PART 9 PROVISIONS APPLICABLE IN JUDICIAL
MANAGEMENT AND WINDING UP |
| Interpretation of this Part |
217.—(1) For the purposes of sections 224 to 229 —“commencement of the judicial management”, in relation to a company, means —| (a) | in a case where the judicial manager is appointed by the Court under section 91 — the time when the application for the judicial management order was made; or | | (b) | in a case where the judicial manager is appointed by the creditors of the company under section 94(11)(e) — the time when the copy of the notice of appointment of the interim judicial manager is filed with the Registrar of Companies and the Official Receiver under section 94(5)(a); |
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“commencement of the winding up”, in relation to a company, means —| (a) | in a case where the company is being wound up under an order of the Court made at a time when the company was being wound up voluntarily — the time of the commencement of the voluntary winding up as determined in accordance with paragraph (d) or (e); | | (b) | in a case where a company is being wound up under an order of the Court on an application made while the company was in judicial management — the time of the commencement of the judicial management as determined in accordance with this section; | | (c) | in a case where a company is being wound up under an order of the Court in any other case — the time of the making of the winding up application; | | (d) | in a case where the company is being wound up voluntarily and a provisional liquidator has been appointed before the resolution for voluntary winding up was passed — the time when the declaration mentioned in section 161(1) was lodged with the Registrar of Companies; or | | (e) | in any other case where the company is being wound up voluntarily — the time of the passing of the resolution for voluntary winding up. |
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(2) For the purposes of this Part —| (a) | a company “enters judicial management” or is “in judicial management” within the meanings given to those terms in section 88(2)(a) to (e); and | | (b) | a person is connected with a company if —| (i) | the person is a director of the company or an associate of such a director; or | | (ii) | the person is an associate of the company. |
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(3) For the purposes of subsection (2)(b), a person (A) is an associate of another person (B) if —| (a) | A is an associate of B; or | | (b) | B is an associate of A. |
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(4) A person is an associate of an individual if that person is —| (a) | the individual’s spouse; or | | (b) | a relative of —| (i) | the individual; or | | (ii) | the individual’s spouse; or |
| | (c) | the spouse of a relative of —| (i) | the individual; or | | (ii) | the individual’s spouse. |
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(5) A person is an associate of —| (a) | any person with whom that person is in partnership; and | | (b) | any spouse or relative of any individual with whom that person is in partnership. |
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| (6) A person is an associate of any person whom that person employs or by whom that person is employed. |
| (7) A person in the person’s capacity as trustee of a trust is an associate of another person if the beneficiaries of the trust include, or the terms of the trust confer a power that may be exercised for the benefit of, that other person or an associate of that other person. |
(8) A corporation is an associate of another corporation —| (a) | if the same person has control of both corporations; | | (b) | if a person has control of one of the 2 corporations and persons who are that person’s associates, or that person and persons who are that person’s associates, have control of the other corporation; or | | (c) | if a group of 2 or more persons has control of each corporation, and the groups either consist of the same persons or could be regarded as consisting of the same persons by treating (in one or more cases) a member of either group as replaced by a person of whom he or she is an associate. |
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| (9) A corporation is an associate of another person if that person has control of the corporation, or if that person and persons who are that person’s associates together have control of the corporation. |
| (10) A person is an associate of a corporation if persons who are his or her associates are employed by the corporation. |
(11) For the purposes of this section, an individual (C) is a relative of an individual (D) if C is D’s brother, sister, uncle, aunt, nephew, niece, lineal ancestor or lineal descendant, treating —| (a) | any relationship of the half blood as a relationship of the whole blood and the stepchild or adopted child of any person as that person’s child; and | | (b) | an illegitimate child as the legitimate child of the child’s mother and reputed father. |
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| (12) References in this section to a spouse include a former spouse and a reputed husband or wife. |
| (13) For the purposes of this section, any director or other officer of a corporation is to be treated as employed by that corporation. |
(14) For the purposes of this section, a person is to be taken as having control of a corporation (C) if —| (a) | the directors of C or of another corporation which has control of C (or any of those directors) are accustomed to act in accordance with the person’s directions or instructions; or | | (b) | the person is entitled to exercise, or control the exercise of, one third or more of the voting power at any general meeting of C or another corporation which has control of C, |
| and where 2 or more persons together satisfy paragraph (a) or (b), they are to be taken as having control of C. |
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| (15) For the purposes of this section, “corporation” includes any body corporate (whether incorporated in Singapore or elsewhere), and references to directors and other officers of a corporation and to voting power at any general meeting of a corporation have effect with any necessary modifications. |
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| Division 2 — Proof of debts |
| Description of debts provable in judicial management or winding up |
218.—(1) Subject to this section, the following are provable where a company other than an insolvent company is being wound up:| (a) | any debt or liability to which the company —| (i) | is subject at the commencement of the winding up; or | | (ii) | may become subject after the commencement of the winding up; |
| | (b) | any interest payable by the company on any debt or liability mentioned in paragraph (a). |
(2) Subject to this section and section 203, the following are provable where a company is in judicial management or an insolvent company is being wound up:| (a) | any debt or liability to which the company —| (i) | is subject at the commencement of the judicial management or winding up, as the case may be; or | | (ii) | may become subject after the commencement of the judicial management or winding up (as the case may be) by reason of any obligation incurred before the commencement of the judicial management or winding up, as the case may be; |
| | (b) | any interest, on any debt or liability mentioned in paragraph (a), that is payable by the company in respect of any period before the commencement of the judicial management or winding up, as the case may be. |
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| (3) Demands in the nature of unliquidated damages arising otherwise than by reason of a contract, promise, breach of trust, tort or bailment, or an obligation to make restitution, are not provable in the judicial management or insolvent winding up of a company. |
| (4) An estimate is to be made by the judicial manager or liquidator of the value of any debt or liability provable under this section that, by reason of its being subject to any contingency or contingencies, or for any other reason, does not bear a certain value. |
| (5) Any person aggrieved by any such estimate by the judicial manager or liquidator may appeal to the Court. |
| (6) If in the opinion of the Court the value of the debt or liability cannot be fairly estimated, the Court may make an order to that effect, and upon the making of that order the debt or liability is, for the purposes of this Act, deemed to be a debt not provable in the judicial management or winding up of the company. |
| (7) If in the opinion of the Court the value of the debt or liability can be fairly estimated, the Court may assess the value of the debt or liability and may give all necessary directions for the purpose of valuing the debt or liability, and the amount of the value when assessed is deemed to be a debt provable in the judicial management or winding up of the company. |
| (8) An amount payable under any order made by a court under any written law relating to the confiscation of the proceeds of crime is provable in the judicial management or winding up of a company. |
