Bankruptcy
(Désastre) (Amendment No. 5) (Jersey)
Law 2006
A LAW to amend further the Bankruptcy
(Désastre) (Jersey) Law 1990.
Adopted by the
States 25th October 2005
Sanctioned by
Order of Her Majesty in Council 9th May 2006
Registered by the
Royal Court 26th
May 2006
THE STATES, subject to the sanction of Her Most Excellent Majesty in Council, have
adopted the following Law –
1 Interpretation
In this Law, “the principal Law” means the Bankruptcy (Désastre) (Jersey)
Law 1990[1].
2 Article
1 amended
In Article 1(1) of the principal Law –
(a) after
the definition of “Commission” there shall be inserted the
following definitions –
“
‘Committee’ means the Economic Development Committee;
‘Companies Law’
means the Companies (Jersey) Law 1991[2];”;
(b) for
the definition of “company” there shall be substituted the
following definition –
“ ‘company’
means –
(a) a company as defined by the Companies Law;
(b) a cell as defined by the Companies Law;
(c) a body corporate incorporated outside Jersey;
(d) a corporation constituted under Article 4 of the
‘Loi
(1862) sur les teneures en fidéicommis et l’incorporation
d’associations’[3];
and
(e) any association constituted by Act of the
States,
and references to directors and
other officers of a company and to voting power at a general meeting of a
company shall have effect with any necessary modifications;”;
(c) in
the definition of “the court” the words “the Inferior Number
of” shall be omitted;
(d) at
the end of the definition of “debtor” there shall be added the
following paragraph –
“(c) in relation to a reference to
anything done by a debtor before a declaration was made, means the person who
became the debtor on the declaration being made although the person may not have
been insolvent at the time the thing was done;”;
(e) for
the definition of “prescribed” there shall be substituted the
following definitions –
“ ‘prescribed by
the Committee’ means prescribed by the Committee by Order;
‘prescribed by the
court’ means prescribed by the court by Rules made under Article
2;”;
(f) in
the definition of “registrar” in paragraph (a) for the words
“Companies (Jersey) Law 1991”
there shall be substituted the words “Companies Law”.
3 Article
2 amended
In Article 2 of the principal Law –
(a) in paragraph
(2) sub-paragraph (c) shall be omitted;
(b) in paragraph
(2)(i) for the words “such matters” there shall be substituted the
words “subject to Article 49A, such matters”;
(c) the
following paragraphs shall be added after paragraph (2) –
“(3) The Rules may authorize the
Viscount to exercise a discretion including a discretion to extend or abridge
the period within which a person is required or authorized to do any act in
pursuance of the Rules.
(4) The Rules may authorize the Viscount to
grant an extension referred to in paragraph (3) although the application
for the extension was not made until after the period prescribed by the Rules
or any extension of that period.”.
4 Article
3 substituted
For Article 3 of the principal Law there shall be substituted the
following Article –
“3 Application
for a declaration
(1) An application for a declaration may be made
by –
(a) a creditor of the debtor with a claim
against the debtor of not less than such liquidated sum as shall be prescribed
by the Committee;
(b) the debtor; or
(c) the Commission, in the case of a person
who –
(i) holds
or has held a permit under the Insurance
Business (Jersey) Law 1996[4] or the Collective Investment Funds (Jersey) Law 1988[5], or
(ii) is
or was registered under the Banking
Business (Jersey) Law 1991[6] or the Financial Services (Jersey) Law 1998[7].
(2) An application may not be made
by –
(a) a creditor to the extent that the creditor
has agreed not to make an application; or
(b) a creditor whose only claim is one for the
repossession of goods.
(3) Except as provided by paragraph (4), an
application must be made in the form prescribed by the court and must be
accompanied by an affidavit verifying the contents of the form.
(4) Paragraph (3) does not apply to an
application made by the Commission under paragraph (1)(c).”.
5 Article
4 amended
For Article 4(1)(d) of the principal Law there shall be substituted
the following sub-paragraph –
“(d) who, being a company, is
registered under the Companies Law or has been dissolved pursuant to that
Law; or”.
6 New
Article 8A
After Article 8 of the principal Law there shall be inserted the
following Article –
“8A Rights
under approved pension arrangements excluded
(1) The States may, by Regulations, make
provision for or in connection with enabling rights of a person under an
approved pension arrangement to be excluded, in the event of a declaration
being made in respect of that person, from the person’s property for the
purposes of this Law.
(2) Regulations under this Article may, in
particular, make provision –
(a) for rights under an approved pension
arrangement to be excluded from a person’s property –
(i) by
an order made by the court on the person’s application, or
(ii) in
accordance with a qualifying agreement made between the person and the
Viscount;
(b) for the court’s decision whether or
not to make such an order in relation to a person to be made by reference
to –
(i) future
likely needs of the person and the person’s family, and
(ii) whether
any benefits (by way of pension or otherwise) are likely to be received by
virtue of rights of the person under other pension arrangements and (if so) the
extent to which they appear to be likely to be adequate for meeting any such
need;
(c) for the prescribed persons, in the case of
any prescribed pension arrangement, to provide a person or the Viscount on
request with information reasonably required by that person or the Viscount for
or in connection with the making of such applications and agreements as are
mentioned in sub-paragraph (a);
(d) for rights under an approved pension
arrangement to be excluded from a person’s property to an approved
extent.
(3) Regulations made under this Article –
(a) may make different provisions in relation to
different cases;
(b) may exempt specified cases from any
provision of the Regulations;
(c) may contain provisions that are incidental
or supplementary.
‘approved pension
arrangement’ means a pension arrangement of a prescribed type;
‘prescribed’
means prescribed by Regulations made under this Article;
‘qualifying
agreement’ means an agreement entered into in such circumstances and
satisfying such requirements as may be prescribed.”.
