SCHEDULES
C3F31SCHEDULE 15A Application of other companies insolvency legislation to building societies
Sch. 15A applied (with modifications) (5.6.2008) by The Building Societies (Financial Assistance) Order 2008 (S.I. 2008/1427), arts. 1(2), 11
Part I General mode of application
1
1
Subject to the provisions of this Schedule, the enactments specified in sub-paragraph (2) below (referred to in this Schedule as “the enactments”) apply in relation to building societies as they apply in relation to companies limited by shares and registered under the M1Companies Act 1985 or (as the case may be) the M2Companies (Northern Ireland) Order 1986.
2
The enactments referred to in sub-paragraph (1) above are—
a
b
2
1
The enactments shall, in their application to building societies, have effect with the substitution—
F2aa
every reference to a company registered in Scotland shall have effect as a reference to a building society whose principal office is situated in Scotland;
F3aa
every reference to a company registered in Scotland shall have effect as a reference to a building society whose registered office is situated in Scotland;
a
for “company” of “
building society
”
;
b
for “the registrar of companies” or “the registrar” of “
F4Financial Services Authority
”
;
c
for “the articles” of “
the rules
”
; and
d
for “registered office” of “
principal office
”
.
2
In the application of the enactments to building societies—
a
every reference to the officers, or to a particular officer, of a company shall have effect as a reference to the officers, or to the corresponding officer, of the building society and as including a person holding himself out as such an officer; and
b
every reference to an administrative receiver shall be omitted.
3
1
Where any of the enactments as applied to building societies requires a notice or other document to be sent to the F5Authority, it shall have effect as if it required the F5Authority to keep the notice or document in the public file of the society concerned and to record in that file the date on which the notice or document is placed in it.
2
Where any of the enactments, as so applied, refers to the registration, or to the date of registration, of such a notice or document, that enactment shall have effect as if it referred to the placing of the notice or document in the public file or (as the case may be) to the date on which it was placed there.
4
1
2
An order made by the competent authority under section 414 of the Insolvency Act 1986 may make provision for fees to be payable under that section in respect of proceedings under the enactments and the performance by the official receiver or the Secretary of State of functions under them.
3
An order made by the Department of Economic Development under Article 361 of the Insolvency (Northern Ireland) Order 1989 may make provision for fees to be payable under that Article in respect of proceedings under the enactments and the performance by the official receiver or that Department of functions under them.
5
Any enactment which specifies a money sum altered by order under section 416 of the Insolvency Act 1986, or, as the case may be, Article 362 of the Insolvency (Northern Ireland) Order 1989, (powers to alter monetary limits) applies with the effect of the alteration.
F65A
In this Schedule, “scheme manager” has the same meaning as in the Financial Services and Markets Act 2000.
Part II Modified Application of Parts I and II and Chapter I of Part III of Insolvency Act 1986
Preliminary
6
In this Part of this Schedule, the M9Insolvency Act 1986 is referred to as “the Act”.
Voluntary arrangements
7
Section 1 of the Act (proposals for voluntary arrangements) has effect as if—
a
it required any proposal under Part I of the Act to be so framed as to enable a building society to comply with the requirements of this Act; and
b
any reference to debts included a reference to liabilities owed to the holders of shares in a building society.
8
In section 2 (procedure where nominee is not liquidator or administrator) and section 3 (summoning of meetings) of the Act as applied to a building society, any reference to a meeting of the society is a reference to—
a
a meeting of both shareholding and borrowing members of the society; and
b
a meeting of shareholding members alone.
F7and subsection (1) of section 2 shall have effect with the omission of the words from “and the directors” to the end.
F88A
In subsection (2) of section 4A of the Act (approval of arrangement) as applied to a building society, paragraph (b) and the word “or” immediately preceding that paragraph are omitted.