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| Mutual credit and set-off |
219.—(1) This section applies to —| (a) | a company in judicial management; and | | (b) | an insolvent company that is being wound up. |
| (2) Where there have been any mutual credits, mutual debts or other mutual dealings between a company and any creditor, the debts and liabilities to which each party is or may become subject as a result of such mutual credits, debts or dealings must be set off against each other and only the balance is a debt provable in the judicial management or the winding up of the company, as the case may be. |
(3) There is to be excluded from any set-off under subsection (2) any debt or liability of the company which —| (a) | is not a debt provable in judicial management or winding up; or | | (b) | arises by reason of an obligation incurred at a time when the creditor had notice that an interim judicial manager had been appointed under section 94(3), or that the application for a judicial management order or the application for winding up (as the case may be) relating to the company was pending. |
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(4) A sum is to be regarded as being due to or from the company for the purposes of subsection (2) regardless of whether —| (a) | the sum is payable at present or in the future; | | (b) | the obligation by virtue of which the sum is payable is certain or contingent; or | | (c) | the sum is fixed or liquidated, or is capable of being ascertained by fixed rules or as a matter of opinion. |
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| Regulations as to proof of debts |
| 220. The prescribed regulations must be observed with respect to the mode of proving debts, the right of proof by secured and other creditors, the admission and rejection of proofs and any other matters relating to proof of debts. |
| Contracts to which company is party |
221.—(1) This section applies where a contract has been made with a company that is subsequently placed under judicial management or subsequently goes into insolvent liquidation.| (2) The Court may, on the application of any other party to the contract, make an order discharging obligations under the contract on such terms as to payment by the applicant or the company of damages for non‑performance or otherwise as appears to the Court to be equitable. |
| (3) Any damages payable by the company by virtue of an order of the Court under this section is a debt provable in the judicial management or winding up of the company, as the case may be. |
| (4) Where a company that is in judicial management or that is being wound up is a contractor in respect of any contract jointly with any person, that person may sue or be sued in respect of the contract without the joinder of the company. |
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222.—(1) In the judicial management or insolvent winding up of a company, where interest on a debt was not previously reserved or agreed, interest is allowed on the debt, at a rate not exceeding the prescribed rate of interest, in the following circumstances:| (a) | in any case where the debt is due by virtue of a written instrument and payable at a certain time, interest is allowed for the period between that time and the date of commencement of the judicial management or winding up, as the case may be; | | (b) | in any other case, if a demand for payment was made in writing by or on behalf of the creditor before the commencement of the judicial management or winding up (as the case may be) and notice was given that interest would be payable from the date of the demand to the date of the payment, interest is allowed for the period between the date of the demand and the date of commencement of the judicial management or winding up, as the case may be. |
(2) For the purposes of distribution of dividend —| (a) | where a debt, which has been proved in the judicial management or winding up (as the case may be) includes interest, and the rate of such interest was previously agreed or reserved, the interest is calculated —| (i) | from the date the interest was payable to the date of commencement of the judicial management or winding up, as the case may be; and | | (ii) | at the rate previously agreed or reserved; and |
| | (b) | where a debt, which has been proved in the judicial management or winding up (as the case may be) includes interest, and the rate of such interest was not previously agreed or reserved, the interest is calculated —| (i) | from the date the interest was payable to the date of commencement of the judicial management or winding up, as the case may be; and | | (ii) | at the prescribed rate of interest. |
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| (3) Interest on preferential debts ranks equally with interest on other debts. |
| (4) In this section, “interest” includes any pecuniary consideration in lieu of interest and any penalty or late payment charge by whatever name called. |
| (5) This section applies subject to any express provision of any creditor’s compromise or arrangement. |
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223.—(1) In the insolvent winding up of a company, no secured creditor is entitled to any interest in respect of the secured creditor’s debt after the commencement of the winding up, if the secured creditor does not realise the secured creditor’s security within 12 months after the commencement of the winding up or such further period as the liquidator may determine.| (2) Where a company is in judicial management and a secured creditor has obtained the leave of the Court or consent of the judicial manager to enforce any security over the company’s property under section 96(4)(e), that secured creditor is not entitled to any interest in respect of the secured creditor’s debt from the date that such leave or consent is obtained, if the secured creditor does not realise the secured creditor’s security within 12 months after the date on which the leave or consent to enforce the security was given or such further period as the judicial manager may determine. |
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| Division 3 — Adjustment of prior transactions |
| Transactions at undervalue |
224.—(1) Subject to this section and sections 226 and 227, where a company is in judicial management or is being wound up, and the company has at the relevant time (as defined in section 226) entered into a transaction with any person at an undervalue, the judicial manager or liquidator (as the case may be) may apply to the Court for an order under this section.| (2) The Court may, on such an application, make such order as it thinks fit for restoring the position to what it would have been if the company had not entered into that transaction. |
(3) For the purposes of this section and sections 226 and 227, a company enters into a transaction with a person at an undervalue if —| (a) | the company makes a gift to that person or otherwise enters into a transaction with that person on terms that provide for the company to receive no consideration; or | | (b) | the company enters into a transaction with that person for a consideration the value of which, in money or money’s worth, is significantly less than the value, in money or money’s worth, of the consideration provided by the company. |
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(4) The Court must not make an order under this section in respect of a transaction at an undervalue if —| (a) | the company entered into the transaction in good faith and for the purpose of carrying on its business; and | | (b) | at the time the company entered into the transaction, there were reasonable grounds for believing that the transaction would benefit the company. |
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225.—(1) Subject to this section and sections 226 and 227, where a company is in judicial management or is being wound up, and the company has at the relevant time (as defined in section 226), given an unfair preference to any person, the judicial manager or liquidator (as the case may be) may apply to the Court for an order under this section.| (2) The Court may, on such an application, make such order as it thinks fit for restoring the position to what it would have been if the company had not given that unfair preference. |
(3) For the purposes of this section and sections 226 and 227, a company gives an unfair preference to a person if —| (a) | that person is one of the company’s creditors or a surety or guarantor for any of the company’s debts or other liabilities; and | | (b) | the company does anything or suffers anything to be done which (in either case) has the effect of putting that person into a position which, in the event of the company’s winding up, will be better than the position that person would have been in if that thing had not been done. |
