4.106. (NO CVL APPLICATION)
(1) This Rule applies where a person is appointed as liquidator either by a meeting of creditors or by a meeting of contributories.
(2) The chairman of the meeting shall certify the appointment, but not unless and until the person appointed has provided him with a written statement to the effect that he is an insolvency practitioner, duly qualified under the Order to be the liquidator, and that he consents so to act.[FORM 4.28] [FORM 4.29]
(3) The liquidator's appointment is effective from the date on which the appointment is certified, that date to be endorsed on the certificate.
(4) The chairman of the meeting (if not himself the official receiver) shall send the certificate to the official receiver.
(5) The official receiver shall in any case send the certificate to the liquidator and file a copy of it in court.
[E.R.4.100]
4.107-CVL.—(1) This Rule applies where a person is appointed as liquidator either by a meeting of creditors or by a meeting of the company.
(2) Subject to paragraph (4), the chairman of the meeting shall certify the appointment, but not unless and until the person appointed has provided him with a written statement to the effect that he is an insolvency practitioner, duly qualified under the Order to be the liquidator, and that he consents so to act; the liquidator's appointment takes effect upon the passing of the resolution for that appointment.[FORM 4.28] [FORM 4.29]
(3) Subject to paragraph (4), the chairman shall send the certificate forthwith to the liquidator, who shall keep it as part of the records of the liquidation.
(4) Paragraphs (2) and (3) need not be complied with in the case of a liquidator appointed by a company meeting and replaced by another liquidator appointed on the same day by a creditors' meeting.
[E.R.4.101-CVL]
4.108-CVL. Where a vacancy in the office of liquidator occurs in the manner mentioned in Article 90, a meeting of creditors to fill the vacancy may be convened by any creditor or, if there were more liquidators than one, by the continuing liquidators.
[E.R.4.JOJA-CVL]
4.109. (NO CVL APPLICATION)
(1) This Rule applies where the liquidator is appointed by the court under Article 118(4) (different persons nominated by creditors and contributories) or Article 119 (liquidation following administration or voluntary arrangement).[FORM 4.30] [FORM 4.31]
(2) The court's order shall not issue unless and until the person appointed has filed in court a statement to the effect that he is an insolvency practitioner, duly qualified under the Order to be the liquidator, and that he consents so to act.
(3) Thereafter, the court shall send 2 copies of the order to the official receiver. One of the copies shall be sealed, and this shall be sent to the person appointed as liquidator.
(4) The liquidator's appointment takes effect from the date of the order.
(5) The liquidator shall, within 28 days of his appointment, give notice of it to all creditors and contributories of the company of whom he is aware in that period. Alternatively, if the court allows, he may advertise his appointment in accordance with the court's directions.
(6) In his notice or advertisement under this Rule the liquidator shall—
(a)state whether he proposes to summon meetings of creditors and contributories for the purpose of establishing a liquidation committee, or proposes to summon only a meeting of creditors for that purpose, and
(b)if he does not propose to summon any such meeting, set out the powers of the creditors under the Order to require him to summon one.
[E.R.4.102]
4.110-CVL.—(1) This Rule applies where the liquidator is appointed by the court under Article 86(3) or 94.[FORM 4.30] [FORM 4.31]
(2) The court's order shall not issue unless and until the person appointed has filed in court a statement to the effect that he is an insolvency practitioner, duly qualified under the Order to be the liquidator, and that he consents so to act.
(3) Thereafter, the court shall send a sealed copy of the order to the liquidator, whose appointment takes effect from the date of the order.
(4) Not later than 28 days from his appointment, the liquidator shall give notice of it to all creditors of the company of whom he is aware in that period. Alternatively, if the court allows, he may advertise his appointment in accordance with the court's directions.
[E.R.4.103-CVL]
4.111. (NO CVL APPLICATION)
(1) This Rule applies where the official receiver applies to the Department to appoint a liquidator in place of himself, or refers to the Department the need for an appointment.
(2) If the Department makes an appointment, it shall send 2 copies of the certificate of appointment to the official receiver, who shall transmit one such copy to the person appointed, and file the other in court.
(3) The certificate shall specify the date from which the liquidator's appointment is to be effective.
[E.R.4.104]
4.112. A copy of the certificate of the liquidator's appointment or (as the case may be) a sealed copy of the court's order, may in any proceedings be adduced as proof that the person appointed is duly authorised to exercise the powers and perform the duties of liquidator in the company's winding up.
[E.R.4.105]
4.113.—(1) Subject to paragraph (2-CVL), where the liquidator is appointed by a creditors' or contributories' meeting, or by a meeting of the company, he shall, on receiving his certificate of appointment, give notice of his appointment in such newspaper as he thinks most appropriate for ensuring that it comes to the notice of the company's creditors and contributories.
(2-CVL) Paragraph (1) need not be complied with in the case of a liquidator appointed by a company meeting and replaced by another liquidator appointed on the same day by a creditors' meeting.
