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Rules of the Superior Courts

Order: 74

Proceedings under Part 11 of the Companies Act 2014 (Winding-up of Companies) : S.I. No. 255 of 2015

The below amendment(s) have been made to this instrument which can be viewed by clicking on the link(s):

No74-S.I. No. 616 Of 2015: Rules Of The Superior Courts (Companies Act 2014) (No. 2) 2015

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1. (1) These Rules, which may be cited as the Rules of the Superior Courts (Companies Act 2014) 2015, shall come into operation on the 1st day of July, 2015.

(2) These Rules shall be construed together with the Rules of the Superior Courts.

(3) The Rules of the Superior Courts as amended by these Rules may be cited as the Rules of the Superior Courts 1986 to 2015.

2. (1) Any proceedings commenced under a provision of the prior Companies Acts but not disposed of before the commencement of the corresponding provision of the Companies Act 2014 may be proceeded with and heard and determined in accordance with section 5 and Schedule 6 of the Companies Act 2014 and the relevant provisions of these Rules shall, with such adaptations and modifications as may be necessary and subject to such order as may be made or direction as may be given by the High Court for that purpose in the proceedings concerned, apply accordingly.

(2) Without prejudice to the generality of sub-paragraph (1):

      (a) any petition presented for the winding up of a company or the appointment of an examiner to a company before the repeal by the Companies Act 2014 of the provision relied on in such petition of the prior Companies Acts but not disposed of before the commencement of the corresponding provision of the Companies Act 2014 may be proceeded with and heard and determined in accordance with section 5 and paragraph 8 of Schedule 6 of the Companies Act 2014 and subject to any order made or direction given by the High Court in accordance with paragraph 8 of Schedule 6 of the Companies Act 2014;

      (b) Any subsequent act, application or proceeding in any such matter commenced by petition mentioned in paragraph (1) but not completed before the corresponding provision of the Companies Act 2014 was commenced may be so done, proceeded with or heard in accordance with section 5 and paragraph 8 of Schedule 6 of the Companies Act 2014 and subject to any order made or direction given by the High Court in accordance with paragraph 8 of Schedule 6 of the Companies Act 2014;

      (c) Nothing in the amendments made by these Rules shall affect the continuance in force of the rules of court in force before the commencement of sections 646 to 648 of the Companies Act 2014 for the purposes specified in paragraph 8(5) of Schedule 6 of the Companies Act 2014;

      (d) Any proceedings concerning an investigation by inspectors appointed under the Companies Act 1990 before the repeal by the Companies Act 2014 of any provision relied on in such appointment which are not completed before the commencement of the relevant provisions of Part 13 of the Companies Act 2014 may be continued and determined as if these Rules had not come into force in accordance with section 5 and paragraph 8(6) of Schedule 6 of the Companies Act 2014.

(3) In this paragraph, the expression “the prior Companies Acts” shall have the meaning assigned to it by section 2(1) of the Companies Act 2014.

3. The Rules of the Superior Courts are amended:

      (i) by the substitution for Orders 74, 75, 75A and 75B of the Orders set out in Schedule 1;
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Index:
I. Preliminary
II. Proceedings
III. Service of documents in winding up by the court
IV. Petition to wind up a company
V. Provisional liquidator
VI. Hearing of petitions and orders made thereon
VII. Statement of affairs
VIII. Liquidator
IX. Proceedings by or against directors, promoters and officers when the company is being wound up by the court
X. Committee of inspection; meetings of creditors and contributories
XI. Disclaimer
XII. List of contributors in a winding up by the court
XIII. Delivery of property of company to liquidator
XIV. Calls
XV. Ascertainment of company's liabilities
XVI. Proof of debts
XVII. Dividends in a winding up by the court
XVIII. Payment in of moneys and deposit of securities
XIX. Examination of witnesses
XX. Sanction of the court
XXI. Statements by liquidator to the Registrar of Companies
XXII. XXII. Payment of unclaimed dividends and unapplied or undistributable balances into the account prescribed under, section 623(1) of the Act
XXIII. File of proceedings
XXIV. Applications to stay or restrain proceedings or for leave to commence proceedings
XXV. Applications under sections 450(3), 671, 672, 675 or 676 of the Act
XXVI. Other applications by motion on notice or by originating notice of motion
XXVII. Termination of winding up by the court
XXVIII. Applications in voluntary winding up
XXIX. Forms in voluntary winding up
XXX. Applications made by virtue of section 567 of the Act
XXXI. Applications under section 819 of the Act

I. Preliminary

1. (1) In this Order and in the forms in Appendix M, unless the context or subject matter otherwise requires—

the “Act” means the Companies Act 2014;

“centre of main interests” shall be construed in accordance with the Insolvency Regulation;

“the company” means the company which is being wound up or in respect of which proceedings to have it wound up have been commenced;

“creditor” includes a company or corporation or a firm or partnership and shall, where relevant, include reference to a liquidator in main proceedings;

the “Director” has the same meaning as in section 2(1) of the Act;

“debt proved” includes any debt which shall have been duly admitted without proof;

“the Insolvency Regulation” means Council Regulation (EC) No. 1346/2000 of 29 May 2000 on insolvency proceedings (OJ L160/1 of 30 June 2000);

references without qualification to “liquidator” shall be construed in accordance with sections 559(3) to 559(5) inclusive of the Act;

“liquidator in main proceedings” means a person performing, in relation to a debtor company, functions mentioned in Article 2(b) of the Insolvency Regulation in main proceedings opened in a Member State other than the State;

“main proceedings” means proceedings falling within the definition of insolvency proceedings in Article 2(a) of the Insolvency Regulation opened in accordance with Article 3(1) of the Insolvency Regulation and

      (a) in relation to the State, set out in Annex A to the Insolvency Regulation under the heading “Ireland”, and

      (b) in relation to another Member State, set out in Annex A to the Insolvency Regulation under the heading relating to that Member State;

“Member State” means a Member State of the European Union other than the Kingdom of Denmark;

“Minister”, when used without qualification, means the Minister for Jobs, Enterprise and Innovation;

“secondary proceedings” means proceedings referred to as secondary proceedings in Article 3(3) of the Insolvency Regulation and

      (a) in relation to the State, set out in Annex A to the Insolvency Regulation under the heading “Ireland”, and

      (b) in relation to another Member State, set out in Annex A to the Insolvency Regulation under the heading relating to that Member State.

“statement of affairs” means a statement of the affairs of the company referred to in section 593 of the Act;

“territorial proceedings” means proceedings falling within the definition of insolvency proceedings in Article 2(a) of the Insolvency Regulation opened in the circumstances referred to in Article 3(2) of the Insolvency Regulation and

      (a) in relation to the State, set out in Annex A to the Insolvency Regulation under the heading “Ireland”, and

      (b) in relation to another Member State, set out in Annex A to the Insolvency Regulation under the heading relating to that Member State.

(2) Words and expressions contained in this Order shall, unless the context or subject matter otherwise requires, have the same meaning as in the Act.

