September 2006
PART 3
APPOINTMENT FOLLOWING MEETING
The purpose of first meetings is the appointment of a liquidator other than the official receiver or trustee. Details of the mechanics of first meetings and when to hold them can be found in Chapter 16 - Meetings.
No resolution can be passed at first meetings to appoint the official receiver as liquidator or trustee [note 1].
17.30 Choice of liquidator (companies only)
The creditors and contributories at their respective meetings may nominate a person to be liquidator. The creditors’ nominee takes precedence over any nomination made at the contributories meeting (but see paragraph 17.27). If the creditors do not pass a resolution for an appointment but the contributories do, the appointment made at the contributories’ meeting will take effect [note 2].
17.31 Appointment by court on a difference
If in a winding up the creditors’ nominee is appointed but a different practitioner was nominated by the contributories, either a creditor or a contributory may, within 7 days of the nomination, apply to the court for the appointment of the contributories’ nominee to be liquidator instead of or jointly with the creditors’ nominee, or for another practitioner to be appointed in place of the creditors’ nominee [note 3].
The chairman of the meetings should certify the appointment of the creditors’ nominee in such cases, notwithstanding that an application may be made to the court [note 4].
In these circumstances the court can only appoint a practitioner upon the application of a creditor or contributory when the practitioner appointed has filed a statement in court stating that he/she is qualified to act and consents to do so [note 5]. The appointment is effective from the date of the order [note 6].
The court must send two copies of the order, one of which must be sealed, to the official receiver, who should forward the sealed copy to the liquidator on behalf of the court [note 7].
Immediately the official receiver knows the outcome of the hearing, he/she should notify any liquidator whose appointment is effectively terminated by the making of the order [note 8].
17.32 Effective date of appointment
Where a meeting has nominated a liquidator or trustee, the liquidator’s or trustee’s appointment is effective from the date on which the chairman certifies the appointment and that date must be endorsed on the certificate [note 9]
17.33 Appointment and certification
(Amended July 2010)
Where meetings appoint a liquidator or trustee, that appointment must be certified by the chairman of the meeting [note 4] [note 10].
An appointment of a liquidator or trustee should only be certified when the practitioner provides:
Items (b) and (c) need not be complied with on every occasion if the insolvency practitioner is a regular appointee and the official receiver knows that he holds a current enabling bond and authorisation certificate. (See paragraphs 55.1 to 55.9 in Chapter 55 - Insolvency Practitioners and paragraphs 17.6 to 17.12 for more information on bonding and authorisation of insolvency practitioners.)
The official receiver must then send the endorsed certificate to the appointed insolvency practitioner and (in pre 6 April 2010 petition cases) file a copy of it in court [note 11].
Post 6 April 2010 petition cases:
The Insolvency (Amendment) Rules 2010 (IAR) removed the requirement for the official receiver to file a copy of the endorsed certificate of appointment with the court .
Where the official receiver is replaced as liquidator or trustee (not receiver and manager) as a result of the appointment of an IP following a meeting of creditors, the Act requires that notification be given to the court in order for the official receiver to obtain his/her release [note 12]. The forms for notifying the court of the official receiver’s replacement as liquidator or trustee in these circumstances can be accessed through the OROS intranet site or by following this link. http://intranet/OROS/CaseMngment/DocProd/DocProdHome.htm
(Note: these forms are also available on ISCIS).
(Amended July 2010)
In pre 6 April 2010 petition cases the chairman of a meeting must give the court notice of any resolutions passed within 21 days of the meetings being held.
In post 6 April 2010 petition cases the requirement to file notice of meeting resolutions has been removed by the IAR .
17.35 Deputyship and transfer cases
(Amended July 2010)
Where an official receiver is acting as deputy for another official receiver, or is otherwise dealing with the case on behalf of another official receiver, the official receiver dealing with the case should send the relevant papers, including a copy of any certificate of appointment, to the original court for filing. If the case is in the process of being transferred, the deputy official receiver may retain the papers for a short while pending the transfer of the case, but the effectiveness of the appointment should not be jeopardised.
If the case has already been transferred to the local court, the local official receiver will have taken over the case and any deputyship will have ceased; in those circumstances the papers should be filed at the local court.
Post 6 April 2010 petition cases:
These provisions do not apply to any post 6 April 2010 petition cases as the IAR have removed the requirements to file notice of the outcome of a meeting, or a copy of the endorsed certificate of appointment, at court.
17.36 No appointment at meeting
(Amended July 2010)
If first meetings held by the official receiver do not result in the appointment of a liquidator or trustee, he/she must decide whether to seek an appointment by the Secretary of State (see Part 5 - Appointments by the Secretary of State) [note 13]. In a bankruptcy, if the official receiver decides not to refer the matter to the Secretary of State, he/she must file with the court notice of the decision not to do so, and on filing of this notice the official receiver becomes trustee [note 14]. The form for notifying the court of this decision (MTGNCO) can be accessed through the OROS intranet site or by following this link http://intranet/OROS/CaseMngment/DocProd/DocProdHome.htm.
(Note: these forms are also available on ISCIS).
17.37 Appointment, resignation and removal of liquidator or trustee at meetings not called by official receiver
Where meetings are held when an insolvency practitioner is acting as liquidator or trustee (e.g. where the meetings are called to discuss the resignation or removal and replacement of the liquidator or trustee [note 15]) the chairman of the meeting will send the official receiver a copy of any resolutions passed together with a certificate of resignation / removal of the liquidator / trustee. [note 16].
If their resignation is accepted, the liquidator / trustee is required by the Act to give notice of his/her resignation to the court [note 17]. A copy of this notice must also be sent by the liquidator / trustee to the official receiver [note 18]. The resignation is effective as from the date on which the official receiver files the copy notice in court, with that date to be endorsed on the copy notice [note 19].
If there has been a resolution for the removal of the liquidator / trustee, the official receiver must file the certificate of removal in court and endorse it with the date of filing. In addition a copy of the endorsed certificate of removal must also be sent by the official receiver to the removed liquidator / trustee and the new liquidator / trustee, if one has been appointed [note 20]. The resolution for the removal of the liquidator / trustee is effective as from the date on which the official receiver files the endorsed certificate of removal in court [note 21].
In post 6 April petition cases where there has been a resolution for the removal of a liquidator, a copy of the endorsed certificate of removal must also be filed with registrar of companies by the official receiver [note 22].
If there has been a resolution for the appointment of a new liquidator or trustee, the chairman will also send the certificate of appointment to the official receiver [note 23].The appointment of the new liquidator/trustee will take effect from the date on which the appointment is certified by the chairman of the meeting, with that date to be endorsed on the certificate [note 24]. The official receiver must send the certificate of appointment endorsed with the date of appointment to the newly appointed liquidator / trustee [note 25]. In pre-6 April 2010 petition cases, a copy of the endorsed certificate must also be filed in court by the official receiver, this is no longer a requirement in post 6 April 2010 petition cases. .
The official receiver will be the liquidator or trustee if there is a vacancy [note 26].
17.38 Date of appointment where filing at court effected by post or DX
Where filing in court is effected by post or DX (Document Exchange), the following criteria should be used to anticipate the date of filing for the purposes of endorsement [note 27]:
Further information on vacation of office and release of liquidators and trustees other than the official receiver can be found in Chapter 48 - Vacation of office and release of liquidators and trustees (other than the official receiver)
[Back to Part 2 - Appointment when Winding-Up Order or Bankruptcy Order made] [On to Part 4 - Use of proxies to effect appointment]