| Company Law Reform Bill [Lords] - continued | House of Commons |
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Copy of application: provisions as to service of documents Margaret Hodge NC384 To move the following Clause:— ‘(1) The following provisions have effect for the purposes of— section (Copy of application to be given to members, employees, etc) (copy of application to be given to members, employees, etc), and section (Copy of application to be given to new members, employees, etc) (copy of application to be given to new members, employees, etc). (2) A document is treated as given to a person if it is— (a) delivered to him, or (b) left at his proper address, or (c) sent by post to him at that address. (3) For the purposes of subsection
(2) and section 7 of the (a) in the case of a firm incorporated or formed in the United Kingdom, its registered or principal office; (b) in the case of a firm incorporated or formed outside the United Kingdom— (i) if it has a place of business in the United Kingdom, its principal office in the United Kingdom, or (ii) if it does not have a place of business in the United Kingdom, its registered or principal office; (c) in the case of an individual, his last known address. (4) In the case of a creditor of the company a document is treated as given to him if it is left or sent by post to him— (a) at the place of business of his with which the company has had dealings by virtue of which he is a creditor of the company, or (b) if there is more than one such place of business, at each of them.’. Circumstances in which application to be withdrawn Margaret Hodge NC385 To move the following Clause:— ‘(1) This section applies where, at any time on or after the day on which a company makes an application under section (Striking off on application by company) and before the day on which the application is finally dealt with or withdrawn— (a) the company— (i) changes its name, (ii) trades or otherwise carries on business, (iii) makes a disposal for value of any property or rights other than those which it was necessary or expedient for it to hold for the purpose of making, or proceeding with, an application under that section, or (iv) engages in any activity, except one to which subsection (3) applies; (b) an application is made to the court under Part (Arrangements and reconstructions) on behalf of the company for the sanctioning of a compromise or arrangement; (c) a voluntary arrangement in
relation to the company is proposed under Part 1 of the (d) an application to the court for an administration order in respect of the company is made under paragraph 12 of Schedule B1 to that Act or paragraph 13 of Schedule B1 to that Order; (e) an administrator is appointed in respect of the company under paragraph 14 or 22 of Schedule B1 to that Act or paragraph 15 or 23 of Schedule B1 to that Order, or a copy of notice of intention to appoint an administrator of the company under any of those provisions is filed with the court; (f) there arise any of the circumstances in which, under section 84(1) of that Act or Article 70 of that Order, the company may be voluntarily wound up; (g) a petition is presented for the winding up of the company by the court under Part 4 of that Act or Part 5 of that Order; (h) a receiver or manager of the company’s property is appointed; or (i) a judicial factor is appointed to administer the company’s estate. (2) A person who, at the end of a day on which any of the events mentioned in subsection (1) occurs, is a director of the company must secure that the company’s application is withdrawn forthwith. (3) For the purposes of subsection (1)(a), a company is not treated as trading or otherwise carrying on business by virtue only of the fact that it makes a payment in respect of a liability incurred in the course of trading or otherwise carrying on business. (4) The excepted activities referred to in subsection (1)(a)(iv) are— (a) any activity necessary or expedient— (i) for the purpose of making, or proceeding with, an application under section (Striking off on application by company), or (ii) for the purpose of concluding affairs of the company that are outstanding because of what has been necessary or expedient for the purpose of making, or proceeding with, such an application; (b) any activity necessary or expedient for the purpose of complying with any statutory requirement; (c) any activity specified by the Secretary of State by order for the purposes of this subsection. An order under paragraph (c) is subject to negative resolution procedure. (5) A person who fails to perform the duty imposed on him by this section commits an offence. (6) In proceedings for an offence under this section it is a defence for the accused to prove— (a) that at the time of the failure he was not aware of the fact that the company had made an application under section (Striking off on application by company), or (b) that he took all reasonable steps to perform the duty. (7) A person guilty of an offence under this section is liable— (a) on conviction on indictment, to a fine; (b) on summary conviction, to a fine not exceeding the statutory maximum.’