(3) In this Order, a reference to a section or subsection is to that section or subsection in the Act unless it is indicated that reference to some other enactment is intended.

(4) In any case in which main proceedings or secondary proceedings have been opened in a Member State other than the State, the liquidator shall, where such document may be relevant to the main proceedings or secondary proceedings concerned, immediately send a copy of every petition, notice, report, affidavit or other document in the proceedings to the liquidator in the main proceedings by electronic mail or facsimile where possible or otherwise by registered prepaid post, in accordance with and for the purposes of Article 31 of the Insolvency Regulation.

Application of this Order

2. Rules which from their nature and subject matter are, or which by the headings above the group in which they are contained or by their terms are made applicable only to the proceedings in winding up by the Court or only to such proceedings and to proceedings in a creditors’ voluntary winding up, shall not apply to the proceedings in a voluntary winding up, or, as the case may be, in a members’ voluntary winding up.

Assignment of Judge

3. All applications and proceedings (including petitions for winding up) in relation to every winding up under the Act shall be assigned to such Judge or Judges as the President of the High Court shall from time to time assign to hear such applications and proceedings but if such Judge or Judges shall be unable to dispose of such applications or proceedings, any other Judge or Judges of the High Court may dispose of any such application.

Use of forms

4. The forms in Appendix M where applicable, and where they are not applicable, forms of the like character, with such variations as circumstances may require, shall be used, and the forms referred to in this Order are those in Appendix M. The directions contained in any form shall be observed in relation thereto. Where such forms are applicable, any costs occasioned by the use of any other or more prolix forms shall be borne by or disallowed to the party using the same, unless the Court shall otherwise direct.

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II. Proceedings

Title of proceedings

5. (1) Every petition, summons, notice, affidavit and other proceeding in a winding up matter shall with any necessary additions be entitled as in the Form No. 1. Where the company is in liquidation there shall be added after the name of the company the words “in liquidation”.

(2) The first proceeding shall have a distinctive number assigned to it in the Central Office, and all proceedings subsequent to the first proceeding shall bear the same number as the first proceeding. Numbers and dates may be denoted by figures.

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III. Service of documents in winding up by the Court

6. (1) Subject to rule 1(4), service of all notices, motions and other documents other than those of which personal service is required, may be effected:

      (a) through the Central Office, or

      (b) by sending them by pre-paid post to the last known address of the person to be served therewith;

and the notice, motion or document shall be considered served at the time that the same ought to have been delivered in the ordinary course of post. When any such notices, motions or other documents are served by sending them by pre-paid post, a certificate of posting shall be obtained and shall be conclusive evidence of such service.

(2) Where a creditor mentioned in rule 28(2) or rule 52(2) has signified to the liquidator his willingness to receive notices by electronic mail or facsimile, service on such creditor by that means shall be sufficient.

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IV. Petition to wind up a company

7. (1) Every petition for the winding up of a company by the Court shall be in one of the Forms Nos. 2, 3 or 4.

(2) Every petition for the winding up of a company by the Court shall contain:

      (a) either:

        (i) statements that the Insolvency Regulation applies to the proceedings and that the company’s centre of main interests (determined in accordance with the Insolvency Regulation) is situated in the State and the facts and grounds supporting each statement; or

        (ii) statements that the Insolvency Regulation applies to the proceedings and that the company’s centre of main interests is situated in another specified Member State and the facts and grounds supporting each statement, or

        (iii) a statement that the Insolvency Regulation does not apply to the proceedings, and the facts and grounds supporting that statement, and in such case, shall contain a statement of the reasons why the petitioner is entitled to apply for the winding up of the company, or


      (b) where the Insolvency Regulation applies to the proceedings, a statement that, to the petitioner’s knowledge, no insolvency proceedings have been opened in respect of the company in any Member State or Member States (other than the State) or that such insolvency proceedings have been opened in any other Member State, and if so, whether the proceedings which have been opened are main proceedings, secondary proceedings or territorial proceedings.
(3) Where, in the petitioner’s belief, the centre of the company’s main interests is situated within the territory of a Member State other than the State the petition shall identify the place within the State where, in the petitioner’s belief, the company has an establishment (determined in accordance with Article 2(h) of the Insolvency Regulation) and the affidavit verifying the petition shall set out the facts supporting such belief.

(4) Where, in the petitioner’s belief, the centre of the company’s main interests is situated within the territory of a Member State other than the State, and where main proceedings have not been opened in another Member State, the petition shall contain a statement as to which of the conditions referred to in Article 3(4)(a) or Article 3(4)(b) of the Insolvency Regulation is met and the facts and grounds supporting that statement.

(5) Where insolvency proceedings have been opened in another Member State, the affidavit verifying the petition shall exhibit a certified copy of the original decision appointing the liquidator in the main proceedings or any other official languages of the State, a translation of that decision or certificate into the Irish or the English language certified by a person competent and qualified for the purpose.

8. The petition shall be presented at and shall be retained in the Central Office. A sealed copy thereof shall be taken out by the petitioner or his solicitor and shall be used as if it were an original.

9. The petition and sealed copy shall be brought to the office of one of the Registrars who shall appoint the time and place at which the petition is to be heard. Notice of the time and place appointed for hearing the petition shall be written on the petition and the sealed copy thereof and the Registrar may at any time before the petition has been advertised, alter the time appointed and fix another time.

Advertisement of petition

10. (1) Every petition shall be advertised seven clear days before the hearing, once in Iris Oifigiúil and once at least in two daily newspapers or in such other newspapers as the Registrar when appointing the time and place at which the petition is to be heard shall direct.

(2) The advertisement, which shall be in the Form No. 5, shall state the day on which the petition was presented, the name and address of the petitioner, and the name and registered place of business of his solicitor, and shall contain a note at the foot thereof stating that any person who intends to appear at the hearing of the petition, either to oppose or support, shall send notice of his intention to the petitioner, or to his solicitor, within the time and in the manner prescribed by rule 15, and an advertisement of a petition for the winding up of a company by the Court which does not contain such a note shall be deemed irregular.

(3) The petitioner shall vouch the advertisement of the petition on affidavit, which affidavit shall be filed not later than one clear day before the date fixed for the hearing of the petition, and a certified copy of that affidavit shall be produced on the hearing of the petition.

Service of petition

11. (1) Subject to section 51 of the Act and sub-rule (2), every petition shall, unless presented by the company, be served on 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 any such 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 such 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 when the company is being wound up voluntarily, every such petition shall also be served upon the liquidator appointed for the purpose of winding up the affairs of the company.

(2) Where main proceedings have been opened in a Member State other than the State, and the registered office of the company is not situated in the State, the petitioner need not serve the petition on the company, but shall send a copy of the petition to the liquidator in the main proceedings immediately following presentation of the petition.

Verification of petition

12. Every petition for the winding up of a company by the Court shall be verified by affidavit. Such affidavit, which shall be in one of the Forms Nos. 6 or 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 or company, by some director, secretary or other officer thereof, and shall be sworn after and filed within four days after the petition is presented, and such affidavit shall be sufficient prima facie evidence of the statements in the petition.