9
In section 6 of the Act (challenge of decisions) as applied to a building society, “contributory”—
a
means every person liable to contribute to the assets of the society in the event of its being wound up, and
b
for the purposes of all proceedings for determining, and all proceedings prior to the determination of, the persons who are to be deemed contributories, includes any person alleged to be a contributory, and
c
includes persons who are liable to pay or contribute to the payment of—
i
any debt or liability of the building society being wound up, or
ii
any sum for the adjustment of rights of members among themselves, or
iii
the expenses of the winding up;
but does not include persons liable to contribute by virtue of a declaration by the court under section 213 (imputed responsibility for fraudulent trading) or section 214 (wrongful trading) of the Act.
F99A
In section 7A of the Act (prosecution of delinquent officers) as applied to a building society—
a
in subsection (2), for paragraphs (i) and (ii) there is substituted “
the F10Authority
”
,
b
subsections (3) to (7) are omitted,
c
in subsection (8), for
“Secretary of State” there is substituted “
F10Authority
”
.
Administration orders
10
1
Section 8 of the Act (power of court to make administration order) has effect as if it included provision that, where—
a
an application for an administration order to be made in relation to a building society is made by the F11Authority (with or without other parties); and
b
the society has defaulted in an obligation to pay any sum due and payable in respect of any deposit or share,
the society shall be deemed for the purposes of subsection (1) to be unable to pay its debts.
2
In subsection (3) of that section, paragraph (c) and, in subsection (4) of that section, the words from “nor where” to the end are omitted.
11
1
Subsection (1) of section 9 of the Act (application for administration order) as applied to a building society has effect as if—
a
it enabled an application to the court for an administration order to be by petition presented, with or without other parties, by the F12Authority or by a shareholding member entitled under section 89(3) of this Act to petition for the winding up of the society; and
b
the words from “or by the clerk” to “on companies)” were omitted.
2
In subsection (2)(a) of that section as so applied, the reference to any person who has appointed, or is or may be entitled to appoint, an administrative receiver of the society is a reference to the Commission (unless it is a petitioner).
3
Subsection (3) of that section, and in subsection (4) of that section, the words “Subject to subsection (3),” are omitted.
12
In section 10 of the Act (effect of application for administration order), the following are omitted, namely—
a
in subsection (2), paragraphs (b) and (c); and
b
subsection (3).
13
In section 11 of the Act (effect of administration order), the following are omitted, namely—
a
in subsection (1), paragraph (b) and the word “and” immediately preceding that paragraph;
b
in subsection (3), paragraph (b);
c
in subsection (4), the words “an administrative receiver of the company has vacated office under subsection (1)(b), or”; and
d
subsection (5).
14
In subsection (1) of section 12 of the Act (notification of administration order), the reference to every invoice, order for goods or business letter is a reference to every statement of account, order for goods or services, business letter or advertisement.
15
Subsection (3) of section 13 of the Act (appointment of administrator) has effect as if it enabled an application for an order under subsection (2) of that section to be made by the F13Authority.
16
1
Subject to sub-paragraph (2) below, section 14 of the Act (general powers of administrator) has effect as if it required the administrator of a building society, in exercising his powers under that section—
a
to ensure compliance with the provisions of this Act; and
b
not to appoint to be a director any person who is not a fit and proper person to hold that position.
2
Sub-paragraph (1)(a) above does not apply in relation to section 5, 6 or 7 of this Act F14. . ..
3
In subsection (4) of that section as applied to a building society, the reference to any power conferred by the Act or the M10Companies Act 1985 or by the memorandum or articles of association is a reference to any power conferred by this Act or by the society’s memorandum or rules.
F154
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
17
1
Subject to sub-paragraph (3) below, paragraph 16 of Schedule 1 to the Act (powers of administrators) as applied to a building society has effect as if it conferred power to transfer liabilities in respect of deposits with or shares in the society.
2
No transfer under that paragraph shall be a transfer of engagements for the purposes of Part X of this Act.