(3) The expense of giving notice under this Rule shall be borne in the first instance by the liquidator; but he is entitled to be reimbursed out of the assets, as an expense of the liquidation.
(4) Paragraph (3) applies also in the case of the notice or advertisement required where the appointment is made by the court or the Department.
(5) In the case of a winding up by the court, the liquidator, however he is appointed, shall also forthwith notify his appointment to the registrar. (NO CVL APPLICATION)[FORM 4.32]
[E.R.4.106]
4.114. (NO CVL APPLICATION)
(1) This Rule applies only where the liquidator is appointed in succession to the official receiver acting as liquidator.
(2) When the liquidator's appointment takes effect, the official receiver shall forthwith do all that is required for putting him into possession of the assets.
(3) On taking possession of the assets, the liquidator shall discharge any balance due to the official receiver on account of—
(a)expenses properly incurred by him and payable under the Order or the Rules, and
(b)any advances made by him in respect of the assets, together with interest on such advances at the rate applicable to a money judgment of the High Court at the date of the winding-up order.
(4) Alternatively, the liquidator may (before taking office) give to the official receiver a written undertaking to discharge any such balance out of the first realisation of assets.
(5) The official receiver has a charge on the assets in respect of any sums due to him under paragraph (3). But, where the liquidator has realised assets with a view to making those payments, the official receiver's charge does not extend in respect of sums deductible by the liquidator from the proceeds of realisation, as being expenses properly incurred therein.
(6) The liquidator shall from time to time out of the realisation of assets discharge all guarantees properly given by the official receiver for the benefit of the estate, and shall pay all the official receiver's expenses.
(7) The official receiver shall give to the liquidator all such information relating to the affairs of the company and the course of the winding up as he (the official receiver) considers to be reasonably required for the effective discharge by the liquidator of his duties as such.
(8) The liquidator shall also be furnished with a copy of any report made by the official receiver under Chapter 7.
[E.R.4.107]
4.115.—(1) Before resigning his office, the liquidator must call a meeting of creditors for the purpose of receiving his resignation. The notice summoning the meeting shall indicate that this is the purpose, or one of the purposes, of it, and shall draw the attention of creditors to Rule 4.128 or, as the case may be, Rule 4.129-CVL with respect to the liquidator's release.[FORM 4.23]
(2) A copy of the notice shall at the same time also be sent to the official receiver. (NO CVL APPLICATION)
(3) The notice to creditors under paragraph (1) must be accompanied by an account of the liquidator's administration of the winding up including a summary of his receipts and payments.
(4) In the case of a winding up by the court, the account of the liquidator's administration of the winding up under paragraph (3) must also include a statement by him that he has reconciled his account with that which is held by the Department in respect of the winding up. (NO CVL APPLICATION)
(5) Subject to paragraph (6), the liquidator may only proceed under this Rule on grounds of ill health or because—
(a)he intends ceasing to be in practice as an insolvency practitioner, or
(b)there is some conflict of interest or change of personal circumstances which precludes or makes impracticable the further discharge by him of the duties of liquidator.
(6) Where two or more persons are acting as liquidator jointly, any one of them may proceed under this Rule (without prejudice to the continuation in office of the other or others) on the ground that, in his opinion and that of the other or others, it is no longer expedient that there should continue to be the present number of joint liquidators.
(7) If there is no quorum present at the meeting summoned to receive the liquidator's resignation, the meeting is deemed to have been held, a resolution is deemed to have been passed that the liquidator's resignation be accepted and the creditors are deemed not to have resolved against the liquidator having his release.
(8) Where paragraph (7) applies any reference in the Rules to a resolution that the liquidator's resignation be accepted is replaced by a reference to the making of a written statement, signed by the person who, had there been a quorum present, would have been chairman of the meeting, that no quorum was present and that the liquidator may resign.
[E.R.4.108]
4.116. (NO CVL APPLICATION)
(1) This Rule applies where a meeting is summoned to receive the liquidator's resignation.
(2) If the chairman of the meeting is other than the official receiver, and there is passed at the meeting any of the following resolutions—
(a)that the liquidator's resignation be accepted,
(b)that a new liquidator be appointed,
(c)that the resigning liquidator be not given his release,
the chairman shall, within 3 days, send to the official receiver a copy of the resolution.
(3) If it has been resolved to accept the liquidator's resignation, the chairman shall send to the official receiver a certificate to that effect.
(4) If the creditors have resolved to appoint a new liquidator, the certificate of his appointment shall also be sent to the official receiver within that time; and Rule 4.106 shall be complied with in respect of it.
(5) If the liquidator's resignation is accepted, the notice of it required by Article 146(6) shall be given by him forthwith after the meeting; and he shall send a copy of the notice to the official receiver.[FORM 4.33]
(6) The notice under Article 146(6) shall be accompanied by a copy of the account sent to creditors under Rule 4.115(3).
(7) The official receiver shall file a copy of the notice in court.