Copy of petition

13. Every contributory or creditor of the company shall be entitled to be furnished by the solicitor of the petitioner with a copy of the petition within twenty-four hours after making the request for such copy on paying for it at the rate specified in Order 117.

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V. Provisional liquidator

Appointment of provisional liquidator

14. (1) Subject to sub-rule (2), after the presentation of a petition for the winding up of a company, the Court, upon the application of a person entitled by law to present a petition, and upon proof by affidavit of sufficient ground for the appointment of a provisional liquidator and without advertisement or notice to any person (unless the Court shall otherwise direct) may, upon such terms as in the opinion of the Court shall be just and necessary, appoint a provisional liquidator.

(2) When appointing a provisional liquidator, the Court shall:

      (a) where it is satisfied that the Insolvency Regulation applies to the proceedings, determine and specify in its order, as the case may be:

        (i) the petitioner having adduced evidence that the centre of main interests of the company is situated in Ireland and no insolvency proceedings have been opened in another Member State, the proceedings are main proceedings, in accordance with Article 3(1) of the Insolvency Regulation, or

        (ii) the petitioner having adduced evidence that insolvency proceedings to which Article 3(1) of the Insolvency Regulation refers, and that an establishment of the company is situated in Ireland, the proceedings are secondary proceedings, in accordance with Article 3(3) of the Insolvency Regulation, or

        (iii) the petitioner having adduced evidence that the centre of main interests of the company is not situated in Ireland, but that an establishment of the company is situated in Ireland, the proceedings are territorial proceedings, in accordance with Article 3(4) of the Insolvency Regulation;


      (b) where it is satisfied that the Insolvency Regulation does not apply to the proceedings, so specify in its order.
(3) The order appointing the provisional liquidator shall state the nature and a short description of the property of which the provisional liquidator is ordered to take possession, and the duties to be performed by the provisional liquidator.

(4) Subject to any order of the Court, if no order for the winding up of the company is made upon the petition, or if an order for the winding up of the company is rescinded or if all proceedings on the petition are stayed, the provisional liquidator shall be entitled to be paid out of the property of the company all the costs, charges and expenses properly incurred by him as provisional liquidator, including such sum as the Court may fix for his remuneration and may retain out of such property the amount of such costs, charges and expenses.

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VI. Hearing of petitions and orders made thereon

Hearing of petition and appearances thereon

15. Every person who intends to appear on the hearing of a petition shall serve on, or send by post to, the petitioner or his solicitor at the address stated in the advertisement of the petition, notice of his intention. The notice shall contain the address of such person, and shall be signed by him, or by his solicitor and shall be served, or if sent by post, shall be posted in such time as in the ordinary course of post to reach the address not later than five o’clock in the afternoon of the day previous to the day appointed for the hearing of the petition. The notice may be in the Form No. 8. A person who has failed to comply with this rule shall not, without the special leave of the Court, be allowed to appear on the hearing of the petition.

16. The petitioner, or his solicitor, shall prepare a list in the Form No. 9 of the names and addresses of the persons who have given notice of their intention to appear on the hearing of a petition, and of their respective solicitors. On the day appointed for hearing the petition, a copy of the list (or if no notice of intention to appear has been given, a statement in writing to that effect) shall be handed by the petitioner, or his solicitor, to the Registrar prior to the hearing of the petition.

17. Affidavits in opposition to a petition that the company may be wound up under the order of the Court shall be filed within seven days after the publication of the last of the advertisements required by rule 10, and notice of the filing of every affidavit in opposition to such a petition shall be given to the petitioner, or his solicitor, on the day on which the affidavit is filed.

18. When a petitioner consents to withdraw his petition, or to allow it to be dismissed, or the hearing adjourned, or fails to appear in support of his petition when it is called in Court on the day originally fixed for the hearing thereof, or on any day to which the hearing has been adjourned, or if appearing, does not apply for an order in the terms of the prayer of his petition, the Court may, if, and upon such terms as it shall deem just, substitute as petitioner any person who would have a right to present a petition, and who desires to prosecute the petition.

Winding up order

19. An order to wind up a company or for the appointment of a provisional liquidator shall contain at the foot thereof a statement of the obligations of the persons who are liable to make out or concur in making out the company’s statement of affairs—

      (a) in accordance with section 593 of the Act, to serve a copy of the statement of affairs on the liquidator (or the provisional liquidator, as the case may be) within the time specified in that section and

      (b) in accordance with section 594 of the Act, at the liquidator’s request to provide to the liquidator such information in relation to the company as the liquidator may reasonably require, and to provide to the liquidator such assistance, as they are in a position to give during the course, and for the purpose, of the liquidator’s examining (following his or her receipt of the statement) the company’s affairs as he or she may reasonably require and

      (c) where the Court so directs, to attend before the Court at such time and place as may be fixed by the Court and to give to the Court all such information in relation to the company that the Court may require.

20. (1) The Court shall determine and specify in an order for the winding up of a company, as the case may be, the matters specified in rule 14(2).

(2) Every order for the winding up of a company by the Court may (subject to rule 19) be in the Form No. 10. Every such order shall, within 10 days after the date thereof, or within such extended time as may be allowed by the Court, be advertised in the Form No. 11 by the petitioner once in Iris Oifigiúil, and in each of the newspapers in which the petition was advertised, unless the Court shall otherwise direct and shall, subject to rule 1(4) and to rule 28(2), be served upon such persons (if any) and in such manner as the Court may direct.

21. The particulars of an order for the winding up of a company to be delivered to the Registrar of Companies in accordance with section 591(1)(a) of the Act shall be delivered by the transmission of a copy of the order by the registrar of the Court to the Registrar of Companies by registered post or by such other means (including by electronic communication) as may be agreed by the proper officer and the Registrar of Companies.

22. (1) A copy of every order for the winding up of a company certified by the petitioner or his solicitor to be a true copy shall be served by him (or by such other person as the Court directs) upon the company by pre-paid post addressed to its registered office (if any) or if there is no registered office at its principal or last known principal place of business, on any provisional liquidator or liquidator appointed and on such other person or in such other manner as the Court may direct in accordance with section 591(1)(b) of the Act.

(2) Sub-rule (1) shall not apply when the company is the petitioner.

(3) Rule 1(4) shall apply to an order for the opening of secondary proceedings in respect of a company.

Notice to the sheriff

23. For the purposes of section 607 of the Act notice that (1) a provisional liquidator has been appointed, or (2) a winding up order has been made, or (3) a resolution has been passed for the voluntary winding up of the company, or (4) a petition for the winding up of the company has been presented, or (5) a meeting has been called at which there is to be proposed a resolution for the voluntary winding up of the company, shall be in writing and shall be addressed to the sheriff and may be served by being delivered by hand, or by registered post, at his office.

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VII. Statement of affairs

Preparation of statement of affairs

24. (1) A statement of affairs of a company required under section 593(1) of the Act shall be made out in duplicate, one copy of which shall be verified by affidavit. The verified statement of affairs shall, where the Court has made a winding up order, be filed in the Central Office.

