COMPANIES (WINDING-UP) RULES 1972
Unannotated Statutes of Malaysia - Subsidiary Legislations/COMPANIES (WINDING-UP) RULES 1972 (P.U. (A) 289/1972)
IN exercise of the powers conferred by section 372 of the Companies Act 1965 [Act 125] and section 16 of the Courts of Judicature Act 1964 [Act 91], the Rules Committee hereby makes the following rules:
Read full ActThese Rules may be cited as the Companies (Winding-up) Rules 1972 , and shall come into force on such date as the Lord President may by notification in the Gazette appoint, such date not being earlier than that on which the notification is published.
(1) In these Rules, unless the context or subject matter otherwise requires-
"Act"
means the Companies Act,1965 "Bailiff"
means a bailiff of the Court and includes any person authorised to execute or serve the process of the court;
"company" means a company which is being wound up or against which proceedings to have it wound up have been commenced;
"creditor" includes a corporation and a firm of creditors in partnership;
"filed"
means filed in the court;
"Form" means a Form set out in the First Schedule to these Rules;
"Gazette" means Malaysia Government Gazette;
"liquidator" includes a provisional liquidator;
"Official Receiver" includes Deputy Official Receiver, Senior Assistant Official Receiver or Assistant Official Receiver;
"proceedings" means the proceedings in the winding-up of a company under the Act;
"Registrar" means the Registrar of the Court and includes a Deputy Registrar, Sen
(1) For the purpose of these Rules the forms prescribed in the First Schedule, where applicable, and where they are not applicable, forms of the like character, with such variations as circumstances may require, may be used.
(2) Where the forms are applicable any costs occasioned by the use of any other forms not prescribed shall unless the Court otherwise directs be borne by the party using such other forms.
(1) All proceedings in the winding-up of companies in the Court shall be attached to the Registrar, who shall, together with the necessary clerks and officers, and subject to the Act and these Rules, act under the general or special directions of the Judge.
(2) In every cause or matter within the jurisdiction of the Judge whether by virtue of the Act or by transfer or otherwise, the Registrar shall in addition to his powers and duties under these Rules have all the powers and duties assigned to him under section 10 of the Courts of Judicature Act 1964.
(1) The following matters and applications in Court shall be heard before the Judge in open Court:
(a) petitions;
(b) appeals to court;
(c) applications under section 307;
(d) applications for the committal of any person to prison for contempt;
(e) applications for an order for a public examination;
(f) applications to rectify the register;
(g) such matters and applications as the Judge may from time to time by any general or special orders direct to be heard before him in open Court (2) Subject to the provisions of the Act every other matter or application to the Court under the Act to which these Rules apply may be heard and determined in Chambers.
Subject to the provisions of the Act and these Rules (a) any matter or application before the Registrar may at any time be adjourned by him to be heard before the Judge either in Chambers or in Court; and (b) any matter or application may if the Judge or, as the case may be, the Registrar thinks fit be adjourned from Chambers to Court or from Court to Chambers.
(1) Every application in Court, other than a petition, shall be made by motion and shall be served on the party effected thereby not less than two days before the day named in the notice for hearing of the motion. An application for leave to serve short notice of motion shall be made ex parte.
(2) Every application in Chambers shall be made by summons in Form 1, which unless otherwise ordered, shall be served on every person against whom an order is sought, and shall require that person or persons to whom the summons is addressed to attend at the time and place named in the summons; and the summons shall be served not less than two days before the day named in the summons, unless in any case it shall be otherwise ordered.
(1) Every proceeding in a winding-up matter shall be dated and shall, with any necessary additions, be intituled as follows:
IN THE HIGH COURT IN................ AT ................
COMPANIES (WINDING-UP) NO ........ OF .............
In the matter of the Companies Act 1965 and In the matter of ..................................
(2) The first proceeding in every winding-up matter shall have a distinctive number assigned to it in the office of the Registrar, and all proceedings in any matter subsequent to the first proceeding shall bear the same number as the first proceeding.
All proceedings shall be written or printed or partly written or partly printed.
All orders, summonses, petitions, warrants, process of any kind (including notices when issued by the Court) and office copies in any winding-up matter shall be sealed.
Every petition, notice of motion and summons in a winding-up matter in the Court shall be prepared by the applicant or his solicitor and issued from the office of the Registrar.
(1) Every order whether made in Court or in Chambers in the winding-up of a company shall be drawn up by the applicant or his solicitor and signed by the Registrar, unless in any proceeding or class of proceedings the Judge or Registrar who makes the order shall direct that no order need be drawn up.
(2) Where a direction is given that no order need be drawn up the note or the memorandum of the order, signed or initialed by the Judge or the Registrar making the order, shall be sufficient evidence of the order having been made.
All petitions, affidavits, summonses, orders, proofs, notices, depositions, bills of costs and other proceedings in the Court in a winding-up matter shall be kept and remain on record in the office of the Registrar.
All office copies of petitions, affidavits, depositions, papers and writings or any part thereof required by the Official Receiver or any liquidator, contributory, creditor, officer of a company or other person entitled thereto shall be provided by the Registrar, and shall, except as to figures be fairly written out at length and be sealed and delivered out without any unnecessary delay and in the order in which they shall have been spoken.
When, in the exercise of his functions under the Act or these Rules, the Official Receiver requires the inspection or use of the file of proceedings the Registrar shall, on request, transmit the file of proceedings to the Official Receiver.
Every officer of a Court who shall receive any document to which an adhesive stamp shall be affixed shall immediately upon receipt of the document deface the stamp thereon in the prescribed manner and no document shall be filed or delivered until the stamp thereon shall have been defaced.
(1) Subject to any order to the contrary, every petition, notice of motion and summons shall be served upon every person against whom any order or other relief is sought but the Court may at any time direct that service be effected or notice of proceedings be given to any person who may be effected by the order or other relief sought and may at any time direct the manner in which the service is to be effected or the notice given; and any person so served or notified shall be entitled to be heard.
(2) Any document referred to as an exhibit in an affidavit shall be made available for inspection by any person upon whom service of the affidavit is required.
Except as otherwise provided by the Act or these Rules or any order (a) all notices, summonses and other documents except those of which personal service is required shall be deemed to be sufficiently served if left at or sent by prepaid post to the last known address of the person to be served therewith or the address (if any) at which the person has authorized service on him to be effected; and the notice, summons or document if so sent by prepaid post shall be considered as served at the time that the same ought to be delivered in the ordinary course of post and notwithstanding the same may be returned by the post office;
(b) no service shall be deemed invalid by reason that the name or any of the names other than the surname of the person to be served has been omitted from the document containing the person's name if the Court is satisfied that in other respects the service of the document has been sufficient;
(c) when the solicitor for a party to be served accept
Unless otherwise expressly provided in these Rules or otherwise expressly ordered -
(a) all matters which require to be gazetted shall be published once in the Gazette;
(b) all matters which require to be advertised shall be published once in a local newspaper;
(c) all matters required to be gazetted subsequent to a winding-up order shall be gazetted by the liquidator;
(d) where any winding-up order is amended or any matter which has been gazetted has been amended or altered or where any matter was wrongly or inaccurately gazetted or advertised the order or matter shall be re-gazetted or re-advertised with the necessary amendments and alterations.
Every judgment or order of the Court made in the exercise of the powers conferred by the Act and these Rules may be enforced by the Court as if it were a judgment or order of the Court made in the exercise of its ordinary jurisdiction.
Unless otherwise expressly provided in these Rules or otherwise expressly ordered, where any matter is advertised for or in connection with any proceeding under the Act or under these Rules -
(a) a memorandum referring to and giving the date of the advertisement, signed by the person or his solicitor responsible for the advertisement shall be filed -
(i) if the advertisement relates to proceedings for or in connection with a winding-up by the Court, by the liquidator; or
(ii) in any other case, by the party responsible for publishing the advertisement;
(b) in the case of an advertisement for or in connection with a winding-up by the Court, a copy of the newspaper or Gazette in which the advertisement appeared shall be delivered to the Official Receiver and a copy to the liquidator by the party responsible for publishing the advertisement; and (c) the memorandum shall be prima facie evidence that the advertisement to which it refers was published in the G
Every petition for the winding-up of a company by the Court may be in Form 2 or 3 with such variations as circumstances may require.
(1) A petition shall be presented at the office of the Registrar who shall appoint the time and place at which the petition is to be heard.
(2) Notice of the time and place appointed for hearing the petition shall be written on the petition and sealed copies thereof, and the Registrar may at any time before the petition is advertised, alter the time appointed and fix another time.
(1) The petitioner shall deposit with the approved liquidator or the Official Receiver as the case may be--
(a) upon the presentation of a petition, a sum of three thousand ringgit to cover the fees and expenses to be incurred by the approved liquidator or the Official Receiver; and (b) such further sum as may from time to time be required by the approved liquidator or the Official Receiver to cover the fees and expenses to be incurred by the approved liquidator or the Official Receiver which are not covered by the deposit mentioned in subparagraph (a).
(2) The deposits mentioned in subparagraphs (1)(a) and (b) shall be refunded to the petitioner by the liquidator before taking any action under section 292.