3
No transfer under that paragraph which, apart from sub-paragraph (2) above, would be a transfer of engagements for the purposes of that Part shall be made unless it is approved by the court, or by meetings summoned under section 23(1) or 25(2) of the Act (as modified by paragraph 21 or 23 below).
18
In section 15 of the Act (power to deal with charged property etc.)—
a
subsection (1) is omitted; and
b
for subsections (3) and (4) there is substituted the following subsection—
3
Subsection (2) applies to any security other than one which, as created, was a floating charge.
19
1
Section 17 of the Act (general duties of administrator) has effect as if, instead of the requirement imposed by subsection (3), it required the administrator of a building society to summon a meeting of the society’s creditors if—
a
he is requested, in accordance with the rules, to do so by 500 of the society’s creditors, or by one-tenth, in number or value, of those creditors, or
b
he is directed to do so by the court.
2
That section also has effect as if it required the administrator of a building society to summon a meeting of the society’s shareholding members if—
a
he is requested, in accordance with the rules, to do so by 500 of the society’s shareholding members, or by one-tenth, in number, of those members, or
b
he is directed to do so by the court.
20
In subsection (4) of section 19 of the Act (vacation of office) as applied to a building society, the words “in priority to any security to which section 15(1) then applies” are omitted.
21
1
Subsection (1) of section 23 of the Act (statement of proposals) as applied to a building society has effect as if—
b
the reference to all creditors included a reference to all holders of shares in the society; and
c
the reference to a meeting of the society’s creditors included a reference to a meeting of holders of shares in the society.
2
In subsection (2) of that section as so applied, references to members of the society do not include references to holders of shares in the society.
22
Section 24 of the Act (consideration of proposals by creditors’ meeting) as applied to a building society has effect as if any reference to a meeting of creditors included a reference to a meeting of holders of shares in the society.
23
1
Section 25 of the Act (approval of substantial revisions) as applied to a building society has effect as if—
a
subsection (2) required the administrator to send a statement in the prescribed form of his proposed revisions to the F17Authority and to the scheme manager; and
b
the reference in that subsection to a meeting of creditors included a reference to a meeting of holders of shares in the society.
2
In subsection (3) of that section as so applied, references to members of the society do not include references to holders of shares in the society.
24
Subsection (1) of section 27 of the Act (protection of interests of creditors and members) has effect—
a
as if it enabled the F18Authority or the scheme manager to apply to the court by petition for an order under that section; and
b
in relation to an application by the F19Authority or the scheme manager, as if the words “(including at least himself)” were omitted.
Receivers and managers
C125
In section 38 of the Act (receivership accounts), “prescribed” means prescribed by regulations made by statutory instrument by the F20Treasury.
26
In subsection (1) of section 39 of the Act (notification that receiver or manager appointed), the reference to every invoice, order for goods or business letter is a reference to every statement of account, order for goods or services, business letter or advertisement.
27
Section 40 (payment of debts out of assets subject to floating charge) and sections 42 to 49 (administrative receivers) of the Act are omitted.
Part III Modified Application of Parts II, III and IV of Insolvency (Northern Ireland) Order 1989
Preliminary
28
In this Part of this Schedule, the M11Insolvency (Northern Ireland) Order 1989 is referred to as “the Order”.
Voluntary arrangements
29
Article 14 of the Order (proposals for voluntary arrangements) has effect as if—
a
it required any proposal under Part II of the Order to be so framed as to enable a building society to comply with the requirements of this Act; and
b
any reference to debts included a reference to liabilities owed to the holders of shares in a building society.
30
In Article 15 (procedure where nominee is not liquidator or administrator) and Article 16 (summoning of meetings) of the Order as applied to a building society, any reference to meetings of the society is a reference to—
a
a meeting of both shareholding and borrowing members of the society; and
b
a meeting of shareholding members alone.
F35and paragraph (1) of Article 15 shall have effect with the omission of the words from “and the directors” to the end.