(2) An application by a liquidator under section 594(4) of the Act for an order directing a person to comply with a request made by a liquidator under section 594(3) of the Act shall be made by motion on notice to the person concerned grounded upon an affidavit setting out particulars of the request made (and exhibiting same, if in writing) and of the alleged failure to comply.

(3) When any person requires any extension of time for submitting the statement of affairs, he shall apply to the Court under section 593(5) by motion on notice to the liquidator for such extension.

25. An application to the Court to sanction the costs and expenses to be incurred in or about the making of a statement of affairs shall be by notice of motion. The motion shall be on notice to the liquidator, if any.

Dispensing with statement of affairs

26. (1) Any application for an order under section 593(1) of the Act dispensing with the requirements to make out and file with the Court a statement of affairs shall be supported by a report of the liquidator showing the special circumstances which, in his opinion, render such a course desirable.

(2) When the Court has made an order referred to in sub-rule (1), it may give such consequential directions as it may see fit and, in particular, may give directions as to the sending of any notices which are by this Order required to be sent to any person mentioned in the statement of affairs.

27. Every statement of affairs shall be in the Form No. 13.

28. (1) Unless the Court shall otherwise order, the liquidator shall, 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 causes of its failure and any observations thereon which the liquidator may think fit to make.

(2) In a winding up to which the Insolvency Regulation applies, notice shall be given by the liquidator of the opening of the proceedings and of the liquidator’s appointment, in accordance with Article 40 of the Insolvency Regulation, to each creditor of whom he is aware, who does not appear to have his or its habitual residence, domicile or registered office in the State. That notice shall also specify:

      (a) such time limit, if any, as has been fixed for the lodging and proving of claims;

      (b) that in default of compliance with any such time limit, a creditor will be excluded from any distribution made before that creditor’s debt or claim is proved;

      (c) the name and address of the liquidator for the purpose of lodging and proving claims;

      (d) whether preferential or secured creditors need to lodge their claims, and

      (e) the relevant provisions of the winding up order.

(3) When prior to the winding up order the company has commenced to be wound up voluntarily, the liquidator may, if in his absolute discretion he thinks fit to do so, send to the persons aforesaid or any of them an account of such voluntary winding up showing how such winding up has been conducted and how the property of the company has been disposed of.

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VIII. Liquidator

29. The Court may appoint a person to be the liquidator of a company without previous advertisement or notice to any party or fix a time and place for the appointment of a liquidator and may appoint or reject any person nominated at such time and place and appoint any person not so nominated.

30. The particulars of an order appointing a liquidator to be delivered to the Registrar of Companies in accordance with section 591(2) of the Act shall be delivered by the transmission of a copy of the order by the registrar of the Court to the Registrar of Companies by registered post or by such other means (including by electronic communication) as may be agreed by the proper officer and the Registrar of Companies.

31. An application for the appointment of a person as liquidator shall, in addition to any other evidence the Court may require, be supported by an affidavit sworn by that person—

      (a) verifying compliance by the person with the requirements for qualification for appointment as liquidator specified in sections 633 and 634 of the Act and in particular specifying—

        (i) within which of the five categories in the Table in section 633 of the Act the person falls (and where the person falls within the fifth category, particulars of the authorisation issued by the Supervisory Authority) and

        (ii) particulars of the amount and terms of such indemnity in place in relation to the person as may have been prescribed by regulations made by the Supervisory Authority under section 634 of the Act, and


      (b) confirming that the person is not, by virtue of section 635 of the Act, disqualified from appointment as a liquidator.
32. In an order appointing a liquidator in accordance with section 575 of the Act, which may be in the Form No. 12, the Court may include such consequential or supplemental orders or directions as it considers necessary or appropriate in the circumstances.

33. The Court may at any time after a person has been appointed as a liquidator, require verification by affidavit or otherwise that the person is, or as the case may be, remains, qualified for appointment as a liquidator of a company in accordance with sections 633 and 634 of the Act, and is not disqualified from acting as liquidator by virtue of section 635 of the Act.

34. Every appointment of a liquidator shall be advertised in such manner as the Court shall direct.

35. (1) Without limiting the power of the Court to make such an order of its own motion in accordance with section 638(1) of the Act, an application to the Court by a member, creditor, liquidator or the Director under that sub-section to appoint a liquidator if from any cause whatever there is no liquidator acting, or on cause shown, to remove a liquidator and appoint another liquidator, shall be by motion on notice to the liquidator (if any).

(2) Where an order is made by the Court of its own motion appointing or removing a liquidator, the registrar of the Court shall:

      (a) for the purposes of section 643(7) of the Act, deliver or cause to be delivered by registered prepaid post or by electronic means to the liquidator a copy of the Court’s order, unless the liquidator or his or her duly authorised representative was present in Court when the order was made, and

      (b) for the purposes of section 643(8) of the Act, send a copy of the Court’s order to the Registrar of Companies by registered prepaid post or by such other means as may be agreed between the registrar of the Court and the Registrar of Companies.

(3) Where an order is made by the Court appointing or removing a liquidator on application made to it, the applicant shall:
      (a) for the purposes of section 643(7) of the Act, deliver or cause to be delivered by registered prepaid post or by electronic means to the liquidator a copy of the Court’s order, unless the liquidator or his or her duly authorised representative was present in Court when the order was made, and

      (b) for the purposes of section 643(8) of the Act, send a copy of the Court’s order to the Registrar of Companies by registered prepaid post or by such other means as may be permitted by the Registrar of Companies.

36. A liquidator, or any member of the committee of inspection of a company, or any other person employed in or in connection with the winding up of the company shall not under any circumstances whatever accept from or arrange to accept from any solicitor, auctioneer or other person connected with the company any gift, gratuity, remuneration, emolument, or pecuniary or other consideration or benefit whatever in addition to or apart from such remuneration as he may properly be entitled to under the provisions of the Act or this Order; nor shall any such person so employed as aforesaid give up or arrange to give up to any such solicitor, auctioneer or other person any portion of his proper remuneration.

37. An application to the Court by a creditor or contributory under section 629(8) of the Act to set aside a purchase allegedly made in contravention of section 629(3), 629(6) or 629(7) of the Act shall be by notice of motion grounded upon an affidavit of the moving party. Notice of the application shall be served on the liquidator, on any member of a committee of inspection to whom the application relates, and on any other person the Court directs.

Remuneration of liquidator

38. (1) An application to have the liquidator’s remuneration fixed by the Court in accordance with section 646(2)(d) of the Act shall be by motion of the liquidator-

      (a) on notice to the committee of inspection or,

      (b) where no committee of inspection exists, on notice to such creditor or creditors as is or are directed by the Court, or

      (c) in a members’ voluntary winding up, on notice to such member or members, or other person or persons, as is or are directed by the Court,

supported by an affidavit setting out or exhibiting and verifying the particulars required by section 646(3) of the Act and such other evidence (if any) as the Court shall require.

