it is not competent for the sheriff to:
- (c)
- take any action to sell property of the company pursuant to any process of
execution issued by or on behalf of a creditor; or
- (d)
- pay to the creditor by whom or on whose behalf the process of execution
was issued or to any person on the creditor's behalf the proceeds of the sale
of property of the company that has been sold pursuant to such a process or
any money seized, or paid to avoid seizure or sale of property of the company,
under such a process.
(2) Subsection (1) does not affect the power of the sheriff to take any
action or make any payment if:
- (a)
- in a case to which paragraph (1)(a)
applies—the application has been withdrawn or dismissed; or
- (b)
- in a case to which paragraph (1)(b) applies—the meeting of the
company has refused to pass the resolution.
(3) Subject to this section, where the registrar or other appropriate officer
of a court to which proceeds of the sale of property of a company or other
money has been paid by a sheriff pursuant to a process of execution issued by
or on behalf of a creditor of the company:
- (a)
- receives notice in writing of
an application to the Court for the winding up of the company; or
- (b)
- receives notice in writing of the convening of a meeting of the company to
consider a resolution that the company be wound up voluntarily;
any of those proceeds or money not paid out of court must not be paid to the
creditor or to any person on behalf of the creditor.
(4) Subsection (3) does not prevent the making of a payment if:
- (a)
- in
a case to which paragraph (3)(a) applies—the application has been
withdrawn or dismissed; or
- (b)
- in a case to which paragraph (3)(b) applies—the meeting of the
company has refused to pass the resolution.
(5) Where a company is being wound up, the liquidator may serve notice in
writing of that fact on a sheriff or the registrar or other
appropriate officer of a court.
(6) Upon such a notice being so served:
- (a)
- the sheriff must deliver or pay
to the liquidator:
- (i)
- any property of the company in the sheriff's possession under a process of
execution issued by or on behalf of a creditor; and
- (ii)
- any proceeds of the sale of property of the company or other money in the
sheriff's possession, being proceeds of the sale of property sold, whether
before or after the commencement of the winding up, pursuant to such a process
or money seized, or paid to avoid seizure or sale of property of the company,
whether before or after the commencement of the winding up, under such a
process; or
- (b)
- the registrar or other officer of the court must pay to the liquidator any
proceeds of the sale of property of the company or other money in court, being
proceeds of sale or other money paid into court, whether before or after the
commencement of the winding up, by a sheriff pursuant to a process of
execution issued by or on behalf of a creditor;
as the case requires.
(7) Where:
- (a)
- property is, or proceeds of the sale of property or other
money are, required by subsection (6) to be delivered or paid to a
liquidator; or
- (b)
- a sheriff has, pursuant to subsection (1), refrained from taking
action to sell property of a company, being land, and that company is being
wound up under an order made on the application referred to in that
subsection;
the costs of the execution are a first charge on that property or on those
proceeds of sale or other money.
(8) For the purpose of giving effect to the charge referred to in
subsection (7), the sheriff, registrar or other officer may retain, on
behalf of the creditor entitled to the benefit of the charge, such amount from
the proceeds of sale or other money referred to in that subsection as he or
she thinks necessary for the purpose.
(9) The Court may, if in a particular case it considers it is proper to do so:
- (a)
- permit a sheriff to take action to sell property or make a payment that
the sheriff could not, by reason of subsection (1), otherwise validly
take; or
- (b)
- permit the making of a payment the making of which would, by reason of
subsection (3), otherwise be prohibited.
Commonwealth Numbered Acts