|
Provisional liquidation is a process which exists as part of the corporate insolvency laws of a number of common law jurisdictions whereby after the lodging of a petition for the winding-up of a company by the court, but before the court hears and determines the petition, the court may appoint a liquidator on a "provisional" basis. The provisional liquidator is appointed to safeguard the assets of the company and maintain the ''status quo'' pending the hearing of the petition. Unlike a conventional liquidator, a provisional liquidator does not assess claims against the company or try to distribute the company's assets to creditors. In practice most instances of applications for a provisional liquidator involve some type of allegation of fraud or other misconduct relating to the company. ==Application== Typically, an application for the appointment of a provisional liquidator is made by either:〔 # a creditor, where they are concerned that the assets of the company are at risk or might be dissipated or put beyond the reach of creditors during the period before the winding up application is heard; # the shareholders, where they are concerned that the directors of the company are acting improperly; or # the company itself. This may arise due to a dispute between directors and other officers, or because the company is insolvent and the directors do not want to risk insolvent trading claims in the period before an official liquidator is appointed. In some jurisdictions (but not all) the company may apply to put itself into provisional liquidation to shield itself from creditor claims whilst it tries to implement a restructuring. The remedy is an exceptional one, and most instances of applications for a provisional liquidator are made because of concerns about some type of material impropriety.〔 In exceptional cases it is also possible for public authorities to apply for the appointment of a provisional liquidator to protect the public interest from fraud or other similar conduct, although this is much less common.〔See, for example, ''Re Treasure Traders Corporation Ltd'' () EWHC 2774 (Ch), in which the company was operating an unlawful lottery.〕 The court invariably has a discretion whether to appoint a provisional liquidator. A court will not normally approve the application unless it is satisfied that there is a strong liklihood that a liquidator will be appointed on the substantive application. But even if the company is likely to go into liquidation, provisional liquidation is still an exceptional interim or "emergency remedy". There needs to be special reasons for the appointment of a provisional liquidator in the interim period. Normally this is because the assets must face a high risk of dissipation or there must be some other urgent reason why a liquidator is required for the interim period. Applications are most likely to be granted in situations where:〔 * it is necessary to have an independent person investigate the company and its affairs; * there was an urgent need to act to preserve assets of the company; * there was a material conflict of interest between a director and the company; or * there had been impropriety in the conduct of company’s affairs. Conversely, because there needs to be some urgency or risk of dissipation of assets, applications are likely to be refused if:〔 * the only reason relied on by a creditor was that the company was insolvent (without more); * an administrative receiver or administrator had already been appointed, negating the risk of dissipation of assets; * the application was made for an improper purpose, such as to maximise the applicant’s own position; * the application was made simply to try and permit the company to continue to trade where the company is insolvency and clearly should be wound up; or * there was a genuine dispute as to the creditor’s debt. Given their nature, applications for provisional liquidation applications are often made urgently and without giving notice to the company or its directors. Where the application is made without notice:〔 # the applicant is under a duty to give "full and frank disclosure" to the court of all material facts (including any facts which are adverse to the applicant); and # the applicant will normally have to give an undertaking in damages to compensate the company for any loss caused if it subsequently transpires after a full hearing that the order should not have been.〔''Re Highfield Commodities Ltd'' () BCLC 623.〕 抄文引用元・出典: フリー百科事典『 ウィキペディア（Wikipedia）』 ■ウィキペディアで「Provisional liquidation」の詳細全文を読む スポンサード リンク
|