(2) An application to vary the terms of a liquidator’s entitlement to remuneration under section 646(5) of the Act shall be by motion on notice in like manner as for an application referred to in sub-rule (1).

(3) An application by the liquidator for payment in accordance with section

647(2)(d) of the Act (in any case in which there is no agreement to refer any dispute as to the amount of remuneration to arbitration in accordance with section 648(1) of the Act) shall be by motion of the liquidator on notice to the committee of inspection (if any) or otherwise on notice to such creditor or creditors as is or are directed by the Court, supported by an affidavit setting out or exhibiting and verifying the particulars required by section 647(3) of the Act.

(4) An application by a creditor or member to the Court in accordance with section 648(5) of the Act to review the amount agreed or allowed at the liquidator’s remuneration shall be by motion of the creditor or member concerned on notice to the liquidator and to such other person or persons as is or are directed by the Court.


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IX. Proceedings by or against directors, promoters and officers when the company is being wound up by the Court

39. (1) An application made to the Court under—

      (a) section 132 of the Act,

      (b) section 234 of the Act,

      (c) section 608 or 609 of the Act,

      (d) section 610 or 611 of the Act,

      (e) section 612 or 613 of the Act,

shall be made by motion in which shall be stated the nature of the declaration or order for which application is made and the grounds of the application, and notice of such motion, together with a copy of every report and affidavit upon which it is intended to be grounded, shall be served personally on every person against whom an order is sought, not less than seven clear days before the day named therein for hearing the application.

(2) Where the application is not made by the liquidator it shall, in addition to any other person to whom notice of it is to be given, be made on notice to the liquidator.

(3) Where the application is made—

      (a) by the liquidator, he may make a report to the Court stating any relevant facts and information which he shall verify by affidavit,

      (b) by any other person, it shall be supported by affidavit to be filed by him.

(4) The Court may give such directions as to the procedure for the hearing of the application and may direct that the date fixed for the hearing shall be advertised in such form as the Court may approve, and on the hearing the Court may allow any person interested to appear either by counsel or in person and to cross-examine any of the witnesses giving evidence or to give evidence.

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X. Committee of inspection; meetings of creditors and contributories

Committee of inspection

40. (1) Where a meeting of the creditors is being summoned under section 666 of the Act, the liquidator shall give notice in writing in the Form No. 14 seven clear days before the day appointed for such meeting to every creditor of the time and place appointed for such meeting and that the purpose of such meeting or meetings is to determine whether a committee of inspection is to be appointed and who are to be the members of the committee if appointed. If the liquidator considers it necessary, such notice may also be given by advertisement. The liquidator or, if he is unable to act someone nominated by him, shall act as chairman of such meeting.

(2) An application to the Court under section 666(4) of the Act shall be made by motion on notice to the person to whom the application relates, to the liquidator and to any other person directed by the Court to be given notice (but in the case of a creditors’ voluntary winding up, the application to the Court under section 667(4) of the Act shall be made by originating notice of motion on notice to the person to whom the application relates, to the liquidator and to any other person directed by the Court to be given notice).

(3) An application to the Court under section 668(7) of the Act or for the leave of the Court under section 668(9) of the Act shall be made by motion on notice to the members (or, as the case may be, the other members) of the committee of inspection and the liquidator, but in the case of a creditors’ voluntary winding up, the application shall be by originating notice of motion.

41. Every appointment of a committee of inspection shall be advertised by the liquidator in such manner (if any) as he considers necessary.

Meetings of creditors and contributories

42. (1) When the Court directs a meeting of the creditors or contributories of the company to be summoned under section 566 of the Act, the liquidator shall give notice as required by section 691 of the Act in the Forms Nos. 15 or 16 to every creditor or contributory of the matter upon which the Court desires to ascertain the wishes of the creditors or contributories. If the Court so directs, such notice may be given by advertisement in accordance with section 689(2) of the Act.

(2) The chairperson’s report to the Court of the result of the meeting shall be in the Form No. 17.

43. An affidavit by the liquidator or creditor, or the solicitor or clerk of either of such persons, or as the case may be, by some officer or clerk of the company or its solicitor that the notice of any meeting has been duly posted, shall be sufficient evidence of such notice having been duly sent to the person to whom the same was addressed.

44. Every instrument of proxy shall be in either the Form No. 18 or the Form No. 19.

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XI. Disclaimer

45. (1) Any application in a winding up by the Court for leave to disclaim any part of the property of a company pursuant to section 615(2) of the Act shall be made ex parte, and in any other case by originating notice of motion. Such application shall be grounded on an affidavit showing who are the parties interested in the property and what their interests are. On the hearing of the application, the Court shall give directions and in particular directions as to the notices to be given to the parties interested or any of them and as to advertisements to be published and may adjourn the application to enable any such party to attend.

(2) Where a liquidator disclaims a leasehold interest he shall forthwith deliver the disclaimer to the Registrar of Companies. The disclaimer shall contain particulars of the interest disclaimed and a statement of the persons to whom notice of the disclaimer has been given. Until the disclaimer is so delivered it shall be inoperative. A disclaimer shall be in the Form No. 20 and a notice of disclaimer in the Form No. 21.

(3) Where any person claims to be interested in any part of the property of a company which the liquidator wishes to disclaim, he shall at the request of the liquidator furnish a statement of the interest so claimed by him.

46. (1) Subject to sub-rule (2), any application under section 616(3) and section 616(4) of the Act for an order for the vesting of any disclaimed property in, or the delivery of any such property to, any persons shall be made by originating motion ex parte, grounded on the affidavit filed on the application for leave to disclaim such property.

(2) The Court may, in accordance with section 616(3), direct notice of the application to be given to such person or persons as it considers appropriate and where the application relates to disclaimed property of a leasehold nature and it appears that there is any mortgagee by demise, chargeant or under-lessee of such property, the Court may direct that notice shall be given to such mortgagee, chargeant or under-lessee that, if he does not apply for such a vesting order within the time to be stated in the notice, he will be excluded from all interest in and security upon the property; and the Court may for those purposes adjourn the original application. If at the expiration of the time so stated in the notice such mortgagee, chargeant or under-lessee fails himself to apply for a vesting order, the Court may, subject to section 616, make an order vesting the property in the original applicant and excluding such mortgagee, chargeant or under-lessee from all interest in or security upon the property.

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XII. List of contributories in a winding up by the Court.

47. Any list of contributories made out in accordance with section 656 of the Act shall be verified by the affidavit of the liquidator in the Form No. 22 and shall, so far as is practicable, state the address of and the number of shares or extent of interest to be attributed to each contributory and the amount called up, and the amount paid up in respect of such shares or interest and distinguish the several classes of contributories. The liquidator shall, in relation to representative contributories or contributories liable for the debts of others, as far as practicable, observe the requirements of section 656(4) of the Act.

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XIII. Delivery of property of company to liquidator

48. An application to the Court by the liquidator under section 673(2) and (3) of the Act shall be by motion on notice to the person intended to be affected, grounded on an affidavit sworn by or on behalf of the liquidator, but such application may be heard and determined ex parte in the first instance in any case in which the Court considers it necessary in the interests of justice.

