is approved; and
(p) the name and address of the persons proposed as the supervisor
and interim supervisor, who may be the same person, and
confirmation that they are, or he is, eligible to act in respect of
the debtor.
(2) For the purposes of sub-rule (1)(f), a creditor does not participate in
the approval of the arrangement if, for whatever reason–
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(a) he was not given notice of the creditors’ meeting called under
section 23; and
(b) he did not attend the meeting at which the arrangement was
approved, whether in person or by proxy.
Statement of assets and liabilities.
152.(1) The provisions of the Act and the Rules relating to the statement of
assets and liabilities required to be submitted by a bankrupt under section
399 apply to a statement of assets and liabilities provided to the nominated
insolvency practitioner under section 283(1)(b)(ii).
(2) Without limiting sub-rule (1), the statement of liabilities provided by
a debtor under section 283(1)(b)(ii) shall–
(a) supplement or amplify, so far as is necessary for clarifying the
state of the debtor’s affairs, those already given in the proposal;
and
(b) contain, in addition to the matters required under rule 242(2),
such other matters as the nominated solvency practitioner shall
require.
(3) Subject to sub-rule (4), the statement of assets and liabilities shall be
made up to a date not earlier than 2 weeks before the date of the notice
provided to the nominated insolvency practitioner under section
283(1)(b)(iii).
(4) The nominated insolvency practitioner may allow an extension of
the period specified in sub-rule (2) to the nearest practicable date (not earlier
than 2 months before the date of the notice provided under section
283(1)(b)(iii).
(4) The statement of assets and liabilities shall be verified by the debtor.
Amendment or withdrawal of proposal before appointment of interim
supervisor.
153.(1) A debtor may, before the nominated insolvency practitioner has
accepted appointment as interim supervisor-
(a) amend a proposal by providing a copy of the amended proposal
to the nominated insolvency practitioner; or
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the nominated insolvency practitioner.
(3) The withdrawal of a proposal under section 286(1)(a) takes effect
from the time that the notice of withdrawal is received by the nominated
insolvency practitioner.
(4) The nominated insolvency practitioner shall endorse the notice of
withdrawal with the time and date that it was received and return a copy to
the directors, administrator or liquidator, as the case may be.
Amendment or withdrawal of proposal after appointment of interim
supervisor.
154.(1) This rule applies if a debtor wishes to amend or withdraw a proposal
after the appointment of an interim supervisor but before a meeting of
creditors is called under section 294.
(2) A proposal is deemed to be amended under this rule if–
(a) the amendment is provided to the interim supervisor in writing
before the interim supervisor calls a meeting of creditors under
section 294; and
(b) the interim supervisor consents to the proposal being amended
in the terms of the amendment provided to him.
(3) Without limiting sub-rule (2)(b), the interim supervisor may refuse
to consent to the amendment if he considers that he does not have sufficient
time to amend the proposal and prepare a report on the amended proposal
before giving notice of the creditors’ meeting under section 294.
(4) A proposal may be withdrawn under section 286(1)(b) by providing
the interim supervisor with a notice of withdrawal before the interim
supervisor calls a creditors’ meeting under section 294.
(5) On receipt of a notice of withdrawal in accordance with sub-rule (4),
the interim supervisor shall endorse the notice of withdrawal with the time
and date that it was received and return a copy to the debtor.
(6) The withdrawal of a proposal under section 286(1)(b), and the
termination of the interim supervisor’s appointment, takes effect from the
time that he receives the notice of withdrawal.
(7) If the interim supervisor has filed a notice of his appointment under
section 284 with the Official Receiver and, if appropriate, provided a copy
to the Commission, he shall, within 2 business days of receiving the
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appropriate, provide a copy to the Commission.
(8) Where a proposal is withdrawn under this rule, the debtor is liable to
the former interim supervisor in respect of any costs and remuneration
payable to him, including the costs of complying with sub-rule (7).
Amendment or withdrawal of proposal before creditors’ meeting.
155.(1) This rule applies if a debtor wishes to amend or withdraw a proposal
after the calling of a meeting of creditors under section 294 but before the
meeting of creditors is held.
(2) A proposal is deemed to be amended under this rule if–
(a) the amendment is provided to the interim supervisor in writing
at least 4 business days prior to the date fixed in the notice
calling the meeting under section 294; and
(b) the interim supervisor consents to the proposal being amended
in the terms of the amendment provided to him.
(3) Where a proposal is amended under this rule, the interim supervisor
shall give at least 2 business days’ notice of the amendment, together with a
brief report on the effect of the amendment, to every person who received
the notice calling the meeting under section 294.
(4) Without limiting sub-rule (2)(b), the interim supervisor may refuse
to consent to the amendment if he considers that he does not have sufficient
time to comply with sub-rule (3).
(5) A proposal may be withdrawn under section 286(1)(c) by providing
the interim supervisor with a notice of withdrawal at least 5 business days
prior to the date fixed for the creditors’ meeting called under section 294.
(6) On receipt of a notice of withdrawal in accordance with sub-rule (5),
the interim supervisor shall endorse the notice of withdrawal with the time
and date that it was received and return a copy to the debtor.
(7) The withdrawal of a proposal under section 286(1)(c), and the
termination of the interim supervisor’s appointment, takes effect from the
time that he receives the notice of withdrawal.
(8) Forthwith on receiving a notice of withdrawal under sub-rule (5), the
former interim supervisor shall–
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of the debtor and to the debtor himself; and
(b) file a copy of the notice of withdrawal with the Official
Receiver and, if the debtor is an Authorised person, provide a
copy to the Commission.
(9) Where a proposal is withdrawn under section 286(1)(c), the debtor is
liable to the former interim supervisor in respect of any costs and
remuneration payable to him, including the costs of complying with sub-
rule (8).
Effect of amendment or withdrawal of proposal.
156. Where a proposal is amended under rules 153, 154 and 155, Part 12
of the Act applies to the amended proposal as if it was the original proposal.
Appointment of Interim Supervisor
Appointment of interim supervisor.
157.(1) If the insolvency practitioner nominated by a debtor agrees to act as
interim supervisor, he shall–
(a) cause a copy of the instrument of appointment to be endorsed
with–
(i) an acknowledgement that he has received a copy of the
proposal together with the debtor’s statement of assets and
liabilities;
(ii) the date upon which he received the instrument of
appointment together with a copy of the proposal,
(iii) the date or dates upon which he received an amended
proposal from the debtor or confirmation that the proposal
has not been amended,
(iv) confirmation that, to the best of his knowledge, he is
eligible to act as an insolvency practitioner in respect of
the debtor, and
(v) his agreement to act as interim supervisor;
(b) deliver the endorsed instrument of appointment to the debtor at
the address specified in the instrument of appointment; and.
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Moratorium
Application for moratorium order.
158.(1) The affidavit supporting an application for a moratorium order
shall–
(a) set out the reasons justifying the application;
(b) set out particulars of any execution or other legal process which,
to the debtor’s knowledge, has been commenced against him;
(c) confirm that, in accordance with section 324, the Court could
make a bankruptcy order against the debtor on his application;
(d) confirm that no previous application for a moratorium order has
been made by the debtor in the period of 12 months immediately
preceding the date of the application; and
(e) confirm that an eligible insolvency practitioner has accepted
appointment as interim supervisor.
(2) On receipt of the application and affidavit, the Court shall fix a
venue, date and time for the hearing of the application.
Report to Court.
159.(1) The report submitted by the interim supervisor to the Court under
section 292 shall include–
(a) a summary of the affairs of the debtor and, if relevant, the
conduct of his business during the proposal period;
(b) his opinion as to whether the debtor is insolvent;
(c) his opinion as to whether the arrangement which the debtor is
proposing has a reasonable chance of being approved and
implemented;
(d) his opinion as to whether a meeting of the debtor’s creditors
should be called to consider the proposal;
(e) if, in his opinion, such a meeting should be called, the venue he
proposes for the meeting;
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(g) any other matters that he considers should be brought to the
attention of the Court.
(2) The date proposed by the interim supervisor for a creditors’ meeting
under sub-rule (1)(e) shall be at least 21 days but no more than 35 days from
the date that his report is filed with the Court.
Creditors’ Meeting
General provisions to apply.
160.(1) Rules 281 to 301 apply to a creditors’ meeting held under Part 12 of
the Act, subject to any modification required by rules 161.
Chairman of creditors’ meeting.
161. Subject to rule 281(2) and (3), the interim supervisor or the
supervisor shall be the chairman of every creditors’ meeting.
Entitlement to vote and admission and rejection of claims.
162.(1) A creditor is not entitled to vote at a creditors’ meeting unless
written notice of his claim is given to the interim supervisor, or supervisor,
or the chairman of the meeting either at the meeting or before it.
(2) If the chairman is in doubt whether a claim should be admitted or
rejected, he shall mark it as objected to and allow votes to be cast in respect
of it, subject to such votes being subsequently
declared invalid if the objection to the claim is sustained.
(3) At any creditors’ meeting held under Part 12 of the Act, a creditor
may vote in respect of a claim for an unliquidated amount or on any claim
the value of which is not ascertained and for the purposes of voting, but not
otherwise, his claim shall be valued at £1.00 unless the chairman agrees to
put a higher value on it.
Requisite majorities at creditors’ meeting.
163.(1) The majority required for the passing of a resolution at a creditors’
meeting is–
(a) for the approval of an arrangement or of a modification of an
arrangement, 75 per cent or more in value of the creditors
present in person or by proxy who vote on the resolution; and
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of the creditors present in person or by proxy who vote on the
resolution.
(2) A resolution is invalid if those voting against it include more than
half in value of the creditors, counting in these latter only those–
(a) to whom notice of the meeting was sent;
(b) who are not entitled to vote by reasons of rule 17(1), rule 288(2)
or where the claim, or the part voted on, is secured; and
(c) who are not, to the best of the chairman's belief, connected
persons in relation to the company.
(3) It is for the chairman of the meeting to decide whether under this
rule a person is a connected person for the purposes of sub-rule (2)(c).
(2) Where joint supervisors of an arrangement are appointed, they may
act jointly or severally unless the arrangement provides otherwise.
Other Matters
Notice of arrangement.
164.(1) The notice of arrangement required to be filed with the Official
Receiver shall contain the following details–
(a) the name and address of the debtor;
(b) the date on which the arrangement was approved by the
creditors; and
(c) the name and address of the supervisor.
(2) A person who is appointed supervisor of an arrangement, whether as
the first supervisor, an additional supervisor or a replacement supervisor,
shall file a notice of his appointment with the Official Receiver.
(3) A person vacating office as supervisor shall file a notice of vacation
of office with the Official Receiver.
Applications to Court
Application concerning supervisor or interim supervisor.
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the appointment or removal of a supervisor or an interim supervisor, he
shall give every supervisor or interim supervisor 7 days’ notice of his
application.
(2) The supervisor, or interim supervisor, is entitled to appear and be
represented at the hearing of an application referred to in sub-rule (1).
Revocation or suspension of arrangement.
166.(1) This rule applies where the Court makes an order of revocation or
suspension under section 312.
(2) The person who applied for the order shall serve sealed copies of the
order on the supervisor and on the debtor.
(3) If the order includes a direction by the Court for any further
creditors’ meetings to be summoned, notice shall also be given, by the
person who applied for the order, to whoever is, in accordance with the
direction, required to summon the meetings.
(4) The debtor shall–
(a) immediately after receiving a copy of the Court’s order, give
notice of it to all persons who were sent notice of the creditors’
meeting that approved the arrangement or who, not having been
sent that notice, appear to be affected by the order;
(b) within 7 days of their receiving a copy of the order, or within
such longer period as the Court may allow, give notice to the
Court whether he intends to make a revised proposal to his
creditors, or to invite re-consideration of the original proposal.
(5) The person on whose application the order of revocation or
suspension was made shall, within 7 days after the making of the order, file
a copy of the order with the Official Receiver.
Service of orders.
167. Where a moratorium order is made or any order is made on the
consideration of the interim supervisor’s report, at least 2 sealed copies of
the order shall be sent by the Court forthwith to the debtor and the debtor
shall serve a copy of the order on–
(a) the interim supervisor; and
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order against him.
PART 11
BANKRUPTCY
Preliminary
Official name of trustee.
168. The official name of a bankruptcy trustee is “the trustee of the estate
of (name of bankrupt) a bankrupt” but he may be known as the bankruptcy
trustee of the bankrupt.
Appointment of Official Receiver as trustee.
169.(1) The Court may appoint the Official Receiver as the bankruptcy
trustee of a debtor on an application under Part 13 of the Act,
notwithstanding that–
(a) the applicant may, in his application, have proposed the
appointment of an eligible insolvency practitioner as trustee;
(b) the Official Receiver has not consented to act as trustee; and
(c) the Official Receiver has not been given notice of the
application.
(2) Where the Official Receiver is the trustee of a bankrupt, any
provision of the Act or the Rules requiring the trustee to send or give any
notice or other document to the Official Receiver shall be construed as
requirement that the notice or document is to be retained by the Official
Receiver as a record of the bankruptcy.
Bankruptcy Order
Creditor’s Application
Scope of and interpretation for rules 170 to 195.
170.(1) Rules 170 to 195 apply to–
(a) a creditor’s application for a bankruptcy order under section
325;
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under section 330, with such modifications as are appropriate;
and
(c) the making of a bankruptcy order on an application specified in
paragraphs (a) or (b).
(2) In the rules specified in sub–rule (1), unless the context otherwise
requires–
“applicant” means the person making an application;
“application” means an application for a bankruptcy order under section
325 or, where appropriate, under section 330.
Form of creditor’s application.
171. An application shall be dated and shall be signed–
(a) by the applicant himself; or
(b) on the applicant’s behalf by a person who is authorised by him
and who has the requisite knowledge of the matters referred to
in the application;
and shall be witnessed.
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Identification of debtor.
172.(1) An application shall state the following particulars with respect to
the debtor–
(a) his name;
(b) his place of residence;
(c) his occupation;
(d) the nature of his business, if any, and the address at which he
carries it on; and
(e) any name other than the one specified under paragraph (a),
including a business name, which, to the applicant’s personal
knowledge, the debtor has used.
