PART 8 | Division 1 — Preliminary provisions applicable to winding up |
| Modes of winding up and application of this Division |
119.—(1) The winding up of a company may be either —| (a) | by the Court; or | | (b) | voluntary. |
| (2) Unless the context otherwise requires, the provisions of this Act with respect to the winding up of a company apply to both modes of winding up mentioned in subsection (1). |
|
| Government bound by certain provisions |
| 120. The provisions of this Part and Parts 9, 10 and 11 relating to the remedies against the property of a company, the priorities of debts and the effect of an arrangement with creditors bind the Government. |
| Liability of present and past members as contributories, and unlimited liability of directors |
121.—(1) On a company being wound up, every present and past member is liable to contribute to the assets of the company to an amount sufficient for payment of the debts and liabilities of the company and the costs, charges and expenses of the winding up, and for the adjustment of the rights of the contributories among themselves, subject to subsection (2) and the following qualifications:| (a) | a past member is not liable to contribute if the past member has ceased to be a member for one year or more before the commencement of the winding up; | | (b) | a past member is not liable to contribute in respect of any debt or liability of the company contracted after the past member ceased to be a member; | | (c) | a past member is not liable to contribute unless it appears to the Court that the existing members are unable to satisfy the contributions required to be made by the existing members under the Companies Act 1967; | | (d) | in the case of a company limited by shares, no contribution is required from any member exceeding the amount (if any) unpaid on the shares in respect of which that member is liable as a present or past member; | | (e) | in the case of a company limited by guarantee, subject to subsection (4), no contribution is required from any member exceeding the amount undertaken to be contributed by that member to the assets of the company in the event the company is wound up; | | (f) | nothing in this Act invalidates any provision contained in any policy of insurance or other contract under which the liability of individual members on the policy or contract is restricted, or under which the funds of the company are alone made liable in respect of the policy or contract; | | (g) | a sum due to any member in that member’s character of a member by way of dividends, profits or otherwise is not a debt of the company payable to that member, in a case of competition between that member and any other creditor who is not a member, but any such sum may be taken into account for the purpose of the final adjustment of the rights of the contributories among themselves. |
| (2) In the winding up of a limited company, any director, whether past or present, whose liability is unlimited is, in addition to the director’s liability (if any) to contribute as an ordinary member, liable to make a further contribution as if the director were, at the commencement of the winding up, a member of an unlimited company. |
(3) Despite subsection (2) —| (a) | a past director is not liable to make a further contribution if the past director has ceased to hold office for one year or more before the commencement of the winding up; | | (b) | a past director is not liable to make a further contribution in respect of any debt or liability of the company contracted after the past director ceased to hold office; and | | (c) | subject to the constitution of the company, a director is not liable to make a further contribution unless the Court considers it necessary to require that contribution in order to satisfy the debts and liabilities of the company and the costs, charges and expenses of the winding up. |
|
| (4) On the winding up of a company limited by guarantee, every member is liable, in addition to the amount undertaken to be contributed by the member to the assets of the company in the event the company is wound up, to contribute to the extent of any sums unpaid on any shares held by the member. |
|
| Nature of liability of contributory |
| 122. The liability of a contributory creates a debt accruing due from the contributory at the time when the contributory’s liability commenced, but payable at the times when calls are made for enforcing the liability. |
| Contributories in case of death or bankruptcy of member |
123.—(1) If a contributory (called in this subsection the deceased contributory) dies, whether before or after being placed on the list of contributories —| (a) | the deceased contributory’s personal representatives are liable in due course of administration to contribute to the assets of the company in discharge of the deceased contributory’s liability, and are contributories accordingly; and | | (b) | if the deceased contributory’s personal representatives default in paying any money ordered to be paid by them, proceedings may be taken for administering the estate of the deceased contributory and for compelling payment out of the estate of the deceased contributory of the money due. |
(2) If a contributory (called in this subsection the bankrupt contributory) becomes bankrupt or assigns his or her estate for the benefit of his or her creditors, whether before or after being placed on the list of contributories —| (a) | the bankrupt contributory’s trustee must represent the bankrupt contributory for all the purposes of the winding up and is a contributory accordingly; and | | (b) | there may be proved against the bankrupt contributory’s estate the estimated value of the bankrupt contributory’s liability to future calls as well as calls already made. |
|
|
| Division 2 — Provisions applicable to winding up by Court |
| Subdivision (1) — General |
| Application for winding up |
124.—(1) A company, whether or not it is being wound up voluntarily, may be wound up under an order of the Court on the application of one or more of the following:| (a) | the company; | | (b) | any director of the company; | | (c) | any creditor, including a contingent or prospective creditor, of the company; | | (d) | a contributory, any person who is the personal representative of a deceased contributory, or the Official Assignee of the estate of a bankrupt contributory; | | (e) | the liquidator of the company; | | (f) | the Minister mentioned in section 241 of the Companies Act 1967, under that section; | | (g) | the Minister, on any ground specified in section 125(1)(b), (d), (l), (m) or (n); | | (h) | the judicial manager appointed under this Act for the company; | | (i) | in the case of a company that is carrying on or has carried on banking business, the Monetary Authority of Singapore established under the Monetary Authority of Singapore Act 1970. |
(2) Despite subsection (1), the following apply:| (a) | a person mentioned in subsection (1)(b) may not make a winding up application unless a prima facie case for winding up is established to the satisfaction of the Court, and the Court grants that person permission to bring the winding up application; [Act 25 of 2021 wef 01/04/2022] | | (b) | a person mentioned in subsection (1)(d) may not make a winding up application on any of the grounds specified in section 125(1)(a), (b), (c), (e) or (i), unless —| (i) | the company has no member; or | | (ii) | the shares in respect of which the contributory was a contributory, or some of those shares —| (A) | were originally allotted to the contributory; | | (B) | have been held by the contributory and registered in the contributory’s name for at least 6 months during the 18 months before the making of the winding up application; or | | (C) | have devolved on the contributory through the death or bankruptcy of a former holder; |
|
| | (c) | an application to wind up a company on the ground specified in section 125(1)(b) must not be made by any person except a contributory or the Minister, and must not be made before the expiration of 14 days after the last day on which the statutory meeting ought to have been held; | | (d) | the Court must not hear a winding up application made by a contingent or prospective creditor until such security for costs has been given as the Court thinks reasonable, and a prima facie case for winding up has been established to the satisfaction of the Court; | | (e) | where a company is being wound up voluntarily, the Court must not make a winding up order unless it is satisfied that the voluntary winding up cannot be continued with due regard to the interests of the creditors or contributories. |
|
|
| Circumstances in which company may be wound up by Court |
125.—(1) The Court may order the winding up of a company if —| (a) | the company has by special resolution resolved that it be wound up by the Court; | | (b) | default is made by the company in lodging the statutory report or in holding the statutory meeting; | | (c) | the company does not commence business within a year after its incorporation, or suspends its business for a whole year; | | (d) | the company has no member; | | (e) | the company is unable to pay its debts; | | (f) | the directors have acted in the affairs of the company in their own interests rather than in the interests of the members as a whole, or in any other manner which appears to be unfair or unjust to other members; | | (g) | an inspector appointed under Part 9 of the Companies Act 1967 has reported that he or she is of the opinion —| (i) | that the company cannot pay its debts and should be wound up; or | | (ii) | that it is in the interests of the public, the shareholders or the creditors that the company should be wound up; |
| | (h) | the period (if any) fixed for the duration of the company by the constitution of the company expires or, where the constitution of the company provides that the company is to be dissolved on the occurrence of an event, that event happens; | | (i) | the Court is of the opinion that it is just and equitable that the company be wound up; | | (j) | the company has held a licence under any written law relating to banking, and that licence has been revoked or has expired and has not been renewed; | | (k) | the company is carrying on or has carried on banking business in Singapore in contravention of the provisions of any written law relating to banking; | | (l) | the company has carried on multi-level marketing or pyramid selling in contravention of the Multi‑Level Marketing and Pyramid Selling (Prohibition) Act 1973; | | (m) | the company, being a foreign corporate entity that was registered as a company limited by shares under section 359(1) of the Companies Act 1967 subject to conditions, has breached any of the conditions of registration imposed under section 359(2) of that Act; or | | (n) | the company is being used for an unlawful purpose or for purposes prejudicial to public peace, welfare or good order in Singapore or against national security or interest. |
(2) A company is deemed to be unable to pay its debts if —| (a) | a creditor (by assignment or otherwise) to whom the company is indebted in a sum exceeding $15,000 then due has served on the company, by leaving at the registered office of the company, a written demand by the creditor or the creditor’s lawfully authorised agent requiring the company to pay the sum so due, and the company has for 3 weeks after the service of the demand neglected to pay the sum, or to secure or compound for it to the reasonable satisfaction of the creditor; | | (b) | an enforcement order or other process issued to enforce a judgment, decree or order of any court in favour of a creditor of the company is returned unsatisfied in whole or in part; or [Act 25 of 2021 wef 01/04/2022] | | (c) | it is proved to the satisfaction of the Court that the company is unable to pay its debts; and in determining whether a company is unable to pay its debts the Court must take into account the contingent and prospective liabilities of the company. |
|
| (3) On an application for winding up a company on the ground specified in subsection (1)(f) or (i), instead of making an order for the winding up, the Court may, if it is of the opinion that it is just and equitable to do so, make an order for the interests in shares of one or more members to be purchased by the company, or by one or more other members, on terms to the satisfaction of the Court. |
| (4) For the purpose of subsection (1)(n), a certificate issued by the Minister charged with the responsibility for internal security, stating that the Minister is satisfied that the company mentioned in the certificate is being used for purposes against national security or interest, is conclusive evidence that the company is being used for such purposes. |
(5) Upon the making of an application by the Minister under section 124(1)(g) for the winding up of a company under subsection (1)(n) on the ground that the company is being used for purposes against national security or interest, the Court may, upon the application of that Minister, pending the hearing of the winding up application or the making of a winding up order, make —| (a) | an order restraining all or any of the following from doing any act or from carrying out any activity specified in the order: | (i) | the company; | | (ii) | the company’s directors; | | (iii) | the chief executive officer; | | (iv) | officers or employees of the company; and |
| | (b) | such other interim orders as the Court thinks fit. |
|
| (6) Any person who acts in contravention of an order made by the Court under subsection (5) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $10,000 or to imprisonment for a term not exceeding 2 years or to both. |
| (7) The Minister may, by order in the Gazette, amend subsection (2)(a) by substituting a different sum for the sum for the time being specified in that provision. |
|
| Commencement of winding up |
126.—(1) In any case where, before the making of a winding up application, a resolution has been passed by the company for voluntary winding up —| (a) | the winding up of the company is deemed to have commenced at the time of the passing of the resolution; and | | (b) | unless the Court on proof of fraud or mistake thinks fit otherwise to direct, all proceedings taken in the voluntary winding up are deemed to have been validly taken. |
| (2) In any other case, the winding up is deemed to have commenced at the time of the making of the application for the winding up. |
|
| Payment of preliminary costs, etc. |
127.—(1) Any person (other than the company itself or the liquidator of the company), on whose application any winding up order is made, must at the person’s own cost prosecute all proceedings in the winding up until a liquidator has been appointed under this Part.| (2) The liquidator must, unless the Court orders otherwise, reimburse the applicant out of the assets of the company the costs incurred by the applicant in any such proceedings (whether assessed or agreed). [Act 25 of 2021 wef 01/04/2022] |
| (3) Where the company has no assets or has insufficient assets, and in the opinion of the Minister any fraud has been committed by any person in the promotion or formation of the company, or by any officer of the company in relation to the company since the formation of the company, the costs mentioned in subsection (2) or so much of those costs as are not so reimbursed may, with the approval in writing of the Minister, to an extent specified by the Minister but not in any case exceeding $3,000, be reimbursed to the applicant out of moneys provided by Parliament for the purpose. |
| (4) Where any winding up order is made upon the application of the company or the liquidator of the company, the costs incurred must, subject to any order of the Court, be paid out of assets of the company in like manner as if those costs were the costs of any other applicant. |
|
| Powers of Court on hearing winding up application |
128.—(1) On hearing a winding up application, the Court may dismiss the application with or without costs or adjourn the hearing conditionally or unconditionally or make any interim or other order that the Court thinks fit, but the Court must not refuse to make a winding up order on the ground only that —| (a) | the assets of the company have been mortgaged to an amount equal to or in excess of those assets; | | (b) | the company has no assets; or | | (c) | in the case of an application by a contributory, there will be no assets available for distribution amongst the contributories. |
(2) The Court may, on the winding up application coming on for hearing or at any time on the application of the person making the winding up application, the company, or any person who has given notice that he or she intends to appear on the hearing of the winding up application —| (a) | direct that any notices be given or any steps be taken before or after the hearing of the winding up application; | | (b) | dispense with any notices being given or steps being taken which are required by this Act, or by any prior order of the Court; | | (c) | direct that oral evidence be taken on the winding up application or any matter relating to the winding up application; | | (d) | direct a speedy hearing or trial of the winding up application or any issue or matter; | | (e) | allow the winding up application to be amended or withdrawn; and | | (f) | give such directions as to the proceedings as the Court thinks fit. |
|
| (3) Where the winding up application is made on the ground of default in lodging the statutory report or in holding the statutory meeting, the Court may, instead of making a winding up order, direct that the statutory report must be lodged or that a meeting must be held, and may order the costs to be paid by any persons who, in the opinion of the Court, are responsible for the default. |
|
| Power to stay or restrain proceedings against company |
129. At any time after the making of a winding up application and before a winding up order has been made —| (a) | the company or any creditor or contributory may, where any action or proceeding against the company is pending, apply to the Court to stay or restrain further proceedings in the action or proceeding; and | | (b) | the Court may stay or restrain the proceedings accordingly on such terms as the Court thinks fit. |
|
| Avoidance of dispositions of property and certain attachments, etc. |
130.—(1) Any disposition of the property of the company, including things in action, and any transfer of shares or alteration in the status of the members of the company, made after the commencement of the winding up by the Court is, unless the Court otherwise orders, void.| (2) Any attachment, sequestration, distress or enforcement order put in force against the estate or effects of the company after the commencement of the winding up by the Court is, unless the Court otherwise orders, void. [Act 25 of 2021 wef 01/04/2022] |