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XIV. Calls

49. Every application to the Court under section 657(2) and (3) of the Act to make any call on the contributories or any of them shall be made by motion on notice in the Form No. 24 stating the proposed amount of such call. Such motion which shall be grounded on an affidavit of the liquidator in the Form No. 25 shall be served six clear days at the least before the hearing of the application on every contributory proposed to be included in such call, or if the Court shall so direct, notice of such intended call may be given by advertisement in the Form No. 26.

50. When an order for a call has been made, a copy thereof shall be forthwith served upon each of the contributories included in such call together with a notice in the Form No. 27 from the liquidator specifying the amount or balance due from such contributory (having regard to the provisions of the Act) in respect of such call but such order need not be advertised unless for any special reason the Court shall so direct.

51. At the time of making an order for a call the further proceedings relating thereto shall be adjourned to a time subsequent to the day appointed for the payment thereof, and afterwards from time to time, so long as may be necessary. At the time appointed by any such adjournment or upon a motion to enforce payment of a call duly served and upon proof of the service of the order and notice of the amount due and non-payment, an order may be made that such of the contributories who have made default or that such of them against whom it shall be thought proper to make such an order, do pay the sum which by such former order and notice they were respectively required to pay, or any less sum which may appear to be due from them respectively.

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XV. Ascertainment of company’s liabilities

52. (1) The advertisement for claims to be published by the liquidator in the manner provided for in section 622(6) of the Act shall be in the Form No. 30, and such advertisement shall fix a time in accordance with section 674(3) of the Act for the creditors to send their names and addresses and the particulars of their debts and claims, and the names and registered places of business of their solicitors (if any) to the liquidator.

(2) The notice to be given to a creditor in accordance with section 674(2) of the Act shall be in the Form No. 31 and, in the case of any creditor who appears to the liquidator not to have his or its habitual residence, domicile or registered office in the State, shall be in the Form No. 32.

(3) A notice referred to in sub-rule (2) shall be given by delivering it, or by sending it by prepaid ordinary post to the creditor concerned at the address set forth in the statement of affairs or at such address as may be known to the liquidator (or in the case of the liquidator in main proceedings opened in a Member State other than the State, immediately by the means specified in rule 1(4)).

(4) An application to the Court by a creditor under section 674(4) of the Act shall be by motion on notice to the liquidator, grounded on an affidavit sworn by or on behalf of the creditor, which sets out the reasons why an extension of time is sought.

53. The creditors need not attend on the ascertainment by the liquidator of the debts or liabilities nor prove their claims unless they are required to do so by notice from the liquidator but upon such notice being given they shall attend and/or prove the debt or liability claimed within a time to be therein specified.

54. The liquidator shall make out a list of all the debts and liabilities of the company, distinguishing which of the debts and liabilities, or parts of the debts and liabilities claimed are in his opinion legally due and proper to be allowed without further evidence, and which of them in his opinion ought to be proved by the creditor.

55. The liquidator shall give notice in the Form No. 33 to the creditors whose debts and claims have been allowed of such allowance. The liquidator shall give notice in the Form No. 34 to the creditors whose debts or claims have not been allowed without further proof, that they are required to prove the same on or before a day to be specified in the notice, being not less than seven days after such notice and, where required, to attend on the liquidator at a time to be therein specified. If the creditor shall fail to comply with the requirements of this notice, his claim or the part thereof required to be proved may be disallowed by the liquidator.

56. The result of the liquidator’s ascertainment of the debts and claims shall be stated in a certificate to be made by the liquidator and certificates as to any of such debts and claims may be made from time to time. All such certificates shall show the debts or claims allowed and whether allowed as against any particular assets or in any other qualified or special manner.

57. Any application to the Court under section 631 of the Act concerning the exercise or proposed exercise by the liquidator of any power concerning or affecting the ascertainment of the debts and liabilities of the company shall be made by motion on notice to the liquidator grounded upon an affidavit sworn by or on behalf of the moving party.

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XVI. Proof of debts

58. Save where the liquidator shall require the same to be proved by affidavit, a debt may be proved in any winding up by delivering or sending through the post particulars of the claim to the liquidator.

59. An affidavit proving a debt may be in the Form No. 35 and may be made by the creditor or by some person authorised by him. If made by a person so authorised, it shall state his authority and means of knowledge. The affidavit 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 and shall state whether the creditor is, or is not, a secured creditor. The creditor shall produce such vouchers if required to do so.

60. A creditor shall bear the cost of proving his debt or claim unless he has been required to attend and prove the same by the liquidator.

61. Unless the liquidator shall in any special case otherwise direct, formal proof of the debts mentioned in section 621(2)(d) of the Act shall not be required.

62. Unless otherwise directed or permitted by the liquidator, in any case in which it appears that there are numerous claims for wages by persons employed by the company, it shall be sufficient if one proof for all such claims is made by a foreman or by a trade union official or by some other person on behalf of all such creditors. Such proof, which shall be in the Form No. 36, shall have annexed thereto as forming part thereof, a schedule setting forth the names of the employees and the amounts severally due to them. 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 employees.

Production of bills of exchange and promissory notes

63. 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, note, instrument or security shall, subject to direction of the liquidator or any special order of the Court made to the contrary, be produced to the liquidator and be marked by him before the proof is admitted either for voting or for any other purpose.

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XVII. Dividends in a winding up by the Court

Dividend to creditors

64. The liquidator may declare and pay any interim or final dividend to creditors.

65. Upon the declaration of an interim or final dividend by the liquidator he shall send notice thereof to each creditor whose proof has been admitted.

66. If a person to whom dividends are payable desires that they shall be paid to some other person, he may lodge with the liquidator a document in the Form No. 37, which shall be a sufficient authority for payment of the dividend to the person therein named.

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XVIII. Payment in of moneys and deposit of securities

67. If the liquidator does not promptly pay moneys received by him into an account with a financial institution to the account of the liquidator of the company in accordance with the order of the Court in that behalf, such liquidator shall, unless the Court otherwise directs, be required to pay the interest which would have been received from the financial institution had the moneys been paid promptly into such account in accordance with the Court’s order.

68. All bills, notes and other securities payable to the company or to the liquidator shall as soon as they come to the hands of the liquidator be deposited by him with a financial institution for the purpose of being presented for acceptance and payment or for payment only as the case may be.

69. At the time of the service of any order for the payment into an account with a financial institution to the account of the liquidator of the company the liquidator shall give to each of the parties served a notice in the Form No. 28 for the purpose of informing him how the payment is to be made.

70. For the purpose of enforcing any order for payment of money into an account with a financial institution to the account of the liquidator of the company, an affidavit of the liquidator in the Form No. 29 shall be sufficient evidence of the non-payment thereof.

71. All bills, notes and other securities delivered into a financial institution to the account of the liquidator of a company shall be delivered out upon a request signed by the liquidator. Moneys placed to the account of the liquidator shall be paid out on cheques or orders signed by the liquidator.