(8) The liquidator's resignation is effective as from the date on which the official receiver files the copy notice in court, that date to be endorsed on the copy notice.
[E.R.4.109]
4.117-CVL.—(1) This Rule applies where a meeting is summoned to receive the liquidator's resignation.
(2) If his resignation is accepted, the notice of it required by Article 145(5) shall be given by him forthwith after the meeting.[FORM 4.34]
(3) Where a new liquidator is appointed in place of the one who has resigned, the certificate of his appointment shall be delivered forthwith by the chairman of the meeting to the new liquidator.
[E.R.4.110-CVL]
4.118.—(1) If at a creditors' meeting summoned to accept the liquidator's resignation it is resolved that it be not accepted, the court may, on the liquidator's application, make an order giving him leave to resign.[FORM 4.35]
(2) The court's order may include such provision as it thinks fit with respect to matters arising in connection with the resignation, and shall determine the date from which the liquidator's release is effective.
(3) The court shall send 3 sealed copies of the order to the liquidator, who shall forthwith send one of the copies to the official receiver and one to the registrar. (NO CVL APPLICATION)
(4-CVL) The court shall send 2 sealed copies of the order to the liquidator, who shall forthwith send one of them to the registrar.[FORM 4.36]
(5) On sending notice of his resignation to the court, the liquidator shall send a copy of it to the official receiver. (NO CVL APPLICATION)[FORM 4.37]
[E.R.4.111]
4.119. Where a new liquidator is appointed in place of one who has resigned, the former shall, in giving notice of his appointment, state that his predecessor has resigned and (if it be the case) that he has been given his release.
[E.R.4.112]
4.120. (NO CVL APPLICATION)
(1) Where a meeting of creditors is summoned for the purpose of removing the liquidator, the notice summoning it shall indicate that this is the purpose, or one of the purposes, of the meeting; and the notice shall draw the attention of creditors to Article 148(4) with respect to the liquidator's release.[FORM 4.23]
(2) A copy of the notice shall at the same time also be sent to the official receiver.
(3) At the meeting, a person other than the liquidator or his nominee may be elected to act as chairman; but if the liquidator or his nominee is chairman and a resolution has been proposed for the liquidator's removal, the chairman shall not adjourn the meeting without the consent of at least one-half (in value) of the creditors present (in person or by proxy) and entitled to vote.
(4) Where the chairman of the meeting is other than the official receiver, and there is passed at the meeting any of the following resolutions—
(a)that the liquidator be removed,
(b)that a new liquidator be appointed,
(c)that the removed liquidator be not given his release,
the chairman shall, within 3 days, send to the official receiver a copy of the resolution.
(5) If it has been resolved to remove the liquidator under paragraph 4(a), the chairman shall send to the official receiver a certificate to that effect.[FORM 4.38]
(6) If the creditors have resolved to appoint a new liquidator, the certificate of his appointment shall also be sent to the official receiver within that time; and Rule 4.106 shall be complied with in respect of it.
[E.R.4.113]
4.121-CVL.—(1) A meeting held under Article 145(2)(b) for the removal of the liquidator shall be summoned by him if requested by 25 per cent. in value of the company's creditors, excluding those who are connected with it.
(2) The notice summoning the meeting shall indicate that the removal of the liquidator is the purpose, or one of the purposes, of the meeting; and the notice shall draw the attention of creditors to Article 147(2) with respect to the liquidator's release.[FORM 4.23]
(3) At the meeting, a person other than the liquidator or his nominee may be elected to act as chairman; but if the liquidator or his nominee is chairman and a resolution has been proposed for the liquidator's removal, the chairman shall not adjourn the meeting without the consent of at least one-half (in value) of the creditors present (in person or by proxy) and entitled to vote.
[E.R.4.114-CVL]
4.122. Where a meeting under Rule 4.120 or 4.121-CVL is to be held, or is proposed to be summoned, the court may, on the application of any creditor, give directions as to the mode of summoning it, the sending out and return of forms of proxy, the conduct of the meeting, and any other matter which appears to the court to require regulation or control under this Rule.
[E.R.4.115]
4.123. (NO CVL APPLICATION)
(1) Where the creditors have resolved that the liquidator be removed, the official receiver shall file in court the certificate of removal.
(2) The resolution is effective as from the date on which the official receiver files the certificate of removal in court, and that date shall be endorsed on the certificate.
(3) A copy of the certificate, so endorsed, shall be sent by the official receiver to the liquidator who has been removed, to the registrar and, if a new liquidator has been appointed, to him.
(4) The official receiver shall not file the certificate in court unless and until the Department has certified to him that the removed liquidator has reconciled his account with that held by the Department in respect of the winding up.
[E.R.4.116]
4.124-CVL. Where the creditors have resolved that the liquidator be removed, the chairman of the creditors' meeting shall forthwith—
(a)if at the meeting another liquidator was not appointed, send the certificate of the liquidator's removal to the registrar, and[FORM 4.39]
(b)otherwise, deliver the certificate to the new liquidator, who shall send it to the registrar.