7 Article
10 substituted
For Article 10 of the principal Law there shall be substituted the
following Article –
“10 Prohibition
on pursuing alternative remedies, etc. after declaration
(1) With effect from the date of the declaration
a creditor to whom the debtor is indebted in respect of a debt provable in the ‘désastre’ shall not –
(a) have any other remedy against the property
or person of the debtor in respect of the debt;
(b) commence any action or legal proceedings to
recover the debt; or
(c) except with the consent of the Viscount or
by order of the court, continue any action or legal proceedings to recover the
debt.
(2) Consent under paragraph (1)(c) may be
given on such terms as the Viscount or the court thinks fit.
(3) If the debtor is a company –
(a) a transfer of shares in the debtor not being
a transfer made to or with the sanction of the Viscount; or
(b) an alteration in the status of the
company’s members,
made after the declaration is
void.”.
8 Article
11 amended
For Article 11(4) of the principal Law there shall be substituted
the following paragraphs –
“(4) If, immediately prior to a
declaration, the debtor is beneficially entitled to immovable property as a
joint owner (‘conjointement par
ensemble’) the title to the property shall, as from the date of the
declaration, be taken to have been converted into an ownership in common in
equal shares (‘en indivis en parts
égales’) and any hypothecs to which the
immovable property is subject shall, with the debts secured by it, be
apportioned equally between those shares.
(5) If, after a conversion and any apportionment
under paragraph (4) has taken place, the court, on an application made
under Article 7(1), makes an order recalling the declaration, the court
may also make such order as the court thinks fit for restoring the position to
what it would have been if the declaration had not been made or as nearly
thereto as the court thinks practicable.”.
9 Article
15 amended
For Article 15(1) and (2) of the principal Law there shall be
substituted the following paragraphs –
“(1) For the purpose of this Article
‘onerous property’ means –
(a) movable property;
(b) a contract lease;
(c) other immovable property if it is situated
outside Jersey,
that is unsaleable or not
readily saleable or is such that it may give rise to a liability to pay money
or perform any other onerous act, and includes an unprofitable contract.
(2) The Viscount may, within 6 months of
the declaration, and by giving the notice prescribed by the court, disclaim any
onerous property of the debtor vested in the Viscount, and may do so
notwithstanding that the Viscount has taken possession of it, endeavoured to
sell it or otherwise exercised rights of ownership in respect of it.”.
10 New
Article 15A
After Article 15 of the principal Law there shall be inserted the
following Article –
“15A Disclaimer
of contract leases
(1) The disclaimer of a contract lease does not
take effect unless a copy of its disclaimer has been served (so far as the
Viscount is aware of their addresses) on every person claiming under the debtor
as a hypothecary creditor or under the lessee and either –
(a) no application under Article 16 is made
with respect to the contract lease before the end of the period of 14 days
beginning with the day on which the last notice under this paragraph was served;
or
(b) where such an application has been made, the
court directs that the disclaimer is to have effect.
(2) Where the court gives a direction under paragraph (1)(b)
it may also, instead of or in addition to any order it makes under Article 16,
make such orders with respect to fixtures, tenant’s improvements and
other matters arising out of the lease as it thinks fit.”.
11 Article
16 amended
For Article 16(2) of the principal Law there shall be substituted
the following paragraph –
“(2) An application may be made to
the court under this Article by –
(a) any person who claims an interest in the
disclaimed property (which term shall be taken to include, in the case of the
disclaimer of a contract lease, a person claiming under the debtor as a
hypothecary creditor or an under lessee); or
(b) any person who is under any liability in
respect of the disclaimed property (which term shall be taken to include a
guarantor), not being a liability discharged by the disclaimer.”.
12 Article
17 substituted
For Article 17 of the principal Law there shall be substituted the
following Articles –
“17 Transactions
at an undervalue
(1) If a debtor has at a relevant time entered
into a transaction with a person at an undervalue the court may, on the
application of the Viscount, make such an order as the court thinks fit for
restoring the position to what it would have been if the debtor had not entered
into the transaction.
(2) The court shall not make an order under paragraph (1)
if it is satisfied –
(a) that the debtor entered into the transaction
in good faith for the purpose of carrying on a business or, in the case of a
company, its business; and
(b) that, at the time the debtor entered into
the transaction, there were reasonable grounds for believing that the
transaction would be of benefit to the debtor.
(3) Without prejudice to the generality of paragraph (1)
but subject to paragraph (5), an order made under paragraph (1) may
do all or any of the following things, namely –
(a) require property transferred as part of the transaction
to be vested in the Viscount;
(b) require property to be so vested if it
represents in a person’s hands the application either of the proceeds of
sale of property so transferred or of money so transferred;
(c) release or discharge (in whole or in part)
security given by the debtor;
(d) require a person to pay in respect of a
benefit received by him or her from the debtor such sum to the Viscount as the
court directs;
(e) provide for a surety or guarantor whose
obligation to a person was released or discharged (in whole or in part) under
the transaction to be under such new or revived obligation to that person as
the court thinks appropriate;
(f) provide –
(i) for
security to be provided for the discharge of an obligation imposed by or
arising under the order,
(ii) for
the obligation to be secured on any property, and
(iii) for
the security to have the same priority as the security released or discharged
(in whole or in part) under the transaction;
(g) provide for the extent to which a
person –
(i) whose
property is vested in the Viscount by the order, or
(ii) on
whom an obligation is imposed by the order,
is to be able to prove in the
‘désastre’ of the debtor for debts or other liabilities that
arose from, or were released or discharged (in whole or in part) under or by,
the transaction.