(2) The title of the proceedings shall be determined by the particulars
given under sub-rule (1)(a) and (e).
Particulars of liability.
173. An application shall state the following matters with respect to the
liability in respect of which the application is made–
(a) the amount of the liability at the date of the application;
(b) the consideration for the liability or, if there is no consideration,
the nature of the liability;
(c) if the amount claimed in the application includes interest,
penalties, charges or any pecuniary consideration in lieu of
interest, the amount claimed and the rate at which and the period
for which it was calculated, which shall be separately identified;
(d) when the liability was incurred or became due;
(e) if the liability is founded on a judgment or an order of a court,
details of the judgment or order, including the action under
which the judgment or order was obtained and the date of the
judgment or order;
(f) if the debt is founded on grounds other than a judgment or an
order of a court, such details as would enable the debtor to
identify the debt.
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Application based on statutory demand.
174.(1) An application based on the debtor’s failure to comply with the
requirements of a statutory demand, shall state the date and manner of
service of the statutory demand and that to the best of the creditor’s
knowledge and belief, the demand has neither been complied with nor set
aside and that no application to set it aside is pending.
(2) An application may not be made based on a statutory demand served
more than 4 months before the filing date of the application.
Application based on unsatisfied execution.
175.(1) An application based on an unsatisfied execution or other process
shall specify–
(a) the judgment, decree or order on which the execution was
issued;
(b) the court which issued the execution against the debtor;
(c) the mode of execution; and
(d) the extent, if any, to which the judgment debt has been satisfied
as a result of the execution.
(2) An application may not be made based on an execution or other
process completed more than 4 months before the filing date of the
application.
Other matters to be specified in application.
176.(1) An application shall state which of the grounds for making a
bankruptcy order specified in section 320(1) apply to the debtor.
(2) An application under section 330 shall provide sufficient details to
enable the debtor to understand the grounds on which the bankruptcy order
is sought.
Filing of application.
177. Application for a bankruptcy order is made by filing at Court an
application complying with sub-rule (2), together with–
(a) an affidavit verifying service of the statutory demand, if
required under rule 179; and
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(b) an affidavit in support of the application complying with rule
178.
Affidavit in support.
178.(1) An application shall be supported by an affidavit stating that the
statements made in the application are true or are true to the best of the
deponent’s knowledge, information and belief.
(2) If the application is in respect of debts due to different creditors, the
debts due to each creditor shall be separately verified.
(3) The supporting affidavit shall be made by the applicant or by the
person who signed the application on the applicant’s behalf.
(4) A supporting affidavit is prima facie evidence of the statements in
the application to which it relates.
(5) The following documents shall be exhibited to the affidavit in
support of an application–
(a) a copy of the application; and
(b) if the applicant proposes an eligible insolvency practitioner as
bankruptcy trustee, a notice of eligibility and consent to act
signed by the insolvency practitioner specified in the
application.
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Affidavit of service of statutory demand.
179.(1) Where an application is based on the debtor’s failure to comply with
the requirements of a statutory demand, an affidavit of service of the
statutory demand complying with the Court Rules shall be filed together
with the application.
(2) Where the statutory demand has been served other than by personal
service, the affidavit shall–
(a) give particulars of the steps taken to effect personal service and
the reasons for which they have been ineffective;
(b) state the means whereby, attempts at personal service having
been unsuccessful, it was sought to bring the demand to the
debtor’s attention and explain why such means would have best
ensured that the demand would be brought to the debtor’s
attention;
(c) exhibit evidence of such alternative mode or modes of service;
and
(d) specify a date by which to the best of the knowledge,
information and belief of the person making the affidavit, the
demand would have come to the debtor’s attention.
(3) If the affidavit specifies a date for the purposes of compliance with
sub-rule (2) (d), then unless the Court otherwise orders, that date is deemed
to have been the date on which the statutory demand was served on the
debtor.
(4) The Court shall dismiss the application for a bankruptcy order if it is
not satisfied that the creditor has discharged the obligations imposed on him
by rule 76.
Service of application for bankruptcy order.
180. Subject to rule 181, an application shall be served personally on the
debtor by an officer of the Court, by the creditor making the application or
his solicitor, or by a person in their employment.
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Substituted service.
181.(1) If the Court is satisfied by affidavit or other evidence on oath that
prompt personal service cannot be effected because the debtor is keeping
out of the way to avoid service of a creditor’s application, or for any other
cause, the Court may order substituted service to be effected in such manner
as it considers appropriate.
(2) Where an order for substituted service has been carried out, the
application is deemed to have been served on the debtor.
(3) If an order has been made for substituted service of the application, a
sealed copy of the order shall also be exhibited to the affidavit of service.
(4) The affidavit of service shall be filed with the Court as soon as
reasonably practicable after service has been effected.
Death of debtor before service.
182. If a debtor dies before service on him of an application, the Court
may order service to be effected on his personal representatives or on such
other persons as it considers appropriate.
Affidavit of service of application for bankruptcy order.
183.(1) Service of an application on the debtor shall be verified by an
affidavit of service complying with the Court Rules.
(2) If an order has been made for substituted service of the application, a
sealed copy of the order for substituted service and any evidence of service
shall be exhibited to the affidavit of service.
(3) The affidavit of service shall be filed with the Court forthwith after
service has been effected.
Copies of application to be sent to other persons.
184. A sealed copy of an application shall be sent, as soon as reasonably
practicable–
(a) if the application is made under section 330, and the applicant is
not the supervisor of the arrangement, to the supervisor.
(b) if the individual is, or at any time has been, an Authorised
person, to the Commission.
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2011-26 Subsidiary 2014/196 Application seeking appointment of supervisor as trustee.
185.(1) This rule applies where an applicant proposes as trustee the
supervisor of an arrangement in place in respect of the debtor.
(2) Within 5 business days of receiving a copy of the application, the
supervisor shall send a notice to each creditor of the debtor
(a) stating that an application has been made for a bankruptcy order
and that it is proposed that he be appointed bankruptcy trustee;
and
(b) advising the creditor–
(i) of the date fixed for the hearing of the application; and
(ii) that if the creditor wishes to object to the supervisor’s
appointment, or respond in any other way, he shall send
his objection or response to the supervisor not later than
12 noon on the day before the date fixed for the hearing.
(3) The supervisor shall file with the Court, before or at the hearing of
the application, a report summarising any responses or objections that he
has received.
Application opposed by debtor.
186. If a debtor intends to oppose an application he shall, not less than 5
days before the date fixed for the hearing of the application, file with the
Court and send to the applicant a notice setting out the grounds on which he
opposes the application.
Notice of intention to appear.
187.(1) A creditor who intends to appear on the hearing of an application
shall send a notice of intention to appear to the applicant.
(2) A notice of intention to appear shall be in writing and shall specify–
(a) the name and address of the person giving notice and his contact
details, if any;
(b) whether it is his intention to support or oppose the application;
and
(c) the amount and nature of the liability of the debtor to him;
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applicant no later than 16.00 hours on the business day before the date fixed
for the hearing of the application, or where the hearing has been adjourned,
the adjourned hearing.
List of appearances.
188.(1) An applicant shall prepare a list of the creditors, if any, who have
sent him a notice of intention to appear in accordance with rule 187,
specifying, in respect of each person–
(a) his name and address;
(b) his legal practitioner, if known; and
(c) whether he intends to support or oppose the application.
(2) The list shall be filed with the Court at the hearing of the application.
(3) If the Court grants a person leave to appear on the hearing of the
application under rule 190(e), the applicant shall, as soon as practicable, file
an amended list of appearances with the Court.
Hearing of application.
189.(1) Subject to sub-rule (2), an application shall not be heard until the
expiration of 14 days, or such longer time as the Court may direct, from the
service of the application on the debtor.
(2) The Court may, on such terms as it considers appropriate, hear the
application at an earlier date where
(a) it is satisfied that the debtor has absconded;
(b) it is satisfied that it is a proper case for an expedited hearing; or
(c) the debtor consents to a hearing within the 14 days.
Parties who may be heard.
190. Any of the following persons may appear and be heard on the
hearing of an application-
(a) the applicant;
(b) the debtor;
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debtor;
(d) any creditor who has given notice to the Court of his intention to
appear at the hearing of the application;
(e) a creditor who, having failed to comply with rule 187, is granted
leave by the Court to appear; and
(f) the Official Receiver.
Non-appearance of applicant or failure to prosecute application.
191. If the applicant fails to appear on the hearing of the application or
fails to prosecute the application diligently, the application may be
dismissed and no subsequent application against the same debtor shall be
filed by the same creditor in respect of the same debt without the leave of
the Court.
Extension of time for hearing.
192.(1) The applicant may, if the application has not been served, apply to
the Court to fix another venue for the hearing of the application.
(2) An application under sub-rule (1) shall state the reasons why the
application has not been served.
(3) No costs occasioned by an application under sub-rule (1) shall be
allowed in the proceedings unless the Court otherwise orders.
(4) The application shall be amended before service to reflect the new
hearing date.
(5) If the Court fixes another venue for the hearing, the applicant shall
as soon as reasonably practicable notify any creditor who has given notice
under rule 187.
Adjournments.
193.(1) If the Court adjourns the hearing of the application, the applicant
shall forthwith send a notice of the order adjourning the hearing to the
debtor and any creditor who has given notice under rule 187.
(2) A notice of an order adjourning the hearing of an application shall
state the venue for the adjourned hearing.
Substitution of applicant.
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194.(1) In the circumstances specified in sub-rule (2), the Court may, by
order, substitute as applicant, a creditor who–
(a) has given notice of his intention to appear and support the
application under rule 187 and appears at the hearing;
(b) wishes to prosecute the application; and
(c) was in such a position in relation to the debtor at the date on
which the application was filed as would have enabled him on
that date to file an application against the debtor.
(2) The Court may make a substitution order under sub-rule (1) where
the Court considers it appropriate to do so–
(a) because the applicant applies to withdraw the application,
consents to it being dismissed or fails to appear in support of the
application on the day fixed for the hearing;
(b) because the Court considers that the application is not being
diligently proceeded with;
(c) where the applicant is not entitled to make the application; or
(d) for any other reason.
(3) An order under sub-rule (1) may be made on such terms as the Court
considers appropriate.
(4) Where the Court makes a substitution order, the original applicant
shall not be entitled to the costs of his application unless the Court
otherwise orders.
(5) Where the Court makes a substitution order, the application shall be
amended accordingly and shall be verified, re-filed and re-served on the
debtor and the Official Receiver.
Leave to withdraw application.
195.(1) Where the applicant applies to the Court for the application to be
dismissed, or for leave to withdraw it, he shall, unless the Court otherwise
orders, file in Court an affidavit specifying the grounds of the application
and the circumstances in which it is made.
(2) If, since the application was filed, any payment has been made to the
applicant by way of settlement, in whole or in part, of the liability in respect
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into for securing or compounding them, the affidavit shall state–
(a) what dispositions of assets have been made for the purposes of
the settlement or arrangement; and
(b) whether, in the case of any disposition, it was assets of the
debtor himself, or of some other person; and
(c) whether, if it was assets of the debtor, the disposition was made
with the approval of, or has been ratified by, the Court and, if
so, specifying the relevant Court order.
(3) No order giving leave to withdraw an application shall be given
before the application is heard.
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Debtor’s Application
Scope of and interpretation for rules 197 to 200.
196.(1) Rules 197 to 200 apply to an application by a debtor for a
bankruptcy order under section 324 and for the making of a bankruptcy
order on an application under that section.
(2) In the rules referred to in sub–rule (1), unless the context otherwise
requires, “application” means a debtor’s application for a bankruptcy order
under section 324.
Form of application.
197.(1) An application shall be dated and signed by the debtor and shall
state–
(a) his name;
(b) his residential address;
(c) his occupation, if any;
(d) the nature of his business, the address at which he carries on the
business and whether he carries on the business alone or with
others;
(e) any names, other than the one stated under paragraph (a), by
which he is or was known or by which he carries or has carried
on any business;
(2) The title of the proceedings shall be determined by the particulars
given under sub-rule (1)(a) and (e).
(3) The debtor shall state in his application which of the grounds for
making a bankruptcy order specified in section 320(1) apply to him.
Admission of insolvency.
198.(1) An application shall contain a statement that the debtor is unable to
pay his debts as they fall due, an explanation as to the cause of his
insolvency and a request that a bankruptcy order be made against him.
(2) If, within the period of 5 years prior to the date that the application is
filed, the debtor has had a bankruptcy order made against him, or has made
a composition with his creditors in satisfaction of his debts or a scheme of
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of the Act, particulars of these matters shall be given in the application.
(3) If, at the date of the filing of the application an arrangement under
Part 12 of the Act is in force, the particulars required under sub-rule (2)
shall contain a statement to this effect and the name and address of the
supervisor of the arrangement.
Filing of application.
199.(1) Application for a bankruptcy order is made by filing at Court an
application comply with the Rules, together with–
(a) 3 copies of the application for sealing;
(b) an affidavit in support of the application made by the debtor
complying with sub-rule (2); and
(c) the verified statements of his assets and liabilities required by
section 324(2) and 2 additional copies.
(2) The following documents shall be exhibited to the affidavit in
support of an application–
(a) a copy of the application; and
(b) if the applicant proposes an eligible insolvency practitioner as
bankruptcy trustee, a notice of eligibility and consent to act
signed by the insolvency practitioner specified in the
application.
(3) The Court shall–
(a) return a sealed copy of the application to the applicant; and
(b) send a sealed copy of the application and a copy of the verified
statements of assets and liabilities to the Official Receiver.
Application where arrangement in place.
200.(1) Where an application is made by the debtor at a time when an
arrangement under Part 12 of the Act is in force between himself and his
creditors, he shall serve a copy of the application on the supervisor.