Every petition shall be advertised in Form 4 seven clear days or such longer time as the Court may direct before the hearing, as follows:
(a) once in the Gazette and twice at least in two local newspapers circulating in Malaysia or in such other newspapers as the Court may direct;
(b) the advertisement shall state the day on which the petition was presented and the name and address of the petitioner and of his solicitor and local agent (if any) and contain a note at the foot thereof, stating that any person who intends to appear on the hearing of the petition, either to oppose or support, must send notice of his intention to the petitioner or to his solicitor or local agent, within the time and in the manner prescribed by rule 28, and an advertisement of a petition for the winding-up of a company by the Court which does not contain the note shall be deemed irregular;
and if the petitioner or his solicitor does not within the time hereby prescribed or within suc
(1) Every petition shall, unless presented by the company, be served upon the company at the registered office of the company, and if there is no registered office, then at the principal or last known principal place of business of the company, if can be found, by leaving a copy with any member, officer, or servant of the company there, or in case no such member, officer, or servant can be found there, then by leaving a copy at the registered office or principal place of business, or by serving it on such member or members of the company as the Court may direct; and where the company is being wound up voluntarily, the petition shall also be served upon the liquidator (if any) appointed for the purpose of winding-up the affairs of the company. The affidavit of service of petition may be in Form 5 or 6.
(2) Where a petition is presented by any person other than the liquidator of the company in relation to a company which is in the course of being wound up, the petition shall
Every petition for the winding-up of a company by the Court shall be verified by an affidavit referring thereto. The affidavit in Form 7 shall be made by the petitioner or by one of the petitioners, if more than one, or, in case the petition is presented by a corporation, by some director, secretary or other principal officer thereof, and shall be sworn after and filed within four days after the the petition is presented, and the affidavit shall be prima facie evidence of the statements in the petition.
Every contributory or creditor of the company shall be entitled to be furnished by the petitioner or his solicitor with a copy of the petition within forty eight hours after requiring the same on payment at the rate of fifty cents per folio of 100 words or part thereof.
(1) Every person who intends to appear on the hearing of a petition shall serve on the petitioner or his solicitor notice of his intention. The notice shall be signed by the person or by his solicitor and shall give the address of the person signing it and shall be served or if sent by post shall be posted in such time as in ordinary course of post to reach the address not later than 12.00 o'clock noon of the day previous to the day appointed for the hearing of the petition.
(2) The notice may be in Form 8 with such variations as circumstances may require.
(3) A person who has failed to comply with this rule shall not, without special leave of the Court, be allowed to appear on the hearing of the petition.
(1) The petitioner or his solicitor shall prepare a list of the names and addresses of the persons who have given notice of their intention to appear in Form 9 on the hearing of the petition and of their respective solicitors.
(2) On the day appointed for hearing the petition a fair copy of the list or if no notice of intention to appear has been given, a statement to the effect shall be handed by the petitioner or his solicitor to the Court prior to the hearing of the petition.
(1) Affidavits in opposition to a petition that a company may be wound up shall be filed and a copy thereof served on the petitioner or his solicitor at least seven days before the time appointed for the hearing of the petition.
(2) Any affidavit in reply to an affidavit filed in opposition to a petition (including a further affidavit in support of any of the facts alleged in the petition) shall be filed within three days of the date of service on the petitioner of the affidavit in opposition and a copy of the affidavit in reply shall be forthwith served on the opposing petitioner or his solicitor.
(1) When filing the petition the petitioner shall nominate in writing an approved liquidator who is entitled to be appointed as liquidator if an order for the winding-upof the company is made by the Court.
(2) Before the hearing of the petition the petitioner or his solicitor shall obtain and file the consent in writing of the approved liquidator nominated.
(3) If no approved liquidator is nominated by the petitioner, the Court shall, on making the winding-up order, appoint an approved liquidator or the Official Receiver as the liquidator as it deems fit.
(1) After a petition has been presented, the petitioner or his solicitor shall on a day to be appointed by the Registrar attend before the Registrar and satisfy him that-
(a) the petition has been duly gazetted and advertised;
(b) the prescribed affidavit verifying the statements therein and the affidavit of service, if any, have been duly filed;
(c) the consent in writing of the approved liquidator nominated by the petitioner has been obtained and filed;
(d) the provisions of these Rules as to petitions have been duly complied with; and (e) a sum of three thousand ringgit has been deposited as required by subparagraph (1) (a) of rule 23A.
(2) No order save an order for the dismissal or adjournment of the petition shall be made on the petition of any petitioner who has not, prior to the hearing of the petition, attended before the Registrar at the time appointed and satisfied him in the manner required by this rule.
(1) When a petitioner is not entitled to present a petition or, whether so entitled or not, where he -
the Court may upon such terms as it thinks just substitute as petitioner any person who, in the opinion of the Court, would have a right to present the petition and who is desirous of proceeding with the petition.
(a) fails to take all the steps prescribed by these Rules preliminary to the hearing of the petition;
(b) consents to withdraw his petition or to allow it to be dismissed or the hearing to be adjourned;
or (c) fails to appear in support of his petition when it is called on in Court on the day originally fixed for the hearing thereof or any day to which the hearing has been adjourned or if appearing does not apply for an order in terms of the prayer of his petition, (2) An order to substitute a petitioner may, where a petitioner fails to advertise his petition within the time prescribed by or under these Rules or consents to withdraw his peti
(1) When an order is made for the winding-up of a company the petitioner shall forthwith inform the liquidator in Form 10 and within fourteen days of the pronouncement thereof -
(a) gazette and advertise a notice in Form 12 of the making of the order;
(b) serve upon the liquidator a copy of the order; and (c) serve upon the Official Receiver and the Registrar of Companies a copy of the order.
(2) The copy of the winding-up order required by section 226(2) to be served upon the secretary of the company may be served either personally or by prepaid letter addressed to the secretary at the registered office of the company (if any) or if there is no such registered office at its principal or last known place of business.
(3) An order to wind up a company in Form 11 shall contain at the foot thereof a notice stating that it will be the duty of the person who is at the time secretary or chief officer of the company and of such of the persons who are liable
(1) At any time after the presentation of a petition, the Court may, upon the application of any creditor or contributory of the company and upon proof by affidavit of sufficient ground for the appointment of a provisional liquidator make the appointment upon such terms as the Court shall think just or necessary.
(2) An order appointing a provisional liquidator in Form 13 shall state the nature and give a short description of the property of which the provisional liquidator is ordered to take possession and the duties to be performed by him.
(3) Upon the pronouncement of the order the party obtaining the order shall forthwith file a notice in Form 14 of the making thereof with the provisional liquidator, the Registrar of Companies and the Official Receiver and cause such notice in Form 15 to be gazetted and advertised.
(4) The expense of complying with paragraph (3) of this rule shall unless the Court otherwise orders, be a charge upon the assets of the com
A report made by the liquidator pursuant to section 235 shall state in narrative form the facts and matters which the liquidator is required or desires to bring to the notice of the Court and his opinion as required by the said section.
(1) The following reports to be made by the liquidator shall be made by the same being filed in Court and a copy being lodged with the Registrar of Companies and the Official Receiver when he is not the liquidator -
(a) under section 235(1) - preliminary report in a winding-up by the Court;
(b) under section 235(2) - further reports in a winding-up by the Court;
(c) under section 243(2) - report in relation to application to stay windingup proceedings.
(2) A further report made under section 235(2) shall not be open to the inspection of any creditor, contributory or other person except the liquidator or his solicitor unless the Court shall so direct.
(1) Any further report made under section 235(2) shall be considered by the Judge in Chambers upon the application of the liquidator made by the summons ex parte. The Judge may direct service of the summons upon any other person concerned.
(2) The liquidator shall personally or by advocate and solicitor attend upon the consideration of the report and give the Judge any further information or explanation with reference to the matters stated in the report which the Judge may require.
(1) An application by the liquidator for the appointment of a special manager shall be supported by a report of the liquidator which shall be placed on the file of proceedings and in which shall be stated the amount of remuneration which in the opinion of the liquidator ought to be allowed to the special manager.
(2) The remuneration of the special manager shall unless the Court in any special case otherwise directs be stated in the order appointing him, but the Court may at any subsequent time for good cause shown, make an order increasing, reducing or otherwise altering the remuneration of the special manager.
Every special manager shall account to the liquidator and the special manager's accounts shall be verified in Form 16 and, when approved by the liquidator, the totals of the receipts and payments shall be added by the liquidator to his accounts.
(1) Every person who under section 234 has been required by the liquidator to submit and verify a statement as to the affairs of the company shall be furnished by the liquidator with forms in Form 17 and instructions for the preparation of the statement.
(2) The liquidator may from time to time hold personal interviews with every such person as is mentioned in section 234 for the purpose of investigating the company's affairs and it shall be the duty of every such person to attend on the liquidator at such time and place as the liquidator may appoint and give the liquidator all information that he may require.
When any person requires any extension of time for submitting the statement of affairs, he shall apply to the liquidator who may, if he thinks fit, give a written certificate extending the time which certificate shall be filed with the proceedings in the winding-up and shall render an application to the Court unnecessary.
After the statement of affairs of a company has been submitted to the liquidator, it shall be the duty of each person who has made or concurred in making it, if and when required, to attend on the liquidator and answer all such questions as may be put to him and give all such further information as may be required of him by the liquidator in relation to the statement of affairs.
Any default in complying with the requirements of section 234 shall be reported by the liquidator to the Court.