[E.R.4.117-CVL]
4.125. Where a new liquidator is appointed in place of one removed, the former shall, in giving notice of his appointment, state that his predecessor has been removed and (if it be the case) that he has been given his release.
[E.R.4.118]
4.126. (NO CVL APPLICATION)
(1) This Rule applies where application is made to the court for the removal of the liquidator, or for an order directing the liquidator to summon a meeting of creditors for the purpose of removing him.[FORM 4.40]
(2) The court may, if it thinks that no sufficient cause is shown for the application, dismiss it; but it shall not do so unless the applicant has had an opportunity to attend the court for an ex parte hearing, of which he has been given at least 7 days' notice.
(3) If the application is not dismissed under paragraph (2), the court shall fix a venue for it to be heard.
(4) The court may require the applicant to make a deposit or give security for the costs to be incurred by the liquidator on the application.
(5) The applicant shall, at least 14 days before the hearing date, send to the liquidator and the official receiver a notice stating the venue and accompanied by a copy of the application, and of any evidence which he intends to adduce in support of it.
(6) Subject to any contrary order of the court, the costs of the application are not payable out of the assets.
(7) Where the court removes the liquidator—
(a)it shall send 2 copies of the order of removal to him, one to be sent by him forthwith to the registrar with notice of his ceasing to act and one to be sent to the official receiver;
(b)the order may include such provision as the court thinks fit with respect to matters arising in connection with the removal; and
(c)if the court appoints a new liquidator, Rule 4.109 applies.
[E.R.4.119]
4.127-CVL.—(1) This Rule applies where application is made to the court for the removal of the liquidator, or for an order directing the liquidator to summon a creditors' meeting for the purpose of removing him.[FORM 4.40]
(2) The court may, if it thinks that no sufficient cause is shown for the application, dismiss it; but it shall not do so unless the applicant has had an opportunity to attend the court for an ex parte hearing, of which he has been given at least 7 days' notice.
(3) If the application is not dismissed under paragraph (2), the court shall fix a venue for it to be heard.
(4) The court may require the applicant to make a deposit or give security for the costs to be incurred by the liquidator on the application.
(5) The applicant shall, at least 14 days before the hearing date, send to the liquidator a notice stating the venue and accompanied by a copy of the application, and of any evidence which he intends to adduce in support of it.
(6) Subject to any contrary order of the court, the costs of the application are not payable out of the assets.
(7) Where the court removes the liquidator—
(a)it shall send 2 copies of the order of removal to him, one to be sent by him forthwith to the registrar, with notice of his ceasing to act;[FORM 4.41]
(b)the order may include such provision as the court thinks fit with respect to matters arising in connection with the removal; and
(c)if the court appoints a new liquidator, Rule 4.110-CVL applies.
[E.R.4.120-CVL]
4.128. (NO CVL APPLICATION)
(1) Where the liquidator's resignation is accepted by a meeting of creditors which has not resolved against his release, he has his release from when his resignation is effective under Rule 4.116.
(2) Where the liquidator is removed by a meeting of creditors which has not resolved against his release, that fact shall be stated in the certificate of removal.
(3) Where—
(a)the liquidator resigns, and the creditors' meeting called to receive his resignation has resolved against his release, or
(b)he is removed by a creditors' meeting which has so resolved, or is removed by the court,
he must apply to the Department for his release.[FORM 4.42]
(4) When the Department gives the release, it shall so certify and send the certificate to the official receiver, to be filed in court.
(5) A copy of the certificate shall be sent by the Department to the former liquidator, whose release is effective from the date of the certificate.
[E.R.4.121]
4.129-CVL.—(1) Where the liquidator's resignation is accepted by a meeting of creditors which has not resolved against his release, he has his release from when he gives notice of his resignation to the registrar.[FORM 4.41]
(2) Where the liquidator is removed by a creditors' meeting which has not resolved against his release, that fact shall be stated in the certificate of removal.
(3) Where—
(a)the liquidator resigns, and the creditors' meeting called to receive his resignation has resolved against his release, or
(b)he is removed by a creditors' meeting which has so resolved, or is removed by the court,
he must apply to the Department for his release.[FORM 4.41]
(4) When the Department gives the release, it shall so certify and send the certificate to the registrar.
(5) A copy of the certificate shall be sent by the Department to the former liquidator, whose release is effective from the date of the certificate.
[E.R.4.122-CVL]
4.130. (NO CVL APPLICATION)
(1) If the Department decides to remove the liquidator, it shall before doing so notify the liquidator and the official receiver of its decision and the grounds of it, and specify a period within which the liquidator may make representations against implementation of the decision.
(2) If the Department directs the removal of the liquidator, it shall forthwith—
(a)file notice of its decision in court, and
(b)send notice to the liquidator and the official receiver.