(4) Except to the extent provided by paragraph (5),
an order made under paragraph (1) may affect the property of or impose an
obligation on any person, whether or not he or she is the person with whom the
debtor entered into the transaction.
(5) An order made under paragraph
(1) –
(a) shall not prejudice an interest in property
that was acquired from a person other than the debtor and was acquired in good
faith and for value, or prejudice any interest deriving from such an interest;
and
(b) shall not require a person who in good faith
and for value received a benefit from the transaction to pay a sum to the
Viscount, except where the person was a party to the transaction.
(6) In considering for the purposes of this Article
whether a person has acted in good faith, the court may take into
consideration –
(a) whether the person was aware –
(i) that
the debtor had entered into a transaction at an undervalue, and
(ii) that
the debtor was insolvent or would as a likely result of entering into the
transaction become insolvent; and
(b) whether the person was an associate of or
was connected with either the debtor or the person with whom the debtor had
entered into the transaction.
(7) For the purposes of this Article, a debtor
enters into a transaction with a person at an undervalue if –
(a) he or she makes a gift to that person;
(b) he or she enters into a transaction with
that person –
(i) by
way of a marriage settlement, or
(ii) on
terms for which there is no ‘cause’, or
(iii) for
a ‘cause’ the value of which, in money or money’s worth, is
significantly less than the value, in money or money’s worth, of the
‘cause’ provided by the debtor.
(8) Subject to paragraphs (9) and (10), the time
at which a debtor entered into a transaction at an undervalue is a relevant
time for the purpose of paragraph (1) if the transaction was entered into
during the period of 5 years immediately preceding the making of the
declaration.
(9) The time to which paragraph (8) refers
is not a relevant time unless –
(a) the debtor was insolvent when he or she
entered into the transaction; or
(b) the debtor became insolvent as a result of
the transaction.
(10) If the transaction at an undervalue was entered
into with a person connected with the debtor or with an associate of the
debtor, paragraph (9) does not apply and the time to which paragraph (8)
refers is a relevant time unless it is proved that –
(a) the debtor was not insolvent when he or she
entered into the transaction; and
(b) the debtor did not become insolvent as a
result of the transaction.
(11) For the purposes of this Article
‘cause’ has the meaning assigned to it by the customary law of Jersey.
17A Giving
of preferences
(1) If a debtor has at a relevant time given a
preference to a person the court may, on the application of the Viscount, make
such an order as the court thinks fit for restoring the position to what it
would have been if the preference had not been given.
(2) Without prejudice to the generality of paragraph (1)
but subject to paragraph (4), an order made under paragraph (1) may
do all or any of the following things, namely –
(a) require property transferred in connection
with the giving of the preference to be vested in the Viscount;
(b) require property to be vested in the Viscount
if it represents in any person’s hands the application either of the
proceeds of sale of property so transferred or of money so transferred;
(c) release or discharge (in whole or in part)
security given by the debtor;
(d) require a person to pay in respect of a
benefit received by him or her from the debtor such sum to the Viscount as the
court directs;
(e) provide for a surety or guarantor whose
obligation to a person was released or discharged (in whole or in part) by the
giving of the preference to be under such new or revived obligation to that
person as the court thinks appropriate;
(f) provide –
(i) for
security to be provided for the discharge of any obligation imposed by or
arising under the order,
(ii) for
such an obligation to be secured on any property, and
(iii) for
the security to have the same priority as the security released or discharged
(in whole or in part) by the giving of the preference; and
(g) provide for the extent to which a
person –
(i) whose
property is vested by the order in the Viscount, or
(ii) on
whom obligations are imposed by the order,
is to be able to prove in the
‘désastre’ of the debtor for debts or other liabilities that
arose from, or were released or discharged (in whole or in part) under or by
the giving of the preference.
(3) Except as provided by paragraph (4), an
order made under paragraph (1) may affect the property of, or impose an
obligation on, any person whether or not he or she is the person to whom the
preference was given.
(4) An order made under paragraph (1) shall
not –
(a) prejudice an interest in property that was
acquired from a person other than the debtor and was acquired in good faith and
for value, or prejudice any interest deriving from such an interest; or
(b) require a person who in good faith and for
value received a benefit from the preference to pay a sum to the Viscount,
except where the payment is in respect of a preference given to that person at
a time when he or she was a creditor of the debtor.
(5) In considering for the purpose of this Article
whether a person has acted in good faith the court may take into
consideration –
(a) whether the person had notice –
(i) of
the circumstances that amounted to the giving of the preference by the debtor,
and
(ii) of
the fact that the debtor was insolvent or would as a likely result of giving
the preference become insolvent; and
(b) whether the person was an associate of or
was connected with either the debtor or the person to whom the debtor gave the
preference.
(6) For the purposes of this Article, a debtor
gives a preference to a person if –
(a) the person is a creditor of the debtor or a
surety or guarantor for a debt or other liability of the debtor; and
(b) the debtor –
(i) does
anything, or
(ii) suffers
anything to be done,
that has the effect of
putting the person into a position which, in the event of a declaration being
made in respect of that debtor’s property, will be better than the
position he or she would have been in if that thing had not been done.
(7) The court shall not make an order under this
Article in respect of a preference given to a person unless the debtor, when
giving the preference, was influenced in deciding to give the preference by a
desire to put the person into a position which, in the event of a declaration
being made in respect of the debtor’s property, would be better than the
position in which the person would be if the preference had not been given.
(8) A debtor who gave a preference to a person
who was, at the time the preference was given, an associate of or connected
with the debtor (otherwise than by reason only of being the person’s
employee) shall be presumed, unless the contrary is shown, to have been
influenced in deciding to give the preference by the desire mentioned in paragraph
(7).
(9) Subject to paragraphs (10) and (11), the
time at which a debtor gives a preference is a relevant time for the purpose of
paragraph (1) if the preference was given during the period of
12 months immediately preceding the making of the declaration.
