HND 公司法清算報告.doc

HND公司法清算報告本人自己的答案題目 WINDING UPThe law of insolvency and the relatively new concept of the administration order designed to nurture ailing companies back to health, are largely outside the scope of this book. Some of the legal issues flowing from an insolvent winding up have already been considered, such as fraudulent and wrongful trading1 and the avoidance of certain floating charges and preferential payments.2 It is necessary in this chapter, however, to deal with some of the provisions and procedures which, from the company law point of view, bring the companys life to an end. The existence of a company is brought to an end by winding up and, ultimately, dissolution. The dissolution brings to an end the companys legal personality. The most likely reason for a company to be wound up is that it has become insolvent, that is, unable to pay its debts. This is by no means the only reason, though, and a company can also be wound up when it is quite solvent. Despite this, and rather confusingly, the provisions relating to all types of winding up are contained in the Insolvency Act 1986 and subordinate legislation, such as the Insolvency Rules 1986.3 References to sections in this chapter will be to the Insolvency Act 1986, unless otherwise indicated.THE TYPES OF WINDING UPThere are two basic types of winding up: compulsory winding up and voluntary winding up.Compulsory winding upThis type of liquidation is ordered by the court. Section 122(1) provides a number of circumstances or grounds on which a company may be wound up by the court and most of these are not concerned with whether the company is solvent or not. The main ones are:(a) the company has, by special resolution, resolved that the company be wound up by the court;(b) the company is unable to pay its debts;1 See pp 8088.2 See pp 33337.3 SI 1986/1925.Company Law(c) the court is of the opinion that it is just and equitable that the company should be wound up;4 and(d) the company does not commence its business within a year from its incorporation or suspends its business for a whole year.An application for a winding up order is by petition and can be made by the company or the directors or by any creditors, contributories (that is, members or certain former members)5 or even by the clerk of a magistrates court (to enforce fines which have been imposed on but not paid by the company).6 For the purposes of s 124(1) directors means the board of directors and there must either be a formal board resolution in favour of winding up, in which case if it is passed by a majority all the directors are bound by it and the petition will be in all of their means.7 Alternatively, the board can act unanimously in petitioning for winding up where they have not passed a formal board resolution.8By s 123, a company is deemed to be unable to pay its debts if a creditor of the company who is owed more than ?750 serves on the company at its registered office a written demand, in the prescribed form, requiring the company to pay the sum due and the company has not paid it for three weeks;9 if an execution or other process issued on judgment in favour of a creditor is returned unsatisfied; or if the court is satisfied, on the evidence presented to it, that the company is unable to pay its debts as they fall due.10Finally, by s 123(2), a company is also deemed to be unable to pay its debts if it is proved, to the satisfaction of the court, that the value of the companys assets is less than the amount of its liabilities, taking into account its contingent and prospective liabilities.The court is given a wide discretion by s 125 on the hearing of a winding up petition, for example, it may dismiss it if the majority of creditors are opposed to it or the court may adjourn to take the views of creditors. However, if it makes the order, then a liquidator has to be appointed. In fact, by s 135, the court is given powers to appoint a provisional liquidator at any time after the presentation of the petition. Once a winding up order is made, the official receiver becomes the liquidator and remains in office unless or until another person is appointed.11 By s 136(4) and (5), the official receiver is4 See p 374.5 See Insolvency Act 1986, s 79.6 Ibid, s 124.7 Re Equiticorp International plc 1989 1 WLR 1010.8 Re Instrumental Electrical Services 1988 BCLC 550.9 If there is a bona fide dispute about the debt, the petition can be dismissed as an abuse of the process: Re A Company 1991 BCLC 464.10 See, eg, Cornhill Insurance plc v Improvement Services Ltd 1986 BCLC 26.11 Insolvency Act 1986, s 136(2).Winding Upgiven a number of powers and duties to perform, regardless of whether he is retained as a companys liquidator or not, for example, summoning meetings of the companys creditors and contributories.Once the court makes the winding up order, by s 129(2), the winding up is deemed to have commenced at the time of the presentation of the petition. This retroactive effect can have an important consequence for the recipient of the companys property, since, by s 127, any disposition of such property made after the commencement of the winding up is void, unless the court orders otherwise. This also applies to a transfer of shares or a change in the companys membership during that time. In Re Grays Inn Construction Co Ltd,12 Buckley LJ gave the following guidance on when the court will exercise its discretion under s 127:Since the policy of the law is to procure so far as practicable rateable payments of the unsecured creditors claims, it is . clear that the court should not validate any transaction . which might result in one or more pre-liquidation creditors being paid in full at the expense of other creditors, who will only receive a dividend, in the absence of special circumstances making such a course desirable in the interests of the