|
| Winding up application to be lis pendens |
| 131. Any application for winding up a company constitutes a lis pendens within the meaning of any law relating to the effect of a lis pendens upon purchasers or mortgagees. |
| Copy of order to be lodged, etc. |
132.—(1) Within 7 days after the making of a winding up order, the applicant for the winding up order must lodge with the Official Receiver and the Registrar of Companies notice of —| (a) | the order and the date of the order; and | | (b) | the name and address of the liquidator. |
(2) The applicant for the winding up order must, within 7 days after the passing and entering of the winding up order —| (a) | lodge a copy of the order with the Official Receiver and the Registrar of Companies; | | (b) | cause a copy of the order to be served upon the secretary of the company or upon such other person or in such manner as the Court directs; and | | (c) | deliver a copy of the order to the liquidator with a statement that the requirements of this subsection have been complied with. |
|
| (3) If default is made in complying with subsection (1) or (2), the applicant for the winding up order shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $5,000 and also to a default penalty. |
|
| Effect of winding up order |
133.—(1) When a winding up order has been made or a provisional liquidator has been appointed, no action or proceeding may be proceeded with or commenced against the company except —| (a) | by the permission of the Court; and [Act 25 of 2021 wef 01/04/2022] | | (b) | in accordance with such terms as the Court may impose. |
| (2) Subject to section 198, an order for winding up a company operates in favour of all the creditors and contributories of the company as if made on the joint application of a creditor and of a contributory. |
|
| Subdivision (2) — Liquidators |
| Appointment, style, etc., of liquidators |
134. The following provisions with respect to liquidators have effect on a winding up order being made:| (a) | the Court may appoint a licensed insolvency practitioner or, if the Official Receiver consents, the Official Receiver, to be the liquidator; | | (b) | at any time when the Official Receiver is the liquidator of the company, the Official Receiver may summon separate meetings of the creditors and contributories of the company for the purpose of determining whether or not an application is to be made to the Court for appointing a liquidator in the place of the Official Receiver; | | (c) | the Court may make any appointment and order required to give effect to any determination mentioned in paragraph (b), and, if there is a difference between the determinations of the meetings of the creditors and contributories in respect of the matter mentioned in paragraph (b), the Court must decide the difference and make such order on the difference as the Court thinks fit; | | (d) | in a case where a winding up order is made under section 125(1)(n) on the ground that the company is being used for purposes against national security or interest, the Official Receiver must be the liquidator of the company; | | (e) | any vacancy in the office of a liquidator appointed by the Court must be filled by the Court, and, pending the appointment of a replacement liquidator by the Court, the Official Receiver is by virtue of the Official Receiver’s office the liquidator during such vacancy; | | (f) | where the Official Receiver is the provisional liquidator or liquidator of the company, including where the Official Receiver is the liquidator under paragraph (e), the Official Receiver may, at any time, appoint one or more licensed insolvency practitioners to act as the provisional liquidator or liquidator in place of the Official Receiver; | | (g) | the appointment of any licensed insolvency practitioner appointed as a provisional liquidator or liquidator under paragraph (f) does not take effect until that person agrees to be appointed as a provisional liquidator or liquidator of the company; | | (h) | a liquidator must be described, where a person other than the Official Receiver is liquidator, by the style of “the liquidator”, and, where the Official Receiver is liquidator, by the style of “the Official Receiver and liquidator”, of the particular company in respect of which the liquidator is appointed, and not by the liquidator’s individual name. |
|
| Nomination and consent of liquidator |
135.—(1) Subject to subsections (3) and (4), when making a winding up application, the applicant must nominate in writing a licensed insolvency practitioner to be appointed liquidator.| (2) Before the hearing of the winding up application, the applicant or the applicant’s solicitor must obtain and file the written consent of the licensed insolvency practitioner to being nominated. |
(3) The applicant may nominate the Official Receiver to be appointed as liquidator if —| (a) | the applicant has taken reasonable steps, but is unable, to obtain the consent of a licensed insolvency practitioner to be appointed as liquidator; and | | (b) | the Official Receiver consents to being nominated to be appointed as liquidator. |
|
| (4) Where the winding up application is made under section 125(1)(n) on the ground that the company is being used for purposes against national security or interest, the applicant must nominate the Official Receiver to be liquidator. |
|
| Provisions where person other than Official Receiver is appointed liquidator |
136. Where, in the winding up of a company by the Court, a person other than the Official Receiver is appointed liquidator, that person —| (a) | is not capable of acting as liquidator until that person has notified the Registrar of Companies of the appointment and has given security in the prescribed manner to the satisfaction of the Official Receiver; and | | (b) | must give the Official Receiver such information, such access to and facilities for inspecting the books and documents of the company, and generally such aid, as may be required for enabling the Official Receiver to perform the Official Receiver’s duties under this Act. |
|
| Control of liquidators by Official Receiver |
137.—(1) Where, in the winding up of a company by the Court, a person other than the Official Receiver is the liquidator, the Official Receiver is to take cognizance of the liquidator’s conduct, and if —| (a) | the liquidator does not faithfully perform the liquidator’s duties or duly observe all the requirements imposed on the liquidator by any written law or otherwise with respect to the performance of the liquidator’s duties; or | | (b) | any complaint is made to the Official Receiver by any creditor or contributory in relation to the liquidator’s conduct, |
| the Official Receiver must inquire into the matter and take such action thereon as the Official Receiver thinks expedient. |
(2) The Official Receiver may —| (a) | at any time require any liquidator of a company that is being wound up by the Court to answer any inquiry in relation to any winding up in which the liquidator is engaged; and | | (b) | if the Official Receiver thinks fit, apply to the Court to examine the liquidator or any other person on oath concerning the winding up. |
|
| (3) The Official Receiver may also direct an investigation to be made of the books and vouchers of any liquidator of a company that is being wound up by the Court. |
|
138.—(1) The Court may appoint the Official Receiver or a licensed insolvency practitioner provisionally as a liquidator at any time after the making of a winding up application and before the making of a winding up order, and the provisional liquidator has and may exercise all the functions and powers of a liquidator, subject to such limitations and restrictions as may be prescribed by regulations or as the Court may specify in the order.(2) An order appointing a provisional liquidator under subsection (1) must —| (a) | be in the prescribed form; | | (b) | state the nature and give a short description of the property of which the provisional liquidator is ordered to take possession; and | | (c) | state the duties to be performed by the provisional liquidator. |
|
| (3) Before the hearing of the application for the appointment of a provisional liquidator, the applicant or the applicant’s solicitor must obtain and file the consent in writing of the Official Receiver or licensed insolvency practitioner (as the case may be) to act as provisional liquidator. |
|
| General provisions as to liquidators |
139.—(1) A liquidator appointed by the Court may resign or on cause shown be removed by the Court.| (2) A provisional liquidator, other than the Official Receiver, is entitled to receive such salary or remuneration by way of percentage or otherwise as is determined by the Court. |
(3) A liquidator, other than the Official Receiver, is entitled to receive such salary or remuneration by way of percentage or otherwise as is determined —| (a) | by agreement between the liquidator and the committee of inspection, if any; | | (b) | failing such agreement, or where there is no committee of inspection, by a resolution passed, at a meeting of creditors convened in accordance with subsection (4), by a majority of not less than 75% in value and 50% in number of the creditors present and voting (in person or by proxy) at the meeting and whose debts have been admitted for the purpose of voting; or | | (c) | failing a determination in a manner mentioned in paragraph (a) or (b), by the Court. |
|
| (4) A meeting mentioned in subsection (3)(b) must be convened by the liquidator by a notice to each creditor, to which notice must be attached a statement of all receipts and expenditure by the liquidator and the amount of remuneration sought by the liquidator. |
| (5) Where the salary or remuneration of a liquidator is determined in the manner specified in subsection (3)(a), the Court may, on the application of a member or members whose shareholding or shareholdings represents or represent in the aggregate not less than 10% of the issued capital of the company (excluding treasury shares), confirm or vary the determination. |
| (6) Where the salary or remuneration of a liquidator is determined in the manner specified in subsection (3)(b), the Court may, on the application of the liquidator or a member or members mentioned in subsection (5), confirm or vary the determination. |
| (7) Subject to any order of the Court, the Official Receiver when acting as a liquidator or provisional liquidator of a company is entitled to receive such salary or remuneration by way of percentage or otherwise as is prescribed. |
| (8) If more than one liquidator is appointed by the Court, the Court must declare whether anything by this Act required or authorised to be done by the liquidator is to be done by all or any one or more of the persons appointed. |
| (9) Subject to this Act, the acts of a liquidator are valid despite any defects that may be discovered in the liquidator’s appointment or qualification after those acts. |
| (10) In subsection (5), the reference to “treasury shares” includes a reference to shares held by a subsidiary under section 21(4B) or (6C) of the Companies Act 1967. |
|
| Custody and vesting of company’s property |
140.—(1) Where a winding up order has been made or a provisional liquidator has been appointed, the liquidator or provisional liquidator must take into his or her custody or under his or her control all the property and things in action to which the company is or appears to be entitled.| (2) The Court may, on the application of the liquidator, by order direct that all or any part of the property of whatever description belonging to the company, or held by trustees on its behalf, vests in the liquidator. |
(3) Upon the making of an order under subsection (2) —| (a) | the property to which the order relates vests in the liquidator; and | | (b) | the liquidator may, after giving such indemnity (if any) as the Court directs, bring or defend any action or other legal proceeding that relates to that property, or that is necessary to be brought or defended for the purpose of effectually winding up the company and recovering the property of the company. |
|
(4) Where an order is made under subsection (2), every liquidator of a company in relation to which the order is made must lodge within 7 days after the making of the order —| (a) | a copy of the order with the Registrar of Companies; and | | (b) | where the order relates to land, a copy of the order with the appropriate authority concerned with the registration or recording of dealings in that land, |
| and every liquidator who defaults in complying with this subsection shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $2,000 and also to a default penalty. |
|
| (5) No order made under subsection (2) has any effect or operation in transferring or otherwise vesting land until an appropriate entry or memorandum of the order is made by or with the appropriate authority. |
|
| Statement of company’s affairs to be submitted to Official Receiver |
141.—(1) There must be made out and verified in the prescribed form and manner and submitted to the Official Receiver or the liquidator, as the case requires, a statement as to the affairs of the company as at the date of the winding up order showing —| (a) | the particulars of the company’s assets, debts and liabilities; | | (b) | the names and addresses of the company’s creditors; | | (c) | the securities held by the company’s creditors respectively; | | (d) | the dates when the securities mentioned in paragraph (c) were respectively given; and | | (e) | such further information as is prescribed or as the Official Receiver or the liquidator requires. |
(2) The statement must be submitted by —| (a) | all of the following persons:| (i) | one or more of the persons who are, at the date of the winding up order, directors; | | (ii) | the secretary of the company; or |
| | (b) | such of the following persons as the Official Receiver or the liquidator, subject to the direction of the Court, requires:| (i) | any person who is or has been an officer of the company; | | (ii) | any person who has taken part in the formation of the company at any time within one year before the date of the winding up order. |
|
|
(3) The statement must be submitted within 14 days after the date of the winding up order or within such extended time as the Official Receiver or the liquidator or the Court for special reasons specifies, and the Official Receiver or the liquidator must within 7 days after receiving the statement —| (a) | cause a copy of the statement to be filed with the Court and lodged with the Registrar of Companies; and | | (b) | where the Official Receiver is not the liquidator, cause a copy of the statement to be lodged with the Official Receiver. |
|
| (4) Any person making the statement required by this section or a statement of concurrence under section 142(1) may, subject to the regulations, be allowed, and be paid, out of the assets of the company, such costs and expenses incurred in and about the preparation and making of that statement as the Official Receiver or the liquidator considers reasonable, subject to an appeal to the Court. |
| (5) Every person who, without reasonable excuse, defaults in complying with the requirements of this section shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $10,000 or to imprisonment for a term not exceeding 12 months or to both and also to a default penalty. |
(6) Any person stating himself or herself, in writing, to be a creditor of the company may —| (a) | personally or by agent inspect the statement of affairs filed under this section at all reasonable times; and | | (b) | upon payment of the prescribed fee, take any copy of the statement of affairs or extract from the statement of affairs. |
|
| (7) Any person untruthfully stating himself or herself to be a creditor under subsection (6) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $2,000 or to imprisonment for a term not exceeding 6 months or to both. |
|
| Statements of concurrence |
142.—(1) Where a statement of affairs has been submitted to the Official Receiver or the liquidator, the Official Receiver or the liquidator (as the case may be) may require any of the persons mentioned in section 141(2) to submit a statement of concurrence verified by affidavit, stating that the person concurs in the statement of affairs.(2) A statement of concurrence made under subsection (1) may be qualified in respect of matters dealt with in the statement of affairs, where the maker of the statement of concurrence —| (a) | is not in agreement with the persons making the statement of affairs; | | (b) | considers the statement of affairs to be erroneous or misleading; or | | (c) | is without the direct knowledge necessary for concurring in the statement of affairs. |
|
| (3) Every statement of concurrence must be submitted to the Official Receiver or the liquidator (as the case may be) within 14 days after a request to submit the statement of concurrence or within such extended time as the Official Receiver or the liquidator or the Court may specify. |
| (4) Where the Official Receiver is not the liquidator, a copy of the statement of concurrence must be lodged with the Official Receiver. |
|
143.—(1) The liquidator must as soon as practicable after receipt of the statement of affairs submit a preliminary report to the Court or, if the liquidator is not the Official Receiver, to the Official Receiver —| (a) | as to the amount of capital of the company issued, subscribed and paid up and the estimated amount of assets and liabilities; | | (b) | if the company has failed, as to the causes of the failure; and | | (c) | whether, in the liquidator’s opinion, further inquiry is desirable as to any matter relating to the promotion, formation or failure of the company or the conduct of the business of the company. |
(2) The liquidator may also, if the liquidator thinks fit, make further reports to the Court or, if the liquidator is not the Official Receiver, to the Official Receiver —| (a) | stating the manner in which the company was formed, and whether in the liquidator’s opinion any fraud has been committed, or any material fact has been concealed, by any person in the promotion or formation of the company, or by any officer in relation to the company since the formation of the company; | | (b) | stating whether any officer of the company has contravened or failed to comply with any of the provisions of this Act or the Companies Act 1967; and | | (c) | specifying any other matter that in the liquidator’s opinion is desirable to bring to the notice of the Court. |