(10) The time to which paragraph (9) refers is not
a relevant time unless –
(a) the debtor was insolvent at the time the
preference was given; or
(b) the debtor became insolvent as a result of
giving the preference.
(11) If the preference was given to a person connected
with the debtor or to an associate of the debtor, paragraph (10) does not
apply and the time to which paragraph (9) refers is a relevant time unless
it is proved that –
(a) the debtor was not insolvent at the time the
preference was given; and
(b) the debtor did not become insolvent as a
result of the preference being given.
17B Certain
definitions in respect of Articles 17 and 17A
(1) For the purposes of Articles 17 and 17A, a
person is connected with a company if the person is –
(a) a director of the company; or
(b) an associate of a director of the company;
or
(c) an associate of the company.
(2) For the purposes of Articles 17 and 17A and
of this Article –
(a) a person is an associate of an individual if
that person is the individual’s husband or wife, or is a relative, or the
husband or wife of a relative, of the individual or of the individual’s husband
or wife;
(b) a person is an associate of any person with
whom he or she is in partnership, and of the husband or wife or a relative of
any individual with whom he or she is in partnership;
(c) a person is an associate of any person whom he
or she employs or by whom he or she is employed;
(d) a person in his or her capacity as a trustee
of a trust is an associate of another person if –
(i) the
beneficiaries of the trust include that other person or an associate of that
other person, or
(ii) the
terms of the trust confer a power that may be exercised for the benefit of that
other person or an associate of that other person;
(e) a company is an associate of another
company –
(i) if
the same person has control of both companies, or a person has control of one
company and either persons who are his or her associates, or he or she and
persons who are his or her associates, have control of the other company, or
(ii) if
each company is controlled by a group of 2 or more persons and the groups
either consist of the same persons or could be regarded as consisting of the
same persons by treating (in one or more cases) a member of either group as
replaced by a person of whom he or she is an associate;
(f) a company is an associate of another
person if that person has control of the company or if that person and persons
who are his or her associates together have control of the company; and
(g) a provision that a person is an associate of
another person shall be taken to mean that they are associates of each other.
(3) For the purposes of this Article a person is
a relative of an individual if he or she is that individual’s brother,
sister, uncle, aunt, nephew, niece, lineal ancestor or lineal descendant, for
which purpose –
(a) any relationship of the half blood shall be
treated as a relationship of the whole blood and the stepchild or adopted child
of a person as his or her child; and
(b) an illegitimate child shall be treated as
the legitimate child of his or her mother and reputed father.
(4) References in this Article to a husband or wife
include a former husband or wife and a reputed husband or wife.
(5) For the purposes of this Article, a director
or other officer of a company shall be treated as employed by the company.
(6) For the purposes of this Article, a person
shall be taken as having control of a company if –
(a) the directors of the company or of another
company that has control of it (or any of them) are accustomed to act in
accordance with his or her directions or instructions; or
(b) he or she is entitled –
(i) to
exercise, or
(ii) to
control the exercise of,
more than one third of the
voting power at any general meeting of the company or of another company which
has control of it,
and where 2 or more persons
together satisfy either of the above conditions, they shall be taken as having
control of the company.
17C Extortionate
credit transactions
(1) This Article applies where a debtor is, or
has been, a party to a transaction for, or involving, the provision of credit
to the debtor.
(2) The court may, on the application of the
Viscount, make an order with respect to the transaction if the transaction is
or was extortionate and was entered into in the period of 3 years ending
with the declaration.
(3) For the purposes of this Article, a
transaction is extortionate if, having regard to the risk accepted by the
person providing the credit –
(a) the terms of it are or were such as to
require grossly exorbitant payments to be made (whether unconditionally or in
certain contingencies) in respect of the provision of the credit; or
(b) it otherwise grossly contravened ordinary
principles of fair dealing.
(4) It shall be presumed, unless the contrary is
proved, that a transaction with respect to which an application is made under
this Article is or, as the case may be, was extortionate.
(5) An order under this Article with respect to
a transaction may contain one or more of the following as the court thinks
fit –
(a) provision setting aside the whole or part of
an obligation created by the transaction;
(b) provision otherwise varying the terms of the
transaction or varying the terms on which a security for the purposes of the
transaction is held;
(c) provision requiring a person who is or was a
party to the transaction to pay to the Viscount sums paid to that person, by
virtue of the transaction, by the debtor;
(d) provision requiring a person to surrender to
the Viscount property held by him or her as security for the purposes of the
transaction;
(e) provision directing accounts to be taken
between any persons.
17D Recovery
of excessive approved pension arrangement contributions
(1) Where a debtor has excluded rights under an
approved pension arrangement, the Viscount may apply to the court for an order
under this Article.
(2) If the court is satisfied –
(a) that the rights under the arrangement are to
any extent, and whether directly or indirectly, the fruits of relevant
contributions; and
(b) that the making of any of the relevant
contributions (‘the excessive contributions’) has unfairly
prejudiced the debtor’s creditors,
the court may make such order
as it thinks fit for restoring the position to what it would have been had the
excessive contributions not been made.
(3) In paragraph (2) ‘relevant
contributions’ means contributions to the approved pension arrangement or
any other pension arrangement –
(a) that the debtor has at any time made on his
or her own behalf; or
(b) that have at any time been made on his or
her behalf.
(4) The court shall, in determining whether it
is satisfied under paragraph (2)(b), consider in particular –
(a) whether any of the contributions were made
for the purpose of putting assets beyond the reach of the debtor’s
creditors or any of them; and
(b) whether the total amount of any
contributions –
(i) made
by or on behalf of the debtor to pension arrangements, and
(ii) represented
(whether directly or indirectly) by excluded rights under the approved pension
arrangement,
is an amount which is
excessive in view of the debtor’s circumstances when those contributions
were made.
