Application to rescind a winding up order

Document Cited authorities (10) Cited in Related
AuthorMark Watson-Gandy
Pages97-107
Chapter 7


Application to Rescind a Winding Up Order

OBJECTIVE

Every court which has the jurisdiction to wind up companies may review, rescind or vary any order made by it in the exercise of that jurisdiction.1The applicant does not need to demonstrate that the court erred in making the order nor that there are grounds for appeal.2The making of a winding up order affects all the creditors and the court will be cautious about exercising its discretion to rescind the winding up order.

In the case of an unsuccessful application, the costs of the petitioning creditor, the supporting creditors and the Official Receiver will normally be ordered to be paid by the creditor or the contributory making or joining in the application. The reason for this is that if the costs of an unsuccessful application are made payable by the company, they fall unfairly on the general body of creditors.3

Applications to rescind must be made within 5 business days of the winding up order.4The court does, however, have the power to extend time,5but the delay will need to be justified and explained.6

APPLICATION

Any application for the rescission of a winding up order shall be made to the High Court7within 5 business days after the date on which the order was made.8

1Rule 12.59 of the Insolvency (England and Wales) Rules 2016.

2Re Dollar Land (Feltham) Ltd [1995] BCC 740.

3Paragraph 11.7.3 of the CPR Practice Direction – Insolvency Proceedings.

4Rule 12.59(3) of the Insolvency (England and Wales) Rules 2016, paragraph 11.7.2 of the CPR

Practice Direction – Insolvency Proceedings.

5Paragraph 3 of Schedule 5(2) to the Insolvency (England and Wales) Rules 2016 expressly incorporates the court’s powers under rule 3.1(2)(a)(b) of the CPR to extend and shorten time for compliance with anything required or authorised to be done under the Rules.

6Wilson v The Specter Partnership [2007] EWHC 133 (Ch), [2007] BPIR 649.

7Re Calahurst Ltd (1989) 5 BCC 318.

8Rule 12.59(3) of the Insolvency (England and Wales) Rules 2016, paragraph 11.7.2 of the CPR

Practice Direction – Insolvency Proceedings.

98 Corporate Insolvency Practice

Applications will only be entertained if made: (1) by a creditor; (2) by a contributory; or (3) by the company jointly with a creditor or with a contributory.9

Although historically this was not the case, an application (Form IAA) must be made to rescind a winding up order.10The application needs to be authenticated11by the applicant or its solicitor12and state:13

ƒ that the application is made under rule 12.59 of the Insolvency (England and Wales) Rules 2016;14

ƒ the name of the court in which the application is made;15

ƒ the case number;16

ƒ the names of the parties;17

ƒ the name of the company;18

ƒ the company’s registered address;
ƒ if the company is incorporated in England and Wales:

– the company’s registered number;19

ƒ if the company is incorporated outside the United Kingdom:20

– the country in which it is incorporated;
– the company’s registered number in that country;
– its overseas registered company number under Part 34 of the Companies

Act 2006;

ƒ if the company is unincorporated in England and Wales:

– the company’s postal address;21

9Paragraph 11.7.3 of the CPR Practice Direction – Insolvency Proceedings.

10Paragraph 11.7.1 of the CPR Practice Direction – Insolvency Proceedings.

11Authentication is by signature if in hard copy: rule 1.5(2) of the Insolvency (England and Wales) Rules 2016. Electronic documents are sufficiently authenticated if the recipient is satisfied with the identity of the sender: rule 1.5(1). Where the document is authenticated by an individual on behalf of a body corporate, it should state the capacity in which he signs and (if applicable) also state if he is the company’s sole member: rule 1.5(3).

12Rule 1.35(3) of the Insolvency (England and Wales) Rules 2016.

13Rule 1.35(2) of the Insolvency (England and Wales) Rules 2016.

14Rule 1.35(2)(a) of the Insolvency (England and Wales) Rules 2016 provides that it should specify whether the application is either under the Rules or under the Act, and under (b) the applicable section.

15Rule 1.35(2) of the Insolvency (England and Wales) Rules 2016.

16Rule 1.35(2) of the Insolvency (England and Wales) Rules 2016.

17Rule 1.35(2) of the Insolvency (England and Wales) Rules 2016.

18Rule 1.35(2) of the Insolvency (England and Wales) Rules 2016.

19Rule 1.6 of the Insolvency (England and Wales) Rules 2016.

20Rule 1.6 of the Insolvency (England and Wales) Rules 2016.

21Rule 1.6 of the Insolvency (England and Wales) Rules 2016.

ƒ the name of the office-holder;22

ƒ the nature of the office-holder’s appointment, e.g. liquidator, administrator;23

ƒ the nature of the remedy the court is being asked to grant24– here:

– that the winding up order be rescinded; – identifying the winding up order:

– by date;
– by court;
– by case number;

– (if necessary) that time be extended;

ƒ the names and addresses of the persons on whom the application will be served or on whom notice of the application will be given;25

ƒ the address for service of the applicant.26

However, an application will need to be made by application notice to extend time if the application is made...

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