. Withdrawal of application Margaret Hodge NC386 To move the following Clause:— ‘An application under section (Striking off on application by company) is withdrawn by notice to the registrar.’. Meaning of “creditor” Margaret Hodge NC387 To move the following Clause:— ‘In this Chapter “creditor” includes a contingent or prospective creditor.’. Property of dissolved company to be bona vacantia Margaret Hodge NC388 To move the following Clause:— ‘(1) When a company is dissolved, all property and rights whatsoever vested in or held on trust for the company immediately before its dissolution (including leasehold property, but not including property held by the company on trust for another person) are deemed to be bona vacantia and— (a) accordingly belong to the Crown, or to the Duchy of Lancaster or to the Duke of Cornwall for the time being (as the case may be), and (b) vest and may be dealt with in the same manner as other bona vacantia accruing to the Crown, to the Duchy of Lancaster or to the Duke of Cornwall. (2) Subsection (1) has effect subject to the possible restoration of the company to the register under Chapter (Restoration to the register) of this Part (see section (Effect of restoration to the register where property has vested as bona vacantia)).’. Crown disclaimer of property vesting as bona vacantia Margaret Hodge NC389 To move the following Clause:— ‘(1) Where property vests in the Crown under section (Property of dissolved company to be bona vacantia), the Crown’s title to it under that section may be disclaimed by a notice signed by the Crown representative, that is to say the Treasury Solicitor, or, in relation to property in Scotland, the Queen’s and Lord Treasurer’s Remembrancer. (2) The right to execute a notice of disclaimer under this section may be waived by or on behalf of the Crown either expressly or by taking possession or other act evincing that intention. (3) A notice of disclaimer must be executed within three years after— (a) the date on which the fact that the property may have vested in the Crown under section (Property of dissolved company to be bona vacantia) first comes to the notice of the Crown representative, or (b) if ownership of the property is not established at that date, the end of the period reasonably necessary for the Crown representative to establish the ownership of the property. (4) If an application in writing is made to the Crown representative by a person interested in the property requiring him to decide whether he will or will not disclaim, any notice of disclaimer must be executed within twelve months after the making of the application or such further period as may be allowed by the court. (5) A notice of disclaimer under this section is of no effect if it is shown to have been executed after the end of the period specified by subsection (3) or (4). (6) A notice of disclaimer under this section must be delivered to the registrar and retained and registered by him. (7) Copies of it must be published in the Gazette and sent to any persons who have given the Crown representative notice that they claim to be interested in the property. (8) This section applies to property vested in the Duchy of Lancaster or the Duke of Cornwall under section (Property of dissolved company to be bona vacantia) as if for references to the Crown and the Crown representative there were respectively substituted references to the Duchy of Lancaster and to the Solicitor to that Duchy, or to the Duke of Cornwall and to the Solicitor to the Duchy of Cornwall, as the case may be.’. Effect of Crown disclaimer Margaret Hodge NC390 To move the following Clause:— ‘(1) Where notice of disclaimer is executed under section (Crown disclaimer of property vesting as bona vacantia) as respects any property, that property is deemed not to have vested in the Crown under section (Property of dissolved company to be bona vacantia). (2) The following sections contain provisions as to the effect of the Crown disclaimer— sections (General effect of disclaimer (EW and NI)) to (Land subject to rentcharge) apply in relation to property in England and Wales or Northern Ireland; sections (General effect of disclaimer (Sc)) to (Protection of persons holding under a lease (Sc)) apply in relation to property in Scotland.’. General effect of disclaimer (EW and NI) Margaret Hodge NC391 To move the following Clause:— ‘(1) The Crown’s disclaimer operates so as to determine, as from the date of the disclaimer, the rights, interests and liabilities of the company in or in respect of the property disclaimed. (2) It does not, except so far as is necessary for the purpose of releasing the company from any liability, affect the rights or liabilities of any other person.’