unsecured creditors as a body.He then continued:A disposition carried out in good faith in the ordinary course of business at a time when the parties are unaware that a petition has been presented may, it seems, normally be validated by the court . unless there is any ground for thinking that the transaction may involve an attempt to prefer the disponee, in which case the transaction would probably not be validated.However, the policy against allowing certain pre-liquidation creditors to be preferred has no relevance where there is:. a transaction which is entirely post-liquidation, as for instance a sale of an asset at its full market value after presentation of a petition. Such a transaction involves no dissipation of the companys assets, for it does not reduce the value of those assets. It cannot harm the creditors and there would seem to be no reason why the court should not, in the exercise of its discretion, validate it. A fortiori, the court would be inclined to validate a transaction which would increase, or has increased, the value of the companys assets .The functions of the liquidator of a company which is being wound up by the court are stated by s 143 to be:. to secure that the assets of the company are got in, realised and distributed to the companys creditors and, if there is a surplus, to the persons entitled to it.To ensure that this is possible, on the making of the winding up order, the powers of management which were enjoyed by the companys directors pass to the liquidator, who then has complete control over the company13 and can,12 1980 1 WLR 711, pp 71819.13 Measures Bros Ltd v Measures 1910 2 Ch 248.Company Lawfor example, initiate proceedings on its behalf to recover assets belonging to the company. The powers of the liquidator are dealt with generally at p 394.A liquidator is not a trustee of the companys assets for individual creditors and contributories14 but he does owe fiduciary duties to the company and, therefore, must act in good faith and not make secret profits.15He is acting as an agent of the company; therefore, if, in exercising his functions, he properly makes a contract on behalf of the company, he is not personally liable if there is a breach of that contract.16 He can be held liable in misfeasance proceedings under s 212, if he has improperly retained property or had improperly or unnecessarily paid out the companys money, and these proceedings can be instituted by any creditor or contributory. The basic position, function and role of the liquidator are the same whether the winding up is compulsory or voluntary.Voluntary winding upThe company can resolve, by special resolution, that the company be wound up or, more quickly, by extraordinary resolution, that it cannot, by reason of its liabilities, continue its business and that it is advisable to wind up.17 A copy of the resolution has to be forwarded to the registrar within 15 days and the company has to give notice within 14 days of the resolution by advertisement in the Gazette.By ss 86 and 87, a voluntary winding up is deemed to commence at the time of the passing of the resolution to wind up and the company shall, from that date, cease to carry on its business, except so far as may be required for its beneficial winding up.18 A petition can be presented after the commencement of a voluntary winding up for a compulsory winding up order and, if one is made, then the date of commencement of compulsory winding up is backdated to the date of the resolution for voluntary winding up. This may, again, have significant consequences because of s 127.19There are two different types of voluntary winding up. A members winding up is a voluntary winding up where a directors statutory declaration of solvency has been made and a creditors winding up is one where such a declaration has not been made.2014 Knowles v Scott 1891 1 Ch 717.15 Silkstone and Haigh Moore Coal Co v Edey 1900 1 Ch 167.16 Re Anglo-Moravian Hungarian Junction Rly Co ex p Watkin (1875) 1 Ch D 130.17 Insolvency Act 1986, s 84.18 Ibid, s 87(1).19 See p 391.20 Insolvency Act 1986, s 90.Winding UpMembers voluntary winding upThe statutory declaration of solvency essential to this form of winding up is made by the directors (or, in the case of a company having more than two directors, a majority of them), at a meeting, to the effect that they have made a full enquiry into the companys affairs and that they have formed the opinion that the company will be able to pay its debts in full, together with interest, within such period, not exceeding 12 months from the commencement of the winding up, as may be specified in the declaration.21 To be effective, the declaration must be made within five weeks immediately before the passing of the resolution to wind up and must include as recent a statement of the companys assets and liabilities as practicable.22 This declaration must then be delivered to the registrar within 15 days after the passing of the resolution to wind up.23Unlike certain statements directors are required to make where a companys capital is affected,24 there is no direct involvement of the companys auditors, though a director who makes a declaration without having reasonable grounds for the opinion that the company will be able to pay its debts is liable to imprisonment or a fine or both. Further, if the company is wound up within five weeks after the making of the declaration and its debts are not paid in full, then there is a presumption that the director did not have reasonable grounds for his opinion.25By s 91, the company, in general meeting, in a members winding up appoints one or more liquidators. This is the advantage of the directors being able to make the statutory declaration of solvency, since, if they control the general meeting, they will be able to appoint a liquidator who they believe will be