Special Committee on the Companies (No. 2) Bill, 1987 debate -
Thursday, 24 May 1990

SECTION 165.

Mr. Leyden

I move amendment No. 227:

In page 127, lines 44 and 45, to delete subsection (2), and substitute the following:

"(2) If for any reason a vacancy occurs in the office of examiner, the court may by order fill the vacancy.

(3) An application for an order under subsection (2) may be made by——

(a) any committee of creditors established under section 173, or

(b) the company or any interested party.".

The resignation or removal of an examiner are not the only events which might occasion a vacancy in the office. The most obvious other one is the death of the office-holder. Therefore, the new subsection (2) would speak of a vacancy arising for any reason. Secondly, bearing in mind the constitutional position of the court, the new subsection (2) provides for the more coventional notion of a power for the court to fill a vacancy rather than speaking of a compulsion on it to do so. Finally, the new subsection (3) simply provides, as a practical measure, that an application to the court for a replacement appointment can be made, either by a committee of creditors, if one exists, or by an interested party. This essentially means that any creditor or member may apply to the court under the section.

Amendment agreed to.

Section 165, as amended, agreed to.

SECTION 166.

Chairman

Amendment No. 228 in the name of the Minister. Amendments Nos. 229, 231 and 234 are related. Is it agreed that we discuss them together? Agreed.

Mr. Leyden

I move amendment No. 228:

In page 128, subsection (2), line 28, after "liabilities", to insert "(including contingent and prospective liabilities)".

These four related amendments — Nos. 228, 229, 231 and 234 — are intended to ensure that as full a picture of the state of affairs of the company as is possible is given in various financial statements which have to be prepared under Part IX of the Bill. These statements are, briefly: first, the statement by the directors to the examiner under section 166 (2); second, the statement by the examiner to the court in his report under section 168; third, the statement by the examiner to the court in his final report under section 171; and finally the statement in the actual compromise proposals put to members and creditors under section 174. Information about the contingent and prospective liabilities of the company concerned would be an important element of the financial picture in many cases and should be included in the various statements which are required by the sections involved here.

Mr. J. Bruton

What about contingent liabilities and the cost of providing this information?

Mr. Leyden

Section 166 (2) says: "The statement shall, in so far as is reasonably possible to do so, show as at the date of the examiner's appointment particulars of the company's finances, debts and liabilities . . ." The important phrase "in so far as is reasonably possible to do so" would cover the point made by Deputy Bruton.

Amendment agreed to.

Section 166, as amended, agreed to.