Superior Court Rules

ORDER 75B

PROCEEDINGS UNDER THE COMPANIES ACT, 1990 (NO 33 OF 1990)

1. (1) In this Order, unless the context or subject matter otherwise requires–

‘The Act’ means ‘the Companies Act, 1990 (No 33 of 1990.)’;

‘The Acts’ means ‘the Companies Acts, 1963 to 1990’;

‘The company’ means the company to which any application under this Order relates or any related company.

‘The Minister’ means the Minister for Industry and Commerce.

(2) Words and expressions contained in this Order shall have the same meaning as in the Act and where necessary the same meaning as in the Acts.

(3) In this Order a reference to a section or subsection is to that section or subsection in the Act unless it is indicated that reference to some other enactment is intended.

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2. All applications and proceedings under or in relation to the Act shall be assigned to such Judge or Judges as the President of the High Court shall from time to time decide to hear such applications and proceedings but if such Judge or Judges shall be unable to dispose of such applications or proceedings any other Judge or Judges of the High Court may dispose of any such application or proceedings.

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3. The following applications shall be made by originating notice of motion:

(a) An application to appoint an inspector or inspectors under section 7(1). Such an application when not brought by the company or a director of the company shall be served on the company and its directors, when brought by a director, shall be served on the company and the other directors, and when brought by the company shall be served on its directors.

(b) An application for the appointment of an inspector or inspectors under section 8. Such an application shall be served on the company and its directors.

(c) An application for the approval of the court to investigate a related company under section 9. Such an application shall be served on that company and its directors and on the applicant at whose instance the inspector was appointed.

(d) An application for the court to direct the payment of the expenses of an investigation under section 13(1). Such an application shall be served on any person whom it is sought to make liable for the repayment to the Minister for Justice.

(e) An application for an Order that shares shall cease to be subject to a restriction under section 16(5) or for an Order under section 16(7) or (8) or (9). Such an application if not made by the Minister or the company, as the case may be, shall be served on the Minister and the company and on any other person affected thereby.

(f) An application to hold a director or a person connected with him liable to account to the company under section 29(4). Such an application shall be served on the director or the person connected with him as the case may be and on any other person who is or may be liable to indemnify the company.

(g) An application to hold a director or a person connected with him liable to account to the company under section 38(2). Such an application shall be served on the director or the person connected with him as the case may be and on any other person who is or may be liable to indemnify the company.

(h) An application for a declaration of personal liability for debts and liabilities of a company under section 39(1). Such an application shall be served on the person whom it is sought to make personally liable and on any other person for whose benefit a section 32 arrangement has been made.

(i) An application for an Order compelling an inspection of the service contract of a director under section 50(8). Such an application shall be served on the company and on any other person affected by the application.

(j) An application for relief in relation to a restriction or disability attaching to shares or debentures under section 58(4). Such an application shall be served on the company and on any other person affected by the application.

(k) An application for an Order compelling an immediate inspection of the register relating to the directors and the secretary of a company under section 60(11). Such an application shall be served on the company and the officer concerned.

(l) An application for relief in relation to a restriction or disability in respect of any shares in a company under section 79(4). Such an application shall be served on the company and the registered shareholder of the shares.

(m) An application to require a company to exercise its powers under section 81 to request information of a person under section 83(5). Such an application shall be served on the company and on any other requisitionists not joining in the application and on the registered shareholder.

(n) An application for an Order that shares be subject to restrictions and disabilities under section 85(1). Such an application shall be served on the person who is alleged to have failed to give the company the information requested by it.

(o) An application that restrictions imposed on shares shall cease to be subject to the restrictions under section 85(5). Such an application shall be served on the company, if it is not the applicant and on the person referred to in section 85(1).

(p) An application to direct a company to remove an entry from its register of interests in shares under section 86(5). Such an application shall be served upon the company and upon such other person if any as may have provided information leading to the making of the entry.

(q) An application for an Order compelling the immediate inspection of any register of interests in shares or of any section 84 report kept by the company under section 88(5). Such an application shall be served upon the company.

(r) An application to direct the relevant authority of the Exchange to make a report to the Director of Public Prosecutions under section 92(3). Such an application shall be served on any other party to the proceedings and the relevant authority of the Exchange and on the company and on the person alleged to have committed the offence.

(s) An application for a disclosure Order in respect of the shares or debentures of a company under section 98(2). Such an application shall be served on the company and on the registered owner of the shares or debentures in question and on the person specified in section 98(1).

(t) An application to rescind or vary or to exempt in whole or in part from the requirements of a disclosure Order under section 101(1) of (3). Such an application shall be served upon the applicant for the disclosure Order, the company and upon any other person affected by the application.