A person who is required to make or concur in making any statement of affairs of a company shall, before incurring any costs or expenses in and about the preparation and making of the statement, apply to the liquidator for his sanction, and submit a statement of the estimated costs and expenses which it is intended to incur; and, except by order of the Court, no person shall be allowed out of the assets of the company any costs or expenses, which have not before being incurred been sanctioned by the liquidator.
(1) As soon as possible after the first meetings of creditors and contributories have been held the Official Receiver, or the Chairman of the meeting, as the case may be, shall report the result of each meeting to the Court in .
(2) Upon the result of the meetings of creditors and contributories being reported to the Court, the Court may, if the meeting of creditors and the meeting of contributories have each passed the same resolutions, or if the resolutions passed at the two meetings are indentical in effect, upon the application of the Official Receiver, forthwith make the appointments necessary for giving effect to the resolutions. In any other case the Court shall, on the application of the Official Receiver, fix a time and place for considering the resolutions and determinations (if any) of the meetings, deciding differences (if any), and making such order as may be necessary.
(3) When a time and place have been fixed for the consideration of the resolutions
In the case of special manager or a liquidator other than the Official Receiver, the following provisions as to security shall have effect, namely -
(a) the security shall be given to such officers or persons, and in such manner as the Official Receiver may from time to time direct;
(b) it shall not be necessary that security shall be given in each separate winding-up; but security may be given either specially in a particular winding-up, or generally, to be available for any winding-up, in which the person giving security may be appointed, either as liquidator or special manager;
(c) the Official Receiver shall fix the amount and nature of such security, and may from time to time, as he thinks fit, either increase or diminish the amount of special or general security which any person has given;
(d) the certificate of the Official Receiver that a liquidator or special manager has given security to his satisfaction in shall be filed with the Registrar; an
(1) If a liquidator or special manager fails to give the required security within the time stated for that purpose in the order appointing him, or any extension thereof, the Official Receiver shall report the failure to the Court, who may thereupon rescind the order appointing the liquidator or special manager.
(2) If a liquidator or special manager fails to keep up his security, the Official Receiver shall report the failure to the Court, who may thereupon remove the liquidator or special manager, and make such order as to costs as the Court shall think fit.
(3) Where an order is made under this rule rescinding an order for the appointment of or removing a liquidator or special manager the Court may direct that another liquidator or special manager be appointed.
An application to the Court to summon persons for examination under section 249 may be made by the liquidator or any creditor or contributory. Such application shall, if made by the liquidator, be made ex parte, but if made by a creditor or contributory, be made by summons supported by an affidavit and the liquidator shall also be served.
An application for an order for a public examination under section 250 may be made ex parte by the liquidator.
An application for an order for the examination of the liquidator or other persons under section 277 may be made ex parte by the Official Receiver, the Registrar of Companies or any creditor or contributory and shall be supported by affidavit.
The liquidator or the Official Receiver may attend in person or by advocate and solicitor at any examination of a witness under section 249 and he or his counsel or solicitor may take notes of the examination for his use, and put such questions to the persons examined as the Court may allow.
(1) Upon an order directing a person to attend for public examination being made under section 250 in Form 22, the liquidator shall apply ex parte for an order appointing a day on which the public examination is to be held. Such order may be in Form 23.
(2) The liquidator or his solicitor shall cause a notice of the day and place appointed for holding of the public examination in Form 24 to be served on the person to be examined.
(3) The order directing a person to attend for public examination in Chambers may be in Form 25.
(1) The liquidator shall give notice of the public examination to the creditors and contributories by gazetting and advertising a notice of the time and place appointed for holding the examination.
(2) Where an adjournment of the public examination has been directed, notice of the adjournment shall not, unless otherwise directed by the Court, be gazetted or advertised.
Where an order has been made for an examination under section 249 or section 250-
(a) the examination shall be held in Chambers or before such person as is specified in section 249 (4) as the Judge in Chambers may direct and in the case of an examination under section 249 he may order that the examination be not held in open Court;
(b) the Court may either in the order for examination or by subsequent order give directions as to the matters on which any person is to be examined;
(c) in the case of an examination held before a person other than a Judge in Chambers such person may-
(i) if any person fails or refuses to satisfactorily answer any question put to him, exercise all the powers which the Court might have exercised had the failure or refusal been made in an examination before the Court;
(ii) if he considers the examination is unnecessarily protracted or for other sufficient cause, adjourn the examination so that the same may be held before
(1) If the Court or person before whom any examination under the Act or these Rules is directed to be held considers that it would be desirable that a person other than the person before whom an examination is taken should be appointed to take down in shorthand or otherwise record the evidence of any person examined, it shall be competent for the Court or person before whom the examination is taken to make the appointment.
(2) The person at whose instance the examination is taken shall nominate a person for the purpose in Form 26 and the person so nominated shall be appointed unless the Court or person holding the examination shall otherwise direct.
(3) Every person so appointed shall be paid by the person at whose instance the appointment was made or out of the assets of the company as may be directed by the Court.
(4) Every person appointed shall make a declaration in Form 27.
(1) The notes of the depositions of a person examined under section 249, or under any order of the Court whether before the Court or before any person appointed to take the examination, other than the notes of the depositions of a person examined at a public examination under section 250, may be in Form 28 or 29 and shall be filed, but shall not be open to the inspection of any creditor, contributory or other person, except the liquidator or his solicitor, unless the Court shall so direct, and the Court may from time to time give such general or special directions as it shall think expedient as to the custody and inspection of the notes and the furnishing of copies thereof or extracts therefrom.
(2) The notes of the depositions of a person examined under section 250 shall after being signed as required by section 250(7) be filed and shall be open to the inspection of the liquidator and of any creditor or contributory.
(1) Where an order of apprehension has been made by the Court under section 249(5), the order may be in Part I of Form 30.
(2) Where an order of arrest and seizure has been made by the Court under section 251 in respect of a contributory, director or a former director, the order may be in Part II of Form 30.
(1) Any application for leave to disclaim any part of the property of a company pursuant to section 296(1) shall be by ex parte summons. The summons shall be supported by an affidavit showing who are the parties interested and what their interests are. On hearing of the summons the Court shall give such directions as it sees fit and in particular directions as to the notices to be given to the parties interested or any of them and the Court may adjourn the application to enable any party as aforesaid to attend.
(2) Where a liquidator disclaims a leasehold interest, he shall forthwith file disclaimer in Form 31 with the Registrar. The disclaimer shall contain particulars of the interest disclaimed and a statement of the persons to whom notice of disclaimer in Form 32 has been given. Until the disclaimer is filed by the liquidator the disclaimer shall be inoperative.
(3) Where any person claims to be interested in any part of the property of the company which the liq
(1) Any application under section 296(6) for an order for the vesting of any disclaimed property in or the delivery of any such property to any person shall be supported by the affidavit filed on the application for leave to disclaim that property.
(2) Where an application as aforesaid relates to disclaimed property of a leasehold nature and it appears that there is any mortgagee (including a caveator or having a lien by way of deposit of document of title) or under-lessee of that property the Court may direct that notice shall be given to such mortgagee or under-lessee that if he does not elect to accept and apply for a vesting order as aforesaid upon the terms required by section 296(6) and imposed by the Court within a time to be fixed by the Court and stated in the notice, he shall be excluded from all interest in and security upon the property and the Court may adjourn the application for the notice to be given and for the mortgagee or under-lessee to be added as a pa
In a winding-up by the Court if application is made to the Court to sanction any compromise or arrangement the Court may before giving its sanction thereto, hear a report by the liquidator as to the terms of the scheme, and as to the conduct of the directors and other officers of the company and as to any other matters which, in the opinion of the liquidator, ought to be brought to the attention of the Court.
(1) Subject to any direction to the contrary every order shall be passed and entered forthwith and it shall be the duty of the petitioner or his solicitor or the applicant or his solicitor and of all other persons who have appeared on the hearing of a petition or motion, not later than the day after the order is pronounced in Court, to leave at the office of the Registrar all the documents required for the purpose of enabling the Registrar to settle the order forthwith.
(2) It shall not be necessary for the Registrar to make an appointment to settle the order unless in any particular case special circumstances make an appointment necessary.
All liquidators appointed by the Court shall be officers of the Court.
(1) Every person for the time being on the list of contributories of the company and every person whose proof has been admitted shall be at liberty at his own expense to attend proceedings in relation to the winding-up of a company by the Court, and shall be entitled upon payment of the costs occasioned thereby to have notice of all such proceedings as he shall by written request require.
(2) If the Court is of the opinion that the attendance of any such person as aforesaid upon any proceedings has occasioned additional costs which ought not to be borne by the funds of the company it may direct the costs or a gross sum in lieu thereof to be paid by that person and that person shall not be entitled to attend any further proceedings until he has paid the costs.
(3) The Court may from time to time appoint any one or more of the creditors or contributories to represent before the Court at the expense of the company all or any class of the creditors or contributories up
(1) The duties imposed on the Court by section 244(1) in a winding-up by the Court with regard to the collection of the assets of the company and the application of the assets of the company, and the application of the assets in discharge of the company's liabilities, shall be discharged by the liquidator subject to the control of the Court.
