On 18/05/2013,
you requested for the version in force on 18/05/2013
incorporating all amendments published on or before 18/05/2013.
The closest version currently available is that of 01/03/2010.
FOURTH SCHEDULE
Receivers and Managers
1. In this Schedule —
“Court” means the High Court;
“public accountant” has the same meaning as in section 2 of the Accountants Act (Cap. 2).
2.—(1) The following shall not be qualified to be appointed and shall not act as receiver of the property of a limited liability partnership:
(a)
a corporation;
(b)
an undischarged bankrupt;
(c)
a mortgagee of any property of the limited liability partnership, or a director, manager or an employee of the limited liability partnership or of any corporation which is a mortgagee of the property of the limited liability partnership; and
(d)
any person who is neither an approved liquidator nor the Official Receiver.
(2) Nothing in sub-paragraph (1)(a) or (d) shall apply to any corporation authorised by any written law to act as receiver of the property of a limited liability partnership.
3.—(1) Any receiver or other authorised person entering into possession of any assets of a limited liability partnership for the purpose of enforcing any charge shall, notwithstanding any agreement to the contrary, but without prejudice to his rights against the limited liability partnership or any other person, be liable for debts incurred by him in the course of the receivership or possession for services rendered, goods purchased or property hired, leased, used or occupied.
(2) Sub-paragraph (1) shall not be so construed as to constitute the person entitled to the charge a mortgagee in possession.
(3) A receiver or manager of the property of a limited liability partnership may apply to the Court for directions in relation to any matter arising in connection with the performance of his functions.
(4) Where a receiver or manager has been appointed to enforce any charge for the benefit of holders of debentures of the limited liability partnership, any such debenture holder may apply to the Court for directions in relation to any matter arising in connection with the performance of the functions of the receiver or manager.
4.—(1) The Court may, on application by the liquidator of a limited liability partnership, by order fix the amount to be paid by way of remuneration to any person who, under the powers contained in any instrument, has been appointed as receiver or manager of the property of the limited liability partnership.
(2) The power of the Court shall, where no previous order has been made with respect thereto —
(a)
extend to fixing the remuneration for any period before the making of the order or the application therefor;
(b)
be exercisable notwithstanding that the receiver or manager has died or ceased to act before the making of the order or the application therefor; and
(c)
where the receiver or manager has been paid or has retained for his remuneration for any period before the making of the order any amount in excess of that fixed for that period, extend to requiring him or his personal representatives to account for the excess or such part thereof as may be specified in the order.
(3) The power conferred by sub-paragraph (2)(c) shall not be exercised as respects any period before the making of the application for the order unless in the opinion of the Court there are special circumstances making it proper for the power to be so exercised.
(4) The Court may from time to time, on an application made either by the liquidator or by the receiver or manager, vary or amend an order made under this paragraph.
5. Where an application is made to the Court to appoint a receiver on behalf of the debenture holders or other creditors of a limited liability partnership which is being wound up by the Court, the liquidator may be so appointed.
6.—(1) If any person obtains an order for the appointment of a receiver or manager of the property of a limited liability partnership or appoints such a receiver or manager under any powers contained in any instrument, he shall within 7 days after he has obtained the order or made the appointment lodge notice of the fact with the Registrar.
(2) Where any person appointed as receiver or manager of the property of a limited liability partnership under the powers contained in any instrument ceases to act as such, he shall within 7 days thereafter lodge with the Registrar notice to that effect.
(3) Every person who fails to comply with the requirements of this paragraph shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $1,000 and, in the case of a continuing offence, to a further fine not exceeding $200 for every day or part thereof during which the offence continues after conviction.
7.—(1) Where a receiver or manager of the property of a limited liability partnership has been appointed, every invoice, order for goods or business letter issued by or on behalf of the limited liability partnership or the receiver or manager or the liquidator of the limited liability partnership, being a document on or in which the name of the limited liability partnership appears, shall contain a statement immediately following the name of the limited liability partnership that a receiver or manager has been appointed.