|
|
144.—(1) The liquidator may, after authorisation by either the Court or the committee of inspection —| (a) | carry on the business of the company so far as is necessary for the beneficial winding up of the company, but such authorisation is not necessary to so carry on the business of the company during the 4 weeks immediately after the date of the winding up order; | | (b) | subject to section 203, pay any class of creditors in full; | | (c) | make any compromise or arrangement with creditors or persons claiming to be creditors, or having or alleging themselves to have any claim, present or future, certain or contingent, ascertained or sounding only in damages, against the company, or by which the company may be rendered liable; | | (d) | compromise any calls and liabilities to calls, debts and liabilities capable of resulting in debts, and any claims, present or future, certain or contingent, ascertained or sounding only in damages, subsisting, or supposed to subsist, between the company and a contributory or other debtor or person apprehending liability to the company, and all questions in any way relating to or affecting the assets or the winding up of the company, on such terms as are agreed, and take any security for the discharge of any such call, debt, liability or claim, and give a complete discharge in respect of any such call, debt, liability or claim; | | (e) | bring or defend any action or other legal proceeding in the name and on behalf of the company; | | (f) | appoint a solicitor —| (i) | to assist the liquidator in the liquidator’s duties; or | | (ii) | to bring or defend any action or legal proceeding in the name and on behalf of the company; and |
| | (g) | assign, in accordance with the regulations, the proceeds of an action arising under section 224, 225, 228, 238, 239 or 240. |
(2) The liquidator may —| (a) | compromise any debt due to the company, other than calls and liabilities to calls and other than a debt where the amount claimed by the company to be due to it exceeds the prescribed amount; | | (b) | sell the immovable and movable property and things in action of the company by public auction, public tender or private contract, with power to transfer the whole of the immovable and movable property and things in action of the company to any person or company or to sell the same in parcels; | | (c) | do all acts and execute in the name and on behalf of the company all deeds, receipts and other documents, and for that purpose use when necessary the company’s seal, if any; | | (d) | prove, rank and claim in the bankruptcy under any law of any contributory or debtor for any balance against the estate of the contributory or debtor, and receive dividends in the bankruptcy in respect of that balance as a separate debt due from the contributory or debtor; | | (e) | draw, accept, make and indorse any bill of exchange or promissory note in the name and on behalf of the company with the same effect with respect to the liability of the company as if the bill or note had been drawn, accepted, made or indorsed by or on behalf of the company in the course of its business; | | (f) | raise on the security of the assets of the company any money required; | | (g) | take out letters of administration of the estate of any deceased contributory or debtor, and do any other act necessary for obtaining payment of any money due from a contributory or debtor or the estate of the contributory or debtor which cannot be conveniently done in the name of the company, and in all such cases the money due is, for the purposes of enabling the liquidator to take out the letters of administration or recover the money, deemed due to the liquidator himself or herself; | | (h) | appoint an agent to do any business which the liquidator is unable to do himself or herself; and | | (i) | do all such other things as are necessary for winding up the affairs of the company and distributing its assets. |
|
| (3) The exercise by the liquidator of the powers conferred by this section is subject to the control of the Court, and any creditor or contributory may apply to the Court with respect to any exercise or proposed exercise of any of those powers. |
|
| Exercise and control of liquidator’s powers |
145.—(1) Subject to this Part and Parts 9, 10 and 11, the liquidator must, in the administration of the assets of the company and in the distribution of the assets of the company among the creditors of the company, have regard to any directions given by resolution of the creditors or contributories at any general meeting or by the committee of inspection, and any directions so given by the creditors or contributories, in case of conflict, override any directions given by the committee of inspection.(2) The liquidator —| (a) | may summon general meetings of the creditors or contributories for the purpose of ascertaining their wishes; and | | (b) | must summon meetings —| (i) | at such times as the creditors or contributories by resolution direct; or | | (ii) | whenever requested in writing to do so by not less than 10% in value of the creditors or contributories. |
|
|
| (3) The liquidator may apply to the Court for directions in relation to any particular matter arising under the winding up. |
| (4) Subject to this Part, the liquidator must use the liquidator’s own discretion in the management of the affairs and property of the company and the distribution of the assets of the company. |
|
| Payment by liquidator into bank |
146.—(1) Every liquidator must, in the manner and at the times prescribed by the regulations, pay the money received by the liquidator into such bank account as is prescribed by those regulations or as is specified by the Court.(2) If any liquidator retains for more than 10 days a sum exceeding $1,000, or such other amount as the Court in any particular case authorises the liquidator to retain, then, unless the liquidator explains the retention to the satisfaction of the Court, the liquidator must pay interest on the amount so retained in excess, computed starting on the expiration of those 10 days until the liquidator has complied with subsection (1), at the rate of 20% per annum, and is liable —| (a) | to disallowance of all or such part of the liquidator’s remuneration as the Court thinks just; | | (b) | to be removed from office by the Court; and | | (c) | to pay any expenses occasioned by reason of the default. |
|
| (3) Any liquidator who pays any sums received as liquidator into any bank or account other than the bank or account prescribed or specified under subsection (1) shall be guilty of an offence. |
|
| Release of liquidators and dissolution of company |
147. When the liquidator —| (a) | has realised all the property of the company, or so much of the property of the company as can in the liquidator’s opinion be realised, without needlessly protracting the liquidation, and has distributed a final dividend (if any) to the creditors and adjusted the rights of the contributories among themselves and made a final return (if any) to the contributories; or | | (b) | has resigned or has been removed from office, |
| the liquidator may apply to the Court — |
| (c) | for an order that the liquidator be released; or | | (d) | for an order that the liquidator be released and that the company be dissolved. |
|
| Final account and dissolution |
148.—(1) Before a liquidator makes an application to the Court under section 147, the liquidator must call a meeting of the company and the creditors for the purpose of laying before them an account showing how the winding up has been conducted and the property of the company has been disposed of and giving any explanation of the account.(2) The meeting must be called by an advertisement, published in the Gazette and at least one English local daily newspaper —| (a) | which must specify the time, place and object of the meeting; | | (b) | which must be published at least 30 days before the meeting; and | | (c) | a copy of which must be sent to the Official Receiver within 7 days after the publication of the advertisement. |
|
| (3) The liquidator must within 7 days after the meeting lodge with the Registrar of Companies and the Official Receiver a return of the holding of the meeting and of its date, with a copy of the account attached to that return. |
| (4) Any liquidator who fails to comply with subsection (3) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $1,000 and also to a default penalty. |
| (5) The quorum at the meeting of the company and the creditors is 2 members and 2 creditors. |
(6) If a quorum is not present at the meeting, the liquidator must (in lieu of the return mentioned in subsection (3)) lodge a return (with a copy of the account attached) that —| (a) | the meeting was duly summoned; and | | (b) | no quorum was present at the meeting. |
|
| (7) Upon the lodgment of a return under subsection (6), the requirement to lodge a return under subsection (3) is deemed to have been complied with. |
|
| As to orders for release or dissolution |
149.—(1) Where an order is made that the company be dissolved, the company is from the date of the order dissolved.(2) The Court —| (a) | may cause a report on the accounts of a liquidator, not being the Official Receiver, to be prepared by the Official Receiver or by a public accountant appointed by the Court; | | (b) | must take into consideration the report and any objection which is urged by the Official Receiver, auditor or any creditor or contributory or other person interested against the release of the liquidator; and | | (c) | must either grant or withhold the release of the liquidator accordingly. |
|
| (3) Where the release of a liquidator is withheld, the Court may, on the application of any creditor or contributory or person interested, make such order as the Court thinks just charging the liquidator with the consequences of any act or default which the liquidator may have done or made contrary to the liquidator’s duty. |
| (4) An order of the Court releasing the liquidator discharges the liquidator from all liability in respect of any act done or default made by the liquidator in the administration of the affairs of the company or otherwise in relation to his or her conduct as liquidator, but any such order may be revoked on proof that the order was obtained by fraud or by suppression or concealment of any material fact. |
| (5) Where the liquidator has not previously resigned or been removed, his or her release operates as a removal from office. |
(6) Where the Court has made an order —| (a) | that the liquidator be released; or | | (b) | that the liquidator be released and that the company be dissolved, |
| a copy of the order must, within 14 days after the making of the order, be lodged by the liquidator with the Registrar of Companies and with the Official Receiver, respectively, and a liquidator who defaults in complying with the requirements of this subsection shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $5,000 and also to a default penalty. |
|
|
| Subdivision (3) — Committees of inspection |
| Meetings to determine whether committee of inspection to be appointed |
150.—(1) The liquidator may, and must if requested by any creditor or contributory, summon separate meetings of the creditors and contributories for the purpose of determining —| (a) | whether or not the creditors or contributories require the appointment of a committee of inspection to act with the liquidator; and | | (b) | if they so require, who are to be members of the committee. |
| (2) If there is a difference between the determinations of the meetings of the creditors and contributories, the Court is to decide the difference and may make such order as the Court thinks fit. |
|
| Constitution and proceedings of committee of inspection |
151.—(1) The committee of inspection must consist of creditors and contributories of the company, or persons holding —| (a) | general powers of attorney from creditors or contributories; or | | (b) | special authorities from creditors or contributories authorising the persons named in those special authorities to act on such a committee, |
| being creditors, contributories or persons (as the case may be) appointed by the meetings of creditors and contributories in such proportions as are agreed or, in case of difference, as are determined by the Court. |
| (2) The committee of inspection may meet at such times and places as it may from time to time appoint, and the liquidator or any member of the committee may also call a meeting of the committee as he or she thinks necessary. |
| (3) The committee of inspection may act by a majority of its members present at a meeting, but must not act unless a majority of the committee is present. |
| (4) A member of the committee of inspection may resign by notice in writing signed by him or her and delivered to the liquidator. |
(5) The office of a member of the committee of inspection becomes vacant if —| (a) | the member becomes bankrupt; | | (b) | the member assigns his or her estate for the benefit of his or her creditors; | | (c) | the member makes an arrangement with his or her creditors under this Act; or | | (d) | the member is absent from 5 consecutive meetings of the committee without the permission of the other members of the committee who represent the creditors (where the member represents creditors) or the contributories (where the member represents contributories). [Act 25 of 2021 wef 01/04/2022] |
|
| (6) A member of the committee of inspection may be removed by an ordinary resolution at a meeting of creditors (where the member represents creditors), or of contributories (where the member represents contributories), if notice of the meeting has been given at least 7 days before the date of the meeting, stating the object of the meeting. |
| (7) A vacancy in the committee of inspection may be filled by the appointment by the committee of the same or another creditor or contributory or person holding a general power of attorney or special authority as specified in subsection (1). |
| (8) The liquidator may at any time of the liquidator’s own motion, and must within 7 days after the request in writing of a creditor or contributory, summon a meeting of creditors or of contributories, as the case requires, to consider any appointment made under subsection (7), and the meeting may confirm the appointment or revoke the appointment and appoint another creditor or contributory or person holding a general power of attorney or special authority as specified in subsection (1), as the case requires, in place of the person appointed under subsection (7). |
| (9) The continuing members of the committee of inspection, if not less than 2, may act despite any vacancy in the committee. |
| (10) In this section, “general power of attorney” includes a lasting power of attorney registered under the Mental Capacity Act 2008. |
|
| Subdivision (4) — General powers of Court |
| Settlement of list of contributories and application of assets |
152.—(1) As soon as possible after making a winding up order, the Court must settle a list of contributories and cause the assets of the company to be collected and applied in discharge of the liabilities of the company.| (2) After making a winding up order, the Court may rectify the register of members in all cases where rectification is required under this Part. |
| (3) Despite subsection (1), where it appears to the Court that it is not necessary to make calls on or adjust the rights of contributories, the Court may dispense with the settlement of a list of contributories. |
| (4) In settling the list of contributories, the Court must distinguish between persons who are contributories in their own right and persons who are contributories by reason of being representatives of others, or by reason of being liable for the debts of others. |
| (5) The list of contributories, when settled, is prima facie evidence of the liabilities of the persons named in the list as contributories. |
|
| Payment of debts due by contributory and extent to which set‑off allowed, etc. |
153.—(1) The Court may make an order directing any contributory (for the time being on the list of contributories) to pay to the company, in the manner directed by the order, any money due from the contributory or from the estate of the person whom the contributory represents, exclusive of any money payable by the contributory or that estate by virtue of any call under this Act or the Companies Act 1967, and may —| (a) | in the case of an unlimited company, allow the contributory to set off any money due to the contributory, or to the estate that the contributory represents, from the company on any independent dealing or contract, but not any money due to the contributory as a member of the company in respect of any dividend or profit; | | (b) | in the case of a limited company, make to any director whose liability is unlimited, or to the estate of that director, the like allowance; and | | (c) | in the case of any company, whether limited or unlimited, when all the creditors are paid in full, allow a contributory to set off any money due on any account to the contributory from the company against any subsequent call. |
(2) The Court may, either before or after it has ascertained the sufficiency of the assets of the company —| (a) | make calls on all or any of the contributories (for the time being on the list of contributories), to the extent of their liability, for payment of any money which the Court considers necessary —| (i) | to satisfy the debts and liabilities of the company and the costs, charges and expenses of winding up; and | | (ii) | for the adjustment of the rights of the contributories among themselves; and |
| | (b) | make an order for payment of any calls so made, |
| and, in making a call, may take into consideration the probability that some of the contributories may partly or wholly fail to pay the call. |
|
| (3) The Court may order any contributory, purchaser or other person from whom money is due to the company to pay the amount due into a bank, named in the order, to the account of the liquidator, instead of to the liquidator, and any such order may be enforced in the same manner as if the Court had directed payment to the liquidator. |
| (4) All moneys and securities paid or delivered into any bank under this Division are subject in all respects to orders of the Court. |
| (5) An order made by the Court under this section is, subject to any right of appeal, conclusive evidence that the money (if any) appearing under the order to be due or ordered to be paid is due, and all other pertinent matters stated in the order are taken to be truly stated as against all persons and in all proceedings. |