(u) An application for relief in relation to restrictions or conditions imposed on shares or debentures by a disclosure Order under section 101(5). Such an application shall be served upon the applicant for the disclosure Order, the company and any other person affected by the application.

(v) An application for relief in relation to restrictions or disabilities attaching to shares or debentures of a company under section 104(2). Such an application shall be served upon the company and on any other person affected by the said restriction or disability and on the applicant for the disclosure Order.

(w) An application to hold a person liable in respect of unlawful dealing in securities under section 109(1). Such an application shall be served upon the person alleged to have been engaged in unlawful dealing and, if the applicant is the company, on any other party to the relevant transaction.

(x) An application to direct the relevant authority of the recognised Stock Exchange to make a report to the Director of Public Prosecutions under section 115(3). Such an application shall be served on the company if the company is not the applicant and on the relevant authority of the recognised Stock Exchange and on any other party to the proceedings and on the person alleged to have committed the offence.

(y) An application for a declaration as to the exercise of the powers by an authorised person under section 117(5). Such an application shall be served on the authorised person if he is not the applicant and on the person of whom the requirement is made if he is not the applicant.

(z) An application for a disqualification Order in relation to a person under section 160(2) or in relation to a disqualification Order under section 160(8). Such an application shall be served on the person in relation to whom the disqualification Order is sought and on any other party to the proceedings and on the applicant for the original disqualification Order, as the case may be.

(aa) An application to hold a person personally liable for the debts or liabilities of a company under section 163(3) or (4). Such an application shall be served on the person whom it is sought to be made liable and on the liquidator if he is not the applicant.

(bb) An application to require a company to allow inspection of a contract under section 222(4). Such an application shall be served upon the company.

(cc) An application to direct a relevant authority of the recognised Stock Exchange to make a report to the Director of Public Prosecutions under section 230(3). Such an application shall be served on the relevant authority of the recognised Stock Exchange and on any other party to the proceedings, on the company and on any other person alleged to have been involved in unlawful purchase of shares.

(dd) An application to have section 251(2) applied to a company under section 251(1). Such an application shall be served upon the company and upon such persons as may be likely to be affected by the making of the application.

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4. If on consideration of a report made to the court under section 11 the court considers that an Order should be made for the winding up of a body corporate, the court may direct the applicant who applied for the appointment of the inspector or inspectors under sections 7 or 8, as the case may be, or such other person as the court shall think fit to present a petition for the winding up of the said body corporate. The court may give such directions in relation to the proceedings to be taken as it thinks fit and may order that the provisions of Order 74, either in whole or in part, shall apply to the winding up as ordered by the court.

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5. The following applications shall be made by motion ex parte:

(a) An application for directions in an investigation under section 7(4).

(b) An application to produce an inspector’s certificate of refusal under section 10(5).

(c) An application for leave to deliver an interim report to the court under section 11(1).

(d) An application for leave to deliver a final report to the court under section 11(1).

(e) An application for leave to inform the court of matters under section 11(2).

(f) An application as to whether a part of a report should be omitted from a report to be forwarded, furnished or printed under section 11(4).

(g) An application by an authorised person to produce a certificate of refusal to the court under section 117(9).

(h) An application for the sanction of the court to exercise the powers of a liquidator before the holder of a creditors’ meeting under section 131(2).

(i) An application for leave to inform the court of any relevant matter under section 151(1).

(j) An application by a company for relief under section 157(1).

(k) An application for leave to report to the court under section 161(5).

(l) An application for leave not to deliver the required notices under section 185(4).

(m) An application for leave not to deliver the required notices under section 186(4).

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6. Every application brought in relation to a company under the Act shall be entitled ‘the High Court’ and in the matter of the company and in the matter of the Companies Act, 1990 and where the company is under investigation there shall be added after the name of the company the words ‘under investigation’ and where the company is in liquidation there shall be added after the name of the company the words ‘in liquidation’ and where the company is in receivership there shall be added after the name of the company the words ‘in receivership’ and where the company is one to which an Examiner has been appointed there shall be added after the name of the company the words ‘under the protection of the court’.

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7. Every application under the Act shall be grounded upon the affidavit of the party making such application and shall be heard and determined on affidavit unless the court otherwise orders.

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8. On the hearing of any application made to the court pursuant to rule 4 or rule 5 above, the court may make such order or orders or give such directions as it thinks fit including directions as to whether, and if so, upon which other party notice of the application should be served, the mode of service and the time allowed for such service and may adjourn the hearing or further hearing of such application to date to be specified.

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9. The court may, in any case in which the court considers that it is either necessary or desirable in the interests of justice so to do, direct a plenary hearing in the matter and may make such order and give such directions in relation to the exchange of pleadings and the settling of issues between the parties as shall appear proper in the circumstances.

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