(5) For the purposes of this Article, rights of
a debtor under an approved pension arrangement are excluded rights if they are
rights which are excluded from forming part of his or her property by virtue of
Regulations made under Article 8A.
(6) Without prejudice to the generality of paragraph (2),
an order under that paragraph may include provision –
(a) requiring the person responsible for the
approved pension arrangement to pay an amount to the Viscount;
(b) adjusting the liabilities of the arrangement
in respect of the debtor;
(c) adjusting any liabilities of the arrangement
in respect of any other person that derive, directly or indirectly, from rights
of the debtor under the arrangement;
(d) for the recovery by the person responsible
for the arrangement (whether by deduction from any amount which that person is
ordered to pay or otherwise) of costs incurred by that person in complying in
the debtor’s case with any requirement under paragraph (12) or in
giving effect to the order.
(7) In paragraph (6), references to
adjusting the liabilities of the arrangement in respect of a person include (in
particular) reducing the amount of any benefit or future benefit to which that
person is entitled under the arrangement.
(8) The maximum amount which the person
responsible for an arrangement may be required to pay by an order under paragraph (2)
is the lesser of –
(a) the amount of the excessive contributions;
and
(b) the value of the debtor’s rights under
the approved pension arrangement.
(9) An order under paragraph (2) that
requires the person responsible for an arrangement to pay an amount (‘the
restoration amount’) to the Viscount must provide for the liabilities of
the arrangement to be correspondingly reduced.
(10) For the purposes of paragraph (9),
liabilities are correspondingly reduced if the difference between –
(a) the amount of the liabilities immediately
before the reduction; and
(b) the amount of the liabilities immediately
after the reduction,
is equal to the restoration
amount.
(11) An order under paragraph (2) in respect of an
arrangement –
(a) shall be binding on the person responsible
for the arrangement; and
(b) overrides provisions of the arrangement to
the extent that they conflict with the provisions of the order.
(12) The person responsible for –
(a) an approved pension arrangement under which
a debtor has rights; or
(b) a pension arrangement under which a debtor
has at any time had rights,
shall, on the Viscount making
a written request, provide the Viscount with such information about the
arrangement and rights as the Viscount may reasonably require for, or in
connection with, the making of applications under paragraph (2).
(13) Where any sum is required by an order under paragraph (2)
to be paid to the Viscount that sum shall form part of the debtor’s
property.
(14) References in this Article to the person
responsible for an approved pension arrangement are to –
(a) the trustees, managers or provider of the
arrangement; or
(b) the person having functions in relation to
the arrangement corresponding to those of a trustee, manager or provider.
(15) In this Article ‘approved pension
arrangement’ means a pension arrangement prescribed by Regulations made
under Article 8A.”.
13 Article
18 amended
In Article 18 of the principal Law –
(a) for
paragraph (1)(d) there shall be substituted the following sub-paragraph –
“(d) supply such information
regarding his or her expenditure and sources of income after the declaration as
the Viscount may require;”; and
(b) for
paragraph (2) there shall be substituted the following paragraphs –
“(2) Where the debtor is a company
any person who is a director of the company or at the time of the declaration
was a director of the company shall notify the Viscount immediately in writing
of any change of his or her address, employment or name.
(2A) If a person without reasonable excuse fails to comply
with a requirement of paragraph (1) or (2) he or she commits an offence and is
liable to imprisonment for a term of 6 months and a fine.”.
14 Article
21 substituted
For Article 21 of the principal Law there shall be substituted
the following Article –
“21 Unenforceability
of liens on records
(1) Subject to paragraph (2), a lien or
other right to retain possession of a record of the debtor shall be
unenforceable to the extent that its enforcement would deny possession of the
record to the Viscount.
(2) Paragraph (1) does not apply to a lien
on a document that gives a title to property and is held as such.”.
15 Article
24 substituted
For Article 24 of the principal Law there shall be substituted
the following Article –
“24 Debtors
prohibited from acting in certain capacities
‘person to whom this Article
applies’ means –
(a) a debtor during the course of the
‘désastre’;
(b) a person who is or has the status of an
undischarged bankrupt (by whatever name called) under the laws of any other
jurisdiction;
‘private office’ means
the office of curator, director of a company, ‘electeur’,
liquidator of a company, trustee, ‘tuteur’, executor or
administrator of a deceased person’s estate or the donee of a power of
attorney;
‘public office’
means the office of Connétable, Centenier, Vingtenier, Constable’s
Officer, ‘Procureur du Bien Public’, member of the Assessment
Committee constituted under the Parish Rate
(Administration) (Jersey) Law 2003[8].
(2) A person to whom this Article applies shall
not hold a public or private office.
(3) A person who at the time of becoming a
person to whom this Article applies is the holder of a public or private office
shall resign from the office forthwith.
(4) Subject to paragraph (5), a person to
whom this Article applies is not qualified to sit on a jury.
(5) If a person who is sitting on a jury becomes
a person to whom this Article applies the person is qualified to continue to
sit on that jury until his or her services on the jury are no longer required.
(6) A person who –
(a) contravenes paragraph (2); or
(b) fails to comply with paragraph (3); or
(c) sits on a jury when he or she is not
qualified to do so by virtue of paragraph (4),
commits an offence and is
liable to imprisonment for a term of 6 months and a fine.
(7) Where the debtor is a company, the Court
may, on the application of the Viscount, make any order in respect of a person
who is or was a director of the company that it would be permitted to make
under Article 78 of the Companies Law in respect of such a person.”.
