Claiming
Rules of the Superior Courts Order: 76
Bankruptcy : S.I. No. 120 of 2012
XIII. Sittings, Advertisements and Proof of Debts
64. (1) Notice of the statutory sitting shall be advertised by the petitioner not less than ten days previously in Iris Oifigiúil and in the newspaper or newspapers directed by the Court in pursuance of section 17(2) of the Act. The notice shall be in the Form No. 19.
(2) Notice of the filing of the documents referred to in section 82(1) of the Act and of the sitting for distribution shall be advertised by the Official Assignee in Iris Oifigiúil and in such newspaper or newspapers (if any) as he considers appropriate. The notice shall be in the Form No. 20.
(3) Every insertion of an advertisement of notice of a sitting of the Court shall be vouched with the proper officer by the person having the duty of inserting the advertisement at least two clear days before the sitting at the latest.
65. (1) The Official Assignee or a trustee may give notice, by advertisement in Iris Oifigiúil and otherwise as he shall think fit, of the fixing of a time within which proofs of debt shall be sent to him. Such advertisement shall be in the Form No. 21.
(2) In addition to advertisement, such notice shall be given by the Official Assignee or trustee to all the creditors entered in the bankrupt’s statement of affairs or any other creditor of whom the Official Assignee or trustee is aware, who shall not already have lodged proofs or claims with him.
(3) In the case of any creditor mentioned in sub-rule (2) who has his habitual residence, domicile or registered office in a Member State other than the State, such notice, entitled as required by Article 42(1) of the Insolvency Regulation, shall be in the Form No. 21A and shall in particular include (i) the date by which proofs of debt are to be submitted, (ii) a statement that a proof submitted after that date shall not be allowed except by order of the Court, (iii) a statement that creditors whose claims are preferential or secured in rem need to lodge their claims, (iv) a statement of the name and address of the Official Assignee for the purpose of lodging claims and a summary or copy of the provisions of the First Schedule to the Act.
(4) The notice referred to in sub-rules (2) and (3) shall be given by prepaid ordinary post to the creditors at the address set forth in the statement or at such address as may be known to the Official Assignee or trustee (or in the case of the liquidator in main proceedings opened in a Member State other than the State, by the means specified in rule 1(3)) not later than ten days before the expiration of the time so fixed.
66. (1) Written confirmation of the decision of the Official Assignee or trustee in regard to a claim in accordance with paragraph 23(d) of the First Schedule to the Act shall be delivered by the means specified in rule 65(4) to the creditor at the address furnished in his proof of debt.
(2) The creditor may if aggrieved by the decision of the Official Assignee or trustee, within fourteen days from the date of posting, appeal to the Court by notice of motion to vary or reverse the same.
67. (1) If at the statutory sitting, an application is made for the appointment of a creditors’ assignee, the Court may adjourn the sitting for such time as may enable the Official Assignee to ascertain the debts and liabilities of the bankrupt.
(2) When a sitting has been fixed for the choice and appointment of a creditors’ assignee in place of a creditors’ assignee who has died or been removed, notice of the sitting shall be given to all the creditors entered in the bankrupt’s statement of affairs and any other creditors who have proved debts by transmitting a notice of the sitting by the means specified in rule 65(4) ten days prior to the sitting to the address of the creditor stated in the statement or in his proof.
68. An affidavit of debt, when required, shall be in the Form No. 12.
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XXIV.
Winding up by a Trustee.
A. General
101. The provisions of the preceding rules of this Order, save rules 89 to 99 concerning arrangements under the control of the Court, shall apply, with any necessary modifications, in relation to the winding up of the property of a bankrupt by a trustee and a committee of inspection as they apply in relation to the administration of such property by the Official Assignee and “trustee” shall be substituted for “Official Assignee” in such provisions where appropriate.
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B. Change from Official Assignee to Trustee.
102. (1) The Official Assignee or any creditor whose debt has been admitted may apply to the Court at the statutory sitting or any adjournment thereof for liberty to put a proposal to the creditors of the bankrupt at such sitting or any adjournment of, that the estate of the bankrupt be wound up by a trustee and a committee of inspection.
(2) Such application shall be grounded upon affidavit setting forth the grounds upon which it is made, particulars of the person to be nominated to act as trustee, and exhibiting the consent of such person so to act.