less inquisitive as regards their own conduct than one appointed by the creditors. This is a reason why directors would not wish a petition to be presented under s 122(1)(a) after the passing of a special resolution to wind up the company. However, there are provisions for converting a members into a creditors winding up if the liquidator is of the opinion that the company will be unable to pay its debts within the period stated in the statutory declaration.26The liquidator must call a general meeting of the company as soon as the companys affairs are fully wound up.27 At this meeting, the liquidator must lay before it an account of the winding up, showing how it has been21 Insolvency Act 1986, s 89.22 Ibid, s 89(2).23 Ibid, s 89(3).24 Eg, Companies Act 1985, s 156.25 Insolvency Act 1986, s 89(4).26 Ibid, s 95.27 Ibid, s 94.Company Lawconducted and how the companys property has been disposed of and he must explain the account to the meeting.Creditors voluntary winding upIn this type of liquidation, the company must cause a meeting of its creditors to be summoned for a day not later than the 14th day after the day on which the meeting is to be held at which the resolution for voluntary winding up is proposed.28 Further, it must cause notices of the creditors meeting to be sent to the companys creditors not less than seven days before the meeting is to be held and to advertise the meeting in the Gazette and two newspapers. By s 100, the creditors can nominate a person to be the liquidator of the company. If they do so, then he becomes the liquidator; if they do not, then the company can nominate someone.The creditors of the company can also appoint a liquidation committee consisting of not more than five persons, whereupon the company can appoint up to another five persons to the committee.29 This committee can then liaise with the liquidator without the need for the liquidator to convene full creditors and members meetings. The liquidator is under an obligation to report to the committee all such matters as appear to him to be, or as they have indicated to him as being, of concern to them with respect to the winding up.30The liquidator is under a similar obligation in a creditors winding up as he is under a members winding up in respect of calling a general meeting of the company when the companys affairs are fully wound up,31 except that he must also call a meeting of the creditors for the same purpose of laying the account before it.Powers of the liquidatorThese are contained in ss 16568 and Sched 4 of the 1986 Act. The legislature has made three categories of powers, the categorisation being relevant to whether or not the powers can be used with or without sanction in particular types of winding up and ss 16567 provide what constitutes the relevant sanction in a particular winding up. So, as an overview, Part I of Sched 4 contains:(a) the power to pay any class of creditor in full;28 Insolvency Act 1986, s 98.29 Ibid, s 101.30 Insolvency Rules 1986, r 4.155.31 Insolvency Act 1986, s 106.Winding Up(b) the power to make compromise or arrangement with creditors; and(c) the power to compromise on such terms as may be agreed, all calls, debts, liabilities and claims between the company and a contributory.These powers are only exercisable by the liquidator with sanction and, in a members voluntary winding up, that sanction is provided by an extraordinary resolution of the company; and, in a creditors voluntary winding up or in a compulsory winding up, with the sanction of the court or the liquidation committee (or, if there is no such committee in the case of a creditors voluntary winding up, with the sanction of a meeting of the creditors).32Part II of Sched 4 contains:(a) the power to bring or defend any action or other legal proceedings in the name and on behalf of the company; and(b) the power to carry on the business of the company so far as is beneficial for its winding up.These powers are exercisable without sanction in a voluntary winding up but only with the sanction of the court or liquidation committee in a compulsory winding up.Part III of Sched 4 contains:(a) the power to sell any of the companys property by public auction or private contract, with power to transfer the same;(b) the power to do all acts and execute all deeds and documents in the name and on behalf of the company and to use the companys seal for that purpose;(c) the power to prove or claim in the bankruptcy or insolvency of any contributory;(d) the power to draw or make any bill of exchange or promissory note in the name and on behalf of the company;(e) the power to raise, on the security of the assets of the company, any money which he may need;(f) the power to appoint agents; and(g) the power to do all such other things as may be necessary for winding up the companys affairs and distributing its assets.These powers are exercisable by the liquidator, in any type of winding up, without sanction.In s 168, a liquidator in a compulsory winding up is given a number of other specific powers, such as the power to summon general meetings of32 Insolvency Act 1986, ss 165(2) and 167(1).Company Lawcreditors or contributories for the purpose of ascertaining their wishes, and the liquidator can apply to the court for directions in relation to any particular matter arising in the winding up. Further, the liquidator may use his own discretion in the management of the assets and their distribution among the creditors, subject always, though, to the other provisions of the Act and, in particular, the order in which the assets are to be distributed (see below). By s 168(5), if any person is aggrieved by an act or decision of the liquidator, that person may apply to the court, which is given a wide discretion in the order it can make. Similarly, by s 167(3), it is stated that, in a compulsory winding up,