(2) Where the debtor proposes the supervisor as his trustee, within 5
business days of receiving a copy of the application, the supervisor shall
send a notice to each creditor of the debtor–
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(a) stating that an application has been made for a bankruptcy order
and that it is proposed that he be appointed bankruptcy trustee;
and
(b) advising the creditor–
(i) of the date fixed for the hearing of the application; and
(ii) that if the creditor wishes to object to the supervisor’s
appointment, or respond in any other way, he shall send
his objection or response to the supervisor not later than
12 noon on the day before the date fixed for the hearing.
(3) The supervisor shall file with the Court, before or at the hearing of
the application, a report summarising any responses or objections that he
has received.
Rules Applicable to Bankruptcy Orders
Scope.
201. The rules relating to bankruptcy orders apply whether the order is
made on the application of a creditor, the debtor or a supervisor.
Drawing and content of bankruptcy order.
202.(1) A bankruptcy order shall be drawn by the Court.
(2) A bankruptcy order shall–
(a) state the date that the application on which the order is made
was filed;
(b) state the date of the making of the order; and
(c) contain a notice requiring the bankrupt forthwith after the
service of the order on him to attend on the trustee at the time
and place stated in the order.
(3) Where the debtor is represented by a legal practitioner, the
bankruptcy order shall be endorsed with the name, address and telephone
number of the legal practitioner and any reference.
Service of bankruptcy order.
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to the trustee of his appointment and send 3 sealed copies of the order to
him as soon as is practicable.
(2) The trustee shall, forthwith on receiving the sealed copies of the
bankruptcy order from the Court, send one copy to the bankrupt and one
copy to the Official Receiver.
Advertisement of bankruptcy order and stay.
204.(1) The trustee shall, within 10 days of receiving sealed copies of the
bankruptcy order from the Court, advertise the Order.
(2) The advertisement shall state the name and address of the person
appointed as trustee.
(3) The Court may, on the application of the bankrupt or a creditor,
order the trustee not to advertise a bankruptcy order pending a further order
of the Court.
(4) An application for a stay of advertisement shall be supported by an
affidavit setting out the grounds on which the application is made.
(5) The applicant for an order under sub-rule (3) shall serve a sealed
copy of the order, if made, on the trustee and on the Official Receiver.
Amendment of title of proceedings.
205.(1) At any time after the making of a bankruptcy order, the trustee may
apply to the Court for an order amending the title of the proceedings.
(2) The Court may include in an order under sub-rule (1), directions for
the service and advertisement of a notice of the amendment.
INTERIM RECEIVER
Application for appointment of interim receiver.
206.(1) An application for an order under section 334(1), shall propose an
eligible insolvency practitioner or the Official Receiver for appointment as
interim receiver.
(2) If the Official Receiver is proposed for appointment, he shall be
given sufficient notice of the hearing to enable him to attend the hearing.
(3) An application referred to in sub-rule (1) shall be supported by an
affidavit stating–
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(a) the grounds upon which the application is being made;
(b) where the proposed appointee is not the Official Receiver, that
he has consented to act and, to the best of the applicant’s belief
is eligible to act as an insolvency practitioner in relation to the
debtor;
(c) whether, to the applicant’s knowledge, there has been proposed
or is in force for the debtor a creditor’s arrangement under Part
12 of the Act;
(d) the applicant’s estimate of the value of the assets in respect of
which the appointment is to be made; and
(e) if the Official Receiver is proposed for appointment, whether
and in what manner he has been given notice of the application.
Hearing of application.
207.(1) If the Official Receiver is proposed to be appointed as interim
receiver, he is entitled to attend the hearing and make such representations
as he considers appropriate.
(2) The Court shall not appoint the Official Receiver unless he has been
given notice of the application in accordance with rule 206(2).
Order appointing interim receiver.
208.(1) An order appointing an interim receiver under section 334(1) shall
state the nature and a short description of the assets of which the person
appointed is to take control, and the duties to be performed by him in
relation to the debtor’s affairs.
(2) The Court shall, forthwith on making an order under section 334(1),
give notice to the person appointed interim receiver of his appointment and,
as soon as is practicable send 2 sealed copies of the order to him.
(3) The person appointed by the Court shall, as soon as practicable, send
one copy of the sealed order to the debtor.
BANKRUPT’S ESTATE
Duties of bankrupt with respect to after acquired property.
209.(1) The notice required to be given by the bankrupt to the trustee under
section 344(4) of assets acquired by, or devolving on him, or of any increase
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increased income.
(2) If the bankrupt disposes of property before giving the notice required
by section 344 and this rule, he shall forthwith disclose to the trustee the
name and address of the person to whom he disposed of the assets and
provide any other information which may be necessary to enable the trustee
to trace the assets and recover them for the estate.
(3) Where the bankrupt gives the trustee notice under sub-rule (2) of
assets acquired by or devolving upon him, he shall not, without the trustee’s
consent in writing, dispose of the assets within the period of 42 days
beginning with the date of the notice.
(4) Subject to sub-rule (5), sub-rules (1) to (3) do not apply to assets
acquired by the bankrupt in the ordinary course of a business carried on by
him.
(5) If the bankrupt carries on a business, he shall, at least once in each 6
month period, provide to the trustee information with respect to the
business, showing the total value of goods bought and sold or, as the case
may be, services supplied, and the profit or loss arising from the business.
(6) Where sub-rule (5) applies, the trustee may by a notice in writing,
require the bankrupt to provide such further details of the business,
including accounts, as are specified in the notice.
Action against person to whom bankrupt disposed assets.
210.(1) Where assets have been disposed of by the bankrupt, before giving
the notice required by rule 209(3) or in contravention of that rule, the trustee
may serve notice on the person to whom the assets were disposed of,
claiming the property as part of the estate by virtue of section 346(2).
(2) The trustee’s notice under this rule shall be served within 28 days of
his becoming aware of the identity of the person to whom the bankrupt
disposed of the assets and an address at which he can be served.
Expenses of acquiring title to after-acquired assets.
211. Any expenses incurred by the trustee in acquiring title to after-
acquired property shall be paid out of the estate, in the prescribed order of
priority.
Purchase of replacement property for items of excess value.
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2011-26 Subsidiary 2014/196 212.(1) A purchase of replacement assets under section 347(3) may be made
either before or after the realisation by the trustee of the value of the assets
vesting in him under that section.
(2) The trustee is under no obligation, by virtue of section 347, to apply
funds to the purchase of a replacement for assets vested in him, unless and
until he has sufficient funds in the estate for that purpose.
Income Payments Orders
Application for order.
213.(1) An application by the trustee for an income payments order under
section 350 is made by filing with the Court an application together with a
statement of the grounds upon which the application is made.
(2) The trustee shall send a notice of the application to the bankrupt not
less than 28 days before the day fixed for the hearing of the application,
together with sealed copies of the documents filed with the Court.
(3) A notice sent to the bankrupt under sub-rule (2) shall state that–
(a) unless at least 7 days before the date fixed for the hearing the
bankrupt sends to the Court and to the trustee written consent to
an order being made in the terms of the application, he is
required to attend the hearing; and
(b) if he attends, he will be given an opportunity to show cause why
the order should not be made, or an order should be made
otherwise than as applied for by the trustee.
Notice of order.
214. Where the Court makes an income payments order, the trustee shall,
forthwith after the order is made, send a sealed copy of the order–
(a) to the bankrupt; and
(b) if the order is made under section 350(3)(b), to the person to
whom the order is directed.
Order to make payment to trustee.
215.(1) Where a person receives notice of an income payments order under
section 350(3)(b), with reference to income otherwise payable by him to the
bankrupt, he shall make the necessary arrangements for immediate
compliance with the order.
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(2) The trustee may, by written notice, authorise a person making
payments to him in accordance with an order under section 350(3)(b) to
deduct and retain such fee as may be specified in the notice towards the
clerical and administrative costs of compliance with the order.
(3) The trustee shall send a copy of any notice under sub-rule (2) to the
bankrupt.
(4) Where a person receives notice of an income payments order
imposing on him a requirement under section 350(3)(b), he shall forthwith
give notice to the trustee if–
(a) he is no longer liable to make to the bankrupt any payment of
income; or
(b) having made payments in compliance with the order, he ceases
to be so liable.
Variation or discharge of order.
216.(1) The trustee or the bankrupt may apply to the Court to vary or
discharge an income payments order.
(2) Subject to sub-rules (5) and (6), where the application is made by the
trustee, rule 213 applies to an application under this rule with such
modifications as are necessary.
(3) A bankrupt shall make application under sub-rule (1) by filing with
the Court an application, a statement of the grounds upon which it is made
and any affidavit that he intends to rely on.
(4) The bankrupt shall send sealed copies of the application, the
statement of grounds and any affidavit filed with the Court to the trustee not
less than 28 days before the day fixed for the hearing of the application.
(5) If an income payments order is made under section 350(3)(a), and
the bankrupt does not comply with it, the trustee may apply to the Court for
the order to be varied, so as to take effect under section 350(3)(b) as an
order to the person making the payment.
(6) The trustee’s application under sub-rule (1) may be made ex parte.
(7) Where an application under this rule is made by the bankrupt, the
trustee may, not less than 7 days before the date fixed for the hearing, file a
written report of any matters which he considers ought to be drawn to the
Court’s attention.
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(8) The trustee shall, as soon as reasonably practicable after filing a
report under sub-rule (7) send a sealed copy to the bankrupt.
(9) Where the Court makes an order under this rule, the trustee shall,
forthwith after the order is made, whether on his application or on the
application of the bankrupt, send a sealed copy of the order or variation or
discharge–
(a) to the bankrupt; and
(b) if the order is made under sub-rule (5) or the order varies or
discharges an order made under section 350(3)(b), to the person
making the payment.
BANKRUPTCY TRUSTEE
Appointment of trustee by Court.
217.(1) Where the Court appoints a trustee, it shall as soon as reasonably
practicable after the date of the order, send 2 sealed copies of the order to
the trustee who shall send one copy to the Official Receiver.
(2) The trustee’s appointment takes effect from the date of the order.
(3) A bankruptcy trustee shall advertise his appointment–
(a) as specified in Rule 313(1); and
(b) in a newspaper published and circulating in Gibraltar.
Authentication of trustee’s appointment.
218. A sealed copy of the Court’s order appointing a person as trustee of
a bankrupt may, in any proceedings, be adduced as proof that the person
appointed is duly authorised to exercise the powers and perform the duties
of trustee in relation to the bankruptcy.
Removal of trustee.
219.(1) Application for the removal of a trustee under section 361 is made
by filing at Court–
(a) an application stating the grounds upon which the removal of
the trustee is sought; and
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application.
(2) A sealed copy of the application and the affidavit shall be served on
the trustee and the Official Receiver, unless it is his application, not less
than 10 days before the date fixed for the hearing.
(3) The trustee may file affidavit evidence in opposition to the
application not less than 4 days before the date fixed for the hearing of the
application.
(4) The trustee shall, not less than 4 days after being served with an
application under sub-rule (2) send to the Official Receiver a statement as to
whether any of the bankrupt’s assets have not been realised, applied,
distributed or otherwise fully dealt with and, if so, providing details of–
(a) the nature, value and location of the assets;
(b) any action taken by the trustee to deal with the assets or his
reason for not dealing with them; and
(c) the current position in relation to the assets.
(5) Unless the Court otherwise directs, an application for the removal of
a trustee shall be held in Chambers.
(6) The Court may require the applicant to make a deposit or provide
security for the costs to be incurred by the trustee on the application.
(7) Subject to any order of the Court to the contrary, the costs of an
application to remove a trustee are not payable out of the bankrupt’s estate.
(8) If the Court removes a trustee under section 361, it shall send a copy
of the order removing him to–
(a) the trustee removed;
(b) any remaining trustee; and
(c) the Official Receiver.
Resignation of trustee, no longer eligible to act.
220.(1) Where the trustee resigns under section 362(1)(a), he shall send the
Official Receiver with the notice of his resignation, a statement covering the
matters specified in rule 219(4).
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statement by affidavit.
Resignation of trustee for other reason.
221.(1) Unless the trustee is a joint trustee resigning in accordance with
section 362(4), the notice of a creditors’ meeting sent to creditors in
accordance with section 362(5) shall be accompanied by an account of the
trustee’s administration of the bankruptcy, including a summary of his
receipts and payments.
(2) The trustee shall, not less than 7 days before the date fixed for the
creditors’ meeting, send a copy of the notice and account referred to in sub-
rule (1) and a statement covering the matters specified in 219(4) to the
Official Receiver and file a copy of the notice and account with the Court.
(3) If at a creditors’ meeting called under section 362(5) a resolution is
passed accepting the trustee’s resignation, the chairman shall, forthwith,
send the Official Receiver a copy of the resolution signed by the chairman.
(4) Where a trustee’s resignation is accepted by the creditors, the trustee
shall forthwith–
(a) send a notice of his resignation to the Official Receiver, and
(b) file a notice of his resignation with the Court.
(5) The trustee’s resignation is effective from the date that the notice of
his resignation is received by the Official Receiver, which date shall be
endorsed on the notice and a copy of the endorsed notice returned to the
former trustee.
Leave to resign.
222.(1) A trustee shall, not less than 7 days before the date fixed for the
hearing of an application for leave to resign under section 362(7), give
notice of his application to–
(a) any joint trustee;
(b) the creditors’ committee, if any; and
(c) the Official Receiver.
(2) If the Court gives the trustee leave to resign, it may make such
provision as it consider appropriate with respect to matters arising in
connection with his resignation.
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(3) Where the Court gives the trustee leave to resign, section 361(3)
applies with such modifications as are necessary.
(4) The Court shall send 2 sealed copies of the order to the trustee, who
shall forthwith send one of the copies to the Official Receiver.
(5) Within 14 days of his resignation, the former liquidator shall send a
notice of his resignation to the Official Receiver.
Death of trustee.
223.(1) Where the trustee dies, his personal representative shall give notice
of his death to the Official Receiver, specifying the date of his death, unless
notice has already been given to the Court and the Official Receiver under
sub-rules (2) or (3).
(2) If a trustee who dies was a partner in a firm, notice of his death may
be given to the Official Receiver and the Court by a partner in the firm.