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| (4) The Court must not make an order under this section in respect of an unfair preference given to any person unless the company which gave the preference was influenced in deciding to give the unfair preference by a desire to produce in relation to that person the effect mentioned in subsection (3)(b). |
| (5) A company which has given an unfair preference to a person who, at the time the unfair preference was given, was connected with the company (otherwise than by reason only of being the company’s employee) is presumed, unless the contrary is shown, to have been influenced in deciding to give the unfair preference by such a desire as is mentioned in subsection (4). |
| (6) The fact that something has been done pursuant to an order of a court does not, without more, prevent the doing or suffering of that thing from constituting the giving of an unfair preference. |
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| Relevant time under sections 224 and 225 |
226.—(1) Subject to this section, the time at which a company enters into a transaction at an undervalue or gives an unfair preference is a relevant time if the transaction is entered into or the preference given —| (a) | in the case of a transaction at an undervalue — within the period starting 3 years before the commencement of the judicial management or winding up (as the case may be) and ending on the date of the commencement of the judicial management or winding up, as the case may be; | | (b) | in the case of an unfair preference which is not a transaction at an undervalue and which is given to a person who is connected with the company (otherwise than by reason only of being the company’s employee) — within the period starting 2 years before the commencement of the judicial management or winding up (as the case may be) and ending on the date of the commencement of the judicial management or winding up, as the case may be; and | | (c) | in any other case of an unfair preference — within the period starting one year before the commencement of the judicial management or winding up (as the case may be) and ending on the date of the commencement of the judicial management or winding up, as the case may be. |
(2) Where a company enters into a transaction at an undervalue or gives an unfair preference at a time mentioned in subsection (1)(a), (b) or (c), that time is not a relevant time for the purposes of sections 224 and 225 unless the company —| (a) | is unable to pay its debts at that time within the meaning of section 125(2); or | | (b) | becomes unable to pay its debts within the meaning of section 125(2) in consequence of the transaction or preference. |
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| (3) Where a transaction is entered into at an undervalue by a company with a person who is connected with the company (otherwise than by reason only of being the company’s employee), the requirements under subsection (2) are presumed to be satisfied unless the contrary is shown. |
| (4) Despite subsection (1), the time at which a company enters into a transaction at an undervalue or gives an unfair preference is a relevant time if the transaction is entered into or the preference given during the period starting on the date of the commencement of the judicial management in respect of the company and ending on the date the company entered judicial management. |
| (5) Where any period mentioned in subsection (6) in respect of a company coincides with any period mentioned in subsection (1)(a), (b) or (c) in respect of that company, the time at which a transaction at an undervalue is entered into or an unfair preference is given by that company is a relevant time if that transaction is entered into or that preference is given during the period immediately before that period mentioned in subsection (1)(a), (b) or (c) (as the case may be) that is equal to the sum of all such periods mentioned in subsection (6) coinciding with the period mentioned in subsection (1)(a), (b) or (c), as the case may be. |
(6) The periods mentioned in subsection (5) are any of the following:| (a) | the automatic moratorium period mentioned in section 64(8); | | (b) | the period during which an order under section 64(1)(a) is in force in relation to the company, including any extension of that period under section 64(7); | | (c) | the period during which an order under section 65(1)(a) is in force in relation to the company, including any extension of that period under section 65(5); | | (d) | the period during which an order under section 210(10) of the Companies Act is in force in relation to the company. |
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| Orders under sections 224 and 225 |
227.—(1) Without affecting the generality of sections 224(2) and 225(2), an order under section 224 or 225 with respect to a transaction or preference entered into or given by a company may, subject to this section —| (a) | require any property transferred as part of the transaction, or in connection with the giving of the preference, to be vested in the company; | | (b) | require any property to be so vested if it represents in any person’s hands the application of the proceeds of sale of property so transferred or of money so transferred; | | (c) | release or discharge (in whole or in part) any security given by the company; | | (d) | require any person to pay, in respect of benefits received by the person from the company, such sums to the company, the judicial manager or the liquidator as the Court may direct; | | (e) | provide for any surety or guarantor, whose obligations to any person were released or discharged (in whole or in part) under the transaction or by the giving of the preference, to be under such new or revived obligations to that person as the Court thinks appropriate; | | (f) | provide for security to be provided for the discharge of any obligation imposed by or arising under the order, for such an obligation to be charged on any property and for the security to have the same priority as a security released or discharged (in whole or in part) under the transaction or by the giving of the unfair preference; or | | (g) | provide for the extent to which any person whose property is vested by the order in the company, or on whom obligations are imposed by the order, is to be able to prove in the judicial management or the winding up of the company for debts or other liabilities which arose from, or were released or discharged (in whole or in part) under or by, the transaction or the giving of the unfair preference. |
| (2) An order under section 224 or 225 may affect the property of, or impose any obligation on, any person whether or not that person is the person with whom the company in question entered into the transaction or the person to whom the unfair preference was given, as the case may be. |
(3) An order under section 224 or 225 does not —| (a) | prejudice any interest in property which was acquired from a person other than the company in question and was acquired in good faith and for value, or prejudice any interest deriving from such an interest; or | | (b) | require a person who received a benefit from the transaction or unfair preference in good faith and for value to pay a sum to the company, the judicial manager or the liquidator, except where that person was a party to the transaction or the payment is to be in respect of an unfair preference given to that person at a time when that person was a creditor of the company in question. |
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(4) For the purposes of subsection (3)(a) and (b), a person (called in this section the relevant person) who has acquired an interest in property from a person other than the company in question, or who has received a benefit from the transaction or unfair preference, is presumed (unless the contrary is shown) to have acquired the interest or received the benefit (as the case may be) otherwise than in good faith if, at the time of that acquisition or receipt —| (a) | the relevant person had notice of the relevant surrounding circumstances and of the relevant proceedings; or | | (b) | the relevant person was connected with —| (i) | the company in question; or | | (ii) | the person with whom the company in question entered into the transaction, or to whom the company gave the unfair preference, as the case may be. |
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(5) For the purposes of subsection (4)(a), the relevant surrounding circumstances are —| (a) | the fact that the company in question entered into the transaction at an undervalue; or | | (b) | the circumstances which amounted to the giving of the unfair preference by the company in question. |
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(6) For the purposes of subsection (4)(a), the relevant person has notice of the relevant proceedings if the relevant person has notice of —| (a) | the appointment of an interim judicial manager under section 94(3), the making of an application for a judicial management order, the making of an application for winding up in respect of the company, or the appointment of or the obligation to appoint a provisional liquidator under section 161; or | | (b) | the fact that the company has entered judicial management or is being wound up. |