|
| Appointment of special manager |
154.—(1) The liquidator may apply to the Court to appoint a special manager of the estate or business of a company (called in this section a special manager), if the liquidator is satisfied that the nature of the estate or business of the company, or the interests of the creditors or contributories generally, require the appointment of a special manager other than the liquidator.| (2) The Court may appoint a special manager to act during such time as the Court directs with such powers, including any of the powers of a receiver or manager, as are entrusted to the special manager by the Court. |
(3) A special manager —| (a) | must give such security and account in such manner as the Court directs; | | (b) | is to receive such remuneration as is fixed by the Court; | | (c) | may at any time resign after giving not less than one month’s notice in writing to the liquidator of the special manager’s intention to resign; and | | (d) | may on cause shown be removed by the Court. |
|
|
| Claims of creditors and distribution of property |
155.—(1) The Court may fix a date on or before which creditors are to prove their debts or claims, or after which those creditors are excluded from the benefit of any distribution made before those debts or claims are proved.| (2) The Court must adjust the rights of the contributories among themselves and distribute any surplus among the persons entitled to the surplus. |
| (3) The Court may, in the event the assets are insufficient to satisfy the liabilities, order the payment out of the assets of the costs, charges and expenses incurred in the winding up in such order of priority as the Court thinks fit. |
|
| Inspection of books and papers by creditors and contributories |
| 156. The Court may make such order for inspection of the books and papers of the company by creditors and contributories as the Court thinks just, and any books and papers in the possession of the company may be inspected by creditors or contributories accordingly, but not further or otherwise. |
| Power to arrest absconding contributory, director or former director |
157. The Court, at any time before or after making a winding up order, on proof of probable cause for believing that a contributory or a director or former director of the company is about to leave Singapore or otherwise to abscond or to remove or conceal any of his or her property for the purpose of evading payment of calls or of avoiding examination respecting the affairs of the company, may —| (a) | cause the contributory, director or former director to be arrested; and | | (b) | cause the books and papers and movable personal property of the contributory, director or former director to be seized and safely kept until such time as the Court orders. |
|
| Delegation to liquidator of certain powers of Court |
158.—(1) Subject to subsection (2), the Rules may provide for all or any of the powers and duties conferred and imposed on the Court by this Part or Part 9 in respect of —| (a) | the holding and conducting of meetings to ascertain the wishes of creditors and contributories; | | (b) | the settling of lists of contributories, the rectifying of the register of members where required, and the collecting and applying of the assets; | | (c) | the paying, delivery, conveyance, surrender or transfer of money, property, books or papers to the liquidator; | | (d) | the making of calls and the adjusting of the rights of contributories; and | | (e) | the fixing of a time within which debts and claims must be proved, |
| to be exercised or performed by the liquidator as an officer of the Court and subject to the control of the Court. |
(2) The liquidator —| (a) | must not, without the special permission of the Court, rectify the register of members; and [Act 25 of 2021 wef 01/04/2022] | | (b) | must not make any call without either the special permission of the Court or the sanction of the committee of inspection. [Act 25 of 2021 wef 01/04/2022] |
|
|
| Powers of Court cumulative |
159.—(1) Any powers conferred on the Court by this Act or the Companies Act 1967 are in addition to, and not in derogation of, any existing powers of instituting proceedings against any contributory or debtor of the company or the estate of any contributory or debtor for the recovery of any call or other sums.| (2) Subject to the Rules, an appeal from any order or decision made or given in the winding up of a company lies in the same manner and subject to the same conditions as an appeal from any order or decision of the Court in cases within its ordinary jurisdiction. |
|
| Division 3 — Provisions applicable to voluntary winding up |
| Subdivision (1) — Preliminary |
| Circumstances in which company may be wound up voluntarily |
160.—(1) A company may be wound up voluntarily —| (a) | when the period (if any) fixed for the duration of the company by the constitution of the company expires or, where the constitution of the company provides that the company is to be dissolved on the occurrence of an event, when that event happens, and the company in general meeting has passed a resolution requiring the company to be wound up voluntarily; or | | (b) | if the company so resolves by special resolution. |
(2) A company must —| (a) | within 7 days after the passing of a resolution for voluntary winding up, lodge a copy of the resolution with the Registrar of Companies; and | | (b) | within 10 days after the passing of the resolution, give notice of the resolution in the Gazette and at least one English local daily newspaper. |
|
| (3) If the company fails to comply with subsection (2), the company and every officer of the company who is in default shall each be guilty of an offence and shall each be liable on conviction to a fine not exceeding $5,000 and also to a default penalty. |
|
| Provisional liquidator and commencement of voluntary winding up |
161.—(1) Where the directors of a company have made and lodged with the Official Receiver a statutory declaration in the prescribed form, and have lodged a declaration in the prescribed form with the Registrar of Companies —| (a) | that the company cannot by reason of its liabilities continue its business; and | | (b) | that meetings of the company and of its creditors have been summoned for a date within 30 days after the date of the declaration, |
| the directors must immediately appoint a licensed insolvency practitioner to be the provisional liquidator. |
| (2) Subject to section 171, a provisional liquidator has and may exercise all the functions and powers of a liquidator in a creditors’ winding up, subject to such limitations and restrictions as may be prescribed by regulations. |
| (3) The appointment of a provisional liquidator under this section continues for 30 days after the date of the appointment of the provisional liquidator, or for such further period as the Official Receiver may allow in any particular case, or until the appointment of a liquidator, whichever first occurs. |
| (4) Notice of the appointment of a provisional liquidator under this section, together with a copy of the statutory declaration lodged with the Official Receiver under subsection (1), must be advertised, within 14 days after the appointment of the provisional liquidator, in the Gazette and at least one English local daily newspaper. |
| (5) A provisional liquidator is entitled to receive such salary or remuneration by way of percentage or otherwise as is prescribed. |
(6) A voluntary winding up commences —| (a) | where a provisional liquidator has been appointed before the resolution for voluntary winding up was passed, at the time when the declaration mentioned in subsection (1) was lodged with the Registrar of Companies; or | | (b) | in any other case, at the time of the passing of the resolution for voluntary winding up. |
|
|
| Effect of voluntary winding up |
162.—(1) The company must, starting on the commencement of the winding up, cease to carry on its business, except so far as is in the opinion of the liquidator required for the beneficial winding up of the company.| (2) Despite anything to the contrary in the constitution of the company, the corporate state and corporate powers of the company continue until the company is dissolved. |
| (3) Any transfer of shares, not being a transfer made to or with the sanction of the liquidator, and any alteration in the status of the members made after the commencement of the winding up, are void. |
|
163.—(1) Where it is proposed to wind up a company voluntarily pursuant to a members’ voluntary winding up, the directors of the company or, in the case of a company that has more than 2 directors, the majority of the directors must, before the date on which the notices of the meeting at which the resolution for the winding up of the company is to be proposed are sent out, make a declaration to the effect that —| (a) | they have made an inquiry into the affairs of the company; and | | (b) | at a meeting of directors, they have formed the opinion that the company will be able to pay its debts in full within a period not exceeding 12 months after the commencement of the winding up. |
(2) There must be attached to the declaration a statement of affairs of the company showing, in the prescribed form —| (a) | the assets of the company and the total amount expected to be realised from those assets; | | (b) | the liabilities of the company; and | | (c) | the estimated expenses of the winding up, |
| made up to the latest practicable date before the making of the declaration. |
|
(3) A declaration so made has no effect for the purposes of this Act unless it is —| (a) | made at the meeting of directors mentioned in subsection (1); | | (b) | made within 5 weeks immediately before the passing of the resolution for voluntary winding up; and | | (c) | lodged with the Registrar of Companies before the date on which the notices of the meeting at which the resolution for the winding up of the company is to be proposed are sent out. |
|
| (4) A director, who makes a declaration under this section without having reasonable grounds for the opinion that the company will be able to pay its debts in full within the period stated in the declaration, shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $5,000 or to imprisonment for a term not exceeding 12 months or to both. |
| (5) If the company is wound up pursuant to a resolution for voluntary winding up passed within a period of 5 weeks after the making of the declaration, but its debts are not paid or provided for in full within the period stated in the declaration, it is to be presumed until the contrary is shown that the director did not have reasonable grounds for the opinion that the company will be able to pay its debts in full within the period stated in the declaration. |
|
Subdivision (2) — Provisions applicable only to
members’ voluntary winding up |
164.—(1) The company in general meeting must appoint one or more liquidators for the purpose of winding up the affairs and distributing the assets of the company, and may fix the remuneration to be paid to the liquidator or liquidators.| (2) On the appointment of a liquidator, all the powers of the directors cease except so far as the liquidator, or the company in general meeting with the consent of the liquidator, approves the continuance of those powers. |
| (3) The company may, in general meeting convened by any contributory by special resolution of which special notice has been given to the creditors and the liquidators, remove any liquidator. |
| (4) No resolution under subsection (3) is effective to remove a liquidator if the Court, on the application of the liquidator or a creditor, has ordered that the liquidator not be removed. |
| (5) If a vacancy occurs by death, resignation, removal or otherwise in the office of a liquidator, the company in general meeting may fill the vacancy by the appointment of a liquidator and fix the remuneration to be paid to the liquidator, and for that purpose a general meeting may be convened by any contributory, or, if there were 2 or more liquidators, by the continuing liquidators. |
| (6) The meeting must be held in the manner provided by this Act, or by the constitution of the company, or in such manner as is, on application by any contributory or by the continuing liquidators, determined by the Court. |
|
| Duty of liquidator to call creditors’ meeting, and alternative provisions as to annual meetings, in case of insolvency |
165.—(1) If the liquidator is at any time of the opinion that the company will not be able to pay or provide for the payment of its debts in full within the period stated in the declaration made under section 163(1), the liquidator must immediately summon a meeting of the creditors and lay before the meeting a statement of the assets and liabilities of the company.(2) In summoning a meeting of creditors under subsection (1), the liquidator must —| (a) | summon the meeting for a day not later than 30 days after the day on which the liquidator formed that opinion under subsection (1); | | (b) | send notices of the creditors’ meeting to the creditors not less than 7 days before the day on which that meeting is to be held; | | (c) | cause notice of the creditors’ meeting to be advertised in the Gazette and at least one English local daily newspaper; and | | (d) | during the period before the day on which the creditors’ meeting is to be held, furnish the creditors free of charge with such information concerning the affairs of the company as the creditors may reasonably require. |
|
(3) A notice summoning a meeting under subsection (1) must draw the attention of the creditors to —| (a) | the right conferred upon the creditors by subsection (2)(d); and | | (b) | the right conferred upon the creditors by subsection (5). |
|
(4) The statement of the assets and liabilities of the company mentioned in subsection (1) must show —| (a) | particulars of the company’s assets, debts and liabilities; | | (b) | the names and addresses of the company’s creditors; | | (c) | the securities held by the company’s creditors respectively; | | (d) | the dates when the securities mentioned in paragraph (c) were respectively given; and | | (e) | such further or other information as may be prescribed. |
|
| (5) The creditors may, at the meeting summoned under subsection (1), appoint a person to be the liquidator for the purpose of winding up the affairs and distributing the assets of the company in place of the liquidator appointed by the company. |
| (6) If the creditors appoint a person under subsection (5), the winding up is to proceed after the appointment as if the winding up were a creditors’ voluntary winding up. |
| (7) Within 7 days after a meeting has been held under subsection (1), the liquidator or, if some other person has been appointed by the creditors to be the liquidator, the person so appointed must lodge with the Registrar of Companies and with the Official Receiver a notice in the prescribed form, and if default is made in complying with this subsection, the liquidator or the person so appointed (as the case may be) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $1,000 and also to a default penalty. |
(8) Where the liquidator has convened a meeting under subsection (1) and the creditors do not appoint a person to be the liquidator in place of the liquidator appointed by the company —| (a) | the winding up is to proceed after the meeting as if the winding up were a creditors’ voluntary winding up; but | | (b) | the liquidator is not required to summon an annual meeting of creditors at the end of the first year after the commencement of the winding up, if the meeting held under subsection (1) was held less than 3 months before the end of that year. |
|
|
Subdivision (3) — Provisions applicable only to
creditors’ voluntary winding up |
166.—(1) The company must cause a meeting of the creditors of the company to be summoned for the day, or the day next following the day, on which there is to be held the meeting of the company at which the resolution for voluntary winding up is to be proposed, and must cause the notices of the meeting of creditors to be sent to the creditors simultaneously with the sending of the notices of the meeting of the company.(2) The company must convene the meeting of the creditors at a time and place convenient to the majority in value of the creditors, and must —| (a) | send notice of the meeting to the creditors at least 10 days before the date of the meeting; and | | (b) | send to each creditor, with the notice, a statement showing the names of all creditors and the amounts of their claims. |
|
| (3) The company must cause notice of the meeting of the creditors to be advertised at least 7 days before the date of the meeting in the Gazette and at least one English local daily newspaper. |
(4) The directors of the company must —| (a) | cause a full statement of the company’s affairs showing in respect of assets the method and manner in which the valuation of the assets was arrived at, together with a list of the creditors and the estimated amount of their claims to be laid before the meeting of the creditors; and | | (b) | appoint one of their number to attend the meeting. |
|
| (5) The director appointed under subsection (4)(b), and the secretary, must attend the meeting of the creditors and disclose to the meeting the company’s affairs and the circumstances leading up to the proposed winding up. |
| (6) The creditors may appoint one of their number, or the director appointed under subsection (4)(b), as the chairperson to preside at the meeting. |
| (7) The chairperson must determine at the meeting whether the meeting has been held at a time and place convenient to the majority in value of the creditors, and the chairperson’s decision is final. |
| (8) If the chairperson decides that the meeting has not been held at a time and place convenient to that majority, the meeting lapses and a further meeting must be summoned by the company as soon as is practicable. |
| (9) If the meeting of the company is adjourned and the resolution for voluntary winding up is passed at an adjourned meeting, any resolution passed at the meeting of the creditors has effect as if the resolution had been passed immediately after the passing of the resolution for voluntary winding up. |
| (10) If default is made in complying with this section, the company and any officer of the company who is in default shall each be guilty of an offence and shall each be liable on conviction to a fine not exceeding $2,000. |
|