(3) Notice of the death of a trustee may be given by any person
producing to the Court and the Official Receiver the relevant death
certificate or a copy of it.
(4) Where the Official Receiver receives a notice under sub-rule (3) and
the deceased trustee was the sole trustee of the bankrupt, the Official
Receiver shall, as soon as reasonably practicable, apply to the Court under
section 363(1) for the appoint of a replacement trustee, unless an application
has already been made by the creditors’ committee.
Advertisement of appointment.
224.(1) A trustee who is appointed to replace a trustee who has, for whatever
reason, ceased to hold office, shall within 21 days of the date of his
appointment, advertise his appointment.
(2) His advertisement shall state that he has been appointed in place of a
trustee who has ceased to hold office.
Solicitation.
225.(1) Where the Court is satisfied that any improper solicitation has been
used by or on behalf of a trustee in obtaining proxies or procuring his
appointment, it may order that no remuneration, or that reduced
remuneration, be payable to the trustee out of the assets of the estate.
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the creditors’ committee or any other provision of the Rules.
Administration by Trustee
Meetings of creditors.
226.(1) This rule applies to a creditors’ meeting called under Part 13 of the
Act.
(2) The trustee shall give the bankrupt not less than 14 days’ notice of a
creditors’ meeting.
(3) If a creditors’ meeting is adjourned, the chairman of the meeting
shall give notice of the fact to the bankrupt, unless–
(a) the bankrupt was present at the meeting; or
(b) the chairman considers it to be unnecessary or impracticable to
give notice to the bankrupt.
(4) The chairman of a creditors’ meeting may admit the bankrupt or any
other person to the meeting, if he has given reasonable notice of his wish to
be present at the meeting.
(5) The chairman’s decision is final as to what, if any, intervention may
be made by the bankrupt, or by any other person, admitted to the meeting
under this sub-rule.
(6) If the bankrupt is not present at a creditors’ meeting, and it is desired
to put questions to him, the chairman may adjourn the meeting with a view
to obtaining his attendance.
(7) Where the bankrupt is present at a creditors’ meeting, only such
questions may be put to him as the chairman may in his discretion allow.
Trustee’s duty to report to Official Receiver and creditors.
227.(1) Unless otherwise directed by the Official Receiver, a trustee shall at
the end of every 6 months file with the Court and send to the Official
Receiver and the creditors’ committee, if any, a written report stating–
(a) the receipts and payments for the period;
(b) details of the assets realised and the assets remaining unrealised
during the period and the reasons why the assets remaining
unrealised have not been realised;
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(c) the progress of his administration of the bankrupt’s estate and
any matters in connection with his administration which he
considers should be drawn to the Official Receiver’s attention;
and
(d) such other information as the Official Receiver may require.
(2) Where a creditors committee is not appointed, the report referred to
in sub-rule (1) shall be sent to each creditor.
CLAIMS AND DISTRIBUTION OF ESTATE
Claims by unsecured creditors.
228. A claim made against a bankrupt by an unsecured creditor under
section 369 shall be in the specified form and shall specify–
(a) the name and address of the creditor;
(b) the total amount of his claim at the date of the bankruptcy order;
(c) whether or not the claim includes uncapitalised interest;
(d) whether the whole or any part of the debt or liability, and if so
which, is a preferential claim;
(e) particulars of how and when the debt or liability was incurred by
the bankrupt;
(f) the documents, if any, by which the debt or liability can be
substantiated;
(g) particulars of any security interest held, the date when it was
given and the value that the creditor places upon it; and
(h) the name and address of the person signing the claim, if not the
creditor himself.
Claim forms.
229.(1) Unless the Court otherwise orders, the trustee shall send a claim
form to each creditor of whom he is aware at the same time as he sends the
creditor notice of his appointment under section 359.
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creditor that he becomes aware of subsequent to sending out a notice under
section 359.
Application to Court expunge or amend an admitted claim.
230. The applicant for an order expunging or reducing a claim under
section 370(2) shall serve a copy of his application–
(a) in the case of an application by the trustee, on the creditor who
made the claim; and
(b) in the case of an application by a creditor, on the trustee and on
the creditor who submitted the claim.
Negotiable instruments.
231. The trustee may reject a claim in respect of money owed on a bill of
exchange, promissory note, cheque or other negotiable instrument or
security unless the instrument or security, or a copy certified by the creditor
or his authorised representative to be a true copy, is produced to the trustee.
Inspection of claims.
232. The trustee shall allow claims in his custody or control to be inspected
by–
(a) a creditor who has submitted a claim in the bankruptcy that has
not been wholly rejected by the trustee;
(b) the bankrupt;
(c) a person acting on behalf of a person referred to in paragraph (a)
or (b).
Distribution of dividend.
233. Where the trustee distributes a dividend, he shall send to each
creditor participating in the dividend, a statement containing such
particulars with respect to the company, and to its assets and affairs, as will
enable creditors to understand the calculation of the amount of the dividend.
Final meeting.
234.(1) The trustee shall call a final meeting under section 382 by sending a
notice of the meeting, together with his final report, to all creditors not less
than 28 days before the date fixed for the meeting.
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(2) A copy of the notice and report sent to creditors under sub-rule (1)
shall, within the same time period, also be sent to the Official Receiver and
the bankrupt
(3) The trustee’s final report shall include a summary of his receipts and
payments.
(4) At the final meeting, the creditors may question the trustee with
respect to any matter contained in his report or concerning his
administration of the bankrupt’s estate.
(5) As soon as reasonably practicable after the final meeting has been
held, the trustee shall send to the Official Receiver and file with the Court a
notice that the meeting has been held and shall file a copy of his final report
with the Court.
(6) If there is no quorum at the final meeting, the trustee shall report to
the Court and the Official Receiver that a final meeting was summoned in
accordance with the Rules, but there was no quorum present and the final
meeting is then deemed to have been held.
Disclaimer
Notice of disclaimer.
235.(1) A notice of disclaimer shall contain such details of the property
disclaimed as enable it to be easily identified.
(2) The notice shall be signed by the trustee and filed at Court with a
copy.
(3) The Court shall return the sealed copy to the trustee.
(4) The Court shall either endorse on the copy notice or record on the
Court file the method by which the notice of disclaimer was returned to the
trustee.
Communication of notice of disclaimer.
236.(1) Written notice of a disclaimer notice shall be given under section
391(3) by sending or giving a copy of the sealed disclaimer notice to each
person entitled to receive it.
(2) Without limiting section 391(3), the following are entitled to receive
notice of a disclaimer–
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(a) where the property disclaimed is of a leasehold nature, every
person who, to the trustee’s knowledge, claims under the
bankrupt as underlessee or mortgagee;
(b) where the disclaimer is of property in a dwelling house, every
person who, to the trustee’s knowledge, is in occupation of, or
claims a right to occupy, the house;
(c) every person who, to the trustee’s knowledge–
(i) claims an interest in the disclaimed property; or
(ii) is under a liability in respect of the disclaimed property,
that has not been discharged by the disclaimer; and
(d) where the disclaimer is of an unprofitable contract, a person
who is a party to the contract.
(3) If it subsequently comes to the knowledge of a trustee that a person’s
rights are affected by a disclaimer, the trustee shall forthwith given written
notice of the disclaimer to that person in accordance with this rule unless–
(a) the trustee is satisfied that the person has already been made
aware of the disclaimer and its date; or
(b) the Court otherwise orders.
(4) A disclaimer notice required to be given to a person under the age of
18 years in relation to the disclaimer of property in a dwelling house is
sufficiently given if given to the parent or guardian of that person.
(5) A trustee disclaiming property may at any time, in addition to his
obligations under the Act and the Rules, give notice of the disclaimer to any
person who, in his opinion, ought in the public interest or otherwise to be
informed of the disclaimer.
Duty to keep Court informed.
237. The trustee shall, as soon as reasonably practicable, notify the Court
of each person to whom he has given notice of disclaimer in accordance
with the Act and the Rules, specifying the name and address of each person
and his interest in the property disclaimed.
Notice to elect.
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to him personally or sending it to him by registered post.
(2) Where property cannot be disclaimed by the trustee without the
leave of the Court, if the trustee applies to the Court for leave to disclaim
within the 28 day period specified in section 393(2), the Court shall extend
the time allowed by that section for giving notice of disclaimer to a date not
earlier than the date of the application.
Application for leave to disclaim.
239.(1) Where the trustee requires the leave of the Court to disclaim
property claimed for the bankrupt’s estate under section 346 or 347, he may
apply for that leave ex parte.
(2) An application under sub-rule (1) shall be accompanied by a report–
(a) giving such particulars of the property proposed to be
disclaimed as enable it to be easily identified.
(b) setting out the reasons why, the property having been claimed
for the estate, the Court’s leave to disclaim is now applied for,
and
(c) specifying the persons, if any, who have been informed of the
trustee’s intention to make the application.
(3) If the report states that any person’s consent to the disclaimer has
been signified, a copy of that consent shall be annexed to the report.
(4) The Court may, on consideration of the application, grant the leave
applied for and it may, before granting leave–
(a) order that notice of the application be given to all such persons
who, if the property is disclaimed, will be entitled to apply for a
vesting or other order under section 395; and
(b) fix a venue for the hearing of the application for leave under
section 394(2).
Notice to declare interest in onerous property.
240.(1) If it appears to the trustee that a person may have an interest in
onerous property, he may give notice to that person to declare, within 14
days, whether he claims any interest in the property and, if so, the nature
and extent of his interest.
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trustee is entitled to assume that, for the purposes of the disclaimer of that
property, the person concerned has no interest in it.
Application for vesting order or order for delivery.
241.(1) An application for a vesting order or an order for delivery under
section 395 shall be made within 3 months of the earlier of–
(a) the applicant first becoming aware of the disclaimer; or
(b) the applicant receiving a notice of the disclaimer from the
trustee.
(2) The application shall be filed with the Court accompanied by a copy
of the application for service on the trustee and an affidavit–
(a) stating whether his claim is based upon–
(i) an interest in the disclaimed property;
(ii) an undischarged liability; or
(iii) the occupation of a dwelling house;
(b) specifying the date upon which he received a copy of the
trustee’s notice of disclaimer or otherwise became aware of the
disclaimer; and
(c) specifying the grounds upon which his application is based and
the order that he desires the Court to make under section 395.
(3) The Court shall return a sealed copy of the application to the
applicant.
(4) Not less than 7 days before the date fixed for the hearing of the
application, the applicant shall serve on the trustee–
(a) a copy of the sealed application; and
(b) a copy of the affidavit filed in support.
(5) On the hearing of the application, the Court may give directions as
to other persons, if any, who should be given notice of the application and
the grounds on which it is made.
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2011-26 Subsidiary 2014/196 (6) Sealed copies of any order made on the application shall be sent by
the Court to the applicant and the trustee.
(7) Unless there is one or more applications pending under–
(a) section 392(2), in a case where the property disclaimed is of a
leasehold nature; or
(b) section 392(4), in a case where the property disclaimed is
property in a dwelling house;
and section 392(2) or 392(4), as the case may be, apply to suspend the effect
of the disclaimer, the order of the Court shall include a direction giving
effect to the disclaimer.
INVESTIGATION OF BANKRUPT’S AFFAIRS
Statement of Assets and Liabilities
Statement of assets and liabilities.
242.(1) The statement of assets and liabilities required–
(a) to be filed by a debtor under section 324(2) together with his
application for a bankruptcy order; and
(b) to be submitted by a bankrupt under section 399(1);
shall be in the specified form and shall contain the information required by
the form.
(2) Without limiting sub-rule (1), a statement of assets and liabilities
shall set out–
(a) the assets and liabilities of the debtor or bankrupt;
(b) the names and addresses of the creditors of the debtor or
bankrupt; and
(c) the security interests held by creditors of the debtor or bankrupt
and the dates upon which the security interests were created.
Scope of rules 244 to 247.
243. Rules 244 to 247 apply in respect of a statement of assets and
liabilities required to be submitted by a bankrupt under section 399(1).
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Submission and filing of verified statement.
244.(1) The trustee of a bankrupt shall provide him with the forms required
to complete the statement of assets and liabilities together with instructions
for completing the forms.
(2) The bankrupt shall verify his statement of assets and liabilities by
affidavit and submit it to the trustee together with one copy.
(3) The trustee shall file the verified statement of assets and liabilities in
Court.
Release from duty to submit statement of assets or liabilities and
extension of time.
245.(1) A bankrupt may request the trustee–
(a) to release him from his obligation to submit a statement of
assets and liabilities; or
(b) for an extension of time for submitting the statement;
under section 399(3).
(2) The trustee may grant the bankrupt a release or an extension of time
under section 399(3) at his own discretion, without having received a
request from the bankrupt.
Application to Court where office holder refuses a request under rule
136.
246.(1) If the trustee refuses a request made under rule 245, the bankrupt
may apply to the Court for an order granting him the release or the
extension.
(2) The bankrupt shall give the trustee at least 10 business days’ notice
of an application under sub-rule (1) and of any affidavit filed in support of
his application.
(3) The trustee is entitled to appear and make representations at the
hearing of an application under sub-rule (1) and, whether or not he appears,
to file with the Court a written report setting out any matters that he
considers should be brought to the attention of the Court.
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sub-rule (3) at least 5 business days prior to the date fixed for the hearing of
the application.
(5) On an application to the Court under this rule, the bankrupt’s costs
shall be paid in any event by him and, unless the Court otherwise orders, no
allowance towards them shall be made out his estate.
(6) The Court shall send sealed copies of an order made under this rule
to the trustee and to the bankrupt.
Expenses of statement of assets and liabilities.
247.(1) If the bankrupt is unable to prepare a statement of assets and
liabilities himself, the trustee may, at the expense of the estate–
(a) employ a person to assist the bankrupt in the preparation of the
statement; or
(b) authorise an allowance payable out of the estate towards
expenses to be incurred by the bankrupt in employing a person
approved by the trustee to assist the bankrupt in preparing the
statement.
(2) A request by the bankrupt for an authorisation under sub-rule (1)(b)
shall be accompanied by an estimate of the expenses involved.