(2) If sub-paragraph (1) is contravened, the limited liability partnership and every officer and every liquidator of the limited liability partnership and every receiver or manager who knowingly and wilfully authorises or permits the contravention shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $1,000.
8.—(1) Where a receiver or manager of the property of a limited liability partnership (referred to in this paragraph and in paragraph 9 as the receiver) is appointed —
(a)
the receiver shall immediately send notice to the limited liability partnership of his appointment;
(b)
there shall, within 14 days after receipt of the notice, or such longer period as may be allowed by the Court or by the receiver, be made out and submitted to the receiver in accordance with paragraph 9 a statement in the prescribed form as to the affairs of the limited liability partnership; and
(c)
the receiver shall within one month after receipt of the statement —
(i)
lodge with the Registrar, a copy of the statement and of any comments he sees fit to make thereon;
(ii)
send to the limited liability partnership, a copy of any such comments referred to in sub-paragraph (i), or if he does not see fit to make any comment, a notice to that effect; and
(iii)
where the receiver is appointed by or on behalf of the holders of debentures of the limited liability partnership send to the trustees, if any, for those holders, a copy of the statement and his comments thereon.
(2) Sub-paragraph (1) shall not apply in relation to the appointment of a receiver or manager to act with an existing receiver or manager or in place of a receiver or manager dying or ceasing to act, except that, where that sub-paragraph applies to a receiver or manager who dies or ceases to act before that sub-paragraph has been fully complied with, the references in sub-paragraph (1)(b) and (c) to the receiver shall (subject to sub-paragraph (3)) include references to his successor and to any continuing receiver or manager.
(3) Where the limited liability partnership is being wound up, this paragraph and paragraph 9 shall apply notwithstanding that the receiver or manager and the liquidator are the same person, but with any necessary modifications arising from that fact.
(4) If any person fails to comply with any of the requirements of this paragraph, he shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $2,000 and, in the case of a continuing offence, to a further fine not exceeding $200 for every day or part thereof during which the offence continues after conviction.
9.—(1) The statement as to the affairs of a limited liability partnership required by paragraph 8 to be submitted to the receiver shall show as at the date of the receiver’s appointment the particulars of the limited liability partnership’s assets, debts and liabilities, the names and addresses of its creditors, the securities held by them respectively, the dates when the securities were respectively given and such further or other information as may be prescribed.
(2) The statement shall be submitted by, and be verified by affidavit of, one or more of the persons who were at the date of the receiver’s appointment the managers of the limited liability partnership, or by such of the persons, hereafter in this sub-paragraph mentioned, as the receiver may require to submit and verify the statement, that is to say —
(a)
persons who are or have been officers;
(b)
persons who have taken part in the formation of the limited liability partnership at any time within one year before the date of the receiver’s appointment;
(c)
persons who are in the employment of the limited liability partnership, or have been in the employment of the limited liability partnership within that year, and are in the opinion of the receiver capable of giving the information required;
(d)
persons who are or have been, within that year, officers of, or in the employment of, a corporation which is, or within that year was, an officer of the limited liability partnership to which the statement relates.
(3) Any person making the statement and affidavit shall be allowed and shall be paid by the receiver (or his successor) out of his receipts, such costs and expenses incurred in and about the preparation and making of the statement and affidavit as the receiver (or his successor) may consider reasonable, subject to an appeal to the Court.
(4) If any person fails to comply with the requirements of this paragraph, he shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $1,000 and, in the case of a continuing offence, to a further fine not exceeding $200 for every day or part thereof during which the offence continues after conviction.
(5) For the purposes of this paragraph —
(a)
“officer”, in relation to a corporation, has the same meaning as in section 4(1) of the Companies Act (Cap. 50); and
(b)
references to the receiver’s successor shall include a continuing receiver or manager.