(3) If the liquidator is removed by direction of the Department—
(a)Rule 4.128 applies as regards the liquidator obtaining his release, as if he had been removed by the court, and
(b)the court may make any such order in his case as it would have power to make if he had been so removed.
[E.R.4.123]
4.131. (NO CVL APPLICATION)
(1) The official receiver shall, before giving notice to the Department under Article 148(3) (that the winding up is for practical purposes complete), send out notice of his intention to do so to all creditors who have proved their debts.
(2) The notice shall in each case be accompanied by a summary of the official receiver's receipts and payments as liquidator.
(3) The Department, when it has determined the date from which the official receiver is to have his release, shall give notice to the court that it has done so. The notice shall be accompanied by the summary referred to in paragraph (2).
[E.R.4.124]
4.132. (NO CVL APPLICATION)
(1) Where the liquidator is other than the official receiver, he shall give at least 28 days' notice of the final meeting of creditors to be held under Article 124. The notice shall be sent to all creditors who have proved their debts; and the liquidator shall cause it to be gazetted at least one month before the meeting is to be held.[FORM 4.23]
(2) The liquidator's report laid before the meeting under that Article shall contain an account of the liquidator's administration of the winding up, including—
(a)a summary of his receipts and payments, and
(b)a statement by him that he has reconciled his account with that which is held by the Department in respect of the winding up.
(3) At the final meeting, the creditors may question the liquidator with respect to any matter contained in his report, and may resolve against him having his release.
(4) The liquidator shall give notice to the court that the final meeting has been held; and the notice shall state whether or not the creditors have resolved against his release, and be accompanied by a copy of the report laid before the final meeting. A copy of the notice shall be sent by the liquidator to the official receiver.[FORM 4.43]
(5) If there is no quorum present at the final meeting, the liquidator shall report to the court that a final meeting was summoned in accordance with the Rules, but there was no quorum present; and the final meeting is then deemed to have been held, and the creditors not to have resolved against the liquidator having his release.
(6) If the creditors at the final meeting have not so resolved, the liquidator is released when the notice under paragraph (4) is filed in court. If they have so resolved, the liquidator must obtain his release from the Department and Rule 4.128 applies accordingly.
[E.R.4.125]
4.133-CVL.—(1) The liquidator shall give at least 28 days' notice of the final meeting of creditors to be held under Article 92. The notice shall be sent to all creditors who have proved their debts.[FORM 4.23]
(2) At the final meeting, the creditors may question the liquidator with respect to any matter contained in the account required under the Article, and may resolve against the liquidator having his release.
(3) Where the creditors have so resolved, he must obtain his release from the Department; and Rule 4.129-CVL applies accordingly.
[E.R.4.126-CVL]
4.134.—(1) The liquidator is entitled to receive remuneration for his services as such.
(2) The remuneration shall be fixed either—
(a)as a percentage of the value of the assets which are realised or distributed, or of the one value and the other in combination, or
(b)by reference to the time properly given by the responsible insolvency practitioner (as liquidator) and his staff in attending to matters arising in the winding up.
(3) Where the liquidator is other than the official receiver, it is for the liquidation committee (if there is one) to determine whether the remuneration is to be fixed under paragraph (2)(a) or (b) and, if under paragraph (2)(a), to determine any percentage to be applied as there mentioned.
(4) In arriving at that determination, the committee shall have regard to the following matters—
(a)the complexity (or otherwise) of the case,
(b)any respects in which, in connection with the winding up, there falls on the responsible insolvency practitioner (as liquidator) any responsibility of an exceptional kind or degree,
(c)the effectiveness with which the responsible insolvency practitioner appears to be carrying out, or to have carried out, his duties as liquidator, and
(d)the value and nature of the assets with which the liquidator has to deal.
(5) If there is no liquidation committee, or the committee does not make the requisite determination, the liquidator's remuneration may be fixed (in accordance with paragraph (2)) by a resolution of a meeting of creditors; and paragraph (4) applies to them as it does to the liquidation committee.
(6) If not fixed under paragraphs (2) to (5), the liquidator's remuneration shall be in accordance with the scale laid down for the official receiver by general regulations.
[E.R.4.127]
4.135.—(1) Where the liquidator sells assets on behalf of a secured creditor, he is entitled to take for himself, out of the proceeds of sale, a sum by way of remuneration equivalent to that which is chargeable in corresponding circumstances by the official receiver under general regulations.
(2) Where there are joint liquidators, it is for them to agree between themselves as to how the remuneration payable should be apportioned. Any dispute arising between them may be referred—
(a)to the court, for settlement by order, or
(b)to the liquidation committee or a meeting of creditors, for settlement by resolution.
(3) If the liquidator is a solicitor and employs his own firm, or any partner in it, to act on behalf of the company, profit costs shall not be paid unless this is authorised by the liquidation committee, the creditors or the court.
[E.R.4.128]
4.136. If the liquidator's remuneration has been fixed by the liquidation committee, and he considers the rate or amount to be insufficient, he may request that it be increased by resolution of the creditors.