103. Where a resolution to appoint a trustee and a committee of inspection is proposed at the statutory sitting in accordance with section 110 of the Act the Court shall adjourn the statutory sitting to enable the Official Assignee to fix a time for the sending to him of proofs of debt and to ascertain the bankrupt’s liabilities, unless this has already been done.
104. (1) At the time of making an order that the property of a bankrupt be wound up by a trustee and a committee of inspection, or at any time thereafter upon the application of the Official Assignee or the trustee, the Court may order to be paid out of the bankrupt’s estate to the Official Assignee such costs, fees and expenses incurred by the Official Assignee as the Court may allow.
(2) In addition to the matters provided for in section 112(3) (a)to(d) of the Act, the Court may require a trustee to give security in accordance with rule 17.
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C.
Proof of Debts
105. Where a trustee has been appointed by the creditors the proofs of debts that have been received by the Official Assignee shall be given over to the trustee, but the Official Assignee shall make and file a list of such proofs in the proceedings.
D.
Regulations as Trustees
106. Notice of the appointment of a trustee shall be advertised by the trustee forthwith in Iris Oifigiúil and in at least one daily newspaper in circulation in the area where the bankrupt resides. Such notice shall be in the Form No. 32.
107. When a trustee desires to apply to the Court for directions in relation to any particular matter arising under the bankruptcy, he shall file his application in the proper office and the Court shall then hear the application or fix a day for its hearing and direct the trustee to apply by motion on notice to any other person.
108. Where the trustee is an auctioneer he shall not by himself or any partner act as such in the sale of any of the property vested in him, except with the consent of the committee of inspection and upon such terms as it may think fit.
109. The trustee shall, as soon as may be, take possession of the deeds, books and documents of the bankrupt, and all other property capable of manual delivery.
110. The trustee shall keep the following:
(a) a book, to be entitled “the Record Book” in which he shall keep a record of all minutes, proceedings had, and resolutions passed at any meeting of the committee of inspection, of all proofs of debt received, of the proceedings had at any sitting of the Court at which he attends, and of all other matters in the bankruptcy necessary to give a correct view of the management of the bankrupt’s property.
(b) a file or files on which he shall place copies of orders made by the Court, the bankrupt’s statement of affairs, all proofs of debt received, and any correspondence or other documents in the bankruptcy.
(c) a book, to be entitled the “Estate Book” according to the form of any ordinary debtor and creditor account in which he shall enter from day to day the receipts and payments made by him.
111. The trustee shall submit the books and file (or files) referred to in the last preceding rule together with a copy of the Estate Book to the committee of inspection at each meeting of the committee and the committee of inspection, the proper officer, or any creditor may inspect the books and file (or files) at all reasonable times.
112. (1) The trustee shall submit the Estate Book together with a copy thereof to the committee of inspection every three months for auditing. The committee shall audit the Estate Book and may for that purpose call upon the Trustee to produce any records, vouchers or other documents. The committee shall certify in the Estate Book under their hands the day on which the said book was audited and shall in like manner certify the said copy.
(2) The trustee shall forthwith after the said audit shall have been held, transmit to the proper officer the copy so certified. The proper officer shall inquire into any misfeasance, neglect or omission which may appear from the said copy or from the certificate, and if not satisfied with the explanation given he shall report thereon to the Court. A copy of any such report of the proper officer shall be sent to the trustee together with a notice of the day appointed for the hearing before the Court seven days previously to such day.
113. The Court may, upon cause shown, remove any trustee.
114. If any vacancy should occur in the office of trustee by death, resignation or otherwise, the vacancy shall be filled by a resolution of at least three-fifths in number and value of the creditors voting at a general meeting of the creditors for the purpose of filling such vacancy. Such a meeting may be convened by the Court on the application of any creditor, or the Official Assignee, or any person prejudiced by the failure to fill such vacancy.
115. A trustee desirous of resigning or obtaining his release shall apply to the proper officer to fix the time and place upon which he may make application to the Court for such release, and upon such time being fixed he shall summon a meeting of the creditors to consider such application stating therein the time and place at which the application to the Court will be made. Notice of the meeting of creditors shall be given to the bankrupt. The creditors assembled at the meeting may express their opinion as to the conduct of the trustee and they, or any of them, may appear before the Court, and oppose the application of the trustee.