167.—(1) The company must, and the creditors may at their respective meetings, nominate a person to be liquidator for the purpose of winding up the affairs and distributing the assets of the company, and if the creditors and the company nominate different persons, the person nominated by the creditors is to be liquidator, and if no person is nominated by the creditors, the person nominated by the company is to be liquidator.| (2) Despite subsection (1), where different persons are nominated, any director, member or creditor may, within 7 days after the date on which the nomination was made by the creditors, apply to the Court for an order directing that the person nominated as liquidator by the company is to be liquidator instead of, or jointly with, the person nominated by the creditors. |
| (3) The committee of inspection or, if there is no such committee, the creditors may fix the remuneration to be paid to the liquidator. |
| (4) On the appointment of a liquidator, all the powers of the directors cease, except so far as the committee of inspection or, if there is no such committee, the creditors approve the continuance of those powers. |
| (5) If a liquidator, other than a liquidator appointed by or by the direction of the Court, dies, resigns or otherwise vacates the office, the creditors may fill the vacancy and, for the purpose of filling the vacancy, a meeting of the creditors may be summoned by any 2 of their number. |
|
| Liquidator’s right to request for statements of concurrence |
168.—(1) The liquidator may require any director who has not made the statement of affairs mentioned in section 166(4) to submit a statement of concurrence verified by affidavit, stating that that director concurs in the statement of affairs.(2) A statement of concurrence made under subsection (1) may be qualified in respect of matters dealt with in the statement of affairs, where the maker of the statement of concurrence —| (a) | is not in agreement with the persons making the statement of affairs; | | (b) | considers the statement of affairs to be erroneous or misleading; or | | (c) | is without the direct knowledge necessary for concurring in the statement of affairs. |
|
| (3) Every person who makes a statement of concurrence under subsection (1) must submit the statement to the liquidator within 14 days after the request to submit the statement of concurrence, or within such extended time as the liquidator or the Court may specify. |
|
169.—(1) The creditors at the meeting summoned under section 165(1) or 166(1) or at any subsequent meeting may, if they think fit, appoint a committee of inspection consisting of not more than 5 persons, whether creditors or not, and if such a committee is appointed, the company may, either at the meeting at which the resolution for voluntary winding up is passed or at any time subsequently in general meeting, appoint such number of persons (but not more than 5) as the company thinks fit to act as members of the committee.(2) Despite subsection (1) —| (a) | the creditors may, if they think fit, resolve that all or any of the persons so appointed by the company ought not to be members of the committee of inspection; | | (b) | if the creditors so resolve under paragraph (a), the persons mentioned in the resolution are not, unless the Court otherwise directs, qualified to act as members of the committee; and | | (c) | on any application to the Court under this subsection, the Court may, if the Court thinks fit, appoint other persons to act as such members in place of the persons mentioned in the resolution. |
|
| (3) Subject to this section and the regulations, sections 150 and 151 relating to the proceedings of and vacancies in committees of inspection apply with respect to a committee of inspection appointed under this section. |
|
| 170.—(1) Any attachment, sequestration, distress or enforcement order put in force against the estate or effects of the company after the commencement of a creditors’ voluntary winding up is, unless the Court otherwise orders, void. [Act 25 of 2021 wef 01/04/2022] | (2) After the commencement of the winding up, no action or proceeding may be proceeded with or commenced against the company except by the permission of the Court and subject to such terms as the Court may impose. [Act 25 of 2021 wef 01/04/2022] |
|
Subdivision (4) — Provisions applicable to
every voluntary winding up |
| Powers of provisional liquidator prior to creditors’ meeting |
171.—(1) The powers conferred on a provisional liquidator by section 161 must not be exercised during the period before the holding of the meeting of the creditors under section 166, except with the sanction of the Court.(2) Subsection (1) does not apply in relation to the power of the provisional liquidator —| (a) | to take into his or her custody or under his or her control all the property to which the company is or appears to be entitled; | | (b) | to dispose of perishable goods and other goods the value of which is likely to diminish if they are not immediately disposed of; and | | (c) | to do all such other things as may be necessary for the protection of the company’s assets. |
|
| (3) The provisional liquidator must attend the meeting of the creditors held under section 166 and must report to the meeting on any exercise by the provisional liquidator of his or her powers. |
| (4) Any provisional liquidator who, without reasonable excuse, fails to comply with the requirements of this section shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $2,000 and also to a default penalty. |
|
| Distribution of property of company |
| 172. Subject to the provisions of this Act as to preferential payments, the property of a company must, on its winding up, be applied pari passu in satisfaction of its liabilities and, subject to that application, must, unless the constitution of the company otherwise provides, be distributed among the members according to their rights and interests in the company. |
| Appointment of liquidator |
| 173. If from any cause there is no liquidator acting, the Court may appoint a liquidator. |
| 174. The Court may, on cause shown, remove a liquidator and appoint another liquidator. |
| Review of liquidator’s remuneration |
| 175. Any member or creditor or the liquidator may at any time before the dissolution of the company apply to the Court to review the amount of the remuneration of the liquidator, and the decision of the Court is final and conclusive. |
| Act of liquidator valid, etc. |
176.—(1) The acts of a liquidator are valid despite any defects that may afterwards be discovered in the liquidator’s appointment or qualification.| (2) Any conveyance, assignment, transfer, mortgage, charge or other disposition of a company’s property made by a liquidator is, despite any defect or irregularity affecting the validity of the winding up or the appointment of the liquidator, valid in favour of any person taking such property bona fide and for value and without notice of such defect or irregularity. |
| (3) Every person making or permitting any disposition of property to any liquidator is protected and indemnified in so doing, despite any defect or irregularity affecting the validity of the winding up or the appointment of the liquidator not then known to that person. |
| (4) For the purposes of this section, a disposition of property is to be taken as including a payment of money. |
|
| Powers and duties of liquidator |
177.—(1) The liquidator may —| (a) | in the case of a members’ voluntary winding up, with the approval of a special resolution of the company and, in the case of a creditors’ voluntary winding up, with the approval of the Court or the committee of inspection, exercise any of the powers given by section 144(1)(b), (c), (d), (e), (f) and (g) to a liquidator in a winding up by the Court; | | (b) | exercise any of the other powers by this Act given to the liquidator in a winding up by the Court; | | (c) | exercise the power of the Court under this Act of settling a list of contributories, and the list of contributories is prima facie evidence of the liability of the persons named in the list to be contributories; | | (d) | exercise the power of the Court of making calls; or | | (e) | summon general meetings of the company for the purpose of obtaining the sanction of the company by special resolution in respect of any matter or for any other purpose the liquidator thinks fit. |
| (2) The liquidator must pay the debts of the company and adjust the rights of the contributories among themselves. |
| (3) When several liquidators are appointed, any power given by this Act may be exercised by such one or more of them as is determined at the time of their appointment, or in default of such determination by any number not less than 2. |
|
| Power of liquidator to accept shares, etc., as consideration for sale of property of company |
178.—(1) Where it is proposed that the whole or part of the business or property of a company (called in this section the company) be transferred or sold to another corporation (called in this section the corporation), the liquidator of the company may, with the sanction of a special resolution of the company conferring either a general authority on the liquidator or an authority in respect of any particular arrangement —| (a) | receive in compensation or part compensation for the transfer or sale, any shares, debentures, policies or other like interests in the corporation for distribution among the members of the company; or | | (b) | enter into any other arrangement under which the members of the company may, in lieu of or in addition to receiving cash, shares, debentures, policies or other like interests in the corporation, participate in the profits of or receive any other benefit from the corporation. |
| (2) Any transfer, sale or arrangement mentioned in subsection (1) is binding on the members of the company. |
(3) If any member of the company expresses the member’s dissent to the resolution mentioned in subsection (1) in writing addressed to the liquidator and left at the registered office of the liquidator within 7 days after the passing of the resolution, the member may require the liquidator either —| (a) | to abstain from carrying the resolution into effect; or | | (b) | to purchase the member’s interest at a price to be determined by agreement or by arbitration in the manner provided by this section. |
|
| (4) If the liquidator elects to purchase the member’s interest, the purchase money must be paid before the company is dissolved and be raised by the liquidator in such manner as is determined by special resolution. |
| (5) A special resolution is not invalid for the purposes of this section by reason that it is passed before or concurrently with a resolution for voluntary winding up or for appointing liquidators, but if an order for winding up the company by the Court is made within a year after the passing of the resolution, the resolution is not valid unless sanctioned by the Court. |
| (6) For the purposes of an arbitration under this section, the Arbitration Act 2001 applies as if there were a submission for reference to 2 arbitrators, one to be appointed by each party, and the appointment of an arbitrator may be made under the hand of the liquidator or, if there is more than one liquidator, under the hands of any 2 or more of the liquidators. |
| (7) The Court may give any directions necessary for the initiation and conduct of an arbitration under this section, and such direction is binding on the parties. |
| (8) In the case of a creditors’ voluntary winding up, the powers of the liquidator under this section must not be exercised except with the approval of the Court or the committee of inspection. |
|
| Annual meeting of members and creditors |
179.—(1) If the winding up continues for more than one year, the liquidator must —| (a) | summon a general meeting of the company (in the case of a members’ voluntary winding up), or of the company and the creditors (in the case of a creditors’ voluntary winding up), at the end of the first year after the commencement of the winding up and at the end of, or not more than 3 months after the end of, each succeeding year; and | | (b) | lay before the meeting an account of the liquidator’s acts and dealings, and of the conduct of the winding up during the preceding year. |
| (2) The liquidator must cause the notices of the meeting of creditors to be sent to the creditors simultaneously with the sending of the notices of the meeting of the company. |
| (3) Every liquidator who fails to comply with this section shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $2,000 and also to a default penalty. |
|
| Final account and dissolution |
180.—(1) As soon as the affairs of the company are fully wound up, the liquidator must —| (a) | make up an account showing how the winding up has been conducted and the property of the company has been disposed of; and | | (b) | upon doing so, call a general meeting of the company or, in the case of a creditors’ voluntary winding up, a meeting of the company and the creditors, for the purpose of laying before the meeting the account and giving any explanation of the account. |
(2) The meeting must be called by an advertisement —| (a) | which must be published in the Gazette and at least one English local daily newspaper; | | (b) | which must specify the time, place and object of the meeting; | | (c) | which must be published at least 30 days before the meeting; and | | (d) | a copy of which must be sent to the Official Receiver within 7 days after the publication of the advertisement. |
|
(3) The liquidator must within 7 days after the meeting lodge with the Registrar of Companies and the Official Receiver —| (a) | a return of the holding and date of the meeting, with a copy of the account attached to the return; or | | (b) | if a quorum is not present at the meeting, a return (with account attached) that the meeting was duly summoned and that no quorum was present at the meeting. |
|
| (4) Any liquidator who fails to comply with subsection (3) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $1,000 and also to a default penalty. |
| (5) The quorum at a meeting of the company is 2 members and at a meeting of the company and the creditors is 2 members and 2 creditors. |
| (6) On the expiration of 3 months after the lodging of the return with the Registrar of Companies and with the Official Receiver, the company is dissolved. |
| (7) Despite subsection (6), the Court may, on the application of the liquidator or of any other person who appears to the Court to be interested, make an order deferring the date at which the dissolution of the company is to take effect for such time as the Court thinks fit. |
| (8) The person on whose application an order of the Court under this section is made must, within 14 days after the making of the order, lodge with the Registrar of Companies and with the Official Receiver a copy of the order, and if the person fails to do so, the person shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $1,000 and also to a default penalty. |
| (9) Any liquidator who fails to call a meeting as required by this section shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $2,000 and also to a default penalty. |
|
| Application to Court to have questions determined or powers exercised |
181.—(1) The liquidator or any creditor or contributory may apply to the Court —| (a) | to determine any question arising in the winding up of a company; or | | (b) | to exercise all or any of the powers that the Court might exercise if the company were being wound up by the Court. |
(2) The Court, if satisfied that the determination of the question or the exercise of power is just and beneficial, may —| (a) | accede wholly or partially to any such application on such terms and conditions as the Court thinks fit; or | | (b) | make such other order on the application as the Court thinks just. |
|
|
| No liquidator appointed or nominated by company |
182.—(1) Where it is proposed to wind up a company voluntarily, and no liquidator or provisional liquidator has been appointed or nominated by the company, the powers of the directors must not be exercised, except with the sanction of the Court or, in the case of a creditors’ voluntary winding up, so far as may be necessary to secure compliance with section 166.(2) Subsection (1) does not apply in relation to the powers of the directors —| (a) | to dispose of perishable goods and other goods the value of which is likely to diminish if they are not immediately disposed of; and | | (b) | to do all such other things as may be necessary for the protection of the company’s assets. |
|
| (3) Any director who, without reasonable excuse, fails to comply with the requirements of this section shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $5,000 or to imprisonment for a term not exceeding 12 months or to both and also to a default penalty. |
|
| 183. All proper costs, charges and expenses of and incidental to the winding up, including the remuneration of the liquidator, are payable out of the assets of the company in accordance with section 203. |
| Limitation on right to wind up voluntarily |
| 184. Where an application has been made to the Court to wind up a company on the ground that it is unable to pay its debts, the company must not, without the permission of the Court, resolve that it be wound up voluntarily. [Act 25 of 2021 wef 01/04/2022] |
| Summoning, proof of notice, and quorum of meetings |
185.—(1) Unless provided otherwise under this Act, the liquidator or other person summoning a meeting of creditors, meeting of contributories, or meeting of creditors and contributories, under this Division must —| (a) | summon such meeting by causing notice of the time and place of the meeting to be advertised, at least 7 days before the date of the meeting, in the Gazette and at least one English local daily newspaper; and | | (b) | not less than 7 days before the day appointed for the meeting, send, to every person appearing by the company’s books to be a creditor of the company, notice of the meeting of creditors or meeting of creditors and contributories, and, to every person appearing by the company’s books or otherwise to be a contributory of the company, notice of the meeting of contributories or meeting of creditors and contributories. |
| (2) The notice to each creditor must be sent to the address given in the creditor’s proof or, if the creditor has not proved, to the address given in the statement of affairs of the company, or to such other address as may be known to the person summoning the meeting. |
| (3) The notice to each contributory must be sent to the address mentioned in the company’s books as the address of such contributory, or to such other address as may be known to the person summoning the meeting. |