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| (7) The provisions of sections 224, 225 and 226 and this section apply without prejudice to the availability of any other remedy, even in relation to a transaction or preference which the company had no power to enter into or give. |
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| Extortionate credit transactions |
228.—(1) This section applies where a company is in judicial management or is being wound up, and the company is or has been a party to a transaction for or involving the provision to that company of credit.| (2) The Court may, on the application of the judicial manager or liquidator of the company, make an order with respect to the transaction if the transaction is or was extortionate and was entered into within 3 years before the commencement of the judicial management or winding up, as the case may be. |
(3) For the purposes of this section, a transaction is presumed to be extortionate, unless the contrary is proved, if, having regard to the risk accepted by the person providing the credit —| (a) | the terms of it are or were such as to require grossly exorbitant payments to be made (whether unconditionally or in certain contingencies) in respect of the provision of the credit; or | | (b) | it is harsh and unconscionable or substantially unfair. |
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(4) An order under this section may contain one or more of the following:| (a) | provision setting aside the whole or part of any obligation created by the transaction; | | (b) | provision varying the terms of the transaction or varying the terms on which any security for the purposes of the transaction is held; | | (c) | provision requiring any person who is or was party to the transaction to pay the company or the liquidator any sums paid to that person, by virtue of the transaction, by the company; | | (d) | provision requiring any person to surrender to the company or the liquidator any property held by the person as security for the purposes of the transaction; | | (e) | provision directing accounts to be taken between any persons. |
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| Avoidance of certain floating charges |
229.—(1) A floating charge on the company’s property created at a relevant time is invalid except to the extent of the aggregate of —| (a) | the value of so much of the consideration for the creation of the charge as consists of money paid, or goods or services supplied, to the company at the same time as, or after, the creation of the charge; | | (b) | the value of so much of that consideration as consists of the discharge or reduction, at the same time as, or after, the creation of the charge, of any debt of the company; and | | (c) | the amount of such interest (if any) as is payable on the amount falling within paragraph (a) or (b) pursuant to any agreement under which the money was so paid, the goods or services were so supplied or the debt was so discharged or reduced. |
(2) Subject to subsections (3) and (5), the time at which a floating charge is created by a company is a relevant time for the purposes of this section if the charge is created —| (a) | in the case of a charge which is created in favour of a person who is connected with the company, at a time within the period of 2 years ending on the commencement of the judicial management or winding up, as the case may be; | | (b) | in the case of a charge which is created in favour of any other person, at a time within the period of one year ending on the commencement of the judicial management or winding up, as the case may be; or | | (c) | at a time within the period starting on the commencement of the judicial management of the company and ending on the date the company enters judicial management. |
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(3) Where a company creates a floating charge at a time mentioned in subsection (2)(b) and the person in whose favour the charge is created is not connected with the company, that time is not a relevant time for the purposes of this section unless the company —| (a) | is at that time unable to pay its debts within the meaning of section 125(2); or | | (b) | becomes unable to pay its debts within the meaning of section 125(2) in consequence of the transaction under which the charge is created. |
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| (4) For the purposes of subsection (1)(a), the value of any goods or services supplied by way of consideration for a floating charge is the amount in money which at the time they were supplied could reasonably have been expected to be obtained for supplying the goods or services in the ordinary course of business and on the same terms (apart from the consideration) as those on which they were supplied to the company. |
| (5) Where any period mentioned in subsection (6) in respect of a company coincides with any period mentioned in subsection (2)(a), (b) or (c) in respect of that company, the time at which a floating charge is created by that company is a relevant time if the floating charge is created during the period immediately before that period mentioned in subsection (2)(a), (b) or (c) (as the case may be) that is equal to the sum of all such periods mentioned in subsection (6) coinciding with the period mentioned in subsection (2)(a), (b) or (c), as the case may be. |
(6) The periods mentioned in subsection (5) are any of the following:| (a) | the automatic moratorium period mentioned in section 64(8); | | (b) | the period during which an order under section 64(1)(a) is in force in relation to the company, including any extension of that period under section 64(7); | | (c) | the period during which an order under section 65(1)(a) is in force in relation to the company, including any extension of that period under section 65(5); | | (d) | the period during which an order under section 210(10) of the Companies Act is in force in relation to the company. |
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| Division 4 — Disclaimer of onerous property |
| Power to disclaim onerous property |
230.—(1) A judicial manager or liquidator may, by the giving of the prescribed notice to the creditors and the Official Receiver, disclaim any onerous property regardless of whether the judicial manager or liquidator has taken possession of the onerous property, endeavoured to sell the onerous property, or otherwise exercised rights of ownership in relation to the onerous property.(2) The following is onerous property for the purposes of this section:| (a) | any unprofitable contract; | | (b) | any other property of the company which —| (i) | is unsaleable; | | (ii) | is not readily saleable; or | | (iii) | may give rise to a liability of the company to pay money or perform any other onerous act. |
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(3) A disclaimer under this section —| (a) | determines, as from the date of the disclaimer, the rights, interests and liabilities of the company in or in respect of the property disclaimed; and | | (b) | does not, except so far as is necessary for the purpose of releasing the company from any liability, affect the rights or liabilities of any other person. |
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(4) A notice of disclaimer may not be given under subsection (1) in respect of any property —| (a) | in the case of any property subject to any written law set out in the first column of the Second Schedule, unless —| (i) | the judicial manager or liquidator (as the case may be) has given written notice of his or her intention to disclaim the property to the relevant person set out opposite in the second column; and | | (ii) | a period of 28 days starting on the date of the notice mentioned in sub‑paragraph (i) has elapsed; or |
| | (b) | in any case, if —| (i) | a person interested in the property has applied in writing to the judicial manager or liquidator (as the case may be) or any of the judicial manager or liquidator’s predecessors, requiring the judicial manager or liquidator or that predecessor to decide whether he or she will disclaim the property; and | | (ii) | the notice of disclaimer is not given under this section in respect of that property within a period of 28 days, or such longer period as the Court may allow, starting on the date of the application mentioned in sub‑paragraph (i). |
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| (5) Any person sustaining loss or damage in consequence of the operation of a disclaimer under this section is deemed to be a creditor of the company to the extent of the loss or damage and may prove for the loss or damage in the judicial management or winding up of the company. |
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231.—(1) A disclaimer under section 230 of any property of a leasehold nature does not take effect unless a copy of the notice of disclaimer has been served on every person claiming under the company as sub-lessee or mortgagee and either —| (a) | no application under section 232 is made with respect to that property before the end of the period of 14 days starting on the date on which the last notice served under this subsection was served; or | | (b) | where such an application has been made, the Court directs that the disclaimer takes effect. |