F3230A
In paragraph (2) of Article 17A of the Order (approval of arrangement) as applied to a building society, sub-paragraph (b) and the word “or” immediately preceding that sub-paragraph are omitted.
31
In Article 19 of the Order (challenge of decisions) as applied to a building society, “contributory”—
a
means every person liable to contribute to the assets of the society in the event of its being wound up, and
b
for the purposes of all proceedings for determining, and all proceedings prior to the determination of, the persons who are to be deemed contributories, includes any person alleged to be a contributory, and
c
includes persons who are liable to pay or contribute to the payment of—
i
any debt or liability of the building society being wound up, or
ii
any sum for the adjustment of rights of members among themselves, or
iii
the expenses of the winding up;
but does not include persons liable to contribute by virtue of a declaration by the High Court under Article 177 (imputed responsibility for fraudulent trading) or Article 178 (wrongful trading) of the Order.
F3331A
In Article 20A of the Order (prosecution of delinquent officers) as applied to a building society—
a
in paragraph (2) for the words “the Department”, in each place where they occur, there are substituted the words “the Financial Services Authority”,
b
paragraphs (3) to (7) are omitted,
c
in paragraph (8)—
i
after the words “Northern Ireland” there are inserted the words “or the Financial Services Authority”, and
ii
after the words “Northern Ireland” and the words “the Director”, in the second place where they occur, there are inserted the words “or the Financial Services Authority”,
d
in paragraph (9) after the words “for Northern Ireland” there are inserted the words “or the Financial Services Authority”.
Administration orders
32
1
Article 21 of the Order (power of High Court to make administration order) has effect as if it included provision that, where—
a
an application for an administration order to be made in relation to a building society is made by the F21Authority (with or without other parties); and
b
the society has defaulted in an obligation to pay any sum due and payable in respect of any deposit or share,
the society shall be deemed for the purposes of paragraph (1) to be unable to pay its debts.
2
In paragraph (3) of that Article, sub-paragraph (c) and, in paragraph (4) of that Article, the words from “nor where” to the end are omitted.
33
1
Paragraph (1) of Article 22 of the Order (application for administration order) as applied to a building society has effect as if—
a
it enabled an application to the High Court for an administration order to be by petition presented, with or without other parties, by the F22Authorityor by a shareholding member entitled under section 89(3) of this Act to petition for the winding up of the society; and
b
the words from “or by the chief clerk” to “on companies)”, in the second place where they occur, were omitted.
2
In paragraph (2)(a) of that Article as so applied, the reference to any person who has appointed, or is or may be entitled to appoint, an administrative receiver of the society is a reference to the Commission (unless it is a petitioner).
3
Paragraph (3) of that Article, and in paragraph (4) of that Article, the words “Subject to paragraph (3),” are omitted.
34
In Article 23 of the Order (effect of application for administration order), the following are omitted, namely—
a
in paragraph (2), sub-paragraphs (b) and (c); and
b
paragraph (3).
35
In Article 24 of the Order (effect of administration order), the following are omitted, namely—
a
in paragraph (1), sub-paragraph (b) and the word “and” immediately preceding that sub-paragraph;
b
in paragraph (3), sub-paragraph (b);
c
in paragraph (4), the words “an administrative receiver of the company has vacated office under paragraph (1)(b), or”; and
d
paragraph (5).
36
In paragraph (1) of Article 25 of the Order (notification of administration order), the reference to every invoice, order for goods or business letter is a reference to every statement of account, order for goods or services, business letter or advertisement.
37
Paragraph (3) of Article 26 of the Order (appointment of administrator) has effect as if it enabled an application for an order under paragraph (2) of that Article to be made by the F23Authority.
38
1
Subject to sub-paragraph (2) below, Article 27 of the Order (general powers of administrator) has effect as if it required the administrator of a building society, in exercising his powers under that Article—
a
to ensure compliance with the provisions of this Act; and
b
not to appoint to be a director any person who is not a fit and proper person to hold that position.