10.—(1) Every receiver or manager of the property of a limited liability partnership shall —
(a)
within one month after the expiration of the period of 6 months from the date of his appointment and of every subsequent period of 6 months and within one month after he ceases to act as receiver or manager, lodge with the Registrar a detailed account in the prescribed form showing —
(i)
his receipts and his payments during each period of 6 months, or, where he ceases to act as receiver or manager, during the period from the end of the period to which the last preceding account related or from the date of his appointment, as the case may be, up to the date of his so ceasing;
(ii)
the aggregate amount of those receipts and payments during all preceding periods since his appointment; and
(iii)
where he has been appointed pursuant to the powers contained in any instrument, the amount owing under that instrument at the time of his appointment, in the case of the first account, and at the expiration of every 6 months after his appointment and, where he has ceased to act as receiver or manager at the date of his so ceasing, and his estimate of the total value of all assets of the limited liability partnership which are subject to that instrument; and
(b)
before lodging such account, verify by affidavit all accounts and statements referred to therein.
(2) The Registrar may, of his own motion or on the application of the limited liability partnership or a creditor, cause the accounts to be audited by a public accountant appointed by the Registrar and for the purpose of the audit the receiver or manager shall furnish the auditor with such vouchers and information as he requires and the auditor may at any time require the production of and inspect any books of account kept by the receiver or manager or any document or other records relating thereto.
(3) Where the Registrar causes the accounts to be audited upon the request of the limited liability partnership or a creditor, he may require the applicant to give security for the payment of the cost of the audit.
(4) The costs of an audit under sub-paragraph (2) shall be fixed by the Registrar and be paid by the receiver unless the Registrar otherwise determines.
(5) Every receiver or manager who contravenes this paragraph shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $1,000 and, in the case of a continuing offence, to a further fine not exceeding $200 for every day or part thereof during which the offence continues after conviction.
Payments of certain debts out of assets subject to floating charge in priority to claims under charge
11.—(1) Where a receiver is appointed on behalf of the holders of any debentures of a limited liability partnership secured by a floating charge or possession is taken by or on behalf of debenture holders of any property comprised in or subject to a floating charge, then, if the limited liability partnership is not at the time in the course of being wound up, debts which in every winding up are preferential debts and are due by way of wages, salary, retrenchment benefit or ex gratia payment, vacation leave or superannuation or provident fund payments and any amount which in a winding up is payable in pursuance of paragraph 76(6) or (8) of the Fifth Schedule shall be paid out of any assets coming to the hands of the receiver or other person taking possession in priority to any claim for principal or interest in respect of the debentures and shall be paid in the same order of priority as is prescribed by that paragraph in respect of those debts and amounts.
(2) In sub-paragraph (1), “floating charge” means a charge which, as created, was a floating charge.
(3) For the purposes of sub-paragraph (1), the references in paragraph 76(1)(c), (d), (e), (f) and (g) of the Fifth Schedule to the commencement of the winding up shall be read as a reference to the date of the appointment of the receiver or of possession being taken as aforesaid, as the case requires.
(4) Any payments made under this paragraph shall be recouped as far as may be out of the assets of the limited liability partnership available for payment of general creditors.
12.—(1) If any receiver or manager of the property of a limited liability partnership who is in default in making or lodging any return, account or other document or in giving any notice required by law fails to make good the default within 14 days after the service on him by any partner or creditor of the limited liability partnership or trustee for debenture holders of a notice requiring him to do so, the Court may, on an application made for the purpose by the person who has given the notice, make an order directing him to make good the default within such time as is specified in the order.
(2) If it appears that any receiver or manager of the property of a limited liability partnership has misapplied or retained or become liable or accountable for any money or property of the limited liability partnership or been guilty of any misfeasance or breach of trust or duty in relation to the limited liability partnership, the Court may on the application of any creditor or partner or of the liquidator examine into the conduct of such receiver or manager and compel him to repay or restore the money or property or any part thereof with interest at such rate as the Court thinks just or to contribute such sum to the assets of the limited liability partnership by way of compensation in respect of the misapplication, retainer, misfeasance or breach of trust or duty as the Court thinks just.
(3) This paragraph shall have effect notwithstanding that the offence is one for which the offender is criminally liable.
[Companies 1994 Ed., ss. 217-227]