(2) For the purpose of the discharge by the liquidator of the duties imposed by section 244(1) and paragraph (1) of this rule, the liquidator in a winding-up by the Court shall, for the purpose of acquiring or retaining possession of the property of the company, be in the same position as if he were a receiver of the property appointed by the Court, and the Court may, on his application, enforce the acquisition or retention accordingly.
(1) The powers conferred on the Court by section 277(5) may be exercised by the liquidator.
(2) Any contributory for the time being on the list of contributories, trustee, receiver, banker, agent or officer of a company which is being wound up shall on notice from the liquidator in Form 33 and within such time as he shall by notice in writing require, pay, deliver, convey, surrender or transfer to or into the hands of the liquidator any money or property or books and papers which are in his hands and to which the company is prima facie entitled, and the Court may on application of the liquidator order the payment, delivery, conveyance, surrender or transfer.
(1) The liquidator shall with all convenient speed after his appointment settle a list of contributories of the company, and shall appoint a time and place for that purpose.
(2) The list of contributories in Form 34 shall contain a statement of the address of, and the number of shares or extent of interest to be attributed to, each contributory, and shall distinguish the several classes of contributories. As regards representative contributories the liquidator shall, so far as practicable, observe the requirements of section 244(3).
(1) The liquidator shall give notice in writing in Form 35 of the time and place appointed for the settlement of the list of contributories to every person whom he proposes to include in the list, and shall state in the notice to each person in what character and for what number of shares or interest he proposes to include such person in the list.
(2) The affidavit of postage of the notice may be in Form 36.
On the day appointed for settlement of the list of contributories the liquidator shall hear any person who objects to being settled as a contributory, and after the hearing shall finally settle the list in Form 37, which when so settled shall be the list of contributories of the company.
(1) The liquidator shall forthwith give notice in Form 38 to every person whom he has finally placed on the list of contributories stating in what character and for what number of shares or interest he has been placed on the list, and in the notice inform such person that any application for the removal of his name from the list, or for a variation of the list, must be made to the Court by summons within twenty-one days from the date of the service on the contributory or alleged contributory of the notice of the fact that his name is settled on the list of contributories.
(2) The affidavit of service of the notice may be in Form 39.
(1) Subject to the power of the Court to extend the time or to allow an application to be made notwithstanding the expiration of the time limited for that purpose, no application to the Court by any person who objects to the list of contributories as finally settled by the liquidator shall be entertained after the expiration of twenty-one days from the date of the service on that person of the notice of the settlement of the list.
(2) The order allowing the application to vary the list of contributories may be in Form 40.
(3) The liquidator shall not in any case be personally liable to pay any costs of or in relation to an application to set aside or vary his act or decision settling the name of a person on the list of contributories of a company.
The liquidator may from time to time vary or add to the list of contributories, but any variation or addition shall be in Form 41 and shall be made in the same manner in all respects as the settlement of the original list.
The powers and duties of the Court in relation to making calls upon contributories conferred by section 245(2) shall be exercised by the liquidator as an officer of the Court subject to the following provisions -
(a) where the liquidator desires to make any call on the contributories or any of them for any purpose authorized by the Act, he may summon a meeting of the committee of inspection, if any, for the purpose of obtaining their sanction to the intended call;
(b) the notice of the meeting in Form 42 shall be sent to each member of the committee of inspection in sufficient time to reach him not less than seven days before the day appointed for holding the meeting, and shall contain a statement of the proposed amount of the call, and the purpose for which it is intended;
(c) the notice of the intended call and the intended meeting of the committee of inspection in Form 43 shall also be gazetted and advertised stating the time and place of the intended meetin
(1) An application to the Court for leave to make any call for a purpose authorized by the Act, shall be made by summons in Form 45 supported by an affidavit of the liquidator in Form 46 stating the proposed amount of the call, and a copy of the summons shall be served at least four clear days before the day appointed for making the call on every contributory proposed to be included in the call, or if the Court so directs, notice of the intended call may be given by advertisement in From 47 without a separate notice to each contributory.
(2) The copy of the summons served on each contributory shall contain a statement of the amount claimed as due from that contributory.
(3) Upon the hearing of the summons the Court may in Form 48 grant leave to the liquidator to make the call and also order the payment by the contributories respectively of the amounts due in respect of the call within a time to be named in the order.
When the liquidator is authorized by resolution or order to make a call on the contributories he shall file with the Registrar a document in Form 49 with such variations as circumstances may require.
(1) When a call has been made by the liquidator in a winding-up by the Court, a copy of the resolution of the committee of inspection or order of the Court, as the case may be, shall forthwith be served upon each of the contributories included in the call, together with a notice from the liquidator in Form 50 or 51 specifying the amount or balance due from the contributory in respect of the call, but the resolutionor order need not be advertised unless for any special reason the Court so directs.
(2) The affidavit of service may be in Form 52.
The payment of the amount due from each contributory on a call may be enforced by order of the Court in Form 54, to be made in Chambers on summons supported by an affidavit by the liquidator in Form 53.
In a winding-up by the Court every creditor shall prove his debt, unless the Judge in any particular winding-up shall give directions that any creditors or class of creditors shall be admitted without proof.
A debt shall be proved in any winding-up by delivering or sending to the liquidator an affidavit verifying the debt together with the prescribed filing fee.
An affidavit proving a debt may be made by the creditor himself or by some person authorized by or on behalf of the creditor. If made by a person so authorized, it shall state his authority and means of knowledge.
(1) An affidavit proving a debt may be in Form 55 and shall contain or refer to a statement of account showing the particulars of the debt, and shall specify the vouchers, if any, by which the same can be substantiated.
(2) The liquidator to whom the proof is sent may at any time call for the production of the vouchers.
An affidavit proving a debt shall state whether the creditor is or is not a secured creditor.
An affidavit proving a debt may in a winding-up by the Court be sworn before the Official Receiver or a Commissioner for Oaths.
A creditor shall bear the cost of proving his debt unless the Court otherwise orders.
A creditor proving his debt shall deduct there from all trade discounts, but he shall not be compelled to deduct any discount, not exceeding five per centum on the net amount of his claim, which he may have agreed to allow for payment in cash.
When any rent or other payment falls due at stated periods, and the order or resolution to wind-up is made at any time other than one of those periods, the persons entitled to the rent or payment may prove for a proportionate part thereof up to the date of the winding-up order or resolution as if the rent or payment grew due from day to day:
Provided that where the liquidator remains in occupation of premises leased to a company which is being wound up, nothing herein contained shall prejudice or affect the right of the landlord of the premises to claim payment from the company, or the liquidator, of rent during the period of the company's or the liquidators occupation.
On any debt or sum certain, payable at a certain time or otherwise, whereon interest is not reserved or agreed for, and which is overdue at the date of the winding-up order or resolution, the creditor may prove for interest at a rate not exceeding six per centum per annum to that date from the time when the debt or sum was payable, if the debt or sum is payable by virtue of a written instrument at a certain time, and if payable otherwise, then from the time when a demand in writing has been made, giving notice that interest will be claimed from the date of the demand until the time of payment.
A creditor may prove for a debt not payable at the date of the winding-up order or resolution, as if it were payable presently, and may receive dividends equally with the other creditors, deducting only thereout a rebate of interest at the rate of six per centum per annum computed from the declaration of a dividend to the time when the debt would have become payable according to the terms on which it was contracted.
(1) In any case in which it appears that there are numerous claims for wages by workmen and others employed by the company, it shall be sufficient if one proof in Form 56 for all these claims is made either by a foreman or by some other person on behalf of the creditors.
(2) Such proof shall have annexed thereto as forming part thereof, a Schedule setting forth the names and addresses of the workmen and others, and the amounts severally due to them.
(3) Any proof made in compliance with this rule shall have the same effect as if separate proofs had been made by each of the said workmen and others.
Where a creditor seeks to prove in respect of a bill of exchange, promissory note, or other negotiable instrument or security on which the company is liable, such bill of exchange, promissory note, instrument or security shall, subject to any special order of the Court made to the contrary, be produced to the liquidator and be marked by him before the proof can be admitted either for voting or for any purpose.
(1) Subject to the provisions of the Act, and unless otherwise ordered by the Court, the liquidator in any winding-up may from time to time fix a day (which shall be not less than twenty one days from the date of the notice) on or before which the creditors of the company are to prove their debts or claims or otherwise be excluded from the benefit of any distribution specified, and the liquidator shall give notice of the day so fixed by advertisement in the Gazette in Form 94(4) and in such newspaper as he shall think appropriate, and also notice in writing in Form 57 or 58 of such day to every person who to the knowledge of the liquidator claims to be a creditor of the company and whose claim has not been admitted or, in a winding-up by the Court, to every person mentioned in the statement of affairs as a creditor who has not proved his debt.
(2) Where a creditor who has filed a claim after the time fixed under paragraph (1) has lapsed appeals against the decision of the
The liquidator shall examine every proof of debt lodged with him and the grounds of the debt, and shall in writing admit or reject it, in whole or in part, or require further evidence in support of it. If he rejects a proof he shall state in writing in Form 59 to the creditor the grounds of the rejection.
If a creditor or contributory is dissatisfied with the decision of the liquidator in respect of a proof, the Court may, on the application of the creditor or contributory, reverse or vary the decision; but subject to the power of the Court to extend the time, no application to reverse or vary the decision of the liquidator in a winding-up by the Court shall be entertained, unless notice of the application is given before the expiration of twenty-one days from the date of service of the notice of rejection.