| (4) This section does not apply to meetings under section 165, 166 or 180. |
| (5) An affidavit in the prescribed form by the liquidator or the liquidator’s solicitor or the clerk of either of such persons, that the notice of any meeting has been duly posted, is sufficient evidence of such notice having been duly sent to the person to whom the notice was addressed. |
(6) A meeting must not act for any purpose except the election of a chairperson, the proving of debts and the adjournment of the meeting unless there are present or represented at the meeting —| (a) | in the case of a meeting of creditors, at least 3 creditors entitled to vote; | | (b) | in the case of a meeting of contributories, at least 3 contributories; or | | (c) | all the creditors entitled to vote or all the contributories, if the number of the creditors entitled to vote or the number of contributories (as the case may be) does not exceed 3. |
|
| (7) If within half an hour after the time appointed for the meeting a quorum of creditors or contributories is not present or represented, the meeting must be adjourned to the same day in the following week at the same time and place, or to such other day as the chairperson may appoint, being not earlier than the 8th day, and not later than the 21st day, after the day on which the meeting was adjourned. |
| (8) If within half an hour after the time appointed for the adjourned meeting a quorum of creditors or contributories is not present or represented, the adjourned meeting must not be further adjourned. |
| (9) The list of creditors assembled to be used at every meeting must be in the prescribed form. |
|
| Division 4 — Provisions applicable to every mode of winding up |
| Subdivision (1) — General |
| Power to stay or terminate winding up |
186.—(1) At any time during the winding up of a company, the Court may, on the application of the liquidator or of any creditor or contributory, and on proof to the satisfaction of the Court that all proceedings in relation to the winding up ought to be stayed or terminated, make an order —| (a) | staying the proceedings either altogether or for a limited time, on such terms and conditions as the Court thinks fit; or | | (b) | terminating the winding up on a day specified in the order. |
| (2) On any such application, the Court may, before making an order, require the liquidator to furnish a report with respect to any facts or matters that are in the liquidator’s opinion relevant. |
| (3) Where the Court has made an order terminating the winding up, the Court may give such directions as the Court thinks fit for the resumption of the management and control of the company by the officers of the company, including directions for the convening of a general meeting of members of the company to elect directors of the company to take office upon the termination of the winding up. |
| (4) Where an order is made under this section, the person on whose application the order is made must lodge a copy of the order with the Registrar of Companies and the Official Receiver, within 14 days after the making of the order. |
| (5) Any person who fails to comply with subsection (4) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $5,000 and also to a default penalty. |
|
| Arrangement when binding on creditors |
187.—(1) Any arrangement entered into between a company about to be or in the course of being wound up and its creditors is, subject to the right of appeal under this section, binding on the company if sanctioned by a special resolution, and on the creditors if acceded to by 75% in value and 50% in number of the creditors, every creditor for under $500 being reckoned in value only.(2) A creditor must be accounted a creditor for value for such sum as upon an account fairly stated appears to be the balance due to the creditor, after allowing —| (a) | the value of security or liens held by the creditor; and | | (b) | the amount of any debt or set-off owing by the creditor to the company. |
|
| (3) Any dispute with regard to the value of any such security or lien or the amount of such debt or set-off may be settled by the Court on the application of the company, the liquidator or the creditor. |
| (4) Any creditor or contributory may, within 3 weeks after the completion of the arrangement, appeal to the Court against the arrangement, and the Court may upon the appeal, as it thinks just, amend, vary or confirm the arrangement. |
|
| Books to be kept by liquidator, control of Court over liquidators, and delivery of property to liquidator |
188.—(1) Every liquidator must keep proper books in which the liquidator must cause to be made entries or minutes of proceedings at meetings and of such other matters as are prescribed, and any creditor or contributory may, subject to the control of the Court, personally or by his or her agent inspect the books.| (2) The Court must take cognizance of the conduct of liquidators, and if a liquidator does not faithfully perform the liquidator’s duties and observe the prescribed requirements or the requirements of the Court, or if any complaint is made to the Court by any creditor or contributory or by the Official Receiver in regard to the performance of the liquidator’s duties, the Court must inquire into the matter and take such action as the Court thinks fit. |
| (3) The Registrar of Companies or the Official Receiver may report to the Court any matter which in his or her opinion is a misfeasance, neglect or omission on the part of the liquidator, and the Court may order the liquidator to make good any loss which the estate of the company has sustained by the misfeasance, neglect or omission and make such other order as the Court thinks fit. |
(4) The Court may —| (a) | at any time require any liquidator to answer any inquiry in relation to the winding up; | | (b) | examine the liquidator or any other person on oath concerning the winding up; and | | (c) | direct an investigation to be made of the books and vouchers of the liquidator. |
|
| (5) The Court may require any contributory, trustee, receiver, banker, agent or officer of the company to pay, deliver, convey, surrender or transfer to the liquidator or provisional liquidator, immediately or within such time as the Court directs, any money, property, books and papers in the hands of the contributory, trustee, receiver, banker, agent or officer to which the company is prima facie entitled. |
|
| Powers of Official Receiver where no committee of inspection |
189.—(1) Where a person other than the Official Receiver is the liquidator and there is no committee of inspection, the Official Receiver may, on the application of the liquidator, do any act or thing or give any direction or permission which is by this Act authorised or required to be done or given by the committee.| (2) Where the Official Receiver is the liquidator and there is no committee of inspection, the Official Receiver may in his or her discretion do any act or thing which is by this Act required to be done by, or subject to any direction or permission given by, the committee. |
|
| Appeal against decision of liquidator |
| 190. Any person aggrieved by any act or decision of the liquidator may apply to the Court, which may confirm, reverse or modify the act or decision complained of and make such order as the Court thinks just. |
| Notice of appointment and address of liquidator |
191.—(1) A liquidator must —| (a) | within 14 days after the liquidator’s appointment, lodge with the Registrar of Companies and with the Official Receiver notice in the prescribed form of the liquidator’s appointment and of the address of the liquidator’s office; and | | (b) | within 14 days after any change in the address of the liquidator’s office, lodge with the Registrar of Companies and with the Official Receiver notice in the prescribed form of the change. |
| (2) Service of any document by leaving it at, or sending it by post addressed to, the address of the liquidator’s office given in the most recent notice lodged by the liquidator with the Registrar of Companies under subsection (1)(a) or (b) is deemed to be good service upon the liquidator and upon the company. |
| (3) A liquidator must, within 14 days after the liquidator’s resignation or removal from office, lodge with the Registrar of Companies and with the Official Receiver a notice in the prescribed form of the liquidator’s resignation or removal from office. |
| (4) Any liquidator who fails to comply with subsection (1) or (3) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $5,000 and also to a default penalty. |
|
192.—(1) Every liquidator must lodge with the Official Receiver, in the prescribed form and verified by statutory declaration, an account of the liquidator’s receipts and payments and a statement of the position in the winding up —| (a) | within one month after the expiration of each of the following periods:| (i) | a period of 12 months after the date of the liquidator’s appointment; | | (ii) | every subsequent period of 12 months; |
| | (b) | within one month after the liquidator ceases to act as liquidator; and | | (c) | immediately after obtaining an order of release, |
| and any liquidator who fails to do so shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $1,000 and also to a default penalty. |
| (2) Every liquidator must, within 7 days after lodging the account and statement mentioned in subsection (1), also lodge with the Registrar of Companies a notice in the prescribed form of the lodgment of that account and statement, and any liquidator who fails to do so shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $1,000 and also to a default penalty. |
(3) The Official Receiver may cause the account of any liquidation to be audited by a public accountant, and for the purpose of the audit —| (a) | the liquidator must furnish the public accountant with such vouchers and information as the public accountant requires; and | | (b) | the public accountant may at any time require the production of and inspect any books or accounts kept by the liquidator. |
|
| (4) A liquidator must keep a copy of the account or, if audited, a copy of the audited account, and that copy must be open to the inspection of any creditor or any person interested at the office of the liquidator. |
(5) The liquidator must —| (a) | give notice that the account has been made up to every creditor and contributory, when next forwarding any report, notice of meeting, notice of call or dividend; and | | (b) | in such notice, inform the creditors and contributories at what address and between what hours the account may be inspected. |
|
| (6) The costs of an audit under this section must be fixed by the Official Receiver and are part of the expenses of winding up. |
|
| Liquidator to make good defaults |
193.—(1) If any liquidator, who defaults in lodging or making any application, return, account or other document, or in giving any notice, that the liquidator is by law required to lodge, make or give, fails to make good the default within 14 days after the service on the liquidator of a notice requiring the liquidator to do so, the Court may, on the application of any creditor or contributory of the company or the Official Receiver, make an order directing the liquidator to make good the default within such time as is specified in the order.| (2) Any order made under subsection (1) may provide that all costs of and incidental to the application must be borne by the liquidator. |
| (3) Nothing in subsection (1) prejudices the operation of any written law imposing penalties on a liquidator in respect of any default mentioned in that subsection. |
|
| Notification that company is in liquidation |
194.—(1) Where a company is being wound up —| (a) | every invoice, order for goods, business letter, order form or other correspondence (whether in hard copy, electronic or any other form) issued by or on behalf of the company, a liquidator of the company, or a receiver or manager of the property of the company, being a document on or in which the name of the company appears; and | | (b) | every Internet website of the company on or in which the name of the company appears, |
| must have the words “in liquidation” added after the name of the company where it first appears in that document or Internet website. |
| (2) A provisional liquidator appointed over a company must comply with subsection (1), except that the words “in provisional liquidation” must be added after the name of the company instead of the words “in liquidation”. |
(3) If there is any default in complying with this section, each of the following shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $10,000 and also to a default penalty:| (a) | the company; | | (b) | each of the following persons who knowingly and wilfully authorises or permits the default:| (i) | an officer of the company; | | (ii) | a liquidator of the company; | | (iii) | a provisional liquidator of the company; | | (iv) | a receiver or manager of the property of the company. |
|
|
|
| Books and papers of company and liquidator |
195.—(1) Where a company is being wound up, all books and papers of the company and of the liquidator that are relevant to the affairs of the company at or subsequent to the commencement of the winding up of the company are, as between the contributories of the company, prima facie evidence of the truth of all matters purporting to be recorded in those books and papers.| (2) Except as provided in subsection (3), when a company has been wound up, the liquidator must retain the books and papers mentioned in subsection (1) for a period of 5 years after the date of dissolution of the company, and at the expiration of that period may destroy the books and papers. |
| (3) Despite subsection (2), when a company has been wound up by the Court, the books and papers mentioned in subsection (1) may be destroyed, within a period of 5 years after the date of dissolution of the company, in accordance with the directions of the Court. |
| (4) If any book or paper of a company has been destroyed in accordance with this section, the company and the liquidator are not responsible for that book or paper not being available to any person claiming to be interested in that book or paper. |
| (5) Any person who fails to comply with subsection (2) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $2,000. |
|
| Investment of surplus funds on general account |
196.—(1) Whenever the cash balance standing to the credit of any company in liquidation is in excess of the amount which, in the opinion of the committee of inspection or (if there is no committee of inspection) of the liquidator, is required for the time being to answer demands in respect of the estate of the company, the liquidator may, if so directed in writing by the committee of inspection or (if there is no committee of inspection) on the liquidator’s own motion, unless the Court on application by any creditor thinks fit to direct otherwise and so orders —| (a) | invest in securities issued by the Government; or | | (b) | place on deposit at interest with any bank, |
| the whole or any part of the excess, and any interest received in respect of the money invested or deposited forms part of the assets of the company. |
| (2) Whenever any part of the money so invested or deposited is, in the opinion of the committee of inspection or (if there is no committee of inspection) of the liquidator, required to answer any demands in respect of the company’s estate, the liquidator may, if so directed by the committee of inspection or (if there is no committee of inspection) on the liquidator’s own motion, arrange for the sale or realisation of such part of those securities, or the withdrawal of the whole or such part of the deposit, as is necessary. |
|
| Unclaimed assets to be paid to Official Receiver |
197.—(1) Where a liquidator has in the liquidator’s hands or under the liquidator’s control —| (a) | any unclaimed dividend or other moneys that have remained unclaimed for more than 6 months after the date on which the dividend or other moneys became payable; or | | (b) | after making final distribution, any unclaimed or undistributed moneys arising from the property of the company, |
| and the moneys remain unclaimed after the expiration of 30 days after the date the notice mentioned in subsection (2) is given, the liquidator must immediately pay those moneys to the Official Receiver to be placed to the credit of the Companies Liquidation Account, and is entitled to the prescribed certificate of receipt for the moneys so paid, and that certificate is an effectual discharge to the liquidator in respect of the moneys so paid. |
(2) A liquidator who has in the liquidator’s hands or under the liquidator’s control any moneys mentioned in subsection (1) must give notice, of the intended payment to the Official Receiver of those moneys if those moneys remain unclaimed after the expiration of 30 days after the date the notice is given, to the person entitled to those moneys by —| (a) | sending a copy of the notice to that person at that person’s last known address; and | | (b) | if there is reason to believe that the copy of the notice mentioned in paragraph (a) may not be effective in bringing the intended payment to that person’s attention, an advertisement published in at least one English local daily newspaper. |
|
(3) The Court may, at any time on the application of the Official Receiver —| (a) | order any liquidator to submit to the Court an account, verified by affidavit, of any unclaimed or undistributed funds, dividends or other moneys in the liquidator’s hands or under the liquidator’s control; | | (b) | direct an audit of those moneys; and | | (c) | direct the liquidator to pay those moneys to the Official Receiver to be placed to the credit of the Companies Liquidation Account. |
|
| (4) The interest arising from the investment of the moneys standing to the credit of the Companies Liquidation Account must be paid into the Consolidated Fund. |
(5) For the purposes of this section —| (a) | the Court may exercise all the powers conferred by this Act with respect to the discovery and realisation of the property of the company; and | | (b) | the provisions of this Act with respect to the discovery and realisation of the property of the company, with such adaptations as are prescribed, apply to proceedings under this section. |
|
| (6) This section does not, except as expressly declared in this Act, deprive any person of any other right or remedy to which the person is entitled against the liquidator or any other person. |