72. All or any part of the money for the time being standing to the credit of the liquidator of a company in an account with a financial institution to the account of the liquidator and not immediately required for the purpose of the winding up may be invested in the name of the liquidator. All such investments shall be made upon a request in the Form No. 38 signed by the liquidator which request shall be a sufficient authority for debiting the account with the purchase money.

73. All dividends and interest to accrue due upon any such investments shall from time to time be received by the financial institution concerned, under a power of attorney to be executed by the liquidator, and be placed to the credit of the account of such liquidator.

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XIX. Examination of witnesses

74. The transcript or notes of the examination of a witness shall not be open to the inspection of any person other than the liquidator, unless and until the Court shall otherwise direct. The Court may from time to time give directions in regard to the custody and inspection of the transcripts and notes of examinations and the furnishing of copies or extracts therefrom.

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XX. Sanction of the Court

75. (1) Every application by a liquidator under section 631 of the Act, or for an order under any other section of the Act permitting a liquidator to take any step or do any thing, for which provision is not otherwise made in these Rules, shall be made to the Court by motion on notice (where appropriate), or ex parte in pursuance of a motion paper setting forth shortly the nature of the application.

(2) Every application by a contributory or creditor or by the Director to the Court under section 631 of the Act shall be made to the court by motion on notice to the liquidator in pursuance of a motion paper setting forth shortly the nature of the application.

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XXI. Statements by liquidator to the Registrar of Companies

Conclusion of winding up

76. The winding up of a company shall for the purposes of section 681 of the Act be deemed to be concluded:

      (a) where, in the case of a company wound up by order of the Court, the Court has made an order under section 704(1) of the Act — on the date on which the order dissolving the company has been reported by the liquidator to the Registrar of Companies;

      (b) in the case of a company wound up by order of the Court where no such order is made, and in the case of a company wound up voluntarily — on the date of the dissolution of the company in accordance with section 706 of the Act, unless on such date any funds or assets of the company remain unclaimed or undistributed in the hands 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 such funds or assets have either been distributed or paid into The Companies Liquidation Account.

Times for sending liquidator’s statements, and regulations applicable thereto

77. The statements in relation to the proceedings in and the position of the liquidation of a company the winding up of which is not concluded within 12 months after its commencement shall be sent to the Registrar of Companies at the intervals provided by section 681(2) and (3) of the Act unless otherwise ordered by the Court. The statement shall be in the Form No. 39, shall be sent in duplicate, and shall be verified by an affidavit in the Form No. 40, which shall be sent with the statement to the Registrar of Companies.

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XXII. Payment of unclaimed dividends and unapplied or undistributable balances into the account prescribed under, section 623(1) of the Act

78. (1) All moneys in hand or under the control of a liquidator representing unclaimed dividends admissible to proof and unapplied or undistributable balances, which under section 623(1) of the Act the liquidator is to pay into the account prescribed under that subsection (in this rule “the Account”) shall be ascertained on the date which is two months—

      (a) after the date of filing of the application made by the liquidator to the Court under section 704(3) of the Act, where the Court has made an order under section 704(1) of the Act,

      (b) after the meeting referred to in section 705 or in section 706 of the Act (as the case may be),

and shall be paid into the Account within 14 days from the said date.

(2) When a liquidator desires to pay moneys into the Account he shall make and file an affidavit entitled in the matter of the company in liquidation and in the matter of section 623 of the Act, and setting forth:

      (a) the name of the company of which he is liquidator,

      (b) his name and address,

      (c) the date on which the order for the winding up of the company was made or, as the case may be, the resolution for winding up was passed and the date on which he was appointed liquidator,

      (d) the amount of the moneys to be lodged to the Account,

      (e) the amount of the said moneys to be lodged which represents unclaimed dividends admissible to proof,

      (f) the amount of the said moneys to be lodged which represents unapplied or undistributable balances,

      (g) the names and last known addresses of the persons to whom the unclaimed dividends admissible to proof are payable and the amount payable to each such person,

      (h) the names and last known addresses of the persons to whom the unapplied or undistributable balances are payable and the amount payable to each such person,

      (i) the names and last known addresses of any persons (other than those mentioned in paragraphs (g) and (h)) who have claimed any interest in such unapplied or undistributable balances and the nature of such claim,

      (j) his submission to answer all such inquiries relating to the moneys so to be lodged as the Court may make or direct.

(2) Such affidavit shall have annexed thereto a schedule as prescribed by Order 77, rule 91. When the liquidator has filed such an affidavit, he shall pay such moneys into the Account or, if the Account is maintained by the Accountant, he shall request the Accountant to issue a direction to the Bank to receive such moneys for the credit of the Account. Any application for such request shall be in the Form No. 7 Appendix P.

(3) Moneys invested or deposited at interest by a liquidator shall be deemed to be moneys under his control and when such moneys form part of the balance payable into the Account pursuant to sub-rule (1) the liquidator shall realise the investment or withdraw the deposit and shall pay the proceeds into the Account.

(4) Every person who has acted as liquidator, whether the liquidation has been concluded or not, shall furnish to the Minister on request particulars of any moneys in hand or under his control representing unclaimed dividends admissible to proof or unapplied or undistributable balances and such other particulars as the Minister may require for the purpose of ascertaining or getting in any money payable into the Account, and the Minister may require such particulars to be verified by affidavit.

(5) The Minister may at any time request any such person as is mentioned in sub-rule (4) to submit to him an account verified by affidavit of the sums received and paid by him as liquidator of the company and may direct an audit of the account.

(6) If any person who has been requested to furnish particulars of any moneys in hand or under his control representing unclaimed dividends admissible to proof or unapplied or undistributable balances under sub-rule (4) or to submit an account under sub-rule (5) shall fail to furnish such particulars or to submit such account within 21 days after being requested to do so, the Minister may apply to the Court by originating notice of motion and the Court shall make such order as shall be necessary for the purpose of enforcing sub-rules (4) and (5) hereof.

(7) An application under section 623(2) of the Act shall be made by originating notice of motion in which the liquidator who made the lodgment out of which payment is sought and the Minister shall be named as respondents. If such liquidator shall be dead or cannot be traced at the date of such motion the Court may dispense with the necessity of naming the liquidator as a respondent.

(8) An application by a liquidator for payment out of the Account of any costs, expenses and disbursements of the voluntary winding up, shall be made by originating notice of motion in which the Minister shall be named as respondent.

(9) An application under section 623(3) of the Act for payment out of any moneys paid into the Exchequer shall be made by originating notice of motion in which the Minister for Finance shall be named as respondent.

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XXIII. File of proceedings

79. All orders, exhibits, admissions, memoranda, attested copies of affidavits, examinations, certificates and all other documents relating to the winding up of the company shall be filed by the liquidator, as far as may be, on one continuous file, and such file shall be kept by him. Every contributory of the company and every creditor whose debt or claim has been allowed, shall (save as otherwise provided in this Order) be entitled at all reasonable times to inspect such file free of charge, and at his own expense to take copies or extracts from any of the documents included therein, or to be furnished with such copies or extracts at a rate not exceeding ten cent per page of seventy-two words, and such file shall be produced in Court, and otherwise, as on occasion may be required.