| (2) Where the Court gives a direction under subsection (1)(b), the Court may also, instead of or in addition to any order the Court makes under section 232, make such order with respect to fixtures, tenant’s improvements and other matters arising out of the lease as the Court thinks fit. |
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| Court order vesting disclaimed property |
232.—(1) This section and section 233 apply where a judicial manager or liquidator has disclaimed property under section 230.(2) An application under this section may be made to the Court by —| (a) | any person who claims an interest in the disclaimed property; or | | (b) | any person who is under any liability in respect of the disclaimed property, not being a liability discharged by the disclaimer. |
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| (3) The Court may, on an application made under subsection (2), make an order to set aside the disclaimer or make such order as the Court thinks just, where the injury caused by the disclaimer outweighs any advantage likely to be gained by the judicial manager or liquidator. |
(4) The Court may, on an application made under subsection (2), also make an order, on such terms as the Court thinks fit, for the vesting of the disclaimed property in, or for its delivery to —| (a) | a person entitled to the disclaimed property or a trustee for such a person; or | | (b) | a person subject to a liability mentioned in subsection (2)(b) or a trustee for such a person. |
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| (5) The Court must not make an order under subsection (4)(b) except where it appears to the Court that it would be just to do so for the purpose of compensating the person subject to the liability in respect of the disclaimer. |
| (6) The effect of any order under this section must be taken into account in assessing for the purpose of section 230(5) the extent of any loss or damage sustained by any person in consequence of the disclaimer. |
(7) An order under this section vesting property in any person —| (a) | need not be completed by conveyance, assignment or transfer; but | | (b) | does not have any effect or operation in transferring or otherwise vesting land until the appropriate entries are made with respect to the vesting of land by the appropriate authority. |
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| Order under section 232 in relation to leaseholds |
233.—(1) The Court must not make an order under section 232 vesting property of a leasehold nature in any person claiming under the company as sub‑lessee or mortgagee except on terms making that person —| (a) | subject to the same liabilities and obligations as the company was subject to under the lease at the commencement of the judicial management or winding up; or | | (b) | if the Court thinks fit, subject to the same liabilities and obligations as that person would be subject to if the lease had been assigned to that person at the commencement of the judicial management or winding up. |
(2) The Court must not make an order under section 232 vesting part of any property comprised in a lease in any person claiming under the company as sub‑lessee or mortgagee except on terms making that person —| (a) | subject to the same liabilities and obligations as the company was subject to under the lease in relation to that part of the property at the commencement of the judicial management or winding up; or | | (b) | if the Court thinks fit, subject to the same liabilities and obligations as that person would be subject to if the lease in relation to that part of the property had been assigned to that person at the commencement of the judicial management or winding up. |
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(3) Where subsection (1) applies and no person claiming under the company as sub-lessee or mortgagee is willing to accept an order under section 232 on the terms mentioned in subsection (1), the Court may (by order under section 232) vest the company’s estate or interest in the property in —| (a) | any person who is liable (whether personally or in a representative capacity, and whether alone or jointly with the company) to perform the lessee’s covenants in the lease; or | | (b) | such person mentioned in paragraph (a) freed and discharged from all estates, encumbrances and interests created by the company. |
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| (4) Where subsection (1) applies and a person claiming under the company as sub-lessee or mortgagee declines to accept an order under section 232, that person is excluded from all interest in the property. |
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| Offences by officers of companies in judicial management or in liquidation |
234.—(1) Every person who, being a past or present officer or a contributory of a company which is in judicial management or is being wound up —| (a) | does not to the best of his or her knowledge and belief fully and truly disclose to the judicial manager or liquidator all the property movable and immovable of the company, and how and to whom and for what consideration and when the company disposed of any part of such property, except such part as has been disposed of in the ordinary way of the business of the company; | | (b) | does not deliver up to the judicial manager or liquidator, or as the judicial manager or liquidator directs —| (i) | all the movable and immovable property of the company in the person’s custody or under the person’s control and which the person is required by law to deliver up; or | | (ii) | all books and papers in the person’s custody or under the person’s control belonging to the company and which the person is required by law to deliver up; |
| | (c) | within 12 months immediately before the commencement of the judicial management or winding up or at any time thereafter —| (i) | has concealed any part of the property of the company to the prescribed value or more, or has concealed any debt due to or from the company; | | (ii) | has fraudulently removed any part of the property of the company to the prescribed value or more; | | (iii) | has concealed, destroyed, mutilated or falsified, or has been privy to the concealment, destruction, mutilation or falsification of, any book or paper affecting or relating to the property or affairs of the company; | | (iv) | has made or has been privy to the making of any false entry in any book or paper affecting or relating to the property or affairs of the company; | | (v) | has fraudulently parted with, altered or made any omission in, or has been privy to the fraudulent parting with, altering or making any omission in, any document affecting or relating to the property or affairs of the company; | | (vi) | by any false representation or other fraud, has obtained any property for or on behalf of the company on credit which the company has not subsequently paid for; | | (vii) | has obtained on credit, for or on behalf of the company, under the false pretence that the company is carrying on its business, any property which the company has not subsequently paid for; or | | (viii) | has pawned, pledged or disposed of any property of the company which has been obtained on credit and has not been paid for, unless such pawning, pledging or disposing was in the ordinary way of the business of the company; |
| | (d) | makes any material omission in any statement relating to the affairs of the company; | | (e) | knowing or believing that a false debt has been proved by any person fails to inform the judicial manager or liquidator of the false debt within one month after coming to such knowledge or belief; | | (f) | prevents the production of any book or paper affecting or relating to the property or affairs of the company; | | (g) | within 12 months immediately before the commencement of the judicial management or winding up or at any time thereafter, has attempted to account for any part of the property of the company by fictitious losses or expenses; or | | (h) | within 12 months immediately before the commencement of the judicial management or winding up or at any time thereafter, has been guilty of any false representation or other fraud for the purpose of obtaining the consent of the creditors of the company or any of them to an agreement with reference to the affairs of the company, to the judicial management or to the winding up, |
| 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. |
(2) It is a good defence —| (a) | to a charge under subsection (1)(a), (b) or (d) or subsection (1)(c)(i), (vii) or (viii) if the accused proves that he or she had no intent to defraud; and | | (b) | to a charge under subsection (1)(c)(iii) or (iv) or (f) if the accused proves that he or she had no intent to conceal the state of affairs of the company or to defeat the law. |