2
Sub-paragraph (1)(a) above does not apply in relation to section 5, 6 or 7 of this Act F24. . ..
3
In paragraph (4) of that Article as applied to a building society, the reference to any power conferred by the Order or F36the Companies Acts or by the memorandum or articles of association is a reference to any power conferred by this Act or by the society’s memorandum or rules.
F254
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
39
1
Subject to sub-paragraph (3) below, paragraph 17 of Schedule 1 to the Order (powers of administrators) as applied to a building society has effect as if it conferred power to transfer liabilities in respect of deposits with or shares in the society.
2
No transfer under that paragraph shall be a transfer of engagements for the purposes of Part X of this Act.
3
No transfer under that paragraph which, apart from sub-paragraph (2) above, would be a transfer of engagements for the purposes of that Part shall be made unless it is approved by the High Court, or by meetings summoned under Article 35(1) or 37(2) of the Order (as modified by paragraph 43 or 45 below).
40
In Article 28 of the Order (power to deal with charged property etc.)—
a
paragraph (1) is omitted; and
b
for paragraphs (3) and (4) there is substituted the following paragraph—
3
Paragraph (2) applies to any security other than one which, as created, was a floating charge.
41
1
Article 29 of the Order (general duties of administrator) has effect as if, instead of the requirement imposed by paragraph (3), it required the administrator of a building society to summon a meeting of the society’s creditors if—
a
he is requested, in accordance with the rules, to do so by 500 of the society’s creditors, or by one-tenth, in number or value, of those creditors, or
b
he is directed to do so by the High Court.
2
That Article also has effect as if it required the administrator of a building society to summon a meeting of the society’s shareholding members if—
a
he is requested, in accordance with the rules, to do so by 500 of the society’s shareholding members, or by one-tenth, in number, of those members, or
b
he is directed to do so by the High Court.
42
In paragraph (4) of Article 31 of the Order (vacation of office) as applied to a building society, the words “in priority to any security to which Article 28(1) then applies” are omitted.
43
1
Paragraph (1) of Article 35 of the Order (statement of proposals) as applied to a building society has effect as if—
b
the reference to all creditors included a reference to all holders of shares in the society; and
c
the reference to a meeting of the society’s creditors included a reference to a meeting of holders of shares in the society.
2
In paragraph (2) of that Article as so applied, references to members of the society do not include references to holders of shares in the society.
44
Article 36 of the Order (consideration of proposals by creditors’ meeting) as applied to a building society has effect as if any reference to a meeting of creditors included a reference to a meeting of holders of shares in the society.
45
1
Article 37 of the Order (approval of substantial revisions) as applied to a building society has effect as if—
a
paragraph (2) required the administrator to send a statement in the prescribed form of his proposed revisions to the F27Authority and to the scheme manager; and
b
the reference in that paragraph to a meeting of creditors included a reference to a meeting of holders of shares in the society.
2
In paragraph (3) of that Article as so applied, references to members of the society do not include references to holders of shares in the society.
46
Paragraph (1) of Article 39 of the Order (protection of interests of creditors and members) has effect—
a
as if it enabled the F28Authority or the scheme manager to apply to the High Court by petition for an order under that section; and
b
in relation to an application by the F29Authority or the scheme manager, as if the words “(including at least himself)” were omitted.
Receivers and managers
C247
In Article 48 of the Order (receivership accounts), “prescribed” means prescribed by regulations made by statutory instrument by the F30Treasury.
48
In paragraph (1) of Article 49 of the Order (notification that receiver or manager appointed), the reference to every invoice, order for goods or business letter is a reference to every statement of account, order for goods or services, business letter or advertisement.
49
Article 50 (payment of debts out of assets subject to floating charge) and Articles 52 to 59 (administrative receivers) of the Order are omitted.
Sch. 15A inserted (1.12.1997) by 1997 c. 32, s. 39(2), Sch. 6; S.I. 1997/2668, art. 2, Sch. Pt. I(i)