If the liquidator thinks that a proof has been improperly admitted, the Court may, on the application of the liquidator, after notice to the creditor who made the proof, expunge the proof or reduce its amount.
The Court may also expunge or reduce a proof upon the application of a creditor or contributory if the liquidator declines to interfere in the matter.
For the purpose of any of his duties in relation to proofs, the liquidator, in a winding-up by the Court, may administer oaths and take affidavits.
The liquidator in a winding-up by the Court shall, within three days after receiving notice from a creditor of his intention to appeal against a decision rejecting a proof, file the proof with the Registrar, with a memorandum thereon of his disallowance thereof.
Subject to the power of the Court to extend the time, the liquidator in a winding-up by the Court, other than the Official Receiver, within twenty-eight days after receiving a proof, which has not previously been dealt with, shall in writing either admit or reject it wholly or in part, or require further evidence in support of it. Provided that where the liquidator has given notice of his intention to declare a dividend, he shall within fourteen days after the date mentioned in the notice as the latest date up to which proofs must be lodged, examine, and in writing admit or reject, or require further evidence in support of, every proof which has not been already dealt with, and shall give notice of his decision, rejecting a proof wholly or in part, to the creditors affected thereby.
Where a creditors proof has been admitted the notice of dividend shall be a sufficient notification of the admission.
The liquidator shall in no case be personally liable for costs in relation to an appeal from his decision rejecting any proof wholly or in part.
(1) In any winding-up the liquidator shall, subject to paragraph (2)-
(a) within three months from the date of the notice under rule 91; or
(b) immediately after the expiration of the time fixed by this rule for appeal against his decision, send a notice of dividend in Form 60 to each creditor whose proof has been admitted and pay a dividend in Form 94(5).
(2) If it becomes necessary in the opinion of the liquidator to postpone the declaration of the dividend beyond the limit of three months, he shall give a fresh notice under rule 91 but it shall not be necessary for the liquidator to give a fresh notice to such of the creditors mentioned in the statement of affairs as have not proved their debts. In all other respects the same procedure shall follow the fresh notice as would have followed the original notice.
(3) Dividends may at the request and risk of the person to whom they are payable be transmitted to him by post.
(4) If a person to who
(1) Every order by which the liquidator in a winding-up by the Court is authorized to make a return to contributories of the company shall, unless the Court shall otherwise direct, contain or have appended thereto a Schedule or list (which the liquidator shall prepare) setting out in tabular form the full names and addresses of the persons to whom the return is to be paid, and the amount of money payable to each person, and particulars of the transfers of shares (if any) which have been made or the variations in the list of contributories which have arisen since the date of the settlement of the list of contributories and such other information as may be requisite to enable the return to be made. The Schedule or list shall be in Form 63 with such variations as circumstances may require, and the liquidator shall send a notice of return in Form 62 to each contributory.
(2) The liquidator shall publish (in Form 94(6)) in the Gazette a notice of return to contributories two we
(1) Every liquidator of a company which is being wound up by the Court shall unless otherwise directed by the Court-
(a) open a Trust Account in a bank to be named in the Winding-up Order to be known as the Liquidator's General Account, in the name of the company being wound up together with the words "In Liquidation"; and (b) pay all moneys received by him into the said account forthwith after the receipt.
(2) Subject to any order to the contrary all payments from the account shall be made by cheque payable to order and every cheque shall have marked or written on the face of it the name of the company.
All or any part of the money for the time being standing to the credit of the account of the liquidator at the bank named and not immediately required for the purposes of the winding-up shall be paid to the Official Receiver to be placed to the credit of the Companies Liquidation Account.
(1) The Court may in any case give special directions with respect to the payment, deposit or custody of moneys or securities payable to or coming into possession of a liquidator.
(2) Where application is made to the Official Receiver to authorize the liquidator in a winding-up by the Court to make his payments into and out of a special bank account, the Official Receiver may grant the authorization for such time and on such terms as he may think fit and may at any time order the account to be closed if he is of the opinion that the account is no longer required.
(3) An office copy of the direction of the Court under paragraph (1) and the authorization or order of the Official Receiver under paragraph (2) shall be served upon the bank.
The meetings of creditors and contributories under section 227 (hereinafter referred to as the first meetings of creditors and contributories) shall be held within twenty-one days or, if a special manager has been appointed, within one month after the date of the winding-up order, or within such further time as the Court may approve.
The Official Receiver shall give notice of the dates fixed by him for the first meetings of creditors and contributories by due advertisement in the Gazette.
The first meetings of creditors and contributories shall be summoned as hereinafter provided.
The notices of first meetings of creditors and contributories may be in Forms 64 and 65, and the notices to creditors shall state a time within which the creditors must lodge their proofs in order to entitle them to vote at the first meeting.
The Official Receiver shall also give to each of the directors and other officers of the company who in his opinion ought to attend the first meetings of creditors and contributories seven days notice of the time and place appointed for each meeting. The notice in Form 66 may either be delivered personally or sent by prepaid letter post, as may be convenient. It shall be the duty of every director or officer who receives notice of the meeting to attend if so required by the Official Receiver, and if any director or officer fails to attend the Official Receiver shall report the failure to the Court.
(1) The Official Receiver shall also, as soon as practicable, send to each creditor mentioned in the company's statement of affairs, and to each person appearing from the company's books or otherwise to be a contributory of the company, a summary of the company's statement of affairs, including the cause of its failure, and any observations thereon which the Official Receiver may think fit to make. The proceedings at a meeting shall not be invalidated by reason of any summary or notice required by these Rules not having been sent or received before the meeting.
(2) Where prior to the winding-up order the company has commenced to be wound up voluntarily the Official Receiver may if in his absolute discretion he seems fit so to do send to the person aforesaid or any of them an account of the voluntary winding-up showing how the winding-up has been conducted and how the property of the company has been disposed of and any observations which the Official Receiver may think fit
(1) In addition to the first meetings of creditors and contributories and in addition also to meetings of creditors and contributories directed to be held by the Court under section 289 (hereinafter referred to as Court meetings of creditors and contributories), the liquidator in any winding-up by the Court may himself from time to time subject to the provisions of the Act and the control of the Court by notice in Form 67 summon, hold and conduct meetings of the creditors or contributories (hereinafter referred to as liquidators meetings of creditors and contributories) for the purpose of ascertaining their wishes in all matters relating to the winding-up.
(2) In any creditor's voluntary winding-up the liquidator may himself from time to time summon, hold and conduct meetings of creditors for the purpose of ascertaining their wishes in all matters relating to the winding-up (such meetings and all meetings of creditors which a, liquidator of a company is by the Act acquired
Except where and so far as the nature of the subject matter or the context may otherwise require the succeeding rules as to meetings hereinafter set out are intended to apply to first meetings, Court meetings, liquidators meetings of creditors and contributories, and voluntary liquidation meetings, but so nevertheless that the said rules shall take effect as to first meetings subject to any express directions of the Court.
(1) The liquidator shall summon all meetings of creditors and contributories by giving not less than seven days' notice of the time and place thereof in the Gazette and in one or more local newspapers; and shall, not less than seven clear days before the day appointed for the meeting, send by post to every person appearing by the company's books to be a creditor of the company notice of the meetings of creditors, and to every person appearing by the company's books or otherwise to be a contributory of the company, notice of the meeting of contributories.
(2) The notice to each creditor shall be sent to the address given in his proof, or if he has not proved to the address given in the statement of affairs of the company, or to such other address as may be known to the person summoning the meeting. The notice to each contributory shall be sent to the address mentioned in the company's books as the address of the contributory, or to such other address as may be known to the
An affidavit in Form 68 by the liquidator or a creditor or his solicitor or the clerk of either of the persons or as the case may be by some officer of the company or its solicitor or the clerk of the company or solicitor, that the notice of any meeting has been duly posted, shall be sufficient evidence of the notice having been duly sent to the person to whom the same was addressed.
Every meeting shall be held at such place as is in the opinion of the person convening the same most convenient for the majority of the creditors or contributories or both. Different times or places or both may if thought expedient be named for the meetings of creditors and for the meetings of contributories.
The costs of summoning a meeting of creditors or contributories at the instance of any person other than the liquidator shall be paid by the person at whose instance it is summoned who shall before the meeting is summoned deposit with the liquidator such sum as may be required by the liquidator as security for the payment of the costs. The costs of summoning the meetings of creditors or contributories, including all disbursements for printing, stationery, postage and the hire of room, shall be calculated at the following rate for each creditor or contributory to whom notice is required to be sent, namely, one dollar per creditor or contributory for the first fifty creditors or contributories, seventy-five cents per creditor or contributory for the next fifty creditors or contributories, fifty cents per creditor or contributory for any number of creditors or contributories after the first hundred. The said costs shall be repaid out of the assets of the company if the Court shall by
Where a meeting is summoned by the liquidator, he, or someone nominated by him in Form 69, shall be chairman of the meeting. At every other meeting of creditors or contributories the chairman shall be such person as the meeting by resolution shall appoint. This rule shall not apply to a meeting under section 260.
At a meeting of creditors or contributories a resolution shall be deemed to be passed when a majority in number and value of the creditors or, as the case may be, contributories present, personally or by proxy, and voting on the resolution, have voted in favour of the resolution, the value of the contributories being determined according to the number of votes conferred on each contributory by the regulations of the company.