[E.R.4.129]
4.137.—(1) If the liquidator considers that the remuneration fixed for him by the liquidation committee, or by resolution of the creditors, or as under Rule 4.134(6), is insufficient, he may apply to the court for an order increasing its amount or rate.
(2) The liquidator shall give at least 14 days' notice of his application to the members of the liquidation committee; and the committee may nominate one or more members to appear or be represented, and to be heard, on the application.
(3) If there is no liquidation committee, the liquidator's notice of his application shall be sent to such one or more of the company's creditors as the court may direct, which creditors may nominate one or more of their number to appear or be represented.
(4) The court may, if it appears to be a proper case, order the costs of the liquidator's application, including the costs of any member of the liquidation committee appearing or being represented on it, or any creditor so appearing or being represented, to be paid out of the assets.
[E.R.4.130]
4.138.—(1) Any creditor of the company may, with the concurrence of at least 25 per cent. in value of the creditors (including himself), apply to the court for an order that the liquidator's remuneration be reduced, on the grounds that it is, in all the circumstances, excessive.
(2) The court may, if it thinks that no sufficient cause is shown for a reduction, dismiss the application; but it shall not do so unless the applicant has had an opportunity to attend the court for an ex parte hearing, of which he has been given at least 7 days' notice.
(3) If the application is not dismissed under paragraph (2), the court shall fix a venue for it to be heard, and give notice to the applicant accordingly.
(4) The applicant shall, at least 14 days before the hearing date, send to the liquidator a notice stating the venue and accompanied by a copy of the application, and of any evidence which the applicant intends to adduce in support of it.
(5) If the court considers the application to be well-founded, it shall make an order fixing the remuneration at a reduced amount or rate.
(6) Unless the court orders otherwise, the costs of the application shall be paid by the applicant, and are not payable out of the assets.
[E.R.4.131]
4.139. (NO CVL APPLICATION)
(1) Subject to paragraph (2), where the liquidator (other than the official receiver) has died, it is the duty of his personal representatives to give notice of the fact to the official receiver, specifying the date of the death.
(2) Paragraph (1) does not apply if notice has been given under paragraphs (3), (4) or (5).
(3) If the deceased liquidator was a partner in a firm, notice may be given to the official receiver by a partner in the firm who is qualified to act as an insolvency practitioner, or is a member of any body recognised by the Department for the authorisation of insolvency practitioners.
(4) Notice of the death may be given by any person producing to the official receiver the relevant death certificate or a copy of it.
(5) The official receiver shall give notice to the court, for the purpose of fixing the date of the deceased liquidator's release, and to the registrar.
[E.R.4.132]
4.140-CVL.—(1) Subject to paragraph (2), where the liquidator has died, it is the duty of his personal representatives to give notice of the fact, and of the date of death, to the registrar and to the liquidation committee (if any) or a member of that committee.[FORM 4.45]
(2) In the alternative, notice of the death may be given—
(a)if the deceased liquidator was a partner in a firm, by a partner qualified to act as an insolvency practitioner or who is a member of any body approved by the Department for the authorisation of insolvency practitioners, or
(b)by any person, if he delivers with the notice a copy of the relevant death certificate.
[E.R.4.133-CVL]
4.141. (NO CVL APPLICATION)
(1) This Rule applies where the liquidator vacates office on ceasing to be qualified to act as an insolvency practitioner in relation to the company.
(2) He shall forthwith give notice of his doing so to the official receiver, who shall give notice to the Department and the registrar.[FORM 4.46]
(3) The official receiver shall file in court a copy of his notice under paragraph (2).
(4) Rule 4.128 applies as regards the liquidator obtaining his release, as if he had been removed by the court.
[E.R.4.134]
4.142-CVL.—(1) This Rule applies where the liquidator vacates office on ceasing to be qualified to act as an insolvency practitioner in relation to the company.
(2) He shall forthwith give notice of his doing so to the registrar and the Department.[FORM 4.47] [FORM 4.46]
(3) Rule 4.129-CVL applies as regards the liquidator obtaining his release, as if he had been removed by the court.
[E.R.4.135-CVL]
4.143-CVL. Where the liquidator vacates office in consequence of the court making a winding-up order against the company, Rule 4.129-CVL applies as regards his obtaining his release, as if he had been removed by the court.
[E.R.4.136-CVL]
4.144. (NO CVL APPLICATION)
(1) Where the liquidator intends to vacate office, whether by resignation or otherwise, he shall give notice of his intention to the official receiver together with notice of any creditors' meeting to be held in respect of his vacation of office, including any meeting to receive his resignation.
(2) The notice to the official receiver must be given at least 21 days before any such creditors' meeting.
(3) Where there remains any property of the company which has not been realised, applied, distributed or otherwise fully dealt with in the winding up, the liquidator shall include in his notice to the official receiver details of the nature of that property, its value (or the fact that it has no value), its location, any action taken by the liquidator to deal with that property or any reason for his not dealing with it, and the current position in relation to it.
