I move amendment No. 229:
In page 129, paragraph (c), line 12, after "liabilities", to insert "(including contingent and prospective liabilities)".
SECTION 168.
Amendment agreed to.
Question put: "That section 168, as amended, stand part of the Bill."
Subparagraph (g) of this section requires the examiner to state whether in his opinion an attempt to continue the whole or part of the undertaking would be likely to be more advantageous to the members as a whole and to the creditors as a whole than a winding up of the company. What happens if the view of the examiner is that the continuation of the company would be advantageous to the members as a whole but not to the creditors as a whole? Is it only where it is advantageous to both of them that he could give an opinion under this subsection?
On the point raised by Deputy Bruton, paragraph (g) reads: . . . . ."whether, in his opinion an attempt to continue the whole or any part of the undertakings of the company would be likely to be more advantageous to the members as a whole and the creditors as a whole than a winding up of the company". Paragraph (i) reads "such other matters as the examiner thinks relevant or the court directs". It is covered under the other provision of section 168.
The only case where he could make a report under paragraph (g) would be where he is of the opinion that both would be better off continuing the company?
That is correct.
There is another one here — paragraph (f) reads: "his opinion as to whether the formulation, acceptance and confirmation of proposals for a compromise or scheme of arrangement would facilitate" the survival of a company. I cannot envisage any situation in which a company which was unable to pay its debts would not have its survival facilitated by a scheme or compromise involving the reduction of those debts. It seems to me that you do not need to get an examiner at all to give an opinion on paragraph (f), which is so obvious that you do not need an examiner; any company would benefit if it is insolvent from not having to pay anything——
In fairness, we are not aware of the full details of this company as such, when the examiner carries out his examination. We are putting paragraph (f) in there as an opportunity for him to give his opinion as to whether "the formulation, acceptance and confirmation of proposals for a compromise or scheme of arrangement would facilitate such survival".
We know that under subsection (151) (a) to qualify at all for an examiner to be appointed this court must first have been satisfied that the company was unable to pay its debts or was likely to be unable to pay its debts. It is inconceivable that a company in that condition would not qualify under subsection (f) of this section without any examiner having to report on that question.
No, it is quite possible and conceivable that when an examiner goes in to scrutinise the affairs of the company he may, during the course of his examination, discover certain assets or certain opportunities that would alleviate the problems, or it could confirm the idea he had in the first place that the company was in a shambles. Take the case where he discovers — as was the case with one health board when I was in the Department of Health — that there were some funds available which were never actually recorded or listed. In those circumstances I would have to allow for the possibility of the examiner finding such funds.
Even in those circumstances that company would benefit from having its debts reduced. Even if a company did have more assets than liabilities it would still have its survival facilitated by entering into a scheme of arrangement or compromise which reduced its debts. No matter who you are you benefit from having your debts reduced. I do not see what is the need at all for paragraph (f) of section 168.
No, we are satisfied that paragraph (f) will allow for the examiner to examine the company and come back and say to the court that they have an opportunity to put forward a plan to rescue the company, make it solvent and have it up and running again and that is why that paragraph is there. If, in turn, the examiner comes back to the court and reports that it is impossible to save the company and recommends that the court proceed in the ordinary way to wind up the company's affairs that is the reason for the subsection.
I think that is nonsense.
Whatever idea you have about the paragraph, on the basis that it does no harm, you might consider leaving it in.
I might be tempted to turn my officials on you if you are not careful.
Questions put and agreed to.