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Act of Sederunt (Rules of the Court of Session 1994) 1994

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PART VWINDING UP OF COMPANIES
Interpretation of this Part

74.20.  In this Part, “the petition” means a petition under section 124 of the Act of 1986 (petition to wind up a company).

Petition to wind up a company

74.21.  (1)  The petition shall include averments in relation to–

(a)the petitioner, if other than the company, and his title to present the petition;

(b)in respect of the company–

(i)its current and any previous registered name;

(ii)the address of its registered office, and any previous such address within 6 months immediately before the presentation of the petition so far as known to the petitioner;

(iii)a statement of the nature of its business and objects, the amount of its capital (nominal and issued) indicating what part is called up, paid up or credited as paid up, and the amount of the assets of the company so far as known to the petitioner;

(c)whether, to the knowledge of the petitioner, a receiver has been appointed in respect of any part of the property of the company or a liquidator has been appointed for the voluntary winding up of the company;

(d)the grounds on which the petition proceeds; and

(e)the name and address of the person proposed to be appointed, and his qualification to act, as interim liquidator.

Intimation, service and advertisement under this Part

74.22.  (1)  Unless the court otherwise directs, the order under rule 14.5 (first order in petitions) for intimation, service and advertisement of the petition shall include a requirement–

(a)to serve the petition–

(i)where the petitioner is not the company, on the company;

(ii)where the company is being wound up voluntarily and a liquidator has been appointed, on the liquidator; and

(iii)where a receiver or administrator has been appointed, on the receiver or administrator, as the case may be;

(b)where the company is an authorised institution or former authorised institution within the meaning assigned in section 106(1) of the Banking Act 1987(1) and the petitioner is not the Bank of England, to serve the petition on the Bank of England; and

(c)to advertise the petition forthwith–

(i)once in the Edinburgh Gazette; and

(ii)once in one or more of such newspapers as the court shall direct.

(2) Subject to rule 14.6(2) (application to shorten or extend the period of notice), the period of notice for lodging answers to the petition shall be 8 days.

(3) An advertisement under paragraph (1) shall include–

(a)the name and address of the petitioner and, where the petitioner is the company, its registered office;

(b)the name and address of the agent for the petitioner;

(c)the date on which the petition was presented;

(d)the nature of the order sought;

(e)where a provisional liquidator has been appointed by the court, his name, address and the date of his appointment;

(f)the period of notice for lodging answers; and

(g)a statement that any person who intends to appear in the petition must lodge answers within the period of notice.

Remits from one court to another

74.23.  (1)  An application under section 120(3)(a)(i) of the Act of 1986(2) (application for remit of petition to a sheriff court) shall be made by motion.

(2) An application under–

(a)section 120(3)(a)(ii) of the Act of 1986 (application for remit of petition from a sheriff court to the court), or

(b)section 120(3)(b) of that Act (application for remit of petition from one sheriff court to another),

shall be made by petition.

Substitution of creditor or contributory for petitioner

74.24.  (1)  Where a petitioner in the petition–

(a)is subsequently found not entitled to present the petition,

(b)fails to make intimation, service and advertisement as directed by the court,

(c)moves or consents to withdraw the petition or to allow it to be dismissed or refused,

(d)fails to appear when the petition is called for hearing, or

(e)appears, but does not move for an order in terms of the prayer of the petition,

the court may, on such terms as it thinks fit, sist as petitioner in place of the original petitioner any creditor or contributory who, in the opinion of the court, is entitled to present the petition.

(2) An application by a creditor or a contributory to be sisted under paragraph (1)–

(a)may be made at any time before the petition is dismissed or refused, and

(b)shall be made by note;

and, if necessary, the court may continue the petition for a specified period to allow a note to be presented.

Provisional liquidator

74.25.  (1)  An appplication to appoint a provisional liquidator under section 135 of the Act of 1986 may be made–

(a)by the petitioner, in the prayer of the petition or, if made after the petition has been presented, by note; or

(b)by a creditor or contributory of the company, the company, the Secretary of State or a person entitled under any enactement to present a petition, by note.

(2) The application mentioned in paragraph (1) shall include averments in relation to–

(a)the grounds for the appointment of the provisional liquidator;

(b)the name and address of the person proposed to be appointed, and his qualification to act, as provisional liquidator; and

(c)whether, to the knowledge of the applicant, an administrator has been appointed to the company or a receiver has been appointed in respect of any part of its property or a liquidator has been appointed voluntarily to wind it up.

