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You are here: BAILII >> Databases >> The Law Commission >> SHAREHOLDERS REMEDIES [1997] EWLC 246(APPENDIX F) (24 October 1997) URL: http://www.bailii.org/ew/other/EWLC/1997/246(APPENDIX_F).html Cite as: [1997] EWLC 246(APPENDIX F) |
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RELEVANT EXTRACTS FROM THE INSOLVENCY
ACT 1986 (INCLUDING PROPOSED AMENDMENTS)
(1) A company may be wound up by the court if
(a) the company has by special resolution resolved that the company be wound up by the court,
(b) being a public company which was registered as such on its original incorporation, the company has not been issued with a certificate under section 117 of the Companies Act (public company share capital requirements) and more than a year has expired since it was so registered,
(c) it is an old public company, within the meaning of the Consequential Provisions Act,
(d) the company does not commence its business within a year from its incorporation or suspends its business for a whole year,
(e) except in the case of a private company limited by shares or by guarantee, the number of members is reduced below 2,
(f) the company is unable to pay its debts,
(g) the court is of the opinion that it is just and equitable that the company should be wound up.
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(1) Subject to the provisions of this section, an application to the court for the winding up of a company shall be by petition presented either by the company, or the directors, or by any creditor or creditors (including any contingent or prospective creditor or creditors), contributory or contributories or by the clerk of a magistrates court in the exercise of the power conferred by section 87A of the Magistrates Courts Act 1980 (enforcement of fines imposed on companies), or by all or any of those parties, together or separately.
(2) Except as mention below, a contributory is not entitled to present a winding-up petition unless either
(a) the number of members is reduced below 2, or
(b) the shares in respect of which he is a contributory, or some of them, either were originally allotted to him, or have been held by him and registered in his name, for at least 6 months during the 18 months before the commencement of the winding up, or have devolved on him through the death of a former holder.
(3) A person who is liable under section 76 to contribute to a companys assets in the event of its being wound up may petition on either of the grounds set out in section 122(1)(f) and (g), and subsection (2) above does not then apply; but unless the person is a contributory otherwise than under section 76, he may not in his character as contributory petition on any other ground.
This subsection is deemed included in Chapter VII of Part V of the Companies Act (redeemable shares; purchase by a company of its own shares) for the purposes of the Secretary of States power to make regulations under section 179 of that Act.
(4) A winding-up petition may be presented by the Secretary of State
(a) if the ground of the petition is that in section 122(1)(b) or (c), or
(b) in a case falling within section 124A below.
(5) Where a company is being wound voluntarily in England and Wales, a winding-up petition may be presented by the official receiver attached to the court as well as by any other person authorised in that behalf under the other provisions of this section; but the court shall not make a winding-up order on the petition unless it is satisfied that the voluntary winding up cannot be continued with due regard to the interests of the creditors or contributories.
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(a) apply to wind it up under section 122(1)(g) when he makes or while he is pursuing a section 459 application with regard to it;
(b) pursue an application to wind it up under section 122(1)(g) if, having made the application, he makes a section 459 application with regard to it.
(2) A section 459 application is an application under section 459 of the Companies Act 1985 (unfair prejudice).
(2) If the petition is presented by members of the company as contributories on the ground that it is just and equitable that the company should be wound up, the court, if it is of opinion
(a) that the petitioners are entitled to relief either by winding up the company or by some other means, and
(b) that in the absence of any other remedy it would be just and equitable that the company should be wound up,
shall make a winding-up order; but this does not apply if the court is also of the opinion both that some other remedy is available to the petitioners and that they are acting unreasonably in seeking to have the company wound up instead of pursuing that other remedy.
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In a winding up by the court, any disposition of the companys property, and any transfer of shares, or alteration in the status of the companys members, made after the commencement of the winding up is, unless the court otherwise orders, void.
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(1) If, before the presentation of a petition for the winding up of a company by the court, a resolution has been passed by the company for voluntary winding up, the winding up of the company is deemed to have commenced at the time of the passing of the resolution; and unless the court, on proof of fraud or mistake, directs otherwise, all proceedings taken in the voluntary winding up are deemed to have been validly taken.
(2) In any other case, the winding up of a company by the court is deemed to commence at the time of the presentation of the petition for winding up.