(7) If any claimant makes any demand for any money placed to the credit of the Companies Liquidation Account, the Official Receiver, upon being satisfied that the claimant is the owner of the money —| (a) | must authorise payment of the money to be made to the claimant out of that Account; or | | (b) | if the money has been paid into the Consolidated Fund, may authorise payment of a like amount to be made to the claimant out of moneys made available by Parliament for the purpose. |
|
| (8) Any person dissatisfied with the decision of the Official Receiver in respect of a claim made under subsection (7) may appeal to the Court, which may confirm, disallow or vary the decision. |
| (9) Where any unclaimed moneys paid to any claimant are afterwards claimed by any other person, that other person is not entitled to any payment out of the Companies Liquidation Account or out of the Consolidated Fund, but may have recourse against the claimant to whom the unclaimed moneys have been paid. |
| (10) Any unclaimed moneys paid to the credit of the Companies Liquidation Account, to the extent to which the unclaimed moneys have not been under this section paid out of that Account, must, on the expiration of 7 years after the date of the payment of the moneys to the credit of that Account, be paid into the Consolidated Fund. |
|
| Outstanding assets of company wound up on grounds of national security or interest |
| 198. Despite any written law or rule of law to the contrary, upon a company being wound up under section 125(1)(n) on the ground that it is being used for purposes against national security or interest, the Court may, on the application of the Minister, order that any assets of the company remaining, after payment of its debts and liabilities and the costs, charges and expenses of the winding up, be paid into the Consolidated Fund. |
| Expenses of winding up where assets insufficient |
199.—(1) Unless expressly directed to do so by the Official Receiver, a liquidator is not liable to incur any expense in relation to the winding up of a company unless there are sufficient available assets.(2) The Official Receiver may, on the application of a creditor or a contributory, direct a liquidator to incur a particular expense on condition that —| (a) | the creditor or contributory indemnifies the liquidator in respect of the recovery of the amount expended; and | | (b) | if the Official Receiver so directs, the creditor or contributory gives such security to secure the amount of the indemnity as the Official Receiver thinks reasonable. |
|
| (3) Where the Official Receiver is the liquidator, the Official Receiver is not liable to incur any expense in relation to the winding up of a company unless there are sufficient available assets. |
(4) Where the Official Receiver is the liquidator, the Official Receiver may, on the application of a creditor or a contributory, incur a particular expense on the condition that —| (a) | the creditor or contributory indemnifies the Official Receiver in respect of the recovery of the amount expended; and | | (b) | if the Official Receiver so directs, the creditor or contributory gives such security to secure the amount of the indemnity as the Official Receiver thinks reasonable. |
|
|
| Resolutions passed at adjourned meetings of creditors and contributories |
| 200. Subject to section 166(9), where a resolution is passed at an adjourned meeting of any creditors or contributories of a company, the resolution is for all purposes treated as having been passed on the date on which it was in fact passed, and not on any earlier date. |
| Meetings to ascertain wishes of creditors or contributories |
201.—(1) The Court may —| (a) | as to all matters relating to the winding up of a company, have regard to the wishes of the creditors or contributories as proved to the Court by any sufficient evidence; | | (b) | if the Court thinks fit for the purpose of ascertaining those wishes, direct meetings of the creditors or contributories to be called, held and conducted in such manner as the Court directs; and | | (c) | appoint a person to act as chairperson of any such meeting and to report the result of that meeting to the Court. |
| (2) In the case of creditors, regard must be had to the value of each creditor’s debt. |
| (3) In the case of contributories, regard must be had to the number of votes conferred on each contributory by the Companies Act 1967 or the constitution of the company. |
|
| Special commission for receiving evidence |
202.—(1) District Judges are commissioners for the purpose of taking evidence under this Part and Parts 9, 10 and 11, and the Court may refer the whole or any part of the examination of any witnesses under this Part or Part 9, 10 or 11 to any person appointed commissioner by this section.(2) Every commissioner, in addition to any powers which the commissioner might lawfully exercise as a District Judge, has in the matter referred to him or her the same powers as the Court of —| (a) | summoning and examining witnesses; | | (b) | requiring the production or delivery of documents; | | (c) | punishing defaults by witnesses; and | | (d) | allowing costs and expenses to witnesses. |
|
| (3) Unless otherwise ordered by the Court, the taking of evidence by commissioners must be in open court and must be open to the public. |
| (4) The examination so taken must be returned or reported to the Court in such manner as the Court directs. |
|
203.—(1) Subject to the provisions of this Act, in a winding up there must be paid in priority to all other unsecured debts —| (a) | first, the costs and expenses of the winding up incurred by the Official Receiver as the liquidator of the company, including the costs, expenses and remuneration of any licensed insolvency practitioner appointed by the Official Receiver under section 134(f) to act as liquidator in the place of the Official Receiver; | | (b) | second, any other costs and expenses of the winding up, including the remuneration of the liquidator (apart from any remuneration mentioned in paragraph (a)) and the costs of any audit carried out under section 192; | | (c) | third, the costs of the applicant for the winding up order payable under section 127; | | (d) | fourth, subject to subsection (2), all wages or salary (whether or not earned wholly or in part by way of commission), including any amount payable by way of allowance or reimbursement under any contract of employment or any award or agreement regulating conditions of employment of any employee; | | (e) | fifth, subject to subsection (2), the amount due to an employee as a retrenchment benefit or ex gratia payment under any contract of employment or any award or agreement that regulates conditions of employment, whether such amount becomes payable before, on or after the commencement of the winding up; | | (f) | sixth, all amounts due in respect of work injury compensation under the Work Injury Compensation Act 2019 or the Work Injury Compensation Act (Cap. 354, 2009 Revised Edition) repealed by that Act accrued before, on or after the commencement of the winding up; | | (g) | seventh, all amounts due in respect of contributions payable, during a period of 12 consecutive months commencing not earlier than 12 months before and ending not later than 12 months after the commencement of the winding up, by the company as the employer of any person, under any written law relating to employees’ superannuation or provident funds or under any scheme of superannuation which is an approved scheme under the Income Tax Act 1947; | | (h) | eighth, subject to subsection (2), all remuneration payable to any employee in respect of vacation leave or, in the case of the employee’s death, to any other person in the employee’s right, accrued in respect of any period before, on or after the commencement of the winding up; and | | (i) | ninth, the amount of all tax assessed, and all goods and services tax due, under any written law before the commencement of the winding up, and all tax assessed under any written law at any time before the time fixed for the proving of debts has expired. [27/2019] |
| (2) The amount payable under subsection (1)(d), (e) and (h) must not exceed such amount as may be prescribed by the Minister by order in the Gazette. |
(3) In subsection (1)(d), (e), (g) and (h) and this subsection —| “employee” means an individual who has entered into or works under a contract of service with an employer, and includes a subcontractor of labour; |
| “ex gratia payment” means an amount payable to an employee on the winding up of a company or on the termination of the employee’s service by his or her employer on the ground of redundancy or by reason of any re‑organisation of the employer, profession, business, trade or work, and “an amount payable to an employee” for these purposes means an amount ascertained from any contract of employment, award or agreement; |
| “retrenchment benefit” means an amount payable to an employee on the winding up of a company or on the termination of the employee’s service by his or her employer on the ground of redundancy or by reason of any re‑organisation of the employer, profession, business, trade or work, and “an amount payable to an employee” for these purposes means an amount ascertained from any contract of employment, award or agreement, or if no amount is so ascertainable, such amount as is determined by the Commissioner for Labour or by an Employment Claims Tribunal constituted under section 4 of the State Courts Act 1970; |
“wages or salary” includes —| (a) | all arrears of money due to a subcontractor of labour; | | (b) | any amount payable to an employee on account of wages or salary during a period of notice of termination of employment or in lieu of notice of such termination, whether such amount becomes payable before, on or after the commencement of the winding up; and | | (c) | any amount payable to an employee, on termination of the employee’s employment, as a gratuity under any contract of employment or any award or agreement that regulates the conditions of the employee’s employment, whether such amount becomes payable before, on or after the commencement of the winding up. |
|
|
| (4) The debts in each class specified in subsection (1) rank in the order specified in that subsection, but as between debts of the same class rank equally between themselves, and must be paid in full, unless the property of the company is insufficient to meet them, in which case the debts of the same class abate in equal proportions between themselves. |
(5) Where any payment has been made to any employee of the company on account of wages, salary or vacation leave out of money advanced by a person for that purpose, the person by whom the money was advanced, in a winding up —| (a) | has a right of priority in respect of the money so advanced and paid, up to the amount by which the sum in respect of which the employee would have been entitled to priority in the winding up has been diminished by reason of the payment; and | | (b) | has the same right of priority in respect of that amount as the employee would have had if the payment had not been made. |
|
(6) So far as the assets of the company available for payment of general creditors are insufficient to meet any preferential debts specified in subsection (1)(a), (b), (c), (d), (e), (g) and (h) and any amount payable in priority by virtue of subsection (5), those debts —| (a) | have priority over the claims of the holders of debentures under any floating charge created by the company (which charge, as created, was a floating charge); and | | (b) | must be paid accordingly out of any property comprised in or subject to that charge. |
|
| (7) Where the company is under a contract of insurance (entered into before the commencement of the winding up) insured against liability to third parties, then if any such liability is incurred by the company (whether before, on or after the commencement of the winding up) and an amount in respect of that liability is or has been received by the company or the liquidator from the insurer, the amount must, after deducting any expenses of or incidental to getting in such amount, be paid by the liquidator to the third party in respect of whom the liability was incurred, to the extent necessary to discharge that liability or any part of that liability remaining undischarged, in priority to all payments in respect of the debts mentioned in subsection (1). |
| (8) If the liability of the insurer to the company is less than the liability of the company to the third party, nothing in subsection (7) limits the rights of the third party in respect of the balance. |
| (9) Subsections (7) and (8) have effect despite any agreement to the contrary entered into after 29 December 1967. |
(10) Despite anything in subsection (1) —| (a) | paragraph (f) of that subsection does not apply in relation to the winding up of a company in any case where —| (i) | the company is being wound up voluntarily merely for the purpose of reconstruction or of amalgamation with another company, and the right to the compensation has on the reconstruction or amalgamation been preserved to the person entitled to that right; or | | (ii) | the company has entered into a contract with an insurer in respect of any liability under any law relating to work injury compensation; and |
| | (b) | where a company has given security for the payment or repayment of any amount to which paragraph (i) of that subsection relates, that paragraph applies only in relation to the balance remaining due after deducting from that amount the net amount realised from such security. |
|
|
204.—(1) Where in any winding up —| (a) | assets have been recovered under an indemnity for costs of litigation given by certain creditors; | | (b) | assets have been protected or preserved by the payment of moneys or the giving of an indemnity by certain creditors; or | | (c) | expenses in relation to which a creditor has indemnified a liquidator have been recovered, |
| the Court may make such order as it thinks just with respect to the distribution of those assets and the amount of those expenses so recovered, with a view to giving those creditors an advantage over others in consideration of the risks run by those creditors in giving those indemnities or paying those moneys. |
(2) Any creditor may apply to the Court for an order under subsection (3) prior to —| (a) | giving an indemnity for costs of litigation for recovering any assets; | | (b) | paying any moneys or giving an indemnity to protect or preserve any assets; or | | (c) | indemnifying a liquidator in relation to the liquidator’s expenses. |
|
(3) On an application by a creditor under subsection (2), the Court may, for the purpose of giving the creditor an advantage over others in consideration of the risks to be run by that creditor in giving the indemnity or payment for the purposes mentioned in that subsection, grant an order with respect to the distribution of —| (a) | the assets mentioned in subsection (2)(a) that may be successfully recovered; | | (b) | the assets mentioned in subsection (2)(b) that may be successfully protected or preserved; or | | (c) | the amount of expenses mentioned in subsection (2)(c) that may be successfully recovered. |
|
|
| Subdivision (2) — Effect on other transactions |
| Transfer or assignment of company’s property to trustees |
205.—(1) Any transfer or assignment by a company of all its property to trustees for the benefit of all its creditors made before the commencement of the winding up is void.(2) Subsection (1) does not apply to any transfer or assignment of a company’s property —| (a) | pursuant to the terms of a compromise or an arrangement proposed by the company under section 210 of the Companies Act 1967 or section 71, that is approved by the creditors; or | | (b) | by a judicial manager while the company is under judicial management. |
|
|
| Restriction of rights of creditor as to enforcement order or attachment |
206.—(1) Where a creditor has obtained an enforcement order against the goods or land of a company, or has attached any debt due to the company, and the company is subsequently wound up, the creditor is not entitled to retain the benefit of the enforcement order or attachment against the liquidator, unless the creditor has completed the execution of the enforcement order or attachment before the date of the commencement of the winding up, but —| (a) | where any creditor has had notice of a meeting having been called at which a resolution for voluntary winding up is to be proposed, the date on which the creditor so had notice is for the purposes of this section substituted for the date of the commencement of the winding up; | | (b) | a person, who purchases in good faith under a sale by the bailiff any goods of the company on which an enforcement order has been executed, acquires in all cases a good title to the goods against the liquidator; and [Act 25 of 2021 wef 01/04/2022] | | (c) | the rights conferred by this subsection on the liquidator may be set aside by the Court in favour of the creditor to such extent and subject to such terms as the Court thinks fit. [Act 25 of 2021 wef 01/04/2022] |
(2) For the purposes of this section —| (a) | an enforcement order against goods is completed by seizure and sale; [Act 25 of 2021 wef 01/04/2022] | | (b) | an attachment of a debt is completed by receipt of the debt; and | | (c) | an enforcement order against land is completed by sale or, in the case of an equitable interest, by the appointment of a receiver. [Act 25 of 2021 wef 01/04/2022] |
|
(3) For the purposes of this section and section 207 —| “bailiff” includes any officer charged with the execution of any writ or other process; |
| “goods” includes all chattels personal. [Act 25 of 2021 wef 01/04/2022] |
|
|
| Duties of bailiff as to goods taken under or pursuant to enforcement order |
207.—(1) Subject to subsection (3), where any goods of a company are taken under or pursuant to an enforcement order and, before the sale of the goods or the completion of the execution of the enforcement order by the receipt or recovery of the full amount of the levy, notice is served on the bailiff that —| (a) | a provisional liquidator has been appointed; | | (b) | a winding up order has been made; or | | (c) | a resolution for voluntary winding up has been passed, |
| the bailiff must, if required by the liquidator, deliver the goods and any money seized or received in part satisfaction of the enforcement order to the liquidator, but — |
| (d) | the costs of the execution of the enforcement order are a first charge on the goods or moneys so delivered; and [Act 25 of 2021 wef 01/04/2022] | | (e) | the liquidator may sell the goods, or a sufficient part of the goods, for the purpose of satisfying that charge. [Act 25 of 2021 wef 01/04/2022] |