(3) Where the court decides to appoint a provisional liquidator–

(a)it shall pronounce an interlocutor making the appointment and specifying the functions to be carried out by him in relation to the affairs of the company; and

(b)the applicant shall forthwith send a certified copy of such interlocutor to the person appointed.

(4) On receiving a certified copy of an interlocutor pronounced under paragraph (3), the provisional liquidator shall intimate his appointment forthwith–

(a)once in the Edinburgh Gazette; and

(b)once in one or more of such newspapers as the court has directed.

(5) An application for the discharge of a provisional liquidator shall be made by note.

Appointment of a liquidator

74.26.  (1)  Where the court pronounces an interlocutor appointing a liquidator–

(a)the Deputy Principal Clerk shall send a certified copy of that interlocutor to the liquidator;

(b)the court may, for the purposes of rule 4.18(4) of the Insolvency Rules (liquidator to give notice of appointment), give such direction as it thinks fit as to advertisement of such appointment.

(2) An application to appoint a liquidator under section 139(4) of the Act of 1986 shall be made by note.

Applications and appeals in relation to a statement of affairs

74.27.  (1)  An application under section 131(5) of the Act of 1986 for–

(a)release from an obligation imposed under section 131(1) or (2) of that Act, or

(b)an extension of time for the submission of a statement of affairs,

shall be made by note.

(2) A note under paragraph (1) shall be served on the liquidator or provisi onal liquidator, as the case may be, who may lodge–

(a)answers to the note; or

(b)a report on any matters which he considers should be drawn to the attention of the court.

(3) Where the liquidator or provisional liquidator lodges a report under paragraph (2), he shall forthwith send a copy of it to the noter.

(4) Where the liquidator or the provisional liquidator does not appear at any hearing on the note, a certified copy of the interlocutor disposing of the note shall be sent to him forthwith by the noter.

(5) An appeal under rule 4.9(6) of the Insolvency Rules (appeal against refusal by liquidator of allowance towards expenses of preparing statement of affairs) shall be made by note.

Appeals against adjudication of claims

74.28.  (1)  An appeal under section 49(6) of the Bankruptcy (Scotland) Act 1985(3) as applied by rule 4.16 of the Insolvency Rules (appeal by a creditor or contributory of the company against a decision of the liquidator), shall be made by note.

(2) A note under paragarph (1) shall be served on the liquidator.

(3) On such a note being served on him, the liquidator shall send the claim in question, and a copy of his adjudication, forthwith to the Deputy Principal Clerk who shall cause them to be lodged in process.

(4) After the note has been disposed of, the Deputy Principal Clerk shall return the claim and the adjudication to the liquidator with a copy of the interlocutor disposing of the note.

Removal of liquidator

74.29.  An application by a creditor of the company for an order–

(a)under section 171(3) of the Act of 1986 (order directing a liquidator to summon a meeting of creditors for the purpose of removing him), or

(b)under section 172 of that Act (order for removal of a liquidator),

shall be made by note.

Application in relation to remuneration of liquidator

74.30.  (1)  An application–

(a)by a liquidator under rule 4.34 of the Insolvency Rules (application to increase remuneration), or

(b)by a creditor of the company under rule 4.35 of those Rules (application to reduce liquidator’s remuneration),

shall be made by note.

(2) A note under paragraph (1)(b) shall be served on the liquidator.

Application to appoint a special manager

74.31.  (1)  An application under section 177 of the Act of 1986 (application for the appointment of a special manager) shall be made by note.

(2) A bond of caution certified by the noter under rule 4.70(4) of the Insolvency Rules shall be sent to the Petition Department by the noter.

(3) After the Deputy Principal Clerk has satisfied himself as to the sufficiency of caution under rule 33.7(1) of these Rules, the clerk of session shall issue to the person appointed to be special manager a certified copy of the interlocutor appointing him.

(4) A special manager may, before the expiry of the period for finding caution, apply to the insolvency judge for an extension of that period.

Other applications

74.32.  (1)  An application under the Act of 1986 or any subordinate legislation made under that Act, or Part VII of the Companies Act 1989, in relation to a winding up by the court not mentioned in this Part shall–

(a)if made by a party to the petition, be made by motion; or

(b)in any other case, be made by note.

(2) At the hearing of a motion under paragraph (1)(a), the court may order that the application be made by note; and, in such a case, shall make an order for the lodging of answers to the note in process within such period as it thinks fit.

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