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| (3) Where any person pawns, pledges or disposes of any property in circumstances which amount to an offence under subsection (1)(c)(viii), every person who takes in pawn or pledge or otherwise receives the property knowing it to be pawned, pledged or disposed of in those circumstances 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. |
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| Inducement to be appointed judicial manager or liquidator |
| 235. Any person who gives or agrees or offers to give to any member or creditor of a company any valuable consideration with a view to securing his or her own appointment or nomination, or to securing or preventing the appointment or nomination of some person other than himself or herself, as the company’s judicial manager or liquidator 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. |
| Penalty for destruction, falsification, etc., of books |
| 236. Every officer or contributory of any company which is in judicial management or is being wound up who destroys, mutilates, alters or falsifies any books, papers or securities, or makes or is privy to the making of any false or fraudulent entry in any register or book of account or document belonging to the company with intent to defraud or deceive any person 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. |
| Liability where proper accounts not kept |
237.—(1) If, on an investigation under this Act or where a company is in judicial management or is being wound up, it is shown that proper books of account were not kept by the company throughout the shorter of —| (a) | the period of 2 years immediately preceding the commencement of the investigation, judicial management or winding up, as the case may be; or | | (b) | the period between incorporation of the company and the commencement of the investigation, judicial management or winding up, as the case may be, |
| every officer who is in default 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. |
| (2) Where a person is charged with an offence under subsection (1), it is a defence for the person charged to prove that the person acted honestly and to show that, in the circumstances in which the business of the company was carried on, the default was excusable. |
(3) For the purposes of this section, proper books of account are deemed not to have been kept in the case of a company —| (a) | if there have not been kept such books or accounts as are necessary to exhibit and explain the transactions and financial position of the trade or business of the company, including books containing entries from day to day in sufficient detail of all cash received and cash paid, and, where the trade or business has involved dealings in goods, statements of the annual stocktakings and (except in the case of goods sold by way of ordinary retail trade) of all goods sold and purchased, showing the goods and the buyers and sellers of the goods in sufficient detail to enable those goods and those buyers and sellers to be identified; or | | (b) | if such books or accounts have not been kept in such manner as to enable them to be conveniently and properly audited, whether or not the company has appointed an auditor. |
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| Responsibility for fraudulent trading |
238.—(1) If, in the course of the judicial management or winding up of a company or in any proceedings against a company, it appears that any business of the company has been carried on with intent to defraud creditors of the company or creditors of any other person or for any fraudulent purpose, the Court, on the application of the judicial manager, liquidator or any creditor or contributory of the company, may, if it thinks proper to do so, declare that any person who was knowingly a party to the carrying on of the business in that manner is personally responsible, without any limitation of liability, for all or any of the debts or other liabilities of the company as the Court directs.(2) Where the Court makes any declaration under subsection (1), it may give such further directions as it thinks proper for the purpose of giving effect to that declaration and in particular —| (a) | may make provision for making the liability of any person under the declaration a charge —| (i) | on any debt or obligation due from the company to the person liable; or | | (ii) | on any charge or any interest in any charge on any assets of the company held by or vested in —| (A) | the person liable; | | (B) | any corporation or other person on behalf of the person liable; or | | (C) | any person claiming as assignee from or through the person liable or any corporation or person acting on behalf of the person liable; and |
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| | (b) | may from time to time make such further order as is necessary for the purpose of enforcing any charge imposed under this subsection. |
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(3) For the purpose of subsection (2)(a)(ii)(C), “assignee” —| (a) | includes any person to whom or in whose favour, by the directions of the person liable, the debt, obligation or charge was created, issued or transferred or the interest created; but | | (b) | does not include an assignee for valuable consideration (not including consideration by way of marriage) given in good faith and without notice of any of the matters on the ground of which the declaration is made. |
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| (4) Where any business of a company is carried on with the intent or for the purpose mentioned in subsection (1), every person who was knowingly a party to the carrying on of the business with that intent or purpose shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $15,000 or to imprisonment for a term not exceeding 7 years or to both. |
| (5) Subsection (4) applies to a company whether or not it has been, or is in the course of being, wound up, and whether or not it has been, or is, in judicial management. |
| (6) This section has effect notwithstanding that the person concerned is criminally liable apart from this section in respect of the matters on the ground of which the declaration is made. |
| (7) On the hearing of an application under subsection (1), the judicial manager or liquidator may give evidence or call witnesses. |
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| Responsibility for wrongful trading |
239.—(1) If, in the course of the judicial management or winding up of a company or in any proceedings against a company, it appears that the company has traded wrongfully, the Court, on the application of any person mentioned in subsection (5), may, if it thinks proper to do so, declare that any person who was a party to the company trading in that manner is personally responsible, without any limitation of liability, for all or any of the debts or other liabilities of the company as the Court directs, if that person —| (a) | knew that the company was trading wrongfully; or | | (b) | as an officer of the company, ought, in all the circumstances, to have known that the company was trading wrongfully. |
(2) Where the Court makes any declaration under subsection (1), the Court may relieve, in whole or in part and on such terms as the Court thinks fit, the person declared responsible under that declaration from the personal liability for which he or she is declared responsible, if —| (a) | the person acted honestly; and | | (b) | having regard to all the circumstances of the case, the person ought fairly to be relieved from the personal liability. |
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(3) Where the Court makes any declaration under subsection (1), it may give such further directions as the Court thinks proper for the purpose of giving effect to that declaration, and in particular —| (a) | may make provision for making the liability of any person under the declaration a charge —| (i) | on any debt or obligation due from the company to the person liable; or | | (ii) | on any charge or any interest in any charge on any assets of the company held by or vested in —| (A) | the person liable; | | (B) | any corporation or other person on behalf of the person liable; or | | (C) | any person claiming as assignee from or through the person liable or any corporation or other person acting on behalf of the person liable; |
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| | (b) | may from time to time make such further order as is necessary for the purpose of enforcing any charge imposed under this subsection; and | | (c) | may provide that sums recovered under this section be paid to such persons or classes of persons, for such purposes, in such amounts or proportions, at such times and in such priorities between them as the Court may specify. |
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(4) For the purpose of subsection (3)(a)(ii)(C), “assignee” —| (a) | includes any person to whom or in whose favour, by the directions of the person liable, the debt, obligation or charge was created, issued or transferred or the interest created; but | | (b) | does not include an assignee for valuable consideration (not including consideration by way of marriage) given in good faith and without notice of any of the matters on the ground of which the declaration is made. |