The liquidator shall file with the Registrar a copy, certified by him, of every resolution of a meeting of creditors or contributories.
Where a meeting of creditors or contributories is summoned by notice, the proceedings and resolutions at the meeting shall unless the Court otherwise orders be valid, notwithstanding that some creditors or contributories may not have received the notice sent to them.
The chairman may with the consent of the meeting adjourn it from time to time and from place to place in Form 70, but the adjourned meeting shall be held at the same place as the original place of meeting unless in the resolution for adjournment another place is specified or unless the Court otherwise orders.
(1) A meeting may not act for any purpose except the election of a chairman, the proving of debts and the adjournment of the meeting unless there are present or represented thereat at least three creditors entitled to vote or three contributories or if the number of the creditors entitled to vote or the contributories, as the case may be, shall not exceed three, all the creditors entitled to vote or all the contributories.
(2) If within half-an-hour from the time appointed for the meeting a quorum of creditors or contributories is not present or represented, the meeting shall be adjourned to the same day in the following week at the same time and place or to such other day as the chairman may appoint not being less than seven nor more than twenty-one days.
(3) If within half-an-hour from the time appointed for the adjourned meeting a quorum of creditors or contributories is not present or represented, the adjourned meeting shall not be further adjourned and notice
In the case of a first meeting of creditors or of an adjournment thereof a person shall not be entitled to vote as a creditor unless he has duly lodged with the Official Receiver not later than the time mentioned for that purpose in the notice convening the meeting or adjourned meeting a proof of the debt which he claims to be due to him from the company. In the case of a Court meeting or liquidators meeting of creditors a person shall not be entitled to vote as a creditor unless he has lodged with the liquidator a proof of the debt which he claims to be due to him from the company and the proof has been admitted wholly or in part before the date on which the meeting is held. Provided that this and the next four following rules shall not apply to a Court meeting of creditors held prior to the first meeting of creditors. This rule shall not apply to any creditors or class of creditors who by virtue of the rules or any directions given thereunder are not required to prove their debts
A creditor shall not vote in respect of any unliquidated or contingent debt, or any debt the value of which is not ascertained, nor shall a creditor vote in respect of any debt on or secured by a current bill of exchange or promissory note held by him unless he is willing to treat the liability to him thereon of every person who is liable thereon antecedently to the company, and against whom a receiving order in bankruptcy has not been made, as a security in his hands, and to estimate the value thereof, and for the purposes of voting, but not for the purposes of dividend, to deduct it from his proof.
For the purposes of voting a secured creditor shall unless he surrenders his security, state in his proof or in a voluntary liquidation in such statement as is hereinafter mentioned the particulars of his security, the date when it was given, and the value at which he assesses it, and shall be entitled to vote only in respect of the balance (if any) due to him after deducting the value of his security. If he votes in respect of his whole debt he shall be deemed to have surrendered his security, unless the Court on application is satisfied that the omission to value the security has arisen from inadvertence.
The Official Receiver or liquidator may within twenty-eight days after a proof or in a voluntary liquidation a statement estimating the value of a security as aforesaid has been used in voting at a meeting require the creditor to give up the security for the benefit of the creditors generally on payment of the value with an addition thereto of twenty per cent: Provided that where a creditor has valued his security he may at any time before being required to give it up correct the valuation by a new proof and deduct the new value from his debt but in that case the said addition of twenty per cent shall not be made if the security is required to be given up.
The chairman shall have power to admit or reject a proof for the purpose of voting, but his decision shall be subject to appeal to the Court. If he is in doubt whether a proof should be admitted or rejected he shall mark it as objected to and allow the creditor to vote subject to the vote being declared invalid in the event of the objection being sustained.
For the purpose of voting at any voluntary liquidation meeting a secured creditor shall, unless he surrenders his security, lodge with the liquidator or where there is no liquidator at the registered office of the company before the meeting a statement giving the particulars of his security, the date when it was given and the value at which he assesses it.
(1) The chairman shall cause minutes of the proceedings at the meeting to be drawn up and entered in a book kept for that purpose and the minutes shall be signed by him or by the chairman of the next ensuing meeting.
(2) A list of creditors and contributories present at every meeting may be made and kept in Form 72.
A creditor or a contributory may vote either in person or by proxy. Where a person is authorized in manner provided by section 147(3) to represent a corporation at any meeting of creditors or contributories that person shall produce to the liquidator or the chairman of the meeting a certificate under section 147(5). The succeeding rules as to proxies shall not (unless otherwise directed by the Court) apply to a Court meeting of creditors or contributories prior to the first meeting.
Every instrument of proxy shall be in accordance with Form 73 or 74 and every written part thereof shall be in the handwriting of the person giving the proxy or of any manager or clerk or other person in his regular employment or of a commissioner for oaths.
General and special forms of proxy shall be sent to the creditors and contributories with the notice summoning the meeting, and neither the name nor description of the Official Receiver or liquidator or any other person shall be printed or inserted in the body of any instrument of proxy before it is so sent.
A creditor or a contributory may give a general proxy to his manager or clerk or any other person in his regular employment. In any such case the instrument of proxy shall state the relation in which the person to act thereunder stands to the creditor or contributory.
A creditor or a contributory may give a special proxy to any person to vote at any specified meeting or adjournment thereof -
(a) for or against the appointment or continuance in office of any specified person as liquidator or member of the committee of inspection; and (b) on all questions relating to any matter other than those referred to above and arising at the meeting or an adjournment thereof.
Where it appears to the satisfaction of the Court that any solicitation has been used by or on behalf of a liquidator in obtaining proxies or in procuring his appointment as liquidator except by the direction of a meeting of creditors or contributories, the Court if it thinks fit may order that no remuneration be allowed to the person by whom or on whose behalf the solicitation was exercised notwithstanding any resolution of the committee of inspection or of the creditors or contributories to the contrary.
A creditor or a contributory in any winding-up may appoint the liquidator or if there is no liquidator the chairman of a meeting to act as his general or special proxy.
No person acting either under a general or a special proxy shall vote in favour of any resolution which would directly or indirectly place himself, his partner or employer in a position to receive any remuneration out of the estate of the company otherwise than as creditor rateably with the other creditors of the company. Provided that where any person holds special proxies to vote for an application to the Court in favour of the appointment of himself as liquidator he may use the said proxies and vote accordingly.
(1) A proxy in Form 73 or 74 intended to be used at the first meeting of creditors or contributories, or an adjournment thereof, shall be lodged with the Official Receiver not later than the time mentioned for that purpose in the notice convening the meeting or the adjourned meeting, which time shall not be earlier than twelve o'clock noon of the day but one before, nor later than twelve o'clock noon of the day before the day appointed for such meeting, unless the Court otherwise directs.
(2) In every other case a proxy shall be lodged with the liquidator in a winding-up by the Court or with the company at its registered office for a meeting under section 260, and with the liquidator or if there is no liquidator with the person named in the notice convening the meeting to receive the same in a voluntary winding-up not later than twelve o'clock noon of the day before the meeting or adjourned meeting at which it is to be used.
(3) No person who is a minor shall be ap
Where the Official Receiver who holds any proxies cannot attend the meeting for which they are given, he may, in writing, depute some person to use the proxies on his behalf, and in such manner as he may direct.
The proxy of a creditor who is blind or incapable of writing may be accepted, if the creditor has attached his signature or mark thereto in the presence of a witness, who shall add to his signature his description and residence: Provided that all insertions in the proxy are in the handwriting of the witness and the witness shall have certified at the foot of the proxy that all the insertions have been made by him at the request of the creditor, and in his presence before he attached his signature or mark.
(1) The remuneration of a liquidator, unless the Court shall otherwise order, shall be fixed by the committee of inspection, and shall be in the nature of a commission or percentage of which one part shall be payable on the amount realized, after deducting the sums (if any) paid to secured creditors (other than debenture holders) out of the proceeds of their securities, and the other part on the amount distributed in dividend.
(2) If the Official Receiver is of the opinion that the remuneration of a liquidator as fixed by the committee of inspection is unnecessarily large, the Official Receiver may apply to the Court and thereupon the Court shall fix the amount of the remuneration of the liquidator.
(3) If there is no committee of inspection the remuneration of the liquidator shall, unless the Court shall otherwise order, be fixed by the scale of fees and percentages for the time being payable on realizations and distributions by the Official Receiver as liquidator
Except as provided by the Act or these Rules, a liquidator shall not, under any circumstances whatever, make any arrangement for, or accept from any solicitor, auctioneer, or any other person connected with the company of which he is liquidator, or who is employed in or in connection with the winding-up of the company, any gifts, remuneration, or pecuniary or other consideration or benefit whatever beyond the remuneration to which under the Act and these Rules he is entitled as liquidator, nor shall he make any arrangement for giving up, or give up any part of the remuneration to any such solicitor, auctioneer, or other person.
Neither the liquidator nor any member of the committee of inspection of a company shall, while acting as liquidator or member of the committee, except by leave of the Court, either directly or indirectly, by himself or any partner, clerk, agent or servant become purchaser of any part of the company's assets. Any purchase made contrary to the provision of this rule may be set aside by the Court on the application of the Official Receiver or any creditor or contributory and the Court may make such order as to costs as the Court shall think fit.