(3) An authorisation given by the trustee under this rule shall be subject
to such conditions, if any, as he considers appropriate with respect to the
manner in which any person may obtain access to relevant books and
papers.
(4) Nothing in this rule relieves the bankrupt from any obligation with
respect to the preparation, verification and submission of his statement of
assets and liabilities, or to the provision of information to the Official
Receiver or the trustee.
Report where statement of assets and liabilities submitted.
248.(1) Where the bankrupt submits a statement of assets and liabilities
under section 399(1), the trustee shall send to creditors a report containing a
summary of the statement and such observations, if any, as he considers it
appropriate to make with respect to it or to the bankrupt’s affairs generally.
(2) The trustee need not comply with sub-rule (1) if he has previously
reported to creditors with respect to the bankrupt’s affairs, so far as known
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to be brought to their attention.
Statement of affairs dispensed with.
249.(1) Where the bankrupt has been released from the obligation to submit
a statement of affairs, the trustee shall, as soon as reasonably practicable,
send to creditors a report containing a summary of the bankrupt’s assets and
liabilities and affairs, so far as within his knowledge, and such observations,
if any, as he considers it would be appropriate for him to make.
(2) The trustee need not comply with sub-rule (1) if he has previously
reported to creditors with respect to the bankrupt’s affairs (so far as known
to him) and he is of opinion that there are no additional matters which ought
to be brought to their attention.
Examination
Application for examination.
250.(1) An application to the Court under section 402(1) for the examination
of a bankrupt shall state whether the Official Receiver or the trustee seeks
the examination to be held in public or in private.
(2) The Official Receiver or trustee shall, together with the application,
file with the Court a statement setting out-
(a) the person or persons sought to be examined;
(b) a general description of the matters the person will be examined
on;
(c) where the person sought to be examined is not the bankrupt or
the bankrupt’s spouse, the grounds for the application;
(d) whether any further orders or directions are sought under section
403(3) or (6).
(3) Unless the Court gives a direction under section 403(6)(a), the
matters upon which the examinee may be examined are not limited to the
matters stated in the application in accordance with sub-rule (2)(b).
Advertisement of order.
251. Where the Court makes an order for the public examination of a
bankrupt–
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(b) if it does not give such directions, the Official Receiver or the
trustee, as the case may be, may advertise the order in such
manner as he considers appropriate.
Application required by creditors.
252.(1) A notice to the trustee under section 402(4) shall be in writing and
shall be accompanied by–
(a) a list of the creditors concurring with the notice and the amount
of their respective claims in the bankruptcy;
(b) written confirmation of each creditor’s concurrence with the
notice; and
(c) a statement of the reasons why the creditors require the trustee
to make application for the examination of the bankrupt.
(2) The trustee shall not make an application as required by the creditors
unless there is deposited with him such sum as he determines to be
appropriate by way of security for the expenses of the hearing of the
examination, if ordered.
(3) Within 28 days of receiving a notice under section 402(4), the
documents specified in sub-rule (1) and the security deposit, the trustee shall
apply to the Court for the examination of the bankrupt.
(4) If the trustee considers that the request is an unreasonable one, he
may apply to the Court for an order relieving him from the obligation to
make the application.
(5) If the Court makes an order under sub-rule (4), and the application
for the order was made ex parte, the trustee shall, as soon as reasonably
practicable after the order is made, give notice of the order to the creditors
named in the notice.
Record of examination.
253.(1) A written record shall be kept of an examination.
(2) The record shall be read either to or by the examinee and signed by
him.
(3) The Court may order that the examinee verify the written record of
the examination by affidavit.
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Adjournment of examination.
254.(1) An examination may be adjourned by the Court either to a fixed date
or generally.
(2) Without limiting sub-rule (1), the Court shall adjourn an
examination if criminal proceedings have been instituted against the
examinee and the Court is of opinion that the continuance of the hearing
would prejudice a fair trial of those proceedings.
(3) Where an examination is adjourned generally, the Court may at any
time on the application of the trustee, the Official Receiver or the bankrupt
(a) fix a venue for the resumption of the examination; and
(b) give such directions concerning the examination as it considers
appropriate.
Costs of an examination.
255.(1) The costs and expenses incurred by an examinee or by a creditor in
connection with an examination, including the costs of representation by a
legal practitioner, shall be borne by him and shall not be payable out of the
bankrupt’s estate as a cost of the bankruptcy.
(2) Subject to sub-rule (3), the costs of the trustee and, if appropriate,
the Official Receiver in connection with an examination ordered are a cost
of the bankruptcy and shall be paid out of the bankrupt’s estate in
accordance with the prescribed priority.
(3) Where an examination of the bankrupt has been ordered by the
Court on a requisition of the creditors under section 402(4), the Court may
order that the expenses of the examination are to be paid, as to the whole or
a specified proportion, out of the deposit under rule 252(2), instead of out of
the estate.
DISCHARGE AND ANNULMENT OF BANKRUPTCY
Discharge
Application in relation to automatic discharge.
256.(1) This rule applies to an application made by the Official Receiver or
the trustee under section 409(2).
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the grounds upon which the application is made shall be filed together with
the application.
(3) A copy of the endorsed application, together with the affidavit or
report in support, shall be sent to the persons specified in sub-rule (4) so as
to reach them at least 21 days before the date fixed for the hearing.
(4) The following persons are entitled to be given notice of the
application–
(a) the bankrupt;
(b) where the applicant is the Official Receiver and he is not the
bankruptcy trustee, the bankruptcy trustee; and
(c) where the applicant is the bankruptcy trustee (not being the
Official Receiver), the Official Receiver.
(5) The bankrupt may, not later than 7 days before the date of the
hearing, file with the Court an affidavit specifying any statements in the
applicant’s affidavit or report which he intends to deny or dispute.
(6) An affidavit filed under sub-rule (5) shall be sent to the Official
Receiver and the bankruptcy trustee, if different, not less than 4 days before
the date of the hearing.
(7) If, on the hearing of the application, the Court makes an order under
section 409(2), the applicant shall serve a copy on each person entitled to
receive notice of the application under sub-rule (4).
Application concerning order for suspension of discharge.
257.(1) This rule applies to an application made by the bankrupt under
section 410.
(2) The bankrupt shall, together with the application, file an affidavit
stating the grounds upon which the application is made.
(3) A copy of the endorsed application, together with the affidavit in
support, shall be sent to the Official Receiver and the trustee, if different, so
as to reach them at least 28 days before the date fixed for the hearing.
(4) The Official Receiver and the bankruptcy trustee, if different–
(a) may file with the Court a report of any matters which he
considers ought to be drawn to the Court’s attention; and
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(b) may appear and be heard on the bankrupt’s application.
(5) If the Court’s order under section 409(2) was for the period for
automatic discharge to cease to run until the fulfilment of specified
conditions, the Court may request a report from the Official Receiver or the
bankruptcy trustee as to whether those conditions have or have not been
fulfilled.
(6) If an affidavit is filed under sub-rule (4) or a report is filed under
sub-rule (5), copies shall be sent to the bankrupt and the Official Receiver or
the bankruptcy trustee, as the case may be, not later than 14 days before the
hearing.
(7) The bankrupt may, not later than 7 days before the date of the
hearing, file with the Court an affidavit specifying any statements in the
report or affidavit referred to in sub-rule (6) which he intends to deny or
dispute.
(8) An affidavit filed under sub-rule (7) shall be sent to the Official
Receiver and the trustee, if different, not less than 4 days before the date of
the hearing.
(9) If, on the bankrupt’s application, the Court discharges the order
under section 409(2) it shall issue a certificate to the bankrupt stating that it
has done so, with effect from a specified date and the bankrupt shall send
copies of the certificate to the Official Receiver and the trustee, if different.
Application for discharge.
258.(1) An application by a bankrupt for his discharge under section 411
shall state whether the application is made under subsection (1)(a) or (1)(b)
of that section.
(2) Where a bankrupt makes an application for his discharge under
section 411, he shall deposit with the Official Receiver such sum as the
Official Receiver reasonably requires to comply with his obligations under
sub-rule (3).
(3) Subject to sub-rule (5), upon receiving an application for discharge
by the Court, the Official Receiver shall give notice of the application to
every creditor who, to the Official Receiver’s knowledge, has a claim
outstanding against the estate which has not been satisfied.
(4) Notices under sub-rule (3) shall be given not later than 14 days
before the date fixed for the hearing of the bankrupt’s application.
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(a) the Official Receiver is not obliged to give notice under sub-rule
(3); and
(b) the Court shall not make an order discharging the bankrupt.
Report of Official Receiver.
259.(1) Where the bankrupt makes an application for his discharge under
section 411, the bankruptcy trustee shall file an affidavit, and the Official
Receiver may file a report, at least 21 days before the date fixed for the
hearing of the application as to–
(a) whether paragraphs (a) to (j) in section 412(4), or any of them,
apply to the bankrupt and, if so, providing particulars; and
(b) any other matters that the trustee and the Official Receiver
consider should be brought to the attention of the Court.
(2) A copy of the affidavit and report filed under sub-rule (1) shall be
sent to the bankrupt at least 14 days before the date fixed for the hearing of
the application.
Annulment of Bankruptcy Order
Application for annulment.
260. An application to the Court under section 415(1) for the annulment
of a bankruptcy order shall specify under which paragraph of section 415(1)
it is made and shall be supported by an affidavit stating the grounds on
which it is made.
Notice of application and other documents.
261.(1) Notice of an application under section 415(1) shall be given–
(a) to the trustee and, if he is not the trustee, to the Official
Receiver;
(b) if the application is made under section 415(1)(a), to the person
on whose application the bankruptcy order was made; and
(c) if the applicant is not the bankrupt, to the bankrupt.
(2) Any notice required to be given, or document sent, under the rules in
this Part relating to annulment to the trustee, shall also be given or sent, if
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the relevant rule.
(3) Any notice required to be given, or document sent, under the rules in
this Part relating to annulment to the trustee or any other person shall also
be given, if he is not the applicant, to the bankrupt within the time periods
specified in the relevant rule.
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Report by trustee.
262.(1) Where the application is made under section 415(1)(b), not less than
21 days before the date fixed for the hearing, the trustee shall file with the
Court a report with respect to the following matters-
(a) the circumstances leading to the bankruptcy;
(b) the extent of the bankrupt’s assets and liabilities at the date of
the bankruptcy order and at the date of the application;
(c) details of the bankrupt’s creditors who are known to him to have
claims, but have not submitted them; and
(d) such other matter as the person making the report considers
would assist the Court in making a decision on the application.
(2) The report filed under sub-rule (1) shall include particulars of the
extent to which, and the manner in which, the debts and expenses of the
bankruptcy have been paid or secured and, in so far as the debts and
expenses of the bankruptcy are unpaid but secured, the person making the
report shall state in it whether and to what extent he considers the security to
be satisfactory.
(3) A copy of the report shall be sent to the applicant at least 14 days
before the date fixed for the hearing.
(4) The applicant for an order annulling the bankruptcy may, if he
wishes, file further affidavits in reply to the trustee’s report.
(5) The applicant shall send a copy of any affidavit sworn under sub-
rule (4) to the trustee.
(6) Where the Official Receiver is not the trustee, he may file a report
with the Court, a copy of which shall be sent to the applicant at least 7 days
before the hearing.
Power of Court to stay proceedings.
263.(1) The Court may, in advance of the hearing, make an interim order
staying any proceedings which it thinks ought, in the circumstances of the
application, to be stayed.
(2) Except in relation to an application for an order staying all or any
part of the proceedings in the bankruptcy, application for an order under this
rule may be made ex parte.
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(3) Where application is made under this rule for an order staying all or
any part of the proceedings in the bankruptcy, the applicant shall send a
copy of the application to the trustee in sufficient time to enable him to be
present at the hearing and to make any representations he may wish to
make.
(4) Where the Court makes an order under this rule staying all or any
part of the proceedings in the bankruptcy, the rules in this Part in connection
with an annulment continue to apply.
(5) If the Court makes an order under this rule, it shall send copies of
the order to the applicant and to the trustee.
Notice to creditors who have not submitted a claim.
264. Where an application for annulment is made under section 415(1)(b)
and the trustee reports under rule 262 that there are creditors of the bankrupt
who have not submitted a claim, the Court may–
(a) direct the trustee to send notice of the application to such of
those creditors as the Court thinks ought to be informed of it,
with a view to their submitting a claim for their debts within 21
days;
(b) direct the trustee to advertise the application so that creditors
who have not submitted a claim may do so within a specified
time; and
(c) adjourn the application, for a period of not less than 35 days.
The hearing.
265.(1) The trustee shall attend the hearing of the application.
(2) If he is not trustee, the Official Receiver may but is not required to
attend unless he has filed a report under rule 262(6).
(3) If the Court makes an order on the application, it shall send copies of
the order to the applicant and the trustee and to the Official Receiver, if he is
not the trustee.
Security to be provided by bankrupt.
266.(1) This rule applies to an application made under section 415(1)(b).
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longer be traced, the Court shall not annul the bankruptcy unless the
bankrupt has given such security, in the form of money paid into court, or a
bond entered into with approved sureties, as the Court considers adequate to
satisfy any sum that may subsequently be found to be due to the creditor
concerned together with, if the Court considers it appropriate, costs.
(3) Where under sub-rule (2), security has been given in the case of an
untraced creditor, the Court may direct that particulars of the alleged debt,
and the security, be advertised in such manner as it considers appropriate.
(4) If advertisement is ordered under this sub-rule, and no claim on the
security is made within 12 months from the date of the advertisement, or the
first advertisement, if more than one, the Court shall, on application being
made to it, order the security to be released.
Notice to creditors.
267.(1) Where the trustee has notified creditors of the bankruptcy order, and
the bankruptcy order is annulled, he shall as soon as reasonably practicable
notify them of the annulment.
(2) Expenses incurred by the trustee in giving notice under this rule are
a charge in his favour on the assets of the former bankrupt, whether or not
actually in his hands.