116. Where a trustee shall resign or be removed from his office he shall within ten days thereafter lodge with the proper officer an account in writing verified upon oath showing what he has done while trustee and shall duly account for all moneys or property of the bankrupt.
117. Upon a trustee resigning, or being released or removed from his office, he shall deliver over upon oath to the new trustee (if any) or to the proper officer all books kept by him, and all other books, documents, papers, and accounts in his possession in any way relating to the office of trustee.
118. All unclaimed dividends and all money unclaimed, being part of a bankrupt’s estate shall, after the expiration of the period of twelve months from the date of the order for payment of the dividend, or from the time at which any other money unclaimed shall have come to the hands of the trustee, immediately be accounted for and remitted to the Official Assignee by the trustee, and the Official Assignee shall thereupon pay such money into the Official Assignee — Unclaimed Dividend Account.
119. The proper officer shall take cognizance of the conduct of trustees and in the event of any trustee not faithfully performing his duties and not duly observing all the requirements imposed on him by statute rules or otherwise relative to the performance of his duties or in the event of any complaint being made to the proper officer by any creditor or the bankrupt in regard thereto, he shall inquire into the same, and if not satisfied with the explanation given he shall report thereon to the Court; and the Court after hearing the trustee may remove him from his office or make such order in the matter as the justice of the case may require.
120. If in any case the proper officer shall report to the Court under the last preceding rule, a copy of the report shall be sent to the trustee together with a notice of the day appointed for the hearing before the Court seven days previously to such day. The Court may order that the costs of a trustee in relation to such hearing be paid or borne as the Court shall direct.
E.
The Committee of Inspection
121. The committee of inspection shall not be competent to act for any purpose under Part V of the Act unless there are present or represented a quorum of at least three of its members, or all of its members if their number does not exceed three. A resolution of the committee shall be passed unanimously or by a majority in number of the members present at the meeting.
122. A meeting of the committee of inspection may be summoned by the trustee or by any member of the committee, by the transmission to each member at such address as may be known to the trustee, not less than seven days before the meeting, of a notice specifying the time and place at which it is to be held and the purpose for which it is summoned. Where a meeting is summoned by a member of the committee of inspection, that member shall transmit to the trustee notice of the meeting in like manner.
123. Any member of the committee of inspection may resign his office by notice in writing signed by him and delivered to the trustee. Any member of the committee may be removed by a resolution of at least three-fifths in number and value of the creditors voting at a meeting of the creditors convened for that purpose.
124. Where a creditor desires a meeting of creditors to be held to remove a member of the committee of inspection, he shall apply to a member of the committee of inspection to specially summon a meeting for that purpose and for the purpose of appointing another person to fill the office by sending a notice to each creditor seven days before the meeting is to be held; and where such member refuses to summon a meeting, the creditor may apply to the Court upon an affidavit stating specifically the facts which would appear to justify the removal of such member of the committee of inspection, and the Court may direct a meeting to be held before the proper officer accordingly whereof the notice aforesaid shall be given, or if it think fit may direct notice to be given to the member of the committee to show cause why the Court should not remove him.
125. On any vacancy occurring in the office of a member of the committee of inspection by removal, death, resignation or otherwise, the trustee shall convene a meeting of the creditors for the purpose of filling up such vacancy, by transmitting to each creditor at the address given by him in his proof, or at any other such address as may be known to the trustee, not less than seven days before the meeting, a notice specifying the time and place at which the meeting is to be held and the purpose for which it is summoned. The vacancy shall be filled on a resolution of at least three-fifths in number and value of the creditors voting at the meeting.
XXVI.
Distribution of Estate
135. Notice of a sitting of the Court to distribute the proceeds of the sale of any land which is the subject of any mortgage, charge or lien shall be sent by post by the party having carriage of the sale at least ten days before the sitting to every incumbrancer and to the Official Assignee when he has not carriage of the sale.
136. An Account called the “Bankruptcy Dividend Account” shall be kept in the Bank in the name of the Official Assignee. After an Order has been made in any matter of bankruptcy or arrangement for payment of a dividend or cash composition, the Official Assignee shall transmit to the Bank an authority in the prescribed form, to transfer from the estate account (hereinafter mentioned) of such matter to the credit of the Bankruptcy Dividend Account the total amount of such dividend or cash composition, and to pay to the creditors, to whom the dividend or cash composition is payable, the respective amounts to which the said creditors are entitled as specified in a schedule to be subjoined to the said authority, and to charge the amounts so paid to the Bankruptcy Dividend Account. The said authority shall be dated as of the date of the order for payment of the dividend or cash composition.