(2) Subject to subsection (3), where under an execution in respect of a judgment for a sum exceeding $100 the goods of a company are sold or money is paid in order to avoid sale —| (a) | the bailiff must deduct the costs of the execution of the enforcement order from the proceeds of the sale or the money paid and retain the balance for 14 days; and [Act 25 of 2021 wef 01/04/2022] | | (b) | if within that time notice is served on the bailiff of an application for the winding up of the company having been made, or of a meeting having been called at which there is to be proposed a resolution for the voluntary winding up, and an order is made or a resolution is passed for the winding up, the bailiff must pay the balance to the liquidator, who is entitled to retain the balance as against the enforcement creditor. [Act 25 of 2021 wef 01/04/2022] |
|
| (3) The rights conferred by this section on the liquidator may be set aside by the Court in favour of the creditor to such extent and subject to such terms as the Court thinks fit. [Act 25 of 2021 wef 01/04/2022] |
|
| Subdivision (3) — Dissolution |
| Power of Court to declare dissolution of company void |
208.—(1) Where a company has been dissolved, the Court may at any time within 2 years after the date of dissolution, on the application of the liquidator of the company or of any other person who appears to the Court to be interested, make an order upon such terms as the Court thinks fit declaring the dissolution to have been void, and upon the making of that order, such proceedings may be taken as might have been taken if the company had not been dissolved.| (2) The person on whose application the order was made must, within 7 days after the making of the order or such further time as the Court allows, lodge with the Registrar of Companies and with the Official Receiver a copy of the order. |
| (3) Any person who fails to comply with subsection (2) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $5,000. |
|
| Early dissolution of company administered by Official Receiver when Official Receiver is liquidator |
209.—(1) This section applies where —| (a) | a company is being wound up; | | (b) | the Official Receiver is acting as liquidator; and | | (c) | the Official Receiver has reasonable cause to believe that —| (i) | the realisable assets of the company are insufficient to cover the expenses of the winding up; and | | (ii) | the affairs of the company do not require any further investigation. |
|
(2) Where this section applies, the Official Receiver may give a notice that, at the expiration of 30 days after the date of that notice, the name of the company mentioned in that notice will be struck off the register by the Registrar of Companies, and the company will be dissolved, unless —| (a) | action is taken in accordance with subsection (6) for the appointment of a liquidator other than the Official Receiver for the purposes of continuing the liquidation; or | | (b) | an order is made under section 211(4) that the name of the company not be struck off the register and that the company not be dissolved. |
|
(3) Subject to subsections (4) and (5), a notice under subsection (2) must —| (a) | be given to —| (i) | all the creditors who have filed proofs of debt, and whose proofs have not been rejected; | | (ii) | every person who, to the knowledge of the Official Receiver, claims to be a creditor of the company, and has not filed a proof of debt; | | (iii) | every person mentioned in the statement of affairs as a creditor who has not filed a proof of debt; | | (iv) | any receiver or manager of the company; and | | (v) | all the contributories of the company; and |
| | (b) | be advertised in at least one English local daily newspaper. |
|
| (4) The Official Receiver may apply to the Court for an order that the notice under subsection (2) need not be given to the persons mentioned in subsection (3)(a). |
(5) The Court must not make an order under subsection (4) unless the Court is satisfied that the cost of giving the notice under subsection (2) to the persons mentioned in subsection (3)(a) will be excessive, having regard to —| (a) | the realisable assets of the company; and | | (b) | the likelihood that the advertisement mentioned in subsection (3)(b) will be sufficient to bring the notice to the attention of the persons mentioned in subsection (3)(a). |
|
| (6) The Official Receiver must allow any creditor, contributory or receiver or manager mentioned in subsection (3)(a) to take any necessary action, before the expiry of the period of 30 days after the date of the notice mentioned in subsection (2), for the appointment of a liquidator other than the Official Receiver for the purposes of continuing the liquidation. |
| (7) Upon the giving of the notice under subsection (2), the Official Receiver (subject to any order given under section 210) ceases to be required to perform any duty imposed on the Official Receiver in relation to the company, its creditors or contributories by virtue of any provision of this Act, except for any duty under section 212 or 213. |
(8) At the expiration of the period of 30 days mentioned in subsection (2), the Official Receiver may lodge with the Registrar of Companies a notice to strike the name of the company off the register, unless —| (a) | action is taken in accordance with subsection (6) for the appointment of a liquidator other than the Official Receiver for the purposes of continuing the liquidation; or | | (b) | an order is made under section 211(4) that the name of the company not be struck off the register and that the company not be dissolved. |
|
| (9) Upon receiving the notice mentioned in subsection (8), the Registrar of Companies must publish a notice of the striking off of the company in the Gazette. |
(10) On the publication in the Gazette of the notice mentioned in subsection (9) —| (a) | the company is dissolved; but | | (b) | the liability (if any) of every officer and member of the company continues and may be enforced as if the company had not been dissolved. |
|
(11) In this section and sections 210 and 211, “receiver or manager” means —| (a) | a receiver or manager of the whole, or substantially the whole, of a company’s property appointed by or on behalf of the holders of any debentures of the company secured by a charge which, as created, was a floating charge, or by such a charge and one or more other securities; or | | (b) | a person who would be such a receiver or manager but for the appointment of some other person as the receiver of part of the company’s property. |
|
|
| Early dissolution of company administered by liquidator other than Official Receiver |
210.—(1) This section applies where a liquidator of a company (other than the Official Receiver) has reasonable cause to believe that —| (a) | the realisable assets of the company are insufficient to cover the expenses of the winding up; and | | (b) | the affairs of the company do not require any further investigation. |
(2) Where this section applies, the liquidator may, after obtaining the written consent of the Official Receiver, give a notice that, at the expiration of 30 days after the date of that notice, the name of the company mentioned in that notice will be struck off the register by the Registrar of Companies, and the company will be dissolved, unless —| (a) | action is taken in accordance with subsection (6) for the appointment of a replacement liquidator for the purposes of continuing the liquidation; or | | (b) | an order is made under section 211(4) that the name of the company not be struck off the register and that the company not be dissolved. |
|
(3) Subject to subsections (4) and (5), a notice under subsection (2) must —| (a) | be given to —| (i) | all the creditors who have filed proofs of debt, and whose proofs have not been rejected; | | (ii) | every person who, to the knowledge of the liquidator, claims to be a creditor of the company, and has not filed a proof of debt; | | (iii) | every person mentioned in the statement of affairs as a creditor who has not filed a proof of debt; | | (iv) | any receiver or manager of the company; and | | (v) | all the contributories of the company; and |
| | (b) | be advertised in at least one English local daily newspaper. |
|
| (4) The liquidator may, with the written consent of the Official Receiver, apply to the Court for an order that the notice under subsection (2) need not be given to the persons mentioned in subsection (3)(a). |
(5) The Court must not make an order under subsection (4) unless the Court is satisfied that the cost of giving the notice under subsection (2) to the persons mentioned in subsection (3)(a) will be excessive, having regard to —| (a) | the realisable assets of the company; and | | (b) | the likelihood that the advertisement mentioned in subsection (3)(b) will be sufficient to bring the notice to the attention of the persons mentioned in subsection (3)(a). |
|
| (6) The liquidator must allow any creditor, contributory or receiver or manager mentioned in subsection (3)(a) to take any necessary action, before the expiry of the period of 30 days after the date of the notice mentioned in subsection (2), for the appointment of a replacement liquidator for the purposes of continuing the liquidation. |
| (7) Upon the giving of the notice under subsection (2), the liquidator (subject to any order given under section 211) ceases to be required to perform any duty imposed on the liquidator in relation to the company, its creditors or contributories by virtue of any provision of this Act. |
(8) At the expiration of the period of 30 days mentioned in subsection (2), the liquidator may lodge with the Registrar of Companies a notice to strike the name of the company off the register, unless —| (a) | action is taken in accordance with subsection (6) for the appointment of a replacement liquidator for the purposes of continuing the liquidation; or | | (b) | an order is made under section 211(4) that the name of the company not be struck off the register and that the company not be dissolved. |
|
| (9) Upon receiving the notice mentioned in subsection (8), the Registrar of Companies must publish a notice of the striking off of the company in the Gazette. |
(10) On the publication in the Gazette of the notice mentioned in subsection (9) —| (a) | the company is dissolved; but | | (b) | the liability (if any) of every officer and member of the company continues and may be enforced as if the company had not been dissolved. |
|
|
| Application for order in early dissolution of company administered by Official Receiver or liquidator |
211.—(1) Where a notice has been given under section 209(2) or 210(2), any creditor or contributory of the company, any receiver or manager of the company, or any other person, may apply to the Court for an order under this section.(2) The grounds on which an application under subsection (1) may be made are that —| (a) | the realisable assets of the company are sufficient to cover the expenses of the winding up; | | (b) | the affairs of the company require further investigation; or | | (c) | the early dissolution of the company is inappropriate for any other reason. |
|
| (3) The Official Receiver or the liquidator (as the case may be) may apply to the Court for an order in relation to any matter arising after the giving of the notice under section 209(2) or 210(2). |
(4) On an application under subsection (1) or (3), the Court may make such order as the Court thinks just, including an order —| (a) | that the name of the company not be struck off the register and the company not be dissolved, and enabling the winding up of the company to proceed as if no notice had been given under section 209(2) or 210(2); or | | (b) | deferring the date on which the dissolution of the company is to take effect for such time as the Court thinks fit. |
|
| (5) Any person on whose application an order is made under this section must, within 7 days after the making of the order, deliver to the Official Receiver (if the Official Receiver is not the applicant), and to the Registrar of Companies for registration, a copy of the order. |
| (6) Any person who, without reasonable excuse, fails to comply with subsection (5) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $5,000 and also to a default penalty. |
|
| Official Receiver to act as representative of defunct company in certain events |
212.—(1) Where, after a company has been dissolved, it is proved to the satisfaction of the Official Receiver that —| (a) | the company, if still existing, would be legally or equitably bound to carry out, complete or give effect to any dealing, transaction or matter; and | | (b) | in order to carry out, complete or give effect to that dealing, transaction or matter, an act that is purely administrative and not discretionary should have been done by or on behalf of the company, or should be done by or on behalf of the company, if still existing, |
| the Official Receiver may, acting as a representative of the company or its liquidator under this section, do or cause to be done that act. |
| (2) The Official Receiver may execute or sign any relevant instrument or document, acting as a representative of the company or its liquidator, adding a memorandum stating that the Official Receiver has done so under this section, and such execution or signature has the same force, validity and effect as if the company, if still existing, had duly executed such instrument or document. |
|
| Outstanding assets of defunct company to vest in Official Receiver |
213.—(1) Where, after a company has been dissolved, there remains any outstanding property, movable or immovable, including things in action and whether in or outside Singapore, which was vested in the company or to which the company was entitled, or over which the company had a disposing power at the time the company was so dissolved, but which was not got in, realised upon or otherwise disposed of or dealt with by the company or its liquidator, such property (except called and uncalled capital), for the purposes of sections 214, 215 and 216 and despite any written law or rule of law to the contrary, by the operation of this section, is and becomes vested in the Official Receiver for all the estate and legal or equitable interest in such property of the company or its liquidator at the date the company was dissolved, together with all claims, rights and remedies which the company or its liquidator then had in respect of such property.| (2) Where any claim, right or remedy of the liquidator may under this Act be made, exercised or availed of only with the approval or concurrence of the Court or some other person, that claim, right or remedy may be made, exercised or availed of by the Official Receiver for the purposes of this section, without any such approval or concurrence. |
|
| Disposal of outstanding interests in property |
214.—(1) Upon proof to the satisfaction of the Official Receiver that there is vested in the Official Receiver by operation of —| (a) | section 213; | | (b) | any previous written law corresponding to section 213; or | | (c) | any law of a designated country corresponding with section 249, |
| any estate, property or interest in property, whether solely or together with any other person, of a beneficial nature or held in trust for a third party who remains untraceable even after taking the prescribed steps, the Official Receiver may sell or otherwise dispose of or deal with that estate, property or interest, or any part of that estate, property or interest, as the Official Receiver sees fit. |
(2) The Official Receiver may —| (a) | sell or otherwise dispose of or deal with any estate, property or interest mentioned in subsection (1), either solely or in concurrence with any other person, in such manner, for such consideration, and by public auction, public tender or private contract upon such terms and conditions as the Official Receiver thinks fit, with power to rescind any contract and resell or otherwise dispose of or deal with such property as the Official Receiver thinks expedient; and | | (b) | make, execute, sign and give such contracts, instruments and documents as the Official Receiver thinks necessary. |
|
| (3) The Official Receiver is to be remunerated by such commission, whether by way of percentage or otherwise, as is prescribed in respect of the exercise of the powers conferred upon the Official Receiver by subsection (1). |
| (4) The moneys received by the Official Receiver in the exercise of any of the powers conferred on the Official Receiver by this Subdivision must be applied in defraying all costs, expenses, commission and fees incidental to the exercise of those powers, and thereafter to any payment authorised by this Subdivision, and the surplus (if any) must be dealt with as if they were unclaimed moneys paid to the Official Receiver under section 197. |
|
| Liability of Official Receiver and Government as to property vested in Official Receiver |
215.—(1) Property vested in the Official Receiver by operation of this Subdivision, or by operation of any previous written law corresponding to this Subdivision, is liable and subject to all charges, claims and liabilities imposed on such property or affecting such property by reason of any statutory provision as to rates, taxes, charges or any other matter or thing to which such property would have been liable or subject had such property continued in the possession, ownership or occupation of the company.| (2) Despite subsection (1), no duty, obligation or liability is imposed on the Official Receiver or the Government to do or suffer any act or thing required by any such statutory provision to be done or suffered by the owner or occupier, other than the satisfaction or payment of any such charges, claims or liabilities out of the assets of the company, so far as those assets are, in the opinion of the Official Receiver, properly available for and applicable to such payment. |
|
216.—(1) The Official Receiver must —| (a) | record in a register a statement of any property that comes to the Official Receiver’s hand or under the Official Receiver’s control, or that to the Official Receiver’s knowledge is vested in the Official Receiver by operation of this Subdivision and by reason of the Official Receiver’s dealings with such property; | | (b) | keep accounts of all moneys arising from such property, and of how those moneys have been disposed of; and | | (c) | keep all accounts, vouchers, receipts and papers relating to the property and moneys mentioned in paragraphs (a) and (b). |
| (2) The Auditor-General has all the powers in respect of such accounts as are conferred upon the Auditor‑General by any Act relating to audit of public accounts. |
|
|