(3) Where any assets is in the hands of any person other than the former
bankrupt himself, the trustee’s charge is valid subject only to any costs that
may be incurred by that other person in effecting realisation of the property
for the purpose of satisfying the charge.
Advertisement of annulment.
268.(1) Where a bankruptcy order is annulled, the former bankrupt may
require the Official Receiver to advertise the annulment.
(2) Advertisement of the annulment under sub-rule (1) shall be at the
cost of the former bankrupt, and the Official Receiver is not obliged to
advertise the annulment until the former bankrupt has paid the costs of
advertisement to him.
Trustee’s final account.
269.(1) The annulment of a bankruptcy order under section 415 does not
operate to release the trustee from any duty or obligation imposed on him by
or under the Act or the Rules to account for his transactions in connection
with the former bankrupt’s estate.
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(2) The trustee shall send to the Official Receiver, and file in Court, a
copy of his final account as soon as reasonably practicable after the Court’s
order annulling the bankruptcy order.
(3) The final account shall include a summary of the trustee’s receipts
and payments in the administration of the former bankrupt’s estate.
(4) The trustee is released from such time as the Court may determine,
having regard to whether–
(a) sub-rule (2) of this rule has been complied with; and
(b) any security given under rule 266(2) has been, or will be,
released.
MISCELLANEOUS PROVISIONS
Prescribed priority.
270. The following costs and expenses of the bankruptcy shall be paid in
the order of priority in which they are listed (the “prescribed priority”)–
(a) the costs and expenses properly incurred by the trustee in
preserving, realising or getting in the property of the bankrupt or
in carrying on the bankrupt’s business, including–
(i) the costs and expenses of any legal proceedings which the
trustee has brought or defended whether in his own name
or in the name of the bankrupt; and
(ii) the costs of and in connection with an examination
ordered under section 403.
(b) the remuneration of any interim receiver appointed under
section 334;
(c) the deposit lodged under section 334(3);
(d) the costs of the application on which the trustee was appointed,
including the costs of any person appearing on the application
whose costs are allowed by the Court;
(e) any costs allowed in respect of the preparation of a statement of
assets and liabilities;
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in the bankruptcy;
(g) any disbursements properly paid by the trustee;
(h) the remuneration of anyone employed by the trustee;
(i) the remuneration of the trustee;
(j) any other fees, costs, charges or expenses properly incurred in
the course of the bankruptcy or properly chargeable by the
trustee in carrying out his functions in the bankruptcy.
Register of Bankruptcy Orders.
271.(1) The Official Receiver shall maintain a register of bankruptcy orders
of which he receives notice under rule 203(1) or (2).
(2) The register of bankruptcy orders shall contain the following
information–
(a) the date of the bankruptcy order and the Court reference
number;
(b) the name and any former name, gender, occupation (if any) and
date of birth of the bankrupt;
(c) the bankrupt’s last known address;
(d) where the bankrupt has been an undischarged bankrupt at any
time in the period of 15 years ending with the date of the
bankruptcy order in question, the date of the most recent of any
previous bankruptcy orders, excluding any bankruptcy order that
has been annulled under section 415;
(e) any name by which the bankrupt is known other than his true
name;
(f) any business or trading names that the bankrupt uses or, during
the previous 10 years, has used;
(g) the name and address of the bankruptcy trustee;
(h) subject to paragraph (i), where the bankrupt is eligible for
automatic discharge under section 409, the date on which the
bankrupt will be discharged or, if the bankrupt is not eligible for
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effect;
(i) if the Court makes an order under section 409(2), details of the
order together with the revised discharge date, if any;
(j) details of any order made under section 410;
(k) the date on which the bankrupt is discharged and any conditions
to which the discharge is subject.
(3) If, pursuant to rule 265(3), the Official Receiver is given notice of
the making of an annulment order under section 415, he shall enter the
annulment order in the register of bankruptcy orders.
(4) Where the Official Receiver enters a discharge or annulment in the
register of bankruptcy orders under this rule, he shall, on the expiry of 3
years after the date of the discharge or annulment order, delete from the
register all information relating to the bankruptcy order.
(5) The register of bankruptcy orders is open to public inspection.
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Changes to information entered in the register of bankruptcy orders.
272.(1) If the Official Receiver becomes aware that any information which
has been entered in the register of bankruptcy orders is inaccurate he shall
rectify the information entered in the register.
(2) If the Official Receiver receives notice of the death of a bankrupt in
respect of whom bankruptcy information has been entered in the register of
bankruptcy orders, he shall cause the date of his death to be entered in the
register.
PART 12
GENERAL PROVISIONS
CREDITORS’ AND MEMBERS’ MEETINGS
Preliminary
Interpretation.
273. In 275 to 301–
“convener” means the person calling a creditors’ or members’ meeting;
“creditors’ meeting” means a meeting of creditors required or permitted
to be called under the Act or the Rules;
“members’ meeting” means a meeting of members required or permitted
to be called under the Act or the Rules;
“notice” means a notice calling a creditors’ or members’ meeting;
“office holder” means–
(a) in the case of a company, a supervisor, interim supervisor,
administrator, administrative receiver or liquidator; and
(b) in the case of an individual, a supervisor, interim supervisor or
bankruptcy trustee;
“relevant date” means-
(a) in the case of a company creditors’ arrangement, the date of the
creditors’ meeting or, if the company is in administration or in
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commenced;
(b) in the case of an individual creditors’ arrangement, the date of
the creditors’ meeting;
(c) in the case of an administrative receivership, the date of the
appointment of the administrative receiver; and
(d) in the case of administration, liquidation or bankruptcy
proceedings, the date that the administration, liquidation or
bankruptcy commenced.
Scope of provisions of this Part concerning meetings.
274. Except to the extent that the Act or the Rules otherwise provide–
(a) rules 275 to 292 apply to all creditors’ meetings; and
(b) rule 293 applies to all members’ meetings.
Calling of Creditors’ Meetings
Calling of creditors’ meetings.
275.(1) A creditors’ meeting is called by the convener sending, or causing to
be sent, to every creditor entitled to attend the meeting a notice complying
with the Act and the Rules.
(2) Subject to any requirement of the Act or the Rules, or any direction
of the Court, concerning the date or last date for which a creditors’ meeting
may be called, the venue of a creditors’ meeting shall be fixed by the
convener and stated in the notice.
(3) In fixing the venue of a creditors’ meeting, the convener shall have
regard primarily to the convenience of the creditors entitled to attend the
meeting and creditors’ meetings may be held in or outside Gibraltar.
(4) A notice sent to a creditor under sub-rule (1) shall be sent in
sufficient time for it to be received, or deemed to be received, by him at
least 14 days before the date of the meeting.
(5) Unless exceptional circumstances justify otherwise, creditors’
meetings shall be called for commencement between 10.00 and 16.00 on a
business day.
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documents.
276.(1) In addition to any other requirements of the Act or the Rules, a
notice shall contain–
(a) a statement as to the primary purpose of, or the main business to
be conducted at, the meeting; and
(b) an explanation as to–
(i) the majority required to pass a resolution at the meeting,
and
(ii) the basis on which a person will be admitted to vote at the
meeting.
(2) The convener shall send, or cause to be sent, together with every
notice–
(a) a proxy form; and
(b) any document required by the Act or the Rules to be sent with
the notice.
(3) Where a copy of the notice, together with any other documentation,
is required by the Act or the Rules to be sent to any person not entitled to
vote at the meeting, the convener shall send, or cause to be sent, a copy of
the notice together with any accompanying documentation in sufficient time
for it to be received, or deemed to be received, by that person at least 14
days before the date of the meeting.
(4) Neither the proceedings at, nor any resolutions passed by, a
creditors’ meeting are invalid by reason only that one or more creditors have
not received notice of the meeting.
Notice to be given to creditors.
277.(1) The convener of a creditors’ meeting shall send a notice to every
creditor–
(a) specified in the statement of affairs or statement of assets and
liabilities, if any; and
(b) of whom the convener is otherwise aware.
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requirement of the Act or the Rules to give notice of the meeting to the
creditors of a company by reason only of failing to send a notice to a person
who was not known by the convener to be a creditor of the company.
Notice of meetings by advertisement.
278.(1) The Court may direct that notice of a creditors’ meeting be given by
public advertisement, and not, or not only, by individual notice to the
persons concerned.
(2) In considering whether to make a direction under this rule, the Court
shall have regard to–
(a) the cost of public advertisement;
(b) the assets available in the insolvency proceeding concerned; and
(c) the extent of the interest of creditors or any particular class of
either.
Notice to Registrar, Commission and Official Receiver.
279. Where a convener is required by the Act to file a notice of a
creditors’ meeting with the Registrar, the Commission or the Official
Receiver, he shall file the notice, together with any accompanying
documentation, at least 14 days before the date set for the meeting.
Meetings requisitioned by creditors.
280.(1) This rule applies where creditors are permitted by the Act to
requisition a meeting.
(2) A notice requisitioning a creditors’ meeting shall be sent to the
office holder concerned by a creditor accompanied by–
(a) a list of creditors supporting the requisition, showing the
amounts of their respective claims;
(b) the written confirmation of each creditor on the list that he
supports the requisition; and
(c) a statement–
(i) specifying the section of the Act under which the meeting
is requisitioned;
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number of creditors specified by the relevant section; and
(iii) of the purpose of the meeting.
(3) Subject to sub-rule (7), the costs of calling and holding a
requisitioned creditors’ meeting shall be paid by the creditor who sent the
notice to the office holder in accordance with sub-rule (2).
(4) If the office holder is satisfied that a requisition complies with the
Act and the Rules, he shall, within 5 business days of receiving the notice
under sub-rule (2), provide the creditor who sent the notice with an estimate
of the costs of calling and holding the meeting together with a request that
the creditor deposit with the office holder sufficient security to cover those
costs.
(5) If the office holder is not satisfied that a requisition complies with
the Act and the Rules, he shall notify the creditor in writing stating the
reasons for his conclusion.
(6) Upon receipt of the deposit referred to in sub-rule (4), the office
holder shall fix a venue for the meeting not more than 35 days from his
receipt of the deposit and shall give not less than 21 days’ notice of the
meeting to creditors.
(7) A meeting held under this rule may resolve that the expenses of
calling and holding it are to be payable out of the assets of the company
concerned.
(8) To the extent that any deposit paid to the office holder under this
rule is not required for the payment of the expenses of calling and holding
the meeting, it shall be repaid to the person who paid the deposit.
Conduct of Creditors’ Meetings
Chairman.
281.(1) Subject to sub-rules (2) and (3), every creditors’ meeting shall be
chaired by the convener.
(2) Where the convener is an insolvency practitioner or the Official
Receiver and he is unable to attend the meeting, he may, in writing,
nominate as chairman–
(a) in the case of an insolvency practitioner-
(i) another eligible insolvency practitioner; or
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(ii) an employee of the insolvency practitioner, or of his firm,
who is experienced in insolvency matters; or
(b) in the case of the Official Receiver, the Deputy Official
Receiver or a member of his staff.
(3) Where a creditors’ meeting convened by an insolvency practitioner
or the Official Receiver is to be held outside Gibraltar and he will not be
attending the meeting, he may nominate a suitably qualified and
experienced individual to act as chairman.
Suspension.
282. Once only in the course of any meeting, the chairman may, in his
discretion and without an adjournment, declare that the meeting is
suspended for a period of no more than one hour.
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Adjournment of meetings.
283.(1) If within 30 minutes of the time fixed for the commencement of a
creditors’ meeting there is no person present to act as chairman of the
meeting, the meeting is adjourned to the same time and place in the
following week or, if that is not a business day, to the same time on the next
following business day.
(2) Subject to sub-rule (3), unless those persons present, in person or by
proxy, pass a resolution to the contrary, the chairman may adjourn a
creditors’ meeting.
(3) The chairman of a creditors’ meeting may not adjourn or further
adjourn a meeting under sub-rule (2) to a date more than 14 days after the
date fixed for the original meeting.
Chairman as proxy holder.
284.(1) The chairman shall not by virtue of any proxy he holds, vote on a
resolution concerning the remuneration or expenses of the office holder
unless the proxy specifically directs him to vote in that way.
(2) If the chairman uses a proxy contrary to sub-rule (1), his vote with
that proxy does not count towards any majority under this rule.
(3) Where the chairman holds a proxy which requires him to vote for a
particular resolution, and no other person proposes that resolution–
(a) he shall propose it himself, unless he considers that there is good
reason for not doing so, and
(b) if he does not propose it, he shall forthwith after the meeting
notify his principal of the reason why he did not propose it.
Quorum.
285.(1) The quorum for a meeting of creditors is at least one creditor entitled
to vote.
(2) A creditor shall be counted towards the quorum for the purposes of
sub-rule (1) if he is present or represented by proxy by any person,
including the chairman.
(3) Where at any meeting of creditors–
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2011-26 Subsidiary 2014/196 (a) a quorum is present by the attendance of the chairman alone or
by the chairman together with one additional creditor, and
(b) the chairman is aware, by virtue of claims and proxies received
or otherwise, that one or more other persons would, if attending,
be entitled to vote,
the meeting shall not commence until at least 15 minutes after the time set
for its commencement.
Voting Rights and Majorities
Entitlement to vote.
286.(1) A creditor is entitled to vote at a creditors’ meeting only if, no later
than 12.00 noon on the business day before the day fixed for the meeting–
(a) he has given written notice of his claim to the office holder and
the claim is admitted in accordance with rule 290; and
(b) any proxy that he intends to be used on his behalf has been
lodged with the office holder.
(2) The office holder may accept a proxy that has been sent to him by
facsimile transmission as lodged for the purposes of sub-rule (1)(b).
(3) The chairman of a creditors’ meeting may allow a creditor to vote,
notwithstanding that he has failed to comply with sub-rule (1)(a), if he is
satisfied that the failure was due to circumstances beyond the creditor’s
control.