[E.R.4.137]
4.145.—(1) Where the liquidator ceases to be in office as such, in consequence of removal, resignation or cesser of qualification as an insolvency practitioner, he is under obligation forthwith to deliver up to the person succeeding him as liquidator the assets (after deduction of any expenses properly incurred, and distributions made, by him) and further to deliver up to that person—
(a)the records of the liquidation, including correspondence, proofs and other related papers appertaining to the administration while it was within his responsibility, and
(b)the company's books, papers and other records.
(2) When the winding up is for practical purposes complete, the liquidator shall forthwith file in court all proofs remaining with him in the proceedings. (NO CVL APPLICATION)
(3) Where the liquidator vacates office under Article 146(7) (final meeting of creditors), he shall deliver up to the official receiver the company's books, papers and other records which have not already been disposed of in accordance with general regulations in the course of the liquidation. (NO CVL APPLICATION)
[E.R.4.138]
4.146.—(1) This Rule applies where the liquidator is appointed by a meeting of the company.
(2) The chairman of the meeting shall certify the appointment, but not unless and until the person appointed has provided him with a written statement to the effect that he is an insolvency practitioner, duly qualified under the Order to be the liquidator, and that he consents so to act.[FORM 4.28] [FORM 4.29]
(3) The chairman shall send the certificate forthwith to the liquidator, who shall keep it as part of the records of the liquidation.
(4) Not later than 28 days from his appointment, the liquidator shall give notice of it to all creditors of the company of whom he is aware in that period.
[E.R.4.139]
4.147.—(1) This Rule applies where the liquidator is appointed by the court under Article 94.
(2) The court's order shall not issue unless and until the person appointed has filed in court a statement to the effect that he is an insolvency practitioner, duly qualified under the Order to be the liquidator, and that he consents so to act.[FORM 4.30] [FORM 4.31]
(3) Thereafter, the court shall send a sealed copy of the order to the liquidator, whose appointment takes effect from the date of the order.
(4) Not later than 28 days from his appointment, the liquidator shall give notice of it to all creditors of the company of whom he is aware in that period.
[E.R.4.140]
4.148. A copy of the certificate of the liquidator's appointment or (as the case may be) a sealed copy of the court's order appointing him may in any proceedings be adduced as proof that the person appointed is duly authorised to exercise the powers and perform the duties of liquidator in the company's winding up.
[E.R.4.141]
4.149.—(1) Before resigning his office, the liquidator must call a meeting of the company for the purpose of receiving his resignation. The notice summoning the meeting shall indicate that this is the purpose, or one of the purposes, of it.
(2) The notice under paragraph (1) must be accompanied by an account of the liquidator's administration of the winding up, including a summary of his receipts and payments.
(3) Subject to paragraph (4), the liquidator may only proceed under this Rule on grounds of ill health or because—
(a)he intends ceasing to be in practice as an insolvency practitioner, or
(b)there is some conflict of interest or change of personal circumstances which precludes or makes impracticable the further discharge by him of the duties of liquidator.
(4) Where two or more persons are acting as liquidator jointly, any one of them may proceed under this Rule (without prejudice to the continuation in office of the other or others) on the ground that, in his opinion or that of the other or others, it is no longer expedient that there should continue to be the present number of joint liquidators.
(5) If there is no quorum present at the meeting summoned to receive the liquidator's resignation, the meeting is deemed to have been held.
(6) The notice of the liquidator's resignation required by Article 145(5) shall be given by him forthwith after the meeting.[FORM 4.34]
(7) Where a new liquidator is appointed in place of one who has resigned, the former shall, in giving notice of his appointment, state that his predecessor has resigned.
[E.R.4.142]
4.150.—(1) This Rule applies where application is made to the court for the removal of the liquidator, or for an order directing the liquidator to summon a company meeting for the purpose of removing him.
(2) The court may, if it thinks that no sufficient cause is shown for the application, dismiss it; but it shall not do so unless the applicant has had an opportunity to attend the court for an ex parte hearing, of which he has been given at least 7 days' notice.
(3) If the application is not dismissed under paragraph (2), the court shall fix a venue for it to be heard.
(4) The court may require the applicant to make a deposit or give security for the costs to be incurred by the liquidator on the application.
(5) The applicant shall, at least 14 days before the hearing date, send to the liquidator a notice stating the venue and accompanied by a copy of the application, and of any evidence which he intends to adduce in support of it.
(6) Subject to any contrary order of the court, the costs of the application are not payable out of the assets.
(7) Where the court removes the liquidator—
(a)it shall send 2 copies of the order of removal to him, one to be sent by him forthwith to the registrar, with notice of his ceasing to act;[FORM 4.40] [FORM 4.41]
(b)the order may include such provision as the court thinks fit with respect to matters arising in connection with the removal; and
(c)if the court appoints a new liquidator, Rule 4.147 applies.