. Disclaimer of leaseholds (EW and NI) Margaret Hodge NC392 To move the following Clause:— ‘(1) The disclaimer of any property of a leasehold character does not take effect unless a copy of the disclaimer has been served (so far as the Crown representative is aware of their addresses) on every person claiming under the company as underlessee or mortgagee, and either— (a) no application under section (Power of court to make vesting order (EW and NI)) below is made with respect to that property before the end of the period of 14 days beginning with the day on which the last notice under this paragraph was served, or (b) where such an application has been made, the court directs that the disclaimer shall take effect. (2) Where the court gives a direction under subsection (1)(b) it may also, instead of or in addition to any order it makes under section (Protection of persons holding under a lease (EW and NI), make such order as it thinks fit with respect to fixtures, tenant’s improvements and other matters arising out of the lease. (3) In this section the “Crown representative” means— (a) in relation to property vested in the Duchy of Lancaster, the Solicitor to that Duchy; (b) in relation to property vested in the Duke of Cornwall, the Solicitor to the Duchy of Cornwall; (c) in relation to property in Scotland, the Queen’s and Lord Treasurer’s Remembrancer; (d) in relation to other property, the Treasury Solicitor.’. Power of court to make vesting order (EW and NI) Margaret Hodge NC393 To move the following Clause:— ‘(1) The court may on application by a person who— (a) claims an interest in the disclaimed property, or (b) is under a liability in respect of the disclaimed property that is not discharged by the disclaimer, make an order under this section in respect of the property. (2) An order under this section is an order for the vesting of the disclaimed property in, or its delivery to— (a) a person entitled to it (or a trustee for such a person), or (b) a person subject to such a liability as is mentioned in subsection (1)(b) (or a trustee for such a person). (3) An order under subsection (2)(b) may only be made where it appears to the court that it would be just to do so for the purpose of compensating the person subject to the liability in respect of the disclaimer. (4) An order under this section may be made on such terms as the court thinks fit. (5) On a vesting order being made under this section, the property comprised in it vests in the person named in that behalf in the order without conveyance, assignment or transfer.’. Protection of persons holding under a lease (EW and NI) Margaret Hodge NC394 To move the following Clause:— ‘(1) The court must not make an order under section (Power of court to make vesting order (EW and NI)) vesting property of a leasehold nature in a person claiming under the company as underlessee or mortgagee except on terms making that person— (a) subject to the same liabilities and obligations as those to which the company was subject under the lease, or (b) if the court thinks fit, subject to the same liabilities and obligations as if the lease had been assigned to him. (2) Where the order relates to only part of the property comprised in the lease, subsection (1) applies as if the lease had comprised only the property comprised in the vesting order. (3) A person claiming under the company as underlessee or mortgagee who declines to accept a vesting order on such terms is excluded from all interest in the property. (4) If there is no person claiming under the company who is willing to accept an order on such terms, the court has power to vest the company’s estate and interest in the property in any person who is liable (whether personally or in a representative character, and whether alone or jointly with the company) to perform the lessee’s covenants in the lease. (5) The court may vest that estate and interest in such a person freed and discharged from all estates, incumbrances and interests created by the company.’. Land subject to rentcharge (EW and NI) Margaret Hodge NC395 To move the following Clause:— ‘Where in consequence of the disclaimer land vests in any person, neither he nor his successors in title are subject to any personal liability in respect of sums becoming due under the rentcharge, except sums becoming due after he, or some person claiming under or through him, has taken possession or control of the land or has entered into occupation of it.’. General effect of disclaimer (Sc) Margaret Hodge NC396 To move the following Clause:— ‘(1) The Crown’s disclaimer operates to determine, as from the date of the disclaimer, the rights, interests and liabilities of the company, and the property of the company, in or in respect of the property disclaimed. (2) It does not (except so far as is necessary for the purpose of releasing the company and its property from liability) affect the rights or liabilities of any other person.’. Power of court to make vesting order (Sc) Margaret Hodge NC397 To move the following Clause:— ‘(1) The court may— (a) on application by a person who either claims an interest in disclaimed property or is under a liability not discharged by this Act in respect of disclaimed property, and (b) on hearing such persons as it thinks fit, make an order for the vesting of the property in or its delivery to any persons entitled to it, or to whom it may seem just that the property should be delivered by way of compensation for such liability, or a trustee for him. (2) The order may be made on such terms as the court thinks fit. (3) On a vesting order being made under this section, the property comprised in it vests accordingly in the person named in that behalf in the order, without conveyance or assignation for that purpose.’