(4) The votes of a creditor are calculated–
(a) where the creditors’ meeting is in respect of a company that is in
liquidation, on the value of the creditor’s claim made in
accordance with the provisions of the Act and the Rules that
relate to a claim in a liquidation;
(b) where the creditors’ meeting is in respect of a bankruptcy, on
the value of the creditor’s claim made in accordance with the
provisions of the Act and the Rules that relate to a claim in a
bankruptcy;
(c) in any other case, according to the amount of the creditor’s debt
as at the relevant date, deducting any amounts paid in respect of
the debt after that date.
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amount, or on any claim the value of which is not ascertained, except where
the chairman agrees to put an estimated minimum value on the claim for the
purpose of entitlement to vote and admits the claim for that purpose.
Resolutions and requisite majorities.
287.(1) Unless the Act or the Rules provide otherwise, the majority required
for the passing of a resolution at a creditors’ meeting is in excess of 50 per
cent in value of the creditors present in person or by proxy who vote on the
resolution.
(2) A resolution passed at an adjourned creditors’ meeting is treated for
all purposes as having been passed on the date of the resolution and not as
having been passed on an earlier date.
(3) Where a resolution is proposed which affects a person in respect of
his remuneration or conduct as an office holder, or as a proposed or former
office holder, the vote of that person and of any partner or employee of his,
shall not be counted in the majority required for passing the resolution.
(4) Sub-rule (3) applies with respect to a vote given by a person whether
personally, on his behalf by a proxy-holder or as a proxy holder for a
creditor.
Secured creditors and holders of negotiable instruments.
288.(1) At a creditors’ meeting, a secured creditor is entitled to vote only in
respect of the balance, if any, of his debt after deducting the value of his
security interest as estimated by him.
(2) A creditor may not vote in respect of a debt on, or secured by, a
current bill of exchange or promissory note, unless he is willing–
(a) to treat the liability to him on the bill or note of every person
who is liable on it antecedently to the debtor, and against whom
a bankruptcy order has not been made, or in the case of a
company, which has not gone into liquidation, as a security in
his hands,
(b) to estimate the value of the security interest and, for the
purposes of entitlement to vote only, to deduct it from his claim,
and the chairman decides to admit the reduced claim for voting purposes.
Hire purchase, conditional sale and chattel leasing agreements.
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company that is in liquidation or in respect of a bankruptcy.
(2) Subject to sub-rule (3), an owner of goods under a hire purchase or
chattel leasing agreement, or a seller of goods under a conditional sale
agreement, is entitled to vote in respect of the amount of the debt owed by
the debtor to him on the relevant date.
(3) In calculating the amount of a debt for the purposes of sub-rule (1),
no account is taken of any amount attributable to the exercise of any right
under the relevant agreement, so far as the right has become exercisable
solely by virtue of the relevant insolvency proceeding or any order made in,
or matter arising in consequence of, the proceeding.
Admission and rejection of claims.
290.(1) Subject to sub-rule (5), the chairman of a creditors’ meeting shall
determine the entitlement of persons wishing to vote and shall admit or
reject their claims for voting purposes accordingly.
(2) The chairman may admit or reject a claim in whole or in part.
(3) The chairman of a creditors’ meeting may require a creditor to
produce any document or other evidence where he considers it necessary for
the purpose of substantiating the whole or part of the creditor’s claim.
(4) If the chairman of a creditors’ meeting is in doubt as to whether a
claim should be admitted or rejected, he shall mark the claim as objected to
and allow the creditor to vote, subject to his vote being subsequently
declared invalid if the objection to the claim is sustained.
(5) Where a creditor’s claim in a liquidation or bankruptcy has been
admitted by the liquidator or trustee, under section 201 or section 369, as
the case may be, the Chairman shall admit the claim in the same amount for
the purposes of voting.
Appeals.
291.(1) A creditor may appeal to the Court against any decision of an office
holder, or the chairman of a creditors’ meeting, under rules 286 or 290.
(2) If on an appeal the chairman's decision is reversed or varied, or votes
are declared invalid, the Court may order another meeting to be summoned,
or make such order as it thinks just.
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exercisable only if it considers that the circumstances giving rise to the
appeal give rise to unfair prejudice or material irregularity.
(4) An appeal under this rule shall be made within a period of 28 days
from the date of the decision in respect of which the appeal is made.
(5) If, in the case of an appeal against the chairman of a creditors’
meeting, the Court reverses or varies the Chairman’s decision, or the vote of
a creditor is declared invalid, the Court may make such order as it considers
just including, if it considers that the circumstances giving rise to the appeal
give rise to unfair prejudice or material irregularity, an order that another
meeting be summoned.
(6) Neither an office holder, nor any person nominated to chair a
creditors’ meeting on his behalf in accordance with rule 281(2) is personally
liable for the costs incurred by any person in respect of an appeal to the
Court under this rule, unless the Court makes an order to that effect.
Minutes.
292.(1) The chairman of a creditors’ meeting shall ensure that minutes of its
proceedings are kept and that he authenticates the minutes.
(2) Minutes kept under sub-rule (1) shall include a list of the creditors
who attended the meeting, whether in person or by proxy, the resolutions
passed at the meeting and, if a creditors’ committee is established, the
names and addresses of those persons elected to be members of the
committee.
(3) Minutes kept in accordance with this rule shall be retained as a
record in the insolvency proceeding.
Members meetings.
293.(1) In fixing the venue of a members’ meeting, the convener shall have
regard primarily to the convenience of the members and members’ meetings
may be held in or outside Gibraltar.
(2) Rules 281, 283(1), 285(2) and 285(3) apply to members’ meetings
with necessary modifications.
(3) The quorum for a meeting of members is–
(a) where the company only has one member or only has one
member entitled to vote, that member; or
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at least 2 members of those members.
(4) Subject to this rule, a members’ meeting shall be summoned and
conducted as if it were a general meeting of the company summoned under
the company’s articles of association, and in accordance with the applicable
provisions of the Companies Act.
(5) Where a company is in administration, the chairman of the meeting
shall cause minutes of its proceedings to be entered in the company’s
minute book.
PROXIES AND COMPANY REPRESENTATION
Preliminary
Interpretation.
294.(1) In rules 295 to 301–
“meeting” means a meeting of creditors or of members required or
permitted to be held under the Act or the Rules;
“principal” means the person giving a proxy; and
“proxy-holder” means the person to whom the principal gives his proxy.
(2) For the purposes of the Act and the Rules, a proxy is an authority
given by a principal to a proxy-holder to attend a meeting and to speak and
vote as his representative.
Proxies
General provisions concerning proxies.
295.(1) Subject to sub-rule (2), a person who desires to be represented at a
creditors’ meeting may give one proxy to an individual aged 18 or over.
(2) Notwithstanding sub-rule (1)–
(a) a principal may specify one or more other individuals aged 18
or over to be proxy-holder in the alternative, in the order in
which they are named in the proxy; and
(b) a proxy for a particular meeting may be given to the chairman
of the meeting who cannot decline to act as proxy-holder in
such circumstances.
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(3) A proxy requires the holder, either as directed or in accordance with
the holder’s discretion-
(a) to give the principal’s vote on matters arising for determination
at the meeting;
(b) to abstain; or
(c) to propose, in the principal’s name, a resolution to be voted on
by the meeting.
Issue and use of proxy forms.
296.(1) A proxy form sent with a notice of a meeting shall not have inserted
in it the name or description of any person.
(2) A proxy form shall not be used at a meeting unless it is in the same,
or a substantially similar, form as the proxy form sent out with the notice
calling the meeting.
(3) A proxy form shall be signed by the principal, or by some person
authorised by him, either generally or with reference to a particular meeting.
(4) Where a proxy form is signed by a person other than the principal,
the nature of the person’s authority shall be stated.
Use of proxies at meetings.
297.(1) A proxy given for a particular meeting may be used at any
adjournment of that meeting.
(2) Where the Official Receiver holds proxies for use at a meeting, his
deputy, or such other of his officers as he may authorise in writing, may act
as proxy-holder in his place.
(3) Where an insolvency practitioner holds proxies to be used by him as
chairman of a meeting, and some other person acts as chairman, the other
person may use the insolvency practitioner’s proxies as if he were himself
the proxy-holder.
(4) Where a proxy directs a proxy-holder to vote for or against a
resolution for the nomination or appointment of a person as an officer
holder, the proxy-holder may, unless the proxy states otherwise, vote for or
against, as he thinks fit, any resolution for the nomination or appointment of
that person jointly with another or others.
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another, would be a resolution in favour of which by virtue of the proxy he
would be entitled to vote.
(6) Where a proxy gives specific directions as to voting, this does not,
unless the proxy states otherwise, preclude the proxy-holder from voting at
his discretion on resolutions put to the meeting which are not dealt with in
the proxy.
Retention of proxies.
298.(1) Subject to sub-rule (2), proxies used for voting at any meeting shall
be retained by the chairman of the meeting.
(2) Where the chairman is not the responsible insolvency practitioner,
he shall deliver the proxies, immediately after the meeting, to the
responsible insolvency practitioner who shall retain them.
(3) Proxies shall be retained as records in the insolvency proceeding.
Right of inspection.
299.(1) The responsible insolvency practitioner shall allow proxies retained
by him to be inspected, at all reasonable times on any business day, by–
(a) any creditor, in the case of proxies used at a meeting of
creditors; and
(b) a member, in the case of proxies used at a meeting of the
company or of its members.
(2) Subject to sub-rule (3), the reference in sub-rule (1) to a creditor is-
(a) in the case of a liquidation or a bankruptcy, a creditor who has
submitted a claim under section 201 or section 369; and
(b) in any other case, a person who has submitted a claim, in
writing, to be a creditor of the company or individual
concerned.
(3) The reference in sub-rule (1) to a creditor does not include a person
whose claim has been wholly rejected for the purposes of voting, dividend
or otherwise.
(4) The right of inspection given by this rule is also exercisable-
(a) in the case of an insolvent company, by a director; and
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(b) in the case of an insolvent individual, by him.
(5) Any person attending a meeting is entitled, immediately before or in
the course of the meeting, to inspect proxies and associated documents,
including claims sent or given, in accordance with directions contained in
any notice convening the meeting, to the chairman of that meeting or to any
other person by a creditor or member for the purpose of that meeting.
Proxy-holder with financial interest.
300.(1) A proxy-holder shall not vote in favour of any resolution which
would directly or indirectly place him, or any associate of his, in a position
to receive any remuneration out of the insolvent estate, unless the proxy
specifically directs him to vote in that way.
(2) Where a proxy-holder has signed the proxy as being authorised to do
so by his principal and the proxy specifically directs him to vote in the way
mentioned in sub-rule (1), he shall nevertheless not vote in that way unless
he produces to the chairman of the meeting written authorisation from his
principal sufficient to show that the proxy-holder was entitled so to sign the
proxy.
(3) This rule applies also to any person acting as chairman of a meeting
and using proxies in that capacity under rule 297 and in its application to
him, the proxy-holder is deemed an associate of his.
Company Representation
Company representation.
301.(1) Where a person is authorised under the Companies Act to represent
a company at a meeting of creditors or of the company or its members, he
shall produce to the chairman of the meeting a copy of the resolution from
which he derives his authority.
(2) The copy resolution shall be under the seal of the company, or
certified by the secretary or a director of the company to be a true copy.
(3) Nothing in this rule requires the authority of a person to sign a proxy
on behalf of a principal, which is a company, to be in the form of a
resolution of that company.
The Creditors’ Committee
Interpretation.
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“committee” means a creditors’ committee established under section 454
of the Act; and
“meeting” means a meeting of the committee.
(2) Where the context permits, references in the Act or the Rules to a
“member” shall include a member’s representative.
Committee may establish own procedures.
303.(1) A committee may, by resolution, adopt rules governing its
proceedings that are not inconsistent with the Act or this Part.
(2) Without limiting sub-rule (1), the committee may agree procedures
for–
(a) the participation by members in meetings by telephone or other
electronic means; and
(b) the passing of circular resolutions.
Meetings.
304.(1) Subject to sub-rule (2), meetings–
(a) may be held at such venues as the committee may resolve; and
(b) may be called by a member of the committee or by the office
holder.
(2) If a meeting has not already been held, the office holder shall call a
first meeting to be held not less than 28 days after the committee’s
establishment.
(3) The person convening a meeting shall give 7 days’ written notice of
the venue of the meeting to each member of the committee and to the office
holder.
(4) Notwithstanding sub-rule (3), a member of the committee may,
before or at the meeting, waive his entitlement to notice under that sub-rule.
Chairman of meetings.
305.(1) Subject to sub-rule (2), every meeting of the creditors’ committee
shall be chaired by the relevant office holder.
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(2) Where the office holder is unable to attend the meeting, he may
nominate as chairman
(a) an eligible insolvency practitioner; or
(b) an employee of the insolvency practitioner, or of his firm, who
is experienced in insolvency matters.
(3) Where a meeting of the creditors’ committee is to be held outside
Gibraltar and the insolvency practitioner will not be attending the meeting,
he may nominate a suitably qualified and experienced individual to act as
chairman.
(4) Where a meeting of the creditors’ committee is held pursuant to a
notice issued by the committee under section 456(2), the members of the
creditors’ committee may elect one of the members of the committee to be
chairman of the meeting in place of the office holder or his nominee.
Quorum and resolutions.
306.(1) A meeting is quorate if notice of the meeting has been given to all
members and a majority of its members are present at the meeting.
(2) At a meeting of the committee, each member has one vote and a
resolution is passed by a simple majority of those members who are present
and vote.
(3) A resolution shall be recorded in writing, signed by the chairman
and retained as a record in the insolvency proceeding.
Committee members’ representatives.
307.(1) A member of the creditors’ committee may, in relation to the
business of the committee, be represented by another person duly authorised
by him for that purpose.
(2) A person acting as a committee-member’s representative shall hold a
letter of authority entitling him so to act, either generally or specially, and
signed by or on behalf of the committee member.
(3) The chairman at any meeting of the committee may call on a person
claiming to act as a committee member’s representative to produce his letter
of authority, and may exclude him if it appears that his authority is
deficient.
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person who is an undischarged bankrupt, a person who is a disqualified
person within the meaning of section 267(4) or a person who is a restricted
person within the meaning of section 442.