[E.R.4.143]
4.151.—(1) Where the liquidator resigns, he has his release from the date on which he gives notice of his resignation to the registrar.[FORM 4.41]
(2) Where the liquidator is removed by a meeting of the company, he shall forthwith give notice to the registrar of his ceasing to act.[FORM 4.41]
(3) Where the liquidator is removed by the court, he must apply to the Department for his release.[FORM 4.42]
(4) When the Department gives the release, it shall so certify and send the certificate to the registrar.
(5) A copy of the certificate shall be sent by the Department to the former liquidator, whose release is effective from the date of the certificate.
[E.R.4.144]
4.152.—(1) Subject to paragraph (2), where the liquidator has died, it is the duty of his personal representatives to give notice of the fact, and of the date of death, to the company's directors, or any one of them, and to the registrar.[FORM 4.45]
(2) In the alternative, notice of the death may be given—
(a)if the deceased liquidator was a partner in a firm, by a partner qualified to act as an insolvency practitioner or who is a member of any body approved by the Department for the authorisation of insolvency practitioners, or
(b)by any person, if he delivers with the notice a copy of the relevant death certificate.
[E.R.4.145]
4.153.—(1) This Rule applies where the liquidator vacates office on ceasing to be qualified as an insolvency practitioner in relation to the company.
(2) He shall forthwith give notice of his doing so to the registrar and the Department.[FORM 4.47] [FORM 4.46]
(3) Rule 4.151 applies as regards the liquidator obtaining his release, as if he had been removed by the court.
[E.R.4.146]
4.154. Where the liquidator vacates office in consequence of the court making a winding-up order against the company, Rule 4.151 applies as regards his obtaining his release, as if he had been removed by the court.
[E.R.4.147]
4.155. Where the liquidator ceases to be in office as such, in consequence of removal, resignation or cesser of qualification as an insolvency practitioner, he is under obligation forthwith to deliver up to the person succeeding him as liquidator the assets (after deduction of any expenses properly incurred, and distributions made, by him) and further to deliver up to that person—
(a)the records of the liquidation, including correspondence, proofs and other related papers appertaining to the administration while it was within his responsibility, and
(b)the company's books, papers and other records.
[E.R.4.148]
4.156.—(1) The liquidator is entitled to receive remuneration for his services as such.
(2) The remuneration shall be fixed either—
(a)as a percentage of the value of the assets which are realised or distributed, or of the one value and the other in combination, or
(b)by reference to the time properly given by the responsible insolvency practitioner (as liquidator) and his staff in attending to matters arising in the winding up;
and the company in general meeting shall determine whether the remuneration is to be fixed under sub-paragraph (a) or (b) and, if under sub-paragraph (a), the percentage to be applied as there mentioned.
(3) In arriving at that determination the company in general meeting shall have regard to the matters set out in paragraph (4) of Rule 4.134.
(4) If not fixed under paragraphs (2) and (3), the liquidator's remuneration shall be in accordance with the scale laid down for the official receiver by general regulations.
(5) Rule 4.135 shall apply in relation to the remuneration of the liquidator in respect of the matters there mentioned and for this purpose references in that Rule to “the liquidation committee” and “a meeting of creditors” shall be read as references to the company in general meeting.
(6) If the liquidator considers that the remuneration fixed for him by the company in general meeting, or as under paragraph (4), is insufficient, he may apply to the court for an order increasing its amount or rate.
(7) The liquidator shall give at least 14 days' notice of an application under paragraph (6) to the company's contributories, or such one or more of them as the court may direct, and the contributories may nominate any one or more of their number to appear or be represented.
(8) The court may, if it appears to be a proper case, order the costs of the liquidator's application, including the costs of any contributory appearing or being represented on it, to be paid out of the assets.
[E.R.4.148A]
4.157.—(1) If in the administration of the estate the liquidator enters into any transaction with a person who is an associate of his, the court may, on the application of any person interested, set the transaction aside and order the liquidator to compensate the company for any loss suffered in consequence of it.
(2) This does not apply if either—
(a)the transaction was entered into with the prior consent of the court, or
(b)it is shown to the court's satisfaction that the transaction was for value, and that it was entered into by the liquidator without knowing, or having any reason to suppose, that the person concerned was an associate.
(3) Nothing in this Rule is to be taken as prejudicing the operation of any rule of law or equity with respect to a liquidator's dealings with trust property, or the fiduciary obligations of any person.
[E.R.4.149]
4.158.—(1) Where the court is satisfied that any improper solicitation has been used by or on behalf of the liquidator in obtaining proxies or procuring his appointment, it may order that no remuneration out of the assets be allowed to any person by whom, or on whose behalf, the solicitation was exercised.
(2) An order of the court under this Rule overrides any resolution of the liquidation committee or the creditors, or any other provision of the Rules relating to the liquidator's remuneration.
[E.R.4.150]