16 Article
31 substituted
For Article 31 of the principal Law there shall be substituted the
following Article –
“31 Proofs
of debts to be examined and admitted or rejected
(1) The Viscount may admit or reject proof of a
debt in whole or in part.
(2) Before admitting or rejecting proof of a
debt the Viscount shall examine the proof and any statement opposing the
admission of the debt.
(3) Before admitting or rejecting proof of a
debt the Viscount may require further evidence in support of, or in opposition
to, its admission.
(4) The Viscount may reject in whole or part any
claim for interest on a debt if the Viscount considers the rate of interest to
be extortionate.
(5) If the Viscount rejects proof of a debt in
whole or in part the Viscount shall serve notice of rejection in the manner
prescribed by the court on the person who provided the proof.
(6) If the Viscount rejects a statement opposing
admission of a debt in whole or in part the Viscount shall serve notice of
rejection in the manner prescribed by the court on the person who provided that
statement.
(7) If a person upon whom notice has been served
in accordance with paragraph (5) or paragraph (6) is dissatisfied
with the decision of the Viscount and wants the decision reviewed by the court he
or she must, within the time prescribed by the court, request the Viscount to
apply to the court for a date to be fixed for the court to review the decision.
(8) The Viscount shall comply with a request
made in accordance with paragraph (7).”.
17 Article
32 substituted
For Article 32 of the principal Law there shall be substituted
the following Article –
“32 Order
of payment of debts
(1) Except as otherwise provided by this Article,
the Viscount shall apply money the Viscount receives by the realization of the
property of a debtor in the following order –
(a) in payment of the Viscount’s fees and
emoluments and all costs, charges, allowances and expenses properly incurred by
or payable by the Viscount in the ‘désastre’;
(b) in payment to any employee of the debtor of
any amount due to the employee at the date of the declaration in respect of
arrears of –
(i) wages
or salary for services rendered to the debtor during the 6 months immediately
preceding the declaration, and
(ii) holiday
pay and bonuses,
but not exceeding in either
case such amount as may be prescribed by the Committee;
(i) all
sums payable to the Health Insurance Fund under Article 25 of the Health Insurance (Jersey) Law 1967[9], to the Social Security Fund under Article 41
of the Social Security (Jersey) Law 1974[10] and to the Comptroller of
Income Tax under Article 45 of the Income
Tax (Jersey) Law 1961[11],
(ii) an
amount due by the debtor to his or her landlord for the payment of rent due to
the extent, if any, that his or her claim qualifies for preference by virtue of
customary law,
(iii) parochial
rates due to any parish in Jersey for a period not exceeding 2 years;
(d) in payment of all other debts proved in the
‘désastre’.
(2) The debts referred to in paragraphs (1)(b)
and(c) shall rank equally between themselves and shall be paid in full, unless
the property of the debtor is insufficient to meet them, in which case they
shall abate in equal proportions between themselves.
(3) Debts provable in the ‘désastre’,
other than those referred to in paragraph (2), shall be paid on an equal
footing.
(4) Except as provided by paragraph (5),
hypothecary creditors shall be entitled to preference in the order of the date
of creation of their respective judicial or conventional hypothecs upon the
proceeds of sale of any ‘hereditament, corporeal or incorporeal’
upon which their respective judicial or conventional hypothecs are secured.
(5) If the Viscount sells a corporeal
hereditament that is subject to a judicial or conventional hypothec the
proceeds of sale shall be applied first in payment of the costs, disbursements
and other charges necessarily incurred by the Viscount in connection with the
sale and the Viscount’s fees in connection with the sale.
(6) If the proceeds of sale of a ‘hereditament,
corporeal or incorporeal,’ upon which a judicial or conventional hypothec
is secured is insufficient to meet in full the claim of a hypothecary creditor
the balance shall rank for payment on the same footing as other debts mentioned
in paragraph (1)(d).
(7) Where any property of the debtor is subject
to a security interest the proceeds of sale of the collateral shall be applied
in the manner provided by Article 8(6) of the Security Interests (Jersey)
Law 1983[12].
(8) If the debtor at any time before the
realisation in accordance with this Law of his or her property has made
application to the court to place his or her property in its hands (remettre
son bien entre les mains de la Justice) the reference in paragraph (1)(a)
to the Viscount’s costs, charges, allowances and expenses shall be taken
to include a reference to the costs (frais) of the Autorisés des Justice
payable by virtue of Article 10 of the Loi (1839) sur les remises des biens[13].
(9) In this Article –
(a) ‘corporeal hereditament’ has the
meaning assigned to ‘corps de bien-fonds’ in Article 1 of the Loi (1880) sur la propriété foncière[14];
(b) ‘incorporeal hereditament’ has
the meaning assigned to ‘bien-fonds incorporeal’ in Article 1
of the Loi (1996) sur
l’hypothèque des biens-fonds incorporels[15].”.
18 Article
36 substituted
For Article 36 of the principal Law there shall be substituted the
following Article –
“36 Duty
of Viscount to report to creditors and pay final dividend
(1) When the Viscount has realised all the
debtor’s property, or as much of it as in the Viscount’s opinion
can be realised without needlessly protracting the
‘désastre’, the Viscount must –
(a) supply all the creditors of the debtor with
a report and accounts relating to the ‘désastre’; and
(b) pay whatever final dividend is due.
(2) If the debtor is a company registered under
the Companies Law the Viscount must notify the registrar in writing of the date
of payment of the final dividend.
(3) If the debtor is a limited liability
partnership, the Viscount must notify the registrar in writing of the date of
payment of the final dividend.”.
19 Article
37 amended
For Article 37(6) of the principal Law there shall be substituted
the following paragraph –
“(6) If a surplus remains after
payment in full of interest referred to in this Article the Viscount
must –
(a) if the debtor is a company and the
memorandum or articles of the company do not otherwise provide, distribute the
surplus among the members of the company according to their rights and
interests in the company; and
(b) in any other case, pay the surplus to the
debtor.”.
