C2C3C4 PART VWINDING UP OF COMPANIES REGISTERED UNDER F12the Companies Act 2006
Pt. V modified (26.6.2020) by Corporate Insolvency and Governance Act 2020 (c. 12), ss. 13, 49(1) (with ss. 2(2), 5(2))
Pts. 1-5 modified by S.R. 2004/307 (as amended (1.10.2006) by Limited Liability Partnerships (Amendment) Regulations (Northern Ireland) 2006 (S.R. 2006/377), reg. 3, Sch. 2; (temp.) (27.4.2020 retrospective) by virtue of Corporate Insolvency and Governance Act 2020 (c. 12), Sch. 11 para. 8(1)(2), 14 (with ss. 2(2), 5(2)); (26.6.2020) by The Limited Liability Partnerships (Amendment etc.) Regulations 2020 (S.I. 2020/643), reg. 1(1), Sch. 2 (with reg. 3); (16.2.2021) by The Limited Liability Partnerships (Amendment etc.) Regulations 2021 (S.I. 2021/60), reg. 1(1), Sch. 2 (with reg. 4(2)))
Pts. 1-5 applied (with modifications) (4.1.2024) by S.I. 2021/716, Sch. 1A para. 3 (as inserted by The Payment and Electronic Money Institution Insolvency (Amendment) Regulations 2023 (S.I. 2023/1399), reg. 1(2), Sch. 1)
CHAPTER IIVOLUNTARY WINDING UP (INTRODUCTORY AND GENERAL)
Resolutions for, and commencement of, voluntary winding up
Circumstances in which company may be wound up voluntarily70
1 F1
A company may be wound up voluntarily—
a
when the period (if any) fixed for the duration of the company by its articles expires, or the event (if any) occurs, on the occurrence of which its articles provide that the company is to be dissolved, and the company in general meeting has passed a resolution requiring it to be wound up voluntarily;
b
if the company resolves by special resolution that it be wound up voluntarily;
c
F2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F31A
Before a company passes a resolution for voluntary winding up it must give written notice of the resolution to the holder of any qualifying floating charge to which Article 59A applies.
1B
Where notice is given under paragraph (1A) a resolution for voluntary winding up may be passed only—
a
after the end of the period of 5 business days beginning with the day on which the notice was given, or
b
if the person to whom the notice was given has consented in writing to the passing of the resolution.
Notice of resolution to wind up voluntarily71
1 F6
When a company has passed a resolution for voluntary winding up, it shall, within 14 days from the passing of the resolution, give notice of the resolution by advertisement in the Belfast Gazette.
2
If default is made in complying with this Article, the company and every officer of it who is in default shall be guilty of an offence and, for continued contravention, shall be guilty of a continuing offence.
3
For the purposes of paragraph (2) the liquidator is deemed an officer of the company.
Commencement of voluntary winding up72 F7
A voluntary winding up is deemed to commence at the time of the passing of the resolution for voluntary winding up.
Consequences of resolution to wind up
Effect on business and status of company73
1
In the case of a voluntary winding up, the company shall from the commencement of the winding up cease to carry on its business, except so far as may be required for its beneficial winding up.
2 F8
However, the corporate state and corporate powers of the company, notwithstanding anything to the contrary in its articles, continue until the company is dissolved.
Avoidance of share transfers, etc., after winding‐up resolutionC1F974
Any transfer of shares, not being a transfer made to or with the sanction of the liquidator, and any alteration in the status of the company's members, made after the commencement of a voluntary winding up is void.
Declaration of solvency
Statutory declaration of solvency75 F10
1
Where it is proposed to wind up a company voluntarily, the directors (or, in the case of a company having more than 2 directors, the majority of them) may at a directors' meeting make a statutory declaration to the effect that they have made a full inquiry into the company's affairs and that, having done so, they have formed the opinion that the company will be able to pay its debts in full, together with interest at the official rate (as defined in Article 5(1)), within such period, not exceeding 12 months from the commencement of the winding up, as may be specified in the declaration.
2
Such a declaration by the directors has no effect for the purposes of this Order unless—
a F10
it is made within the 5 weeks immediately preceding the date of the passing of the resolution for winding up, or on that date but before the passing of the resolution, and
b
it embodies a statement of the company's assets and liabilities as at the latest practicable date before the making of the declaration.
3 F10
4
A director making a declaration under this Article without having reasonable grounds for the opinion that the company will be able to pay its debts in full, together with interest at the official rate, within the period specified shall be guilty of an offence.
5 F10
If the company is wound up in pursuance of a resolution passed within 5 weeks from the making of the declaration, and its debts (together with interest at the official rate) are not paid or provided for in full within the period specified, it is to be presumed (unless the contrary is shown) that the director did not have reasonable grounds for his opinion.
6
If F14a copy of a declaration required by paragraph (3) to be delivered to the registrar is not so delivered within the time specified by that paragraph, the company and every officer of it who is in default shall be guilty of an offence and, for continued contravention, shall be guilty of a continuing offence.
Distinction between “members'” and “creditors'” voluntary winding up76 F11
A winding up in the case of which a directors' statutory declaration in accordance with Article 75 has been made is a “members' voluntary winding up”; and a winding up in the case of which such a declaration has not been made is a “creditors' voluntary winding up”.
Words in Pt. V heading substituted (1.10.2009) by Companies Act 2006 (Consequential Amendments, Transitional Provisions and Savings) Order 2009 (S.I. 2009/1941), arts. 2(1), 8, Sch. 1 para. 111(2) (with art. 10)