I move amendment No. 230:
In page 130, lines 17 and 18, to delete subsection (3), and substitute the following:
"(3) Following a hearing under this section, the court may make such order or orders as it deems fit.".
This is purely a drafting amendment. Subsection (1) requires the court to hold a hearing to consider matters arising out of the examiner's report. It struck me that the wording used in the amendment would, perhaps, be somewhat more conventional than the wording in the present text.
This section, as I understand it, deals with a situation where the company cannot be saved and more or less provides for the examiner pulling out.
That is correct.
Section 169 (3) is extremely wide. It states: "Having considered the report of the examiner, the court may make such orders or orders as it deems fit".
That is why we amended it.
——"or orders as it deems fit". You have changed it. But it is essentially the same: following a hearing under this section the court may make such order or orders as it deems fit. The concern here is that it seems that the court could do almost anything.
Not really. Under subsection (4) there are particular laws laid out to clarify or further develop subsection (3).
No. That is expressly stated to be without prejudice to subsection (3). It seems to me that we are giving the court powers here to set aside the whole law of receivership and the law of liquidation of companies and make any old order it likes on foot of an examiner's report. That is even though this is not a company for which this Part was designed, in the sense that it was a company that could not be saved. Yet we are giving the court powers to do more or less what it likes under this section. Is it not a possibility that this route could be used to get out of the well established pattern of receiverships or liquidations which would be the other course of action to be normally followed?
Why would the court for a moment contemplate that?
That is the old question that has been knocking about all through this Bill. That is not the point. We are making the legislation. It is our job to say what the courts should and should not have the discretion to do, not to give them unlimited discretion.
If the content of the examiner's report is that the company is going nowhere, it then makes whatever orders it has to make to take the examiner out of the position altogether, so that this part does not operate. Then, other parts of the Bill, which provide for receiverships or liquidations, will become operative.
If that is the case would it not be better to say——
It would be ultra vires under that section for any court to bring forward an order having discharged the examiner to say that no receivership shall be allowed in this case.
Having considered the examiner's report the court may make such order or orders as it deems fit — or whatever the word is — within the context of the Companies' Acts. Should that not be explicit?
I know what Deputy Bruton is saying but, quite frankly, I cannot understand what he is getting at. If the examiner reports that a company cannot be saved, the situation has not changed. The protectorship of the court will end when the examiner goes out of office after the specified period of days and ordinary company law will reactivate itself and take over. I cannot see how the court, by making some order, will stop the ordinary processes of company law from operating.