. Protection of persons holding under a lease (Sc) Margaret Hodge NC398 To move the following Clause:— ‘(1) Where the property disclaimed is held under a lease in favour of a person claiming under the company, whether— (a) as sub-lessee, or (b) as creditor in a duly registered or (as the case may be) recorded heritable security over a lease, the court must not make a vesting order except on the following terms. (2) The person must by the order be made subject— (a) to the same liabilities and obligations as those to which the company was subject under the lease in respect of the property, or (b) if the court thinks fit, to the same liabilities and obligations as if the lease had been assigned to him. In either event (if the case so requires) the liabilities and obligations must be as if the lease had comprised only the property comprised in the vesting order. (3) A sub-lessee or creditor declining to accept a vesting order on such terms is excluded from all interest in and security over the property. (4) If there is no person claiming under the company who is willing to accept an order on such terms, the court has power to vest the company’s estate and interest in the property in any person liable (either personally or in a representative character, and either alone or jointly with the company) to perform the lessee’s obligations under the lease. (5) The court may vest that estate and interest in such a person freed and discharged from all interests, rights and obligations created by the company in the lease or in relation to the lease. (6) For the purposes of this section a heritable security— (a) is duly recorded if it is recorded in the Register of Sasines, and (b) is duly registered if registered
in accordance with the Liability for rentcharge on company’s land after dissolution Margaret Hodge NC399 To move the following Clause:— ‘(1) This section applies where on the dissolution of a company land in England and Wales or Northern Ireland that is subject to a rentcharge vests by operation of law in the Crown or any other person (“the proprietor”). (2) Neither the proprietor nor his successors in title are subject to any personal liability in respect of sums becoming due under the rentcharge, except sums becoming due after the proprietor, or some person claiming under or through him, has taken possession or control of the land or has entered into occupation of it. (3) In this section “company” includes any body corporate.’. Application for administrative restoration to the register Margaret Hodge NC400 To move the following Clause:— ‘(1) An application may be made to the registrar to restore to the register a company that has been struck off the register under section (Power to strike off company not carrying on business or in operation) or (Duty to act in case of company being wound up) (power of registrar to strike off defunct company). (2) An application under this section may be made whether or not the company has in consequence been dissolved. (3) An application under this section may only be made by a former director or former member of the company. (4) An application under this section may not be made after the end of the period of six years from the date of the dissolution of the company. For this purpose an application is made when it is received by the registrar.’. Requirements for administrative restoration Margaret Hodge NC401 To move the following Clause:— ‘(1) On an application under section (Application for administrative restoration to the register) the registrar shall restore the company to the register if, and only if, the following conditions are met. (2) The first condition is that the company was carrying on business or in operation at the time of its striking off. (3) The second condition is that, if any property or right previously vested in or held on trust for the company has vested as bona vacantia, the Crown representative has signified to the registrar in writing consent to the company’s restoration to the register. (4) It is the applicant’s responsibility to obtain that consent and to pay any costs (in Scotland, expenses) of the Crown representative— (a) in dealing with the property during the period of dissolution, or (b) in connection with the proceedings on the application, that may be demanded as a condition of giving consent. (5) The third condition is that the applicant has— (a) delivered to the registrar such documents relating to the company as are necessary to bring up to date the records kept by the registrar, and (b) paid any penalties under section 437 or corresponding earlier provisions (civil penalty for failure to deliver accounts) that were outstanding at the date of dissolution or striking off. (6) In this section the “Crown representative” means— (a) in relation to property vested in the Duchy of Lancaster, the Solicitor to that Duchy; (b) in relation to property vested in the Duke of Cornwall, the Solicitor to the Duchy of Cornwall; (c) in relation to property in Scotland, the Queen’s and Lord Treasurer’s Remembrancer; (d) in relation to other property, the Treasury Solicitor.’. |
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| © Parliamentary copyright 2006 | Prepared: 20 July 2006 |