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XXIV. Applications to stay or restrain proceedings or for leave to commence proceedings

80. (1) An application under section 574 of the Act or, as the case may be, section 1331 or section 1346 of the Act, to stay proceedings in an action then pending against the company (or, where relevant, contributory) in the High Court or on appeal in the Court of Appeal or the Supreme Court shall be made by motion in that action on notice to the plaintiff.

(2) An application under section 574 of the Act to restrain further proceedings in any other action or proceeding than those mentioned in sub-rule (1) shall be made by motion in the winding up proceeding on notice to the plaintiff.

(3) An application under section 1332 or section 1347 of the Act for leave to commence proceedings shall be made by motion in the winding up proceeding on notice to the liquidator.

81. An application to stay proceedings in an action or proceeding against a company in voluntary liquidation shall, if such action be pending in the High Court or on appeal in the Court of Appeal or the Supreme Court, be made by motion in that action on notice to the plaintiff, and shall otherwise be made by special summons.

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XXV. Applications under sections 450(3), 671, 672, 675 or 676 of the Act

82. (1) An application by a liquidator for an order under section 450(3) of the Act may be made by motion ex parte. On such application the Court may give such directions as it thinks proper in regard to the manner in which the meeting or meetings shall be summoned and in relation to the conduct thereof.

(2) When an order for the winding up of a company has been made, applications under sections 671, 672 or 675 of the Act may be made by motion ex parte.

(3) When a petition for the winding up of a company has been presented an application under section 675 of the Act may be made by motion ex parte.

(4) An appeal by a creditor or contributory under section 676(2) of the Act shall be brought by originating notice of motion.

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XXVI. Other applications by motion on notice or by originating notice of motion

83. (1) In any winding up an application under sections 87(3), 115, 247, 416(6), 445, 582, 584, 588(4), 599, 600, 601(8), 602(2), 603, 604, 605(3), 606, 608, 610, 612, 613, 614, 630, 632, 636, 637(6), 638, 644(2), 652(2), 655(2)(d), 659, 669, 670, 673, 677(5), 678, 684, 697(1)(b), 698(9), 706(8), 723, 724, 751, 836, 859, 1278, 1279, 1331 or 1332 of the Act or under any other section of the Act not in this Order expressly provided for, shall, in the case of a winding up by the Court, be made by motion on notice and in the case of a voluntary winding up by originating notice of motion.

(2) Without limiting the generality of sub-rule (1), an application by a creditor under section 582 of the Act shall be made by originating notice of motion, which shall be served on the liquidator (if any) and on the company.

(3) An application under section 1417 of the Act for the enforcement by the Court of an order made by a court of any state recognised for the purposes of section 1417 of the Act and made for, or in the course of, winding up a company shall be made by originating notice of motion.

(4) A liquidator intending to resign in accordance with section 641 of the Act shall give notice to the Court by an application ex parte to the Court. On the hearing of the application the Court may, if it thinks fit, direct that notice of the application be served on the petitioner, the company, or any other interested party as may be appropriate.

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XXVII. Termination of winding up by the Court

84. When the Court has made an order in accordance with section 704(1) of the Act, the liquidator shall apply by motion to the Court for an order under section 704(3) of the Act at such time as it appears to the liquidator that the affairs of the company have been completely wound up.

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XXVIII. Applications in voluntary winding up

85. Every application or appeal to the Court in a voluntary winding up may be made by originating notice of motion, save as otherwise provided in this Order.

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XXIX. Forms in voluntary winding up

86. The declaration of solvency referred to in section 580(2) of the Act together with the report and statement of the qualified person referred to in section 580(4) of the Act shall be in the Form No. 41.

87. The statement referred to in section 584 of the Act shall be in the Form No. 42.

88. The liquidator’s final account referred to in sections 705 and 706 of the Act shall be in the Form No. 43.

89. The return of the final meeting under section 705(4) of the Act in a members’ voluntary winding up shall be in the Form No. 44.

90. The return of the final meetings under section 706(4) of the Act in a creditors’ voluntary winding up shall be in the Form No. 45.

Certification of liquidator for the purposes of the Insolvency Regulation

91. For the purposes of section 712 of the Act, any appointment of a liquidator in a creditors’ voluntary winding up may, for the purposes of Article 19 of the Insolvency Regulation, be evidenced by a certificate in the Form No. 47 issued by the Master of the High Court upon verification of that appointment, in the case of a creditors’ voluntary winding up, by affidavit in the Form No. 46 made by the liquidator and in any other case by the production to the Master of a certified copy of the winding up order.

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XXX. Applications made by virtue of section 567 of the Act

92. An application to the Court made by virtue of section 567 of the Act and referred to in that section in relation to a company that is not being wound up shall be made by originating notice of motion.

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XXXI. Applications under section 819 of the Act

93. (1) An application for a declaration that a person who was a director of an insolvent company be restricted under section 819 of the Act shall be commenced by originating notice of motion in the Form No. 48 and grounded upon the affidavit of the applicant in the Form No. 49. Applications in respect of several directors of one company shall be made on one notice of motion except where the circumstances otherwise require.

(2) The affidavit grounding the application for restriction shall set out all the facts the applicant considers should be brought to the attention of the Court for the purpose of determining:

      (a) whether each of the respondents has acted honestly and responsibly in relation to the conduct of the affairs of the company in question, whether before or after it became an insolvent company,

      (b) whether each of the respondents has, when requested to do so by the liquidator of the insolvent company, cooperated as far as could reasonably be expected in relation to the conduct of the winding up of the insolvent company, and

      (c) whether there is any other reason for which it would be just and equitable that the respondents, or any of them, should be subject to the restrictions imposed by an order under section 819(1) of the Act.

(3) Motions shall be issued in the Central Office and made returnable for a date not less than 28 days from the date of issue and shall be served with the grounding affidavit on the respondent(s) not less than 21 clear days prior to the return date.

(4) An appearance to the notice of motion in the Form No. 50 shall be entered in the Central Office and served on the applicant or where on record his/her solicitor within 10 days of the date of service of the notice of motion.

(5) Where an application is opposed a respondent shall file and serve an affidavit setting out the facts upon which the application is opposed and shall file the affidavit in the Central Office and serve it on the applicant or where on record his/her solicitor not less than four clear days before the return date or such further time as the Court may exceptionally allow.

(6) Where no appearance is entered by or on behalf of a respondent the applicant shall file an affidavit of service in the Central Office not less than two clear days prior to the return date.

(7) Applications for the extension of time for the filing of affidavits by any party shall not be granted save exceptionally where the Court is satisfied that the extension of time is required for good reason.

(8) Applications which are duly served may be determined by the Court on the return date.

(9) Any subsequent application for relief under section 822 of the Act shall be by motion on notice to the original applicant but if the liquidation or receivership (as the case may be) has concluded, the application shall be by motion on notice to the Director.