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(5) The following persons may make an application under subsection (1):| (a) | the judicial manager of the company; | | (b) | the liquidator of the company; | | (c) | the Official Receiver; | | (d) | any creditor or contributory of the company, with the leave of —| (i) | the judicial manager or the liquidator, as the case may be; or | | (ii) | the Court. |
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(6) Where a company has traded wrongfully, every person who was a party to the wrongful trading and who —| (a) | knew that the company was trading wrongfully; or | | (b) | as an officer of the company, ought, in all the circumstances, to have known that the company was trading wrongfully, |
| 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 3 years or to both. |
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| (7) Subsection (6) applies to a company whether or not it has been, or is in the course of being, wound up, and whether or not it has been, or is, in judicial management. |
| (8) This section has effect notwithstanding that the person concerned is criminally liable apart from this section in respect of the matters on the ground of which the declaration is made. |
| (9) On the hearing of an application under subsection (1), the judicial manager or liquidator may give evidence or call witnesses. |
| (10) Any company or (with the company’s consent) any person party to or interested in becoming party to the carrying on of the business of the company, may apply to the Court for a declaration as to whether a particular course of conduct, a particular transaction or a particular series of transactions of the company at the time of and after such application would constitute wrongful trading and on any such application the Court may, on such terms and conditions as the Court thinks fit, declare that such course of action, transaction or series of transactions does not constitute wrongful trading within the meaning of this section. |
| (11) The Court, when making a declaration under subsection (10), may include provisions to ensure the confidentiality or publication of the declaration, the terms and conditions of the declaration, or any part of the declaration or terms and conditions. |
(12) For the purposes of this section, a company trades wrongfully if —| (a) | the company, when insolvent, incurs debts or other liabilities without reasonable prospect of meeting them in full; or | | (b) | the company incurs debts or other liabilities —| (i) | that it has no reasonable prospect of meeting in full; and | | (ii) | that result in the company becoming insolvent. |
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| Power of Court to assess damages against delinquent officers, etc. |
240.—(1) If, in the course of the judicial management or winding up of a company, it appears that any person who has taken part in the formation or promotion of the company or any past or present judicial manager, liquidator or officer of the company has misapplied or retained or become liable or accountable for any money or property of the company or been guilty of any misfeasance or breach of trust or duty in relation to the company, the Court may, on the application of the judicial manager or liquidator or of any creditor or contributory —| (a) | examine into the conduct of such person, judicial manager, liquidator or officer; and | | (b) | compel such person, judicial manager, liquidator or officer to —| (i) | repay or restore the money or property or any part of such money or property with interest at such rate as the Court thinks just; or | | (ii) | contribute such sum to the property of the company by way of compensation in respect of the misapplication, retainer, misfeasance or breach of trust or duty as the Court thinks just. |
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| (2) This section extends and applies to and in respect of the receipt of any money or property by any officer of the company during the 2 years preceding the commencement of the judicial management or winding up (as the case may be) whether by way of salary or otherwise, appearing to the Court to be unfair or unjust to other members of the company. |
| (3) This section has effect notwithstanding that the offence is one for which the offender is criminally liable. |
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| Prosecution of delinquent officers and members of company |
241.—(1) If it appears to the Court, in the course of the judicial management or winding up of a company by the Court, that any past or present officer, or any member, of the company has been guilty of an offence in relation to the company for which he or she is criminally liable, the Court may, either on the application of any person interested in the judicial management or winding up (as the case may be) or of its own motion, direct the judicial manager or liquidator to prosecute the offender or to refer the matter to the Minister.| (2) If it appears to the judicial manager, in the course of a judicial management, or the liquidator, in the course of a voluntary winding up, that any past or present officer, or any member, of the company has been guilty of any offence in relation to the company for which he or she is criminally liable, the judicial manager or liquidator must immediately report the matter to the Minister and must, in respect of information or documents in the judicial manager’s or liquidator’s possession or under the judicial manager’s or liquidator’s control which relate to the matter in question, furnish the Minister with such information and give to the Minister such access to and facilities for inspecting and taking copies of any document as the Minister may require. |
| (3) If it appears to the judicial manager, in the course of a judicial management, or the liquidator, in the course of any winding up, that the company which is in judicial management or which is being wound up will be unable to pay its unsecured creditors more than 50 cents in the dollar, the judicial manager or liquidator must immediately report the matter in writing to the Official Receiver and must furnish the Official Receiver with such information and give to the Official Receiver such access to and facilities for inspecting and taking copies of any document as the Official Receiver may require. |
| (4) Where any report is made under subsection (2) or (3), the Minister may investigate the matter and for the purposes of such an investigation has all such powers of investigating the affairs of the company as are provided by this Act in the case of a winding up by the Court, but if it appears to the Minister that the case is not one in which proceedings ought to be taken by the Minister, the Minister must inform the judicial manager or liquidator (as the case may be) accordingly, and upon being informed, subject to the prior approval of the Court, the judicial manager or liquidator (as the case may be) may take proceedings against the offender. |
| (5) If it appears to the Court, in the course of a judicial management or a voluntary winding up, that any past or present officer, or any member, of the company has been guilty of an offence in relation to the company for which he or she is criminally liable and that no report with respect to the matter has been made by the judicial manager or liquidator (as the case may be) to the Minister, the Court may, on the application of any person interested in the judicial management or voluntary winding up or of its own motion, direct the judicial manager or liquidator (as the case may be) to make such a report, and on a report being made accordingly this section has effect as though the report has been made under subsection (2). |
| (6) If, where any matter is reported or referred to the Minister or the Official Receiver under this section, the Minister or the Official Receiver (as the case may be) considers that the case is one in which prosecution ought to be instituted, the Minister or the Official Receiver (as the case may be) may institute proceedings accordingly, and the judicial manager, the liquidator and every officer and agent of the company past and present, other than the defendant in the proceedings, must give the Minister or the Official Receiver all assistance in connection with the prosecution which he or she is reasonably able to give. |
| (7) For the purposes of subsection (6), “agent”, in relation to a company, includes any banker or solicitor of the company and any person employed by the company as auditor, whether or not an officer of the company. |