(5) No person shall, on the same committee, act at one and the same
time as representative of more than one committee member.
(6) Where a member’s representative signs any document on the
member’s behalf, the fact that he so signs shall be stated below his
signature.
Written resolutions.
308.(1) The office holder may seek to obtain the agreement of members of
the creditors’ committee to a resolution by sending written notice of the
resolution to each member by such method as may be agreed between the
office holder and the committee member.
(2) A notice sent to a member under sub-rule (1) shall be set out so as to
enable the committee member to signify his dissent or agreement to each
separate resolution on which the office holder seeks agreement.
(3) Any member of the committee may, within 7 days of a notice being
sent out under sub-rule (1), require the office holder to call a meeting of the
creditors’ committee to consider the matters raised by the resolution.
(4) If no member requires a meeting to be called, the resolution is
deemed to have been passed when the office holder is notified in writing by
a majority of the committee members that they agree with it.
(5) A resolution passed under this rule shall be treated as a resolution
passed at a meeting of the creditors’ committee.
(6) Without limiting sub-rule 1, written notice may be given by post, fax
or e-mail.
Cooperation by office holder with committee.
309. Without limiting section 456(2)(b), a requirement of the committee
under that section to provide it with reports or information is not reasonable
if the office holder considers that–
(a) the requirement is frivolous or unreasonable;
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having regard to the relative importance of the report or
information;
(c) the company or bankrupt does not have sufficient funds to
enable him to comply with the requirement.
Termination of insolvency proceeding.
310.(1) Subject to sub-rule (2), the creditors’ committee ceases to exist on
the termination of the insolvency proceeding in which it was appointed.
(2) Where, on discharging an administration order, the Court makes an
order for the appointment of a liquidator under section 63(1)(a), unless the
Court otherwise orders, any creditors’ committee appointed in the
administration continues as if appointed in the liquidation.
Expenses of members.
311.(1) Subject to sub-rule (2), the office holder shall, out of the assets of
the company or bankrupt, defray, in the prescribed order of priority, any
reasonable travelling expenses directly incurred by members of the
creditors’ committee or their representatives in relation to their attendance at
the committee’s meetings, or otherwise on the committee's business, as an
expense of the insolvency.
(2) Sub-rule (1) does not apply to any meeting of the committee held
within 6 weeks of a previous meeting, unless the meeting in question is
summoned at the instance of the office holder.
WRITTEN RESOLUTIONS
Written resolutions.
312.(1) The office holder may seek to obtain the passing of a resolution of
creditors or members by sending a notice to every creditor or member who
is entitled to be notified of a creditors’ or members’ meeting together with a
blank statement of entitlement to vote.
(2) A notice under sub-rule (1) shall specify the time and date by which
votes on the resolution shall be received by him and a vote shall be counted
if–
(a) the vote is received by the office holder by the time and date
specified in the notice; and
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entitlement to vote.
(3) If any votes are received without the statement as to entitlement to
vote, or the office holder decides that the creditor or member is not entitled
to vote, then that creditor’s or member’s vote shall be disregarded.
(4) The closing date for receipt of votes shall be set at the discretion of
the office holder but shall not be set less than 14 days from the date of issue
of the notice under sub-rule (1).
(5) Where an office holder sends out a notice under sub-rule (1), a
meeting to consider the resolution specified in the notice may be
requisitioned in accordance with sub-rule (6) by-
(a) in the case of a notice sent to creditors, by any single creditor, or
a group of creditors, whose debts amount to at least 10% of the
total debts of the company or debtor; or
(b) in the case of a notice sent to members of a company, by any
single member, or a group of members, holding at least 25% of
the voting rights in respect of the company.
(6) A meeting is requisitioned under sub-rule (5) by sending a notice to
the office holder within 7 days after the date that the notices under sub-rule
(1) are sent out.
(7) If the resolution proposed in the notice is rejected by the creditors or
members, the office holder may call a meeting of creditors or members, as
the case may be.
(8) A reference in the Act or the Rules to anything done, or required to
be done, at, or in connection with, or in consequence of, a creditors’ or
members’ meeting, includes a reference to anything done in the course of
correspondence in accordance with this rule.
MISCELLANEOUS PROVISIONS
Advertisements.
313.(1) Without limiting any specific requirement to advertise contained in
the Act or the Rules, where a person is required by the Act or the Rules to
advertise any application, order, notice or other document or matter, he
shall, within the time specified in the Act or the Rules–
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document or matter concerned is delivered to the Gazette Office
for advertisement; and
(b) advertise the application, order, notice or other document or
matter concerned in such newspaper or newspapers that the
person considers most appropriate for ensuring that the
application, order, notice or other document or matter comes to
the attention of the creditors of the company or individual who
is subject to the insolvency proceeding concerned.
(2) The first meeting of creditors in an administration or a liquidation
and the notice referred to in section 132(3) shall be advertised in the same
newspaper as that in which, as the case may be, the notice of the
administration order, the appointment of the liquidator or the appointment
of the administrative receiver was advertised.
(3) Where sub–rule (2) applies, the administrator, liquidator or
administrative receiver may also advertise in such other newspaper as he
thinks appropriate for ensuring that the notice comes to the attention of the
creditors of the company.
Filing of documents with the Registrar of Companies.
314.(1) Where a document is required or permitted under the Act or the
Rules to be filed with the Registrar of Companies, the document is filed by
delivering or posting it to the Registrar.
(2) A document is filed with the Registrar of Companies on the day
when it is received at the Companies Registry or, where it is received at a
time when the Companies Registry is closed, on the next day on which the
Companies Registry is open.
Specified forms.
315. A specified form is a form that is specified by the Minister by
publication in the Gazette.
Insolvency practitioner’s consent to act.
316.(1) For the purposes of section 485(1)(b), the written consent of an
insolvency practitioner shall specify the appointment to which it relates.
(2) The written consent of an insolvency practitioner shall–
(a) where the appointment is to be made by the Court, specify the
date of the hearing for which it is provided;
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(b) where the appointment is to be made by the members of a
company, specify that the consent is valid only for a meeting of
the members to be held on a date specified in the consent, or at
any adjournment of the meeting;
and, in either case shall state the period of time for which the consent is
valid which shall not exceed 6 weeks.
Remuneration.
317.(1) Where an administrator, liquidator or bankruptcy trustee sells assets
on behalf of a secured creditor, he is entitled to be paid out of the assets
reasonable remuneration fixed in accordance with the general principles
contained in section 466.
(2) If the administrator, liquidator or bankruptcy trustee cannot agree his
remuneration with the secured creditor, he may apply to the Court to fix the
remuneration and the Court shall fix the remuneration in accordance with
the general principles contained in section 466.
(3) Where insolvency practitioners are appointed jointly, the
remuneration shall be apportioned as agreed between them.
(4) If jointly appointed insolvency practitioners cannot agree how the
remuneration should be apportioned between them, the matter may be
referred for decision to the Court, to the creditors’ committee, if any, or to a
meeting of creditors.
(5) If the insolvency practitioner is a legal practitioner and employs his
own firm, or any partner in it, to act in or in connection with the insolvency
proceeding in respect of which he is appointed, profit costs shall not be paid
unless authorised by the creditors’ committee or the Court.
Insolvency Surplus Account.
Payments into Insolvency Surplus Account.
318.(1) Immediately after the completion of a liquidation or a bankruptcy,
the liquidator or bankruptcy trustee shall pay all monies representing
unclaimed assets of the company or the bankrupt to the Financial Secretary
for payment into the Insolvency Surplus Account.
(2) A supervisor of a company or individual creditors’ arrangement, an
administrator or a receiver may at any time apply to the Court for an order
permitting him to pay any monies that he holds with respect to the
arrangement, administration or receivership that represent unclaimed assets
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Account.
(3) The Court shall not make an order under sub-rule (2) unless the
Financial Secretary has been given notice of the hearing.
(4) A liquidator, bankruptcy trustee, supervisor, administrator or
receiver paying money to the Financial Secretary under sub-rule (1), or
pursuant to an order of the Court under sub-rule (2), shall provide the
Financial Secretary with such information, documentation and explanations
regarding the monies, the assets which they represent and the claims or
potential claims that have or may be made in respect of the monies as the
Financial Secretary may require.
Investment of monies in Insolvency Surplus Account.
319.(1) The Financial Secretary may invest monies standing to the credit of
the Insolvency Account–
(a) in one or more deposit or other interest bearing accounts with a
reputable bank or banks licensed and operating in Gibraltar; and
(b) in such investments as may be approved by the Minister for
that purpose.
(2) Any interest received on monies standing to the credit of the
Insolvency Account or interest or income received in respect of investments
made in accordance with sub-rule (1) shall be payable to the Government
and any claimant of monies paid into the Insolvency Surplus Account shall
not be entitled to make any claim in respect of such interest or income.
Payments out of the Insolvency Surplus Account.
320.(1) The Financial Secretary shall, subject to such conditions as it may
reasonably impose, pay or distribute monies from the fund to any person
that it is satisfied is entitled to claim those monies under, or in respect of,
the insolvency proceeding in respect of which the monies were paid into the
Insolvency Surplus Account.
(2) The Financial Secretary shall keep accounts of the monies in the
Insolvency Surplus Account, including those monies that are invested in
accordance with rule 328(1), identifying the insolvency proceeding to which
each receipt and payment relates and showing the balance remaining in
respect of each insolvency proceeding.
(3) Any monies standing to the credit of the Insolvency Surplus Account
20 years after they were paid into the account, shall, provided that there is
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property of the Government of Gibraltar and no person shall thereafter be
entitled to make any claim to those monies.
PART 13
COURT PROCEDURE AND PRACTICE
General
Application of Supreme Court Rules.
321. Except so far as inconsistent with the Act or the Rules or a practice
direction issued under rule 325, the Supreme Court Rules apply to
insolvency proceedings, with any necessary modifications.
Exercise of Court’s powers.
322. Subject to any provision in the Act or the Rules to the contrary or to
any practice direction, the functions of the Court under the Act or the Rules
may be exercised by a Master.
Filing of documents with the Court.
323. Every document filed with the Court shall have endorsed upon it the
date and time at which it was filed and, if the Rules so provide, shall be
sealed.
Filing of documents with the Court in approved electronic form.
324.(1) Where the Rules permit a document to be filed with the Court in
approved electronic form, the document may be filed by–
(a) faxing the document to the fax number designated by the Court
for the purpose; or
(b) sending it as an attachment to an e-mail to the e-mail address
designated by the Court for the purpose.
(2) Subject to any specific provisions in the Rules, the filing of a
document in accordance with this rule shall have the same effect for all
purposes as a document filed in paper form.
(3) A person filing a document in approved electronic form shall ensure
that–
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the time and date of the fax transmission and the telephone
number to which the notice was faxed and containing a copy of
the first page (in part or in full) of the document faxed is created
by the fax machine that is used to fax the document; or
(b) where the document is sent as an e-mail attachment, a hard copy
of the e-mail is created detailing the time and date of the e-mail
and the address to which it was sent and containing a copy of
the document sent as an attachment;
and, the fax transmission report or the hard copy of the e-mail is retained.
(4) The copy of the faxed document or the hard copy of the e-mail
attachment shall be sent as soon as reasonably practicable to the Court, to be
placed on the Court file.
(5) A person filing a document in approved electronic form shall take
three copies of the faxed document or the hard copy required by sub-rule
(3)(b) and any additional supporting documents required by the Rules to the
Court on the next day that the Court is open for business.
Practice Directions and Guides
Issue of practice directions.
325.(1) The Chief Justice may issue a practice direction where required or
permitted by the Act or the Rules.
(2) Where there is no express provision in the Act or the Rules for such
a direction, the Chief Justice may issue directions as to the practice and
procedure to be followed with regard to insolvency proceedings before the
Court.
(3) In the case of any inconsistency between a practice direction issued
under this rule and the Supreme Court Rules, the practice direction issued
under this rule prevails.
Practice directions to be published in Gazette.
326.(1) A practice direction issued under rule 325 shall be published in the
Gazette.
(2) A practice direction issued under rule 325 comes into effect on its
publication in the Gazette or on such later date as may be specified in the
direction.
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327. Unless there are good reasons for not doing so, a party shall comply
with any practice directions issued under rule 325.
328.(1) The Court may issue practice guides to assist parties concerned with
insolvency proceedings before the Court.
(2) Parties shall have regard to any relevant practice guide.
(3) The Court may take account of any failure of a party to comply with
any relevant practice guide when considering any order for costs.
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[Rule 2(2)]
PREFERENTIAL CLAIMS
1. In this Schedule
“debtor” means–
(a) in the case of a liquidation, the company in
liquidation; or
(b) in the case of a bankruptcy, the bankrupt.
“relevant date” means the commencement of the liquidation or
the bankruptcy, as the case may be.
2. For the purposes of section 2(1), the claims set out in column 1 of the
table below are preferential debts up to the maximum amount
specified in column 2 of the table or up to an unlimited amount where
specified in column 2.
Column 1
Nature of claim
Column 2
Maximum amount of
claim to be regarded as
preferential
The amount due to a person as a present
or past employee of the debtor that
represents–
(a) wages and salary, including
commission and any amount payable
by way of allowance or
reimbursement, due in respect of the
whole or any part of the period of 6
months immediately prior to the
relevant date; or
(b) accrued holiday pay in respect of any
period of employment before the
relevant date, whether the
employee’s contract of employment
was terminated before or after the
£10,000.00
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Social Security:
£10,000.00
(a) in respect of employees’
contributions deducted from the
employee;
(b) in respect of employer’s
contributions payable for the 6
months immediately before the
relevant date.
The amount due in respect of pension
contributions or contributions in respect
of medical insurance payable during the
12 months immediately before the
relevant date by the debtor as the
employer of any person, including any
amounts deducted from the employee.
£5,000.00 in respect of
each employee
Sums due to the Government of Gibraltar
in respect of any tax, duty, including
Stamp Duty, licence fee or permit.
£5,000
3. Preferential claims rank equally between themselves and, if the assets
of the company are insufficient to meet the claims in full, they shall be
paid rateably.