20 Article
42 amended
Article 42(1) of the principal Law shall be amended by
substituting a semi-colon for the full stop at the end and adding the following
sub-paragraph –
“(c) any debt or liability under a
maintenance order (as that term is defined by the Maintenance Orders (Facilities for Enforcement)
Jersey) Law 2000[16]) that is enforceable in
Jersey or elsewhere by virtue of that Law or the Maintenance Orders (Enforcement) (Jersey) Law
1999[17].”.
21 Part
10 substituted
For Part 10 of the principal Law there shall be substituted the
following Part –
“PART 10
ADDITIONAL PROVISIONS WHERE
DEBTOR IS A COMPANY
42A Interpretation
- Part 10
Words and expressions used in
this Part and defined in the Companies Law have the same meaning in this Part
as they have in the Companies Law.
43 Viscount
to report possible misconduct
(1) The Viscount in the case of a
‘désastre’ in respect of a company shall take the action
specified in paragraph (2) if it appears to the Viscount in the course of
the ‘désastre’ –
(a) that the company has committed a criminal
offence;
(b) that a person has committed a criminal
offence in relation to the company; or
(c) in the case of a director, that for any
reason (whether in relation to the company, or to a holding company of the
company or to any subsidiary of such a holding company) his or her conduct has
been such that an order should be sought against him or her under Article 78
of the Companies Law.
(a) forthwith report the matter to the
Attorney-General; and
(b) furnish the Attorney-General with
information and give him or her access to, and facilities for inspecting and
taking copies of, documents (being information or documents in the possession
or under the control of the Viscount and relating to the matter in question) as
the Attorney-General requires.
(3) Where a report is made to the Attorney
General under paragraph (2), the Attorney-General may refer the matter to
the Committee or the Commission for further enquiry.
(4) Where a matter is referred to the Committee
or the Commission under paragraph (3) it shall have effect as if it were a
matter referred to the Committee or the Commission under Article 184(4) of
the Companies Law.
(5) Where criminal proceedings are instituted by
the Attorney-General following a report or reference under this Article the
Viscount shall give the Attorney-General any assistance in connection with the
prosecution which the Viscount is reasonably able to give.
44 Responsibility
of persons for wrongful trading
(1) Subject to paragraph (3), if in the
course of a ‘désastre’ in respect of a company it appears
that paragraph (2) applies in relation to a person who is or has been a
director of the company, the court on the application of the Viscount may, if
it thinks it proper to do so, order that that person be personally responsible,
without any limitation of liability, for all or any of the debts or other
liabilities of the company arising after the time referred to in paragraph (2).
(2) This paragraph applies in relation to a
person if at a time before the date of the declaration that person as a
director of the company –
(a) knew that there was no reasonable prospect
that the company would avoid a declaration or a creditors’ winding up; or
(b) on the facts known to him or her was
reckless as to whether the company would avoid a declaration or such a
winding-up.
(3) The court shall not make an order under paragraph (1)
with respect to a person if it is satisfied that after either condition
specified in paragraph (2) was first satisfied in relation to him or her
the person took reasonable steps with a view to minimising the potential loss
to the company’s creditors.
(4) On the hearing of an application under this Article,
the Viscount may himself or herself give evidence or call witnesses.
45 Responsibility
for fraudulent trading
(1) If, in the course of a désastre in
respect of a company, it appears that any business of the company has been
carried on with intent to defraud creditors of the company or creditors of
another person, or for a fraudulent purpose, the court may, on the application
of the Viscount, order that persons who were knowingly parties to the carrying
on of the business in that manner are to be liable to make such contributions
to the company’s assets as the court thinks proper.
(2) On the hearing of the application the
Viscount may himself or herself give evidence or call witnesses.
(3) Where the court makes an order under this Article
or Article 44, it may give such further directions as it thinks proper for
giving effect to the order.
(4) Where the court makes an order under this Article
or Article 44 in relation to a person who is a creditor of the company, it
may direct that the whole or part of a debt owed by the company to that person
and any interest thereon shall rank in priority after all other debts owed by
the company and after any interest on those debts.
(5) This Article and Article 44 have effect
notwithstanding that the person concerned may be criminally liable in respect
of matters on the ground of which the order under paragraph (1) is to be
made.
45A Liability
in respect of purchase or redemption of shares
(1) This Article applies where a declaration has
been made in respect of a company (other than an open-ended investment company)
and –
(a) it has within 12 months before the
declaration made a payment under Article 55 or Article 57 of the
Companies Law or under Regulations made under Article 59 of that Law in
respect of the redemption or purchase of its own shares;
(b) the payment was not made wholly out of
profits available for distribution or out of the proceeds of a fresh issue of
shares made for the purpose of the redemption or purchase; and
(c) the aggregate realisable value of the
company’s assets and the amount paid by way of contribution to its assets
(apart from this Article) is not sufficient for the payment of its liabilities
and the expenses in connection with the ‘désastre’.
(2) In this Article, the amount of a payment
that has not been made wholly out of profits available for distribution or out
of the proceeds of a fresh issue of shares made for the purpose of the
redemption or purchase is referred to as ‘the relevant payment’.
(3) Subject to paragraphs (5) and (6), the court
on the application of the Viscount may order –
(a) a person from whom the shares were redeemed
or purchased; or
(b) a director,
to contribute in accordance
with this Article to the company’s assets so as to enable the
insufficiency to be met.
(4) A person from whom any shares were redeemed
or purchased may be ordered to contribute an amount not exceeding so much of
the relevant payment as was made in respect of his or her shares.
