Malta · Dissolution, winding up and company recovery

Deal with a winding up by the court and the liquidator appointed by it

the Companies Act, Chapter 386 · articles 226, 232, 233, 254 and 260, articles 235, 237, 239, 240 and 244, articles 241 and 242, and articles 245, 246, 296 and 299

The statement of affairs is the first duty and the one most often missed, because the twenty one days run from the relevant date and not from the day someone gets around to it. It has to be submitted and verified by the persons article 226(2) names.

The second trap is the liquidator's money and books. The liquidator must notify the Registrar of the bank account, may not retain more than the amount article 241(2) allows for more than ten days, and must send the periodic account required by article 242(1) in duplicate and in proper form.

Where the court has made a winding up order or appointed a provisional administrator, a statement of affairs is required by article 226(1), submitted and verified by one or more of the persons named in article 226(2), and submitted within twenty one days from the relevant date or within such extended period as the official receiver or the court may for special reasons appoint (article 226(3)). A first meeting of creditors or an adjournment of it is governed by article 232(1), and a subsequent meeting by article 232(2). Every officer given notice of such a meeting has the duty in article 233(2). A special manager must give an account of his management as article 254(2) requires. A person ordered to be examined must act as article 260(6) requires, and notes of the examination are taken down and read as article 260(7) provides.

Where in a winding up by the court a person other than the official receiver is appointed liquidator, article 235(1)(a) applies. Where a company is being wound up by the court, article 237 applies to the liquidator or the provisional administrator. Subject to the Act, the liquidator has the powers in article 239(1) and may summon general meetings of the creditors or contributories under article 239(2). Every liquidator in a winding up by the court is subject to article 240. When the liquidator reaches the position described in article 244(1), that provision applies to the final distribution.

Upon his appointment the liquidator must notify the Registrar of the bank account as article 241(1) requires. If the liquidator retains for more than ten days a sum exceeding the amount permitted, article 241(2) applies, and article 241(3) restricts what the liquidator may do. Every liquidator must send the account required by article 242(1), in proper form and in duplicate as article 242(2) requires, and the Registrar may cause the account to be audited at the company's expense under article 242(3).

When a winding up order has been made, the separate meetings required by article 245(1) are held, and where a liquidation committee has not been appointed, article 245(3) applies. The committee consists of not more than five creditors as article 246(1) provides, or of the number stated in article 246(4), meets at the times it determines under article 246(5) and may not meet without the majority required by article 246(6). A member absent from five consecutive meetings is dealt with under article 246(8), and on a vacancy the liquidator acts under article 246(10). The liquidator must give the notices required by article 296(1), each notice sent to the address given as article 296(2) provides. If a quorum is not present within half an hour, article 299(2) applies, the chairman causes minutes to be kept under article 299(4), and a list of creditors and contributories present is kept under article 299(5).

Files 52 to 55 of the MT-COMPANY pack cover the court route. File 52 asks for the relevant date and the date the statement of affairs was submitted and applies the twenty one days in article 226(3), then walks the meetings of creditors and any examination by the court. File 53 takes the liquidator's appointment, powers and the final distribution. File 54 asks for the date the bank account was notified to the Registrar, the largest balance retained outside the account and for how long, then applies article 241(2), and checks the periodic account under article 242. File 55 covers the meetings of creditors and contributories and the composition, quorum and vacancies of the liquidation committee.

This situation is covered by these files from the pack MT-COMPANY

• File 52 · Winding up by the court: the statement of affairs, meetings of creditors and examination by the court
• File 53 · The liquidator in a winding up by the court: appointment, powers and the final distribution
• File 54 · The liquidator's bank account, books and periodic accounts in a winding up by the court
• File 55 · Meetings of creditors and contributories in a winding up, and the liquidation committee

ComplianceSME tracks the Companies Act and issues update files through the membership, so that you are never working from a superseded version. Membership

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