137. The Official Assignee shall transmit forthwith to each creditor by prepaid ordinary post a notification, in the prescribed form of the dividend or cash composition payable to him, and that payment will be made to him by the Bank upon presentation through a bank of such notification bearing at foot the acknowledgement of the receipt by the payee. Provided, however, that when the debt of any creditor has been admitted as a claim only, or subject to the production of a bill, note or other document, or when payment of a dividend or composition has been stayed, or when it is necessary that the creditor should produce to the Official Assignee a bill or note in order that the dividend or cash composition may be endorsed thereon, the Official Assignee shall defer transmitting the notification, and shall communicate to the creditor that the same will be transmitted to him only upon conversion of the claim into a proof, or upon the production to the Official Assignee of the bill, note or other document required to be produced, or upon removal of the stay.
138. A creditor who has produced the bills or notes upon which his proof is founded may be required by the Official Assignee to produce them again before receiving his dividend or cash composition, if the bankrupt or arranging debtor alone is liable thereon, but where some other person besides the bankrupt or arranging debtor is liable upon the bills or notes the creditor shall produce them to the Official Assignee before receiving the dividend or cash composition, and the Official Assignee on being satisfied that the bills or notes are those required to be produced shall endorse thereon the amount of the dividend or cash composition paid thereon, provided, however, that the Court may for sufficient reason dispense with the production to the Official Assignee of a bill, note or document in any matter.
139. The Bank shall transmit daily to the Official Assignee all paid drafts and all notifications upon the presentation of which creditors have received payment of dividend or cash composition.
140. At the expiration of one year from the date of every authority to the Bank for payment to creditors of dividend or cash composition, the authority shall lapse and become void, and the Bank shall forthwith transmit to the Official Assignee every such authority with the dates on which the several payments thereunder were made noted thereon.
141. (1) The Official Assignee shall, immediately after the expiration of one year from the date of the order for distribution of the estate or any part thereof cause a list of unpaid dividends or cash compositions, and of all other money unclaimed, to be prepared. The Official Assignee shall direct such notices to be served relative thereto as he may think fit, and when satisfied that the dividends, compositions or other sums in such list are properly transferable to the Official Assignee — Unclaimed Dividend Account shall give directions for the immediate transfer of the same. A schedule of the unpaid dividends, compositions and other sums transferable to the said account shall in all cases be lodged with the proper officer with a certificate that the actual transfer has been made.
(2) Any sum drawn by the Official Assignee out of the said account in accordance with section 61(3)(k) of the Act shall thereupon be lodged by him to the credit of the relevant estate account.
142. (1) When, after an authority in the prescribed form for payment out of the Bankruptcy Dividend Account has been lodged in the Bank, any debt comprised therein shall be expunged or reduced or a stay shall be placed upon the payment of any dividend or composition specified in such authority, the Official Assignee shall thereupon issue to the Bank a direction cancelling the authority of the Bank to pay the amount of the dividend or composition upon the debt expunged or reduced or upon which the stay has been placed, and shall draw such amount from the Bankruptcy Dividend Account by a draft in favour of the account of the estate out of which such dividend or composition is payable, and the amount so drawn shall be brought to the credit of the said estate. After receipt of such direction as aforesaid the Bank shall not make payment of the amount therein specified on foot of the original authority.
(2) When, after any such authority as aforesaid has been lodged in the Bank, the right to receive payment of a sum therein specified has been transferred to or devolves upon a person (hereinafter called “the new payee”) other than the person named in the authority as the person entitled to receive payment of such sum, the Official Assignee shall thereupon issue to the Bank a fresh authority revoking the original authority in so far as it refers to such sum and authorising the Bank to make payment of the said sum to the new payee, and the Bank shall not, after receipt of such fresh authority, make payment of all or any part of the said sum to the person named in the original authority as entitled to receive payment thereof. The Official Assignee may, however, in any case require that application for payment be made to the Court.
143. Payment from the Bankruptcy Dividend Account to the Official Assignee — Unclaimed Dividend Account or to an estate account shall be made in the manner provided by rule 150 for payments out of an estate account.