(5) A person from whom shares were redeemed or
purchased shall not be ordered to contribute under this Article unless the
court is satisfied that, when the person received payment for his or her
shares –
(a) the person knew; or
(b) the person ought to have concluded from the
facts known to him or her,
that immediately after the
relevant payment was made the company would be unable to discharge its
liabilities as they fell due, and that the realisable value of the
company’s assets would be less than the aggregate of its liabilities.
(6) A director who has expressed an opinion
under Article 55(9) of the Companies Law may be ordered, jointly and
severally with any other person who is liable to contribute under this Article,
to contribute an amount not exceeding the relevant payment, unless the court is
satisfied that the director had grounds for the opinion expressed.
(7) Where a person has contributed an amount
under this Article, the court may direct any other person who is jointly and
severally liable to contribute under this Article to pay to him or her such
amount as the court thinks just and reasonable.
(8) Article 45B does not apply in relation
to liability accruing by virtue of this Article.
(9) The States may by Regulations extend or
modify the provisions of this Article in such ways as may appear to be
reasonably necessary in consequence of any Regulations made under Article 59
of the Companies Law.
45B Liability
as contributories of present and past members
(1) Except as otherwise provided by this Article,
where a declaration has been made in respect of a company, each present and
past member of the company is liable to contribute to its assets to an amount
sufficient for payment of its liabilities, the expenses of the
‘désastre’, and for the adjustment of the rights of the
contributories among themselves.
(2) A past member of a particular class is not,
as a member of that class, liable to contribute –
(a) unless it appears to the court that the present
members of that class are unable to satisfy the contributions required to be
made by them as such members;
(b) if he or she ceased to be a member of that
class for 12 months or more before the declaration; or
(c) in respect of a liability of the company
contracted after he or she ceased to be a member of that class.
(3) A past or present guarantor member is not
liable in that capacity to contribute unless it appears to the court that the
past and present members in their capacity as the holders of limited shares are
unable to satisfy the contributions required to be made by them as such
members.
(4) A past or present member in his or her
capacity as the holder of an unlimited share is not liable to contribute unless
it appears to the court that the past and present members in their capacities
as the holders of limited shares or as guarantor members are unable to satisfy
the contributions required to be made by them as such members.
(5) A contribution shall not be required from a
past or present member, as such a member, exceeding –
(a) any amount unpaid on any limited shares in
respect of which he or she is liable; or
(b) the amount undertaken to be contributed by him
or her to the assets of the company if it should be wound up.
(6) A sum due to a member of the company, in his
or her capacity as a member, by way of dividends, profits or otherwise is not
in a case of competition between himself or herself and any other creditor who
is not a member of the company, a liability of the company payable to that
member, but any such sum may be taken into account for the purpose of the final
adjustment of the rights of the contributors among themselves.”.
22 Article
49 amended
In Article 49 of the principal Law –
(a) there
shall be substituted for paragraph (1) the following paragraph –
“(1) The court may, to the extent
it thinks fit, assist the courts of a relevant country or territory in all
matters relating to the insolvency of a person, and when doing so may have
regard to the extent it considers appropriate to the provisions for the time
being of any model law on cross border insolvency prepared by the United
Nations Commission on International Trade Law.”;
(b) in paragraph (2)
for the word “prescribed” there shall be substituted the word
“relevant”;
(c) the
following paragraph shall be added at the end –
“(4) In this Article
‘relevant country or territory’ means a country or territory
prescribed by the Committee.”.
23 New
Article 49A
The following Article shall be inserted after Article 49 of the
principal Law –
The Committee may make Orders
prescribing any matter that is to be prescribed by the Committee by any
provision of this Law.”.
24 Article
50 substituted
For Article 50 of the principal Law there shall be substituted
the following Article –
50 Registration
in the Public Registry
The Judicial Greffier shall
register in the Public Registry all Acts, orders and notices affecting immovable
property made under this Law.
25 Further
amendments
A provision of the principal Law specified in Column 1 of the Schedule to this Law shall be amended by
deleting from it the words specified in Column 2 of that Schedule and substituting the words
specified in Column 3.
26 Machinery of
government amendments
(1) Article
1(1) of the principal Law is amended –
(a) by
omitting the definition “Committee”; and
(b) by
inserting after the definition “limited liability partnership” the
following definition –
“ ‘Minister’
means the Minister for Economic Development;”;
(2) In
the following provisions of the principal Law for the word
“Committee” there shall be substituted the word
“Minister” –
(a) Article
1 (in the definition of “prescribed”) (twice occurring);
(b) Article
3(1);
(c) Article
19(2)(a);
(d) Article
25(1);
(e) Article
32(1);
(f) Article
43(3);
(g) Article
43(4) (twice occurring);
(h) Article
49(4);
(i) Article
49A (twice occurring).
27 Transitional
provision
An order made under Article 43 of the principal Law and in
force immediately before the commencement of this Law shall continue in force
after that commencement as if it were an order originally made under Article 78
of the Companies Law.
28 Citation
and commencement
(1) This
Law may be cited as the Bankruptcy (Désastre) (Amendment No. 5)
(Jersey) Law 2006.
(2) This
Law, apart from Article 26, shall come into force on such day as the
States may by Act appoint and different days may be appointed for different
provisions or different purposes.
(3) Subject
to paragraph (4), Article 26 shall come into force, to the extent
that it amends a provision of the principal Law amended by this Law, on the
same date as the provision of this Law that amends that provision.
(4) Where
a provision of this Law that amends a provision of the principal Law that is
amended by Article 26 comes into force before Article 42(3) of the
States of Jersey Law 2005[18] comes into force, Article 26
shall come into force, to the extent that it amends that provision, on the same
date as the said Article 42(3).
m.n. de la haye
Greffier of the States