(Amended July 2010)
Except where there is an immediate appointment of an insolvency practitioner as liquidator (see paragraph 17.22) the official receiver will become the liquidator of a company on the making of a winding-up order and continues in office until another person is appointed liquidator [note 1]. Where an insolvency practitioner is appointed (either at meetings called for that purpose or by the Secretary of State) the official receiver is released as liquidator when he/she notifies the court that he/she has been replaced.
In post 6 April 2010 petition cases the official receiver is no longer required to file a notice of resolutions passed at a meeting or a copy of the certificate of appointment where an IP has been appointed as liquidator or trustee by the Secretary of State. The forms for notifying the court of the official receiver’s replacement as liquidator or trustee in these circumstances (notice to court under section 174 or 299) can be accessed through the OROS intranet site or by following this link http://intranet/OROS/CaseMngment/DocProd/DocProdHome.htm.
(Note: these forms are available on ISCIS).
Where a winding-up order is made immediately upon the appointment of an administrator ceasing to have effect the court may appoint as liquidator the person whose appointment has ceased to have effect [note 2].
Where a winding-up order is made at a time when there is a supervisor of a voluntary arrangement under Part 1 of the Act, the court may appoint as liquidator the person who is supervisor of the company [note 3].
The court will not issue an order appointing a liquidator until the insolvency practitioner has filed in court a statement to the effect that he/she is an insolvency practitioner, duly qualified under the Act, and that he/she consents to act [note 4]. The court is required to send two copies of the order to the official receiver, one of which must be sealed [note 5]. The official receiver must pass the sealed copy to the liquidator. The liquidator’s appointment is effective from the date of the order [note 6].
Where an insolvency practitioner is appointed liquidator on the making of the winding up order the official receiver does not become the liquidator and does not have the duty to decide whether to summon creditors' or contributories' meetings [note 7].
17.23 Different nominations (winding up)
The court may also become involved in the appointment of a liquidator where there are different nominations at meetings of creditors and contributories and an application is made to the court by any creditor or contributory for an insolvency practitioner other than the creditors’ nominee to be appointed instead of, or as well as, that person [note 8] (see also paragraphs 17.31 and 17.32).
Where all the partners jointly present a petition under Article 11 of the Insolvent Partnerships Order 1994, the official receiver is the trustee of the members’ estates and also trustee of the partnership on the making of the bankruptcy order (see also paragraph 53.47 of Chapter 53 - Partnerships).
On the making of the bankruptcy order the official receiver will be the receiver and manager of the bankrupt's estate until the estate vests in a trustee [note 9]. The official receiver will become trustee when he/she has given notice to the court of his/her decision not to call a meeting of creditors for the purpose of appointing a trustee [note 10] or where the meeting of creditors has failed to appoint a trustee and the official receiver decides not to refer the need for an appointment to the Secretary of State and gives notice of this to the court [note 11].
When a debtor's petition has been presented, the court shall, where the conditions of section 273(1) are met, appoint an insolvency practitioner to report on the debtor's affairs and on whether the debtor is willing to make a proposal for a voluntary arrangement [note 12]. Where the insolvency practitioner has reported unfavourably to the court on the possibility of a voluntary arrangement, but has agreed to act as trustee, the court may, immediately on making a bankruptcy order, appoint that person as trustee [note 13].
The court will forward two copies of the order of appointment to the official receiver [note 14]. The official receiver must pass the sealed copy to the trustee [note 14]. The trustee’s appointment is effective from the date of the order [note 15].
17.27 Appointment of former supervisor as trustee
On the making of a bankruptcy order the court may appoint as trustee an insolvency practitioner who has been the supervisor of a failed voluntary arrangement [nore 16].
Where a trustee has been appointed on the making of a bankruptcy order the official receiver is not under a duty to decide whether to summon a meeting of creditors [note 10].