| (8) If any person fails or neglects to give assistance in the manner required by subsection (6), the Court may, on the application of the Minister or the Official Receiver, direct that person to comply with the requirements of that subsection, and where any application is made under this subsection with respect to a judicial manager or liquidator the Court may, unless it appears that the failure or neglect to comply was due to the judicial manager or liquidator not having in his or her hands sufficient assets of the company to enable him or her to give assistance in the manner required by subsection (6), direct that the costs of the application be borne by the judicial manager or liquidator personally. |
| (9) The Minister may direct that the whole or any part of any costs and expenses properly incurred by the judicial manager or liquidator in proceedings brought under this section be defrayed out of moneys provided by Parliament. |
| (10) Subject to any direction given under subsection (9) and to any charges on the property of the company and any debts to which priority is given by this Act, all such costs and expenses are payable out of the property of the company as part of the costs of the judicial management or winding up of the company. |
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| Division 6 — Management by judicial managers and liquidators |
| Getting in company’s property |
242.—(1) Where a company is in judicial management or is being wound up, and any person has in his or her possession or control any property, books, papers or records to which the company appears to be entitled, the Court may require that person to immediately (or within such period as the Court may direct) pay, deliver, convey, surrender or transfer the property, books, papers or records to the judicial manager or liquidator, as the case may be.(2) Where the judicial manager or liquidator, as the case may be —| (a) | seizes or disposes of any property which is not property of the company; and | | (b) | at the time of seizure or disposal believes, and has reasonable grounds for believing, that he or she is entitled (whether pursuant to an order of the Court or otherwise) to seize or dispose of that property, |
| the judicial manager or liquidator, as the case may be — |
| (c) | is not liable to any person in respect of any loss or damage resulting from the seizure or disposal except insofar as that loss or damage is caused by the judicial manager’s or liquidator’s negligence, as the case may be; and | | (d) | has a lien on the property, or the proceeds of its sale, for such expenses as were incurred in connection with the seizure or disposal. |
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| Duty to cooperate with judicial manager and liquidator |
243.—(1) Where a company is in judicial management or is being wound up, each of the persons mentioned in subsection (2) must —| (a) | give to the Official Receiver or liquidator (where the company is being wound up) or the judicial manager (where the company is in judicial management) such information concerning the company and its promotion, formation, business, dealings, affairs or property as the Official Receiver, liquidator or judicial manager (as the case may be) may reasonably require at any time after the commencement of the winding up or judicial management, as the case may be; and | | (b) | attend on the Official Receiver or liquidator (where the company is being wound up) or the judicial manager (where the company is in judicial management) at such times as the Official Receiver, liquidator or judicial manager (as the case may be) may reasonably require. |
(2) The persons mentioned in subsection (1) are —| (a) | any person who is or has at any time been an officer of the company; | | (b) | any person who has taken part in the formation of the company at any time within the period of one year before the commencement of the winding up or judicial management, as the case may be; | | (c) | any person who —| (i) | is in the employment of the company (including employment under a contract for services) or has been in the employment of the company (including employment under a contract for services) within the period of one year before the commencement of the winding up or judicial management, as the case may be; and | | (ii) | is in the opinion of the Official Receiver, liquidator or judicial manager (as the case may be), capable of giving information which the Official Receiver, liquidator or judicial manager (as the case may be) requires; and |
| | (d) | in the case of a company being wound up by the Court, any person who has acted as judicial manager, receiver and manager or liquidator of the company. |
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| (3) Any person who, without reasonable excuse, fails to comply with subsection (1) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $10,000 and, in the case of a continuing offence, to a further fine not exceeding $200 for every day or part of a day during which the offence continues after conviction. |
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| Inquiry into company’s dealings, etc. |
244.—(1) Where a company is in judicial management or is being wound up, the Court may, on the application of any person mentioned in subsection (2), summon to appear before the Court —| (a) | any officer of the company; | | (b) | any person who was previously an officer of the company; | | (c) | any person known or suspected to have in his or her possession any property of the company or supposed to be indebted to the company; or | | (d) | any person whom the Court thinks capable of giving information concerning the promotion, formation, business, dealings, affairs or property of the company, including any banker, solicitor or auditor, |
| and the Court may require any person mentioned in paragraphs (a) to (d) to submit an affidavit to the Court containing an account of the person’s dealings with the company or to produce any books, papers or other records in the person’s possession or under the person’s control relating to the promotion, formation, business, dealings, affairs or property of the company. |
(2) The persons mentioned in subsection (1) are —| (a) | in the case of a company in judicial management, the judicial manager; | | (b) | in the case of a company being wound up, the Official Receiver or liquidator; or | | (c) | in either case, a creditor or contributory of the company with the leave of the Court. |
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(3) In a case where a person, without reasonable excuse, fails to appear before the Court when he or she is summoned to do so under this section or there are reasonable grounds for believing that a person has absconded, or is about to abscond, with a view to avoiding his or her appearance before the Court under this section, the Court may, for the purpose of bringing that person and anything in his or her possession before the Court, cause a warrant to be issued to a police officer —| (a) | for the arrest of that person; and | | (b) | for the seizure of any books, papers, records, money or goods in that person’s possession, |
| and may authorise a person arrested under such a warrant to be kept in custody, and anything seized under such a warrant to be held until that person is brought before the Court under the warrant or until such other time as the Court may order. |
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| (4) Any person who appears or is brought before the Court under this section may be examined on oath, either orally or by interrogatories, concerning the promotion, formation, business, dealings, affairs or property of the company. |
(5) The Court may —| (a) | direct that an examination under subsection (4) be held before any District Judge, who has for the purposes of the examination the same powers as the Court of examining witnesses, of requiring the production or delivery of documents, of punishing defaults by witnesses and of allowing costs and expenses to witnesses; or | | (b) | direct that an examination under subsection (4) be held in public. |
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| (6) If it appears to the Court, on consideration of any evidence obtained under this section, that any person has in the person’s possession any property of the company, the Court may, on the application of the judicial manager, Official Receiver or liquidator, order that person to deliver the whole or any part of the property to the judicial manager, Official Receiver or liquidator (as the case may be) at such time, in such manner and on such terms as the Court thinks fit. |
| (7) If it appears to the Court, on consideration of any evidence obtained under this section, that any person is indebted to the company, the Court may, on the application of the judicial manager, Official Receiver or liquidator, after examining that person on the matter, order that person to pay to the judicial manager, Official Receiver or liquidator (as the case may be), at such time and in such manner as the Court may direct, the whole or any part of the amount due, whether in full discharge of the debt or otherwise, as the Court thinks fit. |
| (8) The Court may, if it thinks fit, order that any person, who if within Singapore would be summoned to appear before it under this section, be examined in a place outside Singapore. |
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