Where the liquidator carries on the business of the company, he shall not, without the express sanction of the Court, purchase goods for the carrying on of the business from any person whose connection with the liquidator is of such a nature as would result in the liquidator obtaining any profit arising out of the transaction.
No member of a committee of inspection shall, except under and with the sanction of the Court, directly or indirectly, by himself or any employer, partner, clerk, agent or servant, be entitled to derive any profit from any transaction arising out of the winding-up, or to receive out of the assets any payment for services rendered by him in connection with the administration of the assets, or for any goods supplied by him to the liquidator for or on account of the company. In a winding-up by the Court if it appears to the Official Receiver or in a voluntary winding-up if it appears to the committee of inspection or to any meeting of creditors or contributories that any profit or payment has been made contrary to the provisions of this rule, they may disallow the payment or recover the profit, as the case may be, on the audit of the liquidators accounts or otherwise.
In any case in which the sanction of the Court is obtained under the two last preceding rules, the cost of obtaining the sanction shall be borne by the person in whose interest the sanction is obtained, and shall not be payable out of the company's assets.
Where the sanction of the Court to a payment to a member of a committee of inspection for services rendered by him in connection with the administration of the company's assets is obtained, the order of the Court shall specify the nature of the services and the sanction shall only be given where the service performed is of a special nature. Except by the express sanction of the Court no remuneration shall, under any circumstances, be paid to a member of a committee for services rendered by him in the discharge of the duties attaching to his office as a member of that committee.
A liquidator before making application for his release in Form 76 shall give notice of his intention so to do in Form 75 to all the creditors who have proved their debts and to all the contributories and shall send with the notice a summary of all receipts and payments in the winding-up in Form 77.
(1) A liquidator who desires to resign his office shall summon separate meetings of the creditors and contributories of the company to decide whether or not the resignation shall be accepted.
(2) If the creditors and contributories by ordinary resolutions agree to accept the resignation of the liquidator he shall file with the Registrar, the Official Receiver and the Registrar of Companies a memorandum of his resignation and the resignation shall thereupon take effect.
(3) In any other case the liquidator shall report to the Court the result of the meetings and thereupon the Court may, upon the application of the liquidator, determine whether or not his resignation shall be accepted and may give such directions and make such orders as in its opinion shall be necessary.
(4) On the Court pronouncing a determination that a resignation shall be accepted the liquidator shall forthwith file a notice thereof with the Official Receiver and the Registrar of Companie
The liquidator shall cease to hold office upon a receiving order in bankruptcy being made against him and for the purpose of the application of the Act and these Rules he shall be deemed to have been removed.
(1) Upon a liquidator resigning or being released or removed from his office, he shall deliver over to the Official Receiver or the new liquidator, as the case may be, all books kept by him and all other books, documents, papers, and accounts in his possession relating to the office of liquidator, and the release of a liquidator shall not take effect unless and until he has delivered over to the Official Receiver or the new liquidator, as the case may be, all the books, documents, papers and accounts aforesaid.
(2) The Court may, at any time during the progress of the liquidation, on the application of the liquidator or the Official Receiver, direct that such of the books, papers, and documents of the company or of the liquidator as are no longer required for the purpose of the liquidation, may be sold, destroyed or otherwise disposed of.
All payments out of the Companies Liquidation Account shall be made by the Official Receiver.
Where application is made in Form 78 to the Official Receiver to authorize the liquidator in a winding-up by the Court to make his payments into and out of a special bank account, the Official Receiver may grant authorization in Form 79 for such time and on such terms as he may think fit, and may at any time order the account to be closed if he is of the opinion that the account is no longer required.
In a winding-up by the Court the provisional liquidator, until a liquidator is appointed by the Court, and thereafter the liquidator, shall keep a book to be called the "Record Book" in which he shall record all minutes, all proceedings had and resolutions passed at any meeting of creditors or contributories, or of the committee of inspection, and all such matters as may be necessary to give a correct view of his administration of the company's affairs, but he shall not be bound to insert in the "Record Book" any document of a confidential nature (such as the opinion of advocate on any matter affecting the interest of the creditors or contributories), nor need he exhibit the document to any person other than a member of the committee of inspection or the Official Receiver.
(1) In a winding-up by the Court the provisional liquidator, until a liquidator is appointed by the Court, and thereafter the liquidator, shall keep a book to be called the "Cash Book" in which he shall (subject to the provisions of the rule as to trading accounts) enter from day to day the receipts and payments made by him.
(2) In a winding-up by the Court the liquidator other than the Official Receiver shall submit the Record Book and Cash Book, together with any other requisite books and vouchers, to the committee of inspection (if any) when required, and not less than once every three months.
(3) In a creditor's voluntary winding-up the liquidator shall keep such books as the committee of inspection or if there is no such committee as the creditors direct and all books kept by the liquidator shall be submitted to the committee of inspection or if there is no such committee to the creditors with any other books, documents, papers and accounts in his possession r
(1) Where the cash balance standing to the credit of the Companies Liquidator Account is in excess of the amount which, in the opinion of the Official Receiver, is required for the time being to answer demands, he shall notify the Accountant General to invest that excess and any interest derived from the said investment shall be credited to the Consolidated Fund.
(2) Where any part of the money so invested is in the opinion of the Official Receiver required to answer any demands, the Official Receiver shall notify the Accountant General of the amount so required and the Accountant General shall thereupon repay to the Official Receiver such sum as may be required and for that purpose may direct the sale of such part of the said securities as may be necessary.
The committee of inspection shall not less than notice in every three months audit the liquidators Cash Book and certify therein under their hands in Form 80 the day on which the said book was audited.
(1) The liquidator shall, at the expiration of six months from the date of the winding-up order, and at the expiration of every succeeding six months thereafter until his release, transmit to the Official Receiver a copy of the Cash Book for the period in duplicate, together with the necessary vouchers and copies of the certificates of audit by the committee of inspection. He shall also forward with the first accounts a summary of the company's statement of affairs, showing thereon in red ink the amounts realized, and explaining the cause of the non-realization of the assets as may be unrealized. The liquidator shall also at the end of every six months forward to the Official Receiver, with his accounts, a report upon the position of the company in such form as the Official Receiver may direct.
(2) When the assets of the company have been fully realized and distributed, the liquidator shall forthwith send in his accounts to the Official Receiver, although the six months ma
Where the liquidator carries on the business of the company, he shall keep a separate account of the trading, and shall incorporate in the Cash Book the total weekly amount of the receipts and payments on the trading account.
The trading account in Form 82 shall from time to time, and not less than once in every month, be verified by affidavit in Form 83 and the liquidator shall thereupon submit the account to the committee of inspection (if any) or such member thereof as may be appointed by the committee for that purpose, who shall examine and certify the same.
Where property forming part of a company's assets is sold by the liquidator through an auctioneer or agent, the gross proceeds of the sale shall be paid over by the auctioneer or agent, and the charges and expenses connected with the sale shall afterwards be paid to the auctioneer or agent, on the production of the necessary certificate of the Taxing Officer. Every liquidator by whom the auctioneer or agent is employed shall, unless the Court otherwise orders, be accountable for the proceeds of every such sale.
Where an order has been made for the winding-up of a company the Judge shall have power without further consent to order the transfer to him of any action cause or matter pending brought or continued by or against the company.
Where any action brought by or against a company against which a winding-up order has been made is so transferred the Court may determine and deal with any application matter or proceeding which, if the action had not been transferred, would have been determined in Chambers.
Every solicitor, manager, accountant, auctioneer, broker or other person employed by a liquidator in a winding-up by the Court shall on request by the liquidator in Form 84, to be made a sufficient time before the declaration of a dividend, deliver his bill of costs or charges to the Taxing Officer for the purpose of taxation; and if he fails to do so within the time stated in the request or such extended time as the Registrar may allow, the liquidator shall declare and distribute the dividend without regard to such person's claim.
Where a bill of costs or charges in any winding-up has been lodged with the Taxing Officer he shall give notice of an appointment to tax to the liquidator and to the person to or by whom the bill of costs or charges is or are to be paid.
Every person whose bill of costs or charges in a winding-up by the Court is to be taxed, shall furnish a copy of his bill or charges so to be taxed to the liquidator.
The liquidator may attend or be represented on the taxation.
Upon the taxation of any bill of costs or charges being completed the taxing officer shall issue to the person presenting the bill for taxation his allowance or certificate of taxation in Form 85.
Where the bill of costs or charges of any solicitor, manager, accountant, auctioneer, broker or other person employed by a liquidator is payable out of the assets of the company a certificate in writing, signed by the liquidator, shall, on the taxation, be produced to the Taxing Officer setting forth any special terms of remuneration which have been agreed to and in the case of the bill of costs of a solicitor, a copy of the resolution or other authority sanctioning the employment.
(1) Where a liquidator or special manager in a winding-up by the Court receives remuneration for his services as such, no payment shall be allowed in his accounts in respect of the performance by any other person of the ordinary duties which are required by the Act or these Rules to be performed by himself.
(2) Where a liquidator is a solicitor he may contract that the remuneration for his services as liquidator shall include all professional services.
Where any party to or person affected by any proceedings desires to make an application for an order that he be allowed his costs or any part of them incidental to the proceedings and the application is not made at the time of the proceedings -
(a) the party or person shall serve notice of his intended application on the company or if the company is in liquidation on the liquidator;
(b) the company or the liquidator may appear on the application and object thereto; and (c) no costs of or incidental to the application shall be allowed to the applicant unless the Court is satisfied that the application could not have been made at the time of the proceedings.
No payments in respect of bills or charges of solicitors, managers, accountants, auctioneers, brokers or other persons other than payments for costs and expenses incurred and sanctioned under rule 45, and payments of bills which have been taxed and allowed under orders made for the taxation thereof, shall be allowed out of the assets of the company without proof that the same have been considered and allowed by the Taxing Officer. The Taxing Officer shall satisfy himself before passing the bills or charges that the employment of a solicitor or other person to assist the liquidator in the performance of his duties in respect of the matters mentioned in the bills or charges has been duly sanctioned. Provided that the Official Receiver when acting as liquidator may without taxation pay and allow the costs and charges of any person employed by him where the costs and charges are within the scale usually allowed by the Court and do not exceed the sum of RM100.
Nothing contained in rule 173 shall apply to or affect costs which, in the course of legal proceedings by or against a company which is being wound up by the Court, are ordered by the Court in which the proceedings are pending or a Judge thereof to be paid by the company or the liquidator, or the rights of the person to whom the costs are payable.
Where the attendance of the liquidators solicitor is required in any proceedings in Court or Chambers, the liquidator need not attend in person, except in cases where his presence is necessary in addition to that of his solicitor, or the Court directs him to attend.
In the case of a company wound up voluntarily, the winding-up is deemed to be concluded at the date of the dissolution of the company, unless at that date any funds or assets of the company remain unclaimed or undistributed in the hands of or under the control of the liquidator, or any person who has acted as liquidator, in which case the winding-up shall not be deemed to be concluded until the funds or assets have either been distributed or paid into the Companies Liquidation Account.
In a voluntary winding-up the statements with respect to the proceedings in and the position of the liquidation of a company, the winding-up of which is not concluded within six months after the appointment of a liquidator, shall be sent to the Registrar of Companies and Official Receiver twice in every year as follows:
(1) The statements shall be sent within one month after the expiration of the six months, or within such extended period as the Official Receiver may for special reasons sanction. In cases in which the assets of the company have been fully realized and distributed before the expiration of a half-yearly interval a final statement shall be sent forthwith.
(2) Subject to rule 178, Form 86 and where applicable Forms 88, 89 and 90 with such variations as circumstances may require, shall be used, and the directions specified in the Form shall (unless the Official Receiver otherwise directs) be observed in reference to every statement.
(3) Every statem
Where a liquidator has not, during any period for which a statement has to be sent, received or paid any money on account of the company, he shall at the time when he is required to transmit his statement, send to the Registrar of Companies and the Official Receiver the prescribed statement in Form 86 containing the particulars therein required with respect to the proceedings in and the position of the liquidation, and with the statement shall also send a statutory declaration of no receipts or payments in Form 87.
(1) In a voluntary winding-up all other money in the hands or under the control of a liquidator of a company, representing unclaimed or undistributed assets, which under subsection (1) of section 286 the liquidator is to pay into the Companies Liquidation Account, shall be ascertained as on the date to which the statement of receipts and payments sent in to the Registrar of Companies and the Official Receiver is brought down, and the amount to be paid to the Companies Liquidation Account shall be the minimum balance of such money which the liquidator has had in his hands or under his control during the six months immediately preceding the date to which the statement is brought down, less such part (if any) thereof as the Official Receiver may authorize him to retain for the immediate purposes of the liquidation. Such amount shall be paid into the Companies Liquidation Account within fourteen days from the date to which the statement of account is made up.
(2) Notwithstandi
In a voluntary winding-up every person who has acted as liquidator of any company, whether the liquidation has been concluded or not, shall furnish to the Official Receiver particulars of any money in his hands or under his control representing unclaimed or undistributed assets of the company and such other particulars as the Official Receiver may require for the purpose of ascertaining or getting in any money payable into the Companies Liquidation Account. The Official Receiver may require the particulars to be verified by affidavit in Form 91.
In a voluntary winding-up the Official Receiver may at any time order any person aforesaid to submit an account verified by affidavit of the sums received and paid by him as liquidator of the company and may direct and enforce an audit of the account.
An application by a person claiming to be entitled to any money paid into the Companies Liquidation Account in pursuance of section 286, shall be made in such form and manner as the Official Receiver may from time to time direct, and shall, unless the Official Receiver otherwise directs, be accompanied by the certificate of the liquidator that the person claiming is entitled and such further evidence as the Official Receiver may direct.
A liquidator who requires to make payments out of money paid into the bank in pursuance of section 286 either by way of distribution or in respect of the cost and expenses of the proceedings, shall apply in such form and manner as the Official Receiver may direct, and the Official Receiver may thereupon either make an order for payment to the liquidator of the sum required by him for the purposes aforesaid, or may direct cheques to be issued to the liquidator for transmission to the persons to whom the payments are to be made.
Any person appointed to act for the Official Receiver shall during his tenure of office have all the status, rights and powers, and be subject to all the liabilities of the Official Receiver.
When the Official Receiver is removed from his office, notice of the order removing him shall be published in the Gazette.
A Deputy Official Receiver, Senior Assistant Official Receiver or an Assistant Official Receiver may represent the Official Receiver in all proceedings in Court or in any administrative or other matter.
Where a company against which a winding-up order has been made has no available assets, the liquidator shall not be required to incur any expense in relation to the winding-up without the express directions of the Court.
Where there is no committee of inspection any functions of the committee of inspection, subject to the directions of the Court, may be exercised by the Official Receiver.
An appeal to the Court from an act or decision of the Official Receiver, acting otherwise than as liquidator of a company, shall be brought within twenty-one days from the time when the act or decision appealed against was done, pronounced or made.
(1) The Registrar shall keep books according to Forms 92 and 93 in the Schedule, and the particulars given under the different heads in the books shall be entered forthwith after each proceeding has been concluded.
(2) The books shall at all times be open to inspection by the Official Receiver, and the officers of the Court whose duty it is to keep the books prescribed by these Rules shall furnish the Official Receiver with such information and returns as the Official Receiver may from time to time require.
(1) All notices subsequent to the making by the Court of a winding-up order in pursuance of the Act shall be gazetted by the Official Receiver in any of the Forms 94 (1) , 94 (2) , 94 (3) , 94 (4) , 94 (5) , 94 (6) , 94 (7) , 94 (8) or 94 (9) .
(2) Where any winding-up order is amended and also in any case in which any matter which has been gazetted has been amended or altered or in which a matter has been wrongly or inaccurately gazetted, the Official Receiver shall re-gazette the order or matter with the necessary amendments and alternations in the prescribed form, at the expense of the company's assets or otherwise as the Court may direct.
(1) Whenever the Gazette contains any advertisement relating to any winding-up proceedings the Official Receiver or liquidator as the case may be shall file with the proceedings a memorandum in Form 95 referring to and giving the date of the advertisement.
(2) In the case of an advertisement in a local newspaper, the Official Receiver or liquidator as the case may be shall place on the file a memorandum giving the name of the newspaper and the date of the issue in which the advertisement appears and having pasted on it the advertisement cut out of the newspaper.
(3) For this purpose one copy of each local newspaper in which any advertisement relating to any winding-up proceeding in the Court is inserted, shall be left with the Official Receiver or liquidator as the case may be by the person who inserts the advertisement.
(4) A memorandum under this rule shall be prima facie evidence that the advertisement to which it refers was duly inserted in the issue of
The Court may, in any case in which it shall see fit extend or abridge the time appointed by these Rules or fixed by any order of the Court for doing any act or taking any proceeding.
(1) No proceedings under the Act or the Rules shall be invalidated by any formal defect or any irregularity, unless the Court is of the opinion that substantial injustice has been caused by the defect or irregularity, and that the unjustice cannot be remedied by any order of the Court.
(2) No defect or irregularity in the appointment or election of a receiver, liquidator, or member of a committee of inspection shall vitiate any act done by him in good faith.
(1) The fees payable in respect of winding-up of companies under these Rules are prescribed in the Second Schedule.
(2) Items 125(c), 126, 128, 129 and 130 in the Third Schedule to the Rules of the Supreme Court 1957 [L.N.321/57] are hereby deleted.
(3) The Scale of Fees specified in the Tenth Schedule to the Companies Ordinance of Sarawak, is hereby revoked.
The Companies (Winding-up) Rules 1946 of West Malaysia and the Companies (Winding-up) Rules as specified in the Twelfth Schedule to the Companies Ordinance of Sarawak, are hereby revoked.
(Rule 7)
FORMS OF SUMMONS (GENERAL)
(Title)
LET (a) ................... attend at ................. on ................... the ......
day of ....... 20 ....., at....... o'clock in the ...................... noon on the hearing of an application of (b) ................ for an order that (c) .................
NOTE -
If you do not attend, either in person or by your solicitor, at the time and place above-mentioned, such order will be made, and proceedings taken, as the Judge (or Registrar) may think just and expedient.
(a) Name of respondent
(b) Name and description of applicant (c) State object of application
(Rule 22)
PETITION
(Title)
(a) insert full name, title, etc., of